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06/16/67 Bernard Austin, v. United States of America

June 16, 1967






Danaher, Circuit Judge, Bastian, Senior Circuit Judge, and Leventhal, Circuit Judge. Bastian, Senior Circuit Judge (concurring). Danaher, Circuit Judge (dissenting).


Appellant Bernard Austin was indicted for murdering Nettie Scott with premeditation, deliberation, and malice aforethought. There was no felony-murder count. Appellant was convicted of first-degree murder. The prosecutor did not request the death penalty. The jury recommended life imprisonment and appellant was sentenced accordingly. D.C.CODE 22-2401 (1961), 22-2404 (Supp. V, 1966). On this appeal he challenges various portions of the trial court's charge to the jury and contends that the evidence at the close of the Government's case in chief was insufficient to withstand a motion for acquittal of first degree murder.

Our opinion is in three parts. First we review the Government's evidence and the rulings of the trial judge bearing on the issues of premeditation and deliberation. In Part II we consider how common law murder has been divided by the legislature into different statutory categories, the first degree reserved for deliberated murders, such as those committed with coolness of mind, and second degree used for murders committed on impulse, in frenzy or the heat of passion. We conclude that the Government's case in chief, though ample to permit a finding of intentional murder, did not present evidence of premeditation and deliberation sufficient to warrant retention of the charge of murder in the first degree when gauged by proper tests. In Part III we conclude that the interest of justice will best be served by entry of an order, which we consider within the scope of our authority under 28 U.S.C. 2106, remanding the case for entry of a judgment of conviction for murder in the second degree and for appropriate resentencing, but not for a new trial unless the District Court determines that a new trial is in the interest of justice. I

The Government's evidence was as follows: Appellant was seen in the company of the deceased, Nettie Scott, for some period of time on the night in question. They were drinking together at an afterhours establishment called Will's Place, where appellant bought deceased a sandwich. During this period appellant was seen using a sharp pocket knife to repair the broken thumb nail of another female patron sitting at his table. At about 4:00 a.m. appellant left Will's place together with the deceased and her acquaintance, Mabel Proctor, and went to an all-night carry-out shop. The sandwiches bought there were eaten in appellant's truck. Appellant then drove Mabel Proctor home, dropping her off at about 4:30 a.m., and drove off in his truck with deceased. The Government produced no witness as to what happened thereafter. However, at approximately 5:00 a.m. that morning, two policemen, cruising in an unmarked car, saw appellant's truck stopped in a parking bay off the Anacostia Parkway. As they approached to investigate they noticed some clothing lying on the grass near the truck. At that point appellant came up the bank from the river, got in his truck and drove away. Further investigation revealed bloody clothing and a pool of blood in the grassy area near the parking bay. The officers retrieved from the river the mutilated and nearly lifeless body of the deceased, nude except for a piece of clothing around her neck. She died almost immediately. Appellant was apprehended later that morning. Expert testimony revealed that deceased had suffered approximately 26 major stab wounds, culminating in a stab wound to the head, penetrating the brain, and lodging the broken blade in the skull. The body had suffered at least the same number of superficial lacerations. The expert concluded that the death had been caused by hemorrhage and shock from the multiple knife wounds.

The Government also produced evidence showing that the body of the deceased had been dragged from the grassy area where the bloody clothes were found to the sea wall, and that on the slope leading down to the river had been found a man's torn and bloody shirt, similar to one owned by appellant. There was no testimony as to any fights, quarrels, animosity, or threats between appellant and deceased.

Defense counsel moved for acquittal only of first degree murder at the close of the prosecution's case and again when defense rested. Although the District Court's denial of those motions was without opinion, its underlying views of the concepts of premeditation and deliberation are reflected in its rulings and actions on instructions. The court's charge on premeditation and deliberation *fn1 instructed the jury that premeditation is the formation of an intention to kill, and deliberation means a further thought upon the plan to kill. The judge charged the jury that "although some time" is required for deliberation, deliberation may be sufficient "though it be of an exceedingly brief duration," and that the time "may be in the nature of hours, minutes or seconds."

Appellant requested that the time required for deliberation be stated as "some appreciable period of time," rather than "some period of time" as originally proposed by the judge. The court not only declined this request but changed the instruction submitted to counsel ("it does not require the lapse of days or hours or even minutes") to include the reference to "seconds."

Appellant has been represented by capable appointed counsel both in the District Court and on appeal. His counsel have focused essentially on two approaches: first, avoidance of a judgment of first degree murder by stressing both the evidence of intoxication and the lack of evidence of deliberation, and second, offering a claim of insanity -- a claim supported by testimony offered by defense counsel but rejected by the jury. II

1. It may be helpful to approach the issues presented by this appeal with the perspective of history.

At common law, unlawful homicides were divided into two classes, murder and manslaughter, depending on whether the killing was with or without malice aforethought. Although the term malice aforethought was most probably intended to be applied literally when it was first introduced into the law of homicide, the courts soon converted it into a term of art. To the popular understanding of subjective malice was added an objective standard, by which negligence tantamount to recklessness might make a culpable homicide murder. The objective standard persists in the law, *fn2 but what we are primarily concerned with here is not so much the extension of "malice" *fn3 as the elimination of the literal significance of the word "aforethought." The courts held it sufficient to establish common law murder, subject to capital punishment, if the homicide was accompanied by the intention to cause death or grievous bodily harm, whether the slaying was calculated or only impulsive.

The nineteenth century ushered in a new approach. Beginning in 1794 with Pennsylvania, state legislatures began to separate murder into two degrees, reserving the death penalty for the first degree. These statutes typically defined murder in the first degree as an intended killing, accompanied by premeditation and deliberation (as well as malice aforethought); murder in the second degree was defined residually to include all other unlawful homicides with malice aforethought. In 1901 Congress passed such a statute for the District of Columbia. D.C. Code §§ 22-2401, 22-2403 (1961).

As we have noted:

Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not. [Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941)]4

The reports reflect the effort of some courts to carry out the legislative conception, by interpreting "deliberation" to call for elements which the word normally signifies -- that the determination to kill was reached calmly and in cold blood rather than under impulse or the heat of passion5 and was reached some appreciable time prior to the homicide. The more widespread judicial tendency was marked by a restrictive reading of the statutory terms. "The statutory scheme was apparently intended to limit administrative discretion in the selection of capital cases. As so frequently occurs, the discretion which the legislature threw out the door was let in the window by the courts."6

Judge, later Justice, Cardozo, in a memorable 1928 address,7 voiced his concern over the judicial attenuation of premeditation and deliberation. He spoke against the background of the New York experience, where, although the courts had abandoned their early statement that it sufficed if intention preceded the act though the act followed instantly,8 they held that the time for deliberation need not be long, and seconds might suffice, provided there was time for a choice to kill or not to kill.9 Judge Cardozo said:

There can be no intent unless there is a choice, yet . . . the choice without more is enough to justify the inference that the intent was deliberate and premeditated. The presence of a sudden impulse is said to mark the dividing line, but how can an impulse be anything but sudden when the time for its formation is measured by the lapse of seconds? Yet the decisions are to the effect that seconds may be enough. . . . The present distinction is so obscure that no jury hearing it for the first time can fairly be expected to assimilate and understand it. I am not at all sure that I understand it myself after trying to apply it for many years and after diligent study of what has been written in the books. Upon the basis of this fine distinction with its obscure and mystifying phraseology, scores of men have gone to their death.

In 1937 we abandoned an earlier conception that deliberation and premeditation may be instantaneous,10 and held, in Bostic v. United States,11

"that some appreciable time must elapse in order that reflection and consideration amounting to deliberation may occur."

This change in rule was reiterated in Bullock v. United States, already quoted, where the court, holding the evidence insufficient to support a conviction of first degree murder, stated, 74 App.D.C. at 221, 122 F.2d at 214: "There is nothing deliberate and premeditated about a killing which is done within a second or two after the accused first thinks of doing it . . .." These expressions were quoted with approval as recently as Frady v. United States, 121 U.S.App.D.C. 78, 90 nn. 9 & 10, 96, 348 F.2d 84, 96 nn. 9 & 10, 102, cert. denied, 382 U.S. 909, 86 S. Ct. 247, 15 L. Ed. 2d 160 (1965).

In Fisher v. United States, 328 U.S. 463, 469-470 n. 3, 66 S. Ct. 1318, 90 L. Ed. 1382 (1946), the Supreme Court quoted with approval the trial court's general instructions12 wherein premeditation and deliberation were defined carefully, so as to include an instruction that deliberation requires "that an appreciable time elapse between formation of the design and the fatal act within which there is, in fact, deliberation." The Supreme Court commented, 328 U.S. at 470, 66 S. Ct. at 1322: "The necessary time element was emphasized and the jury was told that premeditation required a preconceived design to kill, a 'second thought.'"

Recent legislation has given the jury discretion to fix life imprisonment rather than death as the punishment for murder in the first degree. D.C.CODE § 22-2404 (Supp. V, 1966). Yet murder in the first degree is still punishable by death, with a minimum term of life. Serious students of the problem have suggested that the legislatures change this approach and eliminate degrees of murder in classifying the offense,13 but we must apply the statute as it stands. The need for careful attention to the requirement of premeditation and deliberation, and for clear distinction between the first and second degrees of murder, remains a cardinal tenet of our jurisprudence.

2. This historical review underscores our concern over three aspects of the court's instruction on first degree murder. The rulings of this court and the Supreme Court (in Fisher) establish the propriety of the defense request for a charge that the design of the accused to kill must have preceded his actions by an "appreciable" period of time before deliberation can be found. The Government contends that this error was not prejudicial because, as is clearly established by the cases,14 the crux of the issue of premeditation and deliberation is not the time involved but whether defendant did engage in the process of reflection and meditation.15 Certainly the charge should focus primarily on the defendant's actual thought processes in terms of meditation and conscious weighing of alternatives. The "appreciable time" element is subordinate, necessary for but not sufficient to establish deliberation.16 Yet the "appreciable time" charge is a meaningful way to convey to the jury the core meaning of premeditation and deliberation and for that reason should be given, at least where specifically requested by the defense.17 Moreover, the court's refusal so to instruct was compounded here by the charge that the time to deliberate "may be in the nature of hours, minutes or seconds." As Bostic and Bullock, Fisher and Frady, all make clear, no particular length of time is necessary for deliberation, and the time required need not be longer than a span of minutes. But none of our post-Bostic opinions sanctions the reference to "or seconds" injected by the trial judge. The obvious problem with such a reference is that it tends to blur, rather than clarify, the critical difference between impulsive and deliberate killings.

Finally, we note that after giving this misleading first degree instruction, the court offered only a skimpy explanation of second degree murder.18 Our concern is that there was no straight-forward explanation to the jury of the difference between the two degrees of murder -- that first degree murder, with its requirement of premeditation and deliberation, covers calculated and planned killings, while homicides that are unplanned or impulsive, even though they are intentional and with malice aforethought, are murder in the second degree.

In homespun terminology, intentional murder is in the first degree if committed in cold blood, and is murder in the second degree if committed on impulse or in the sudden heat of passion. These are the archtypes, that clarify by contrast. The real facts may be hard to classify and may lie between the poles. A sudden passion, like lust, rage, or jealousy, may spawn an impulsive intent yet persist long enough and in such a way as to permit that intent to become the subject of a further reflection and weighing of consequences and hence to take on the character of a murder executed without compunction and "in cold blood". The term "in cold blood" does not necessarily mean the assassin lying in wait, or the kind of murder brilliantly depicted by Truman Capote in In Cold Blood (1965). Thus the common understanding might find both passion and cold blood in the husband who surprises his wife in adultery, leaves the house to buy a gun at a sporting goods store, and returns for a deadly sequel. The analysis of the jury would be illuminated, however, if it is first advised that a typical case of first degree is the murder in cold blood; that murder committed on impulse or in sudden passion is murder in the second degree; and then instructed that a homicide conceived in passion constitutes murder in the first degree only if the jury is convinced beyond a reasonable doubt that there was an appreciable time after the design was conceived and that in this interval there was a further thought, and a turning over in the mind -- and not a mere persistence of the initial impulse of passion.

The court did not give an instruction on manslaughter, but none was requested. An unlawful killing in the sudden heat of passion -- whether produced by rage, resentment, anger, terror or fear -- is reduced from murder to manslaughter only if there was adequate provocation, such as might naturally induce a reasonable man in the passion of the moment to lose self-control and commit the act on impulse and without reflection. See Bishop v. United States, 71 App.D.C. 132, 136-137, 107 F.2d 297, 302-303 (1939). There is no contention before us of adequate provocation, and so appellant's crime is murder. The issue is, what degree of murder.

3. We do not pursue our consideration of murder instructions assailed by appellant for we are of the view that the trial court erred by not granting appellant's motion for acquittal on the first degree murder charge at the conclusion of the Government's case. A motion for acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime.19 We consider this issue on the basis of the evidence as it stood at the conclusion of the Government's case, related above.20 Since the issue must be determined on the case as it stood when the prosecution rested, we do not discuss the testimony, adduced by the defense in support of the claim of insanity, as to appellant's utterances after indictment during the course of an interview at St. Elizabeths Hospital while under hypnosis and sodium amytal, nor do we have occasion to consider either the defense contention of inherent unreliability of such testimony on such subjects as time and sequence, or the contention that in the interest of justice appellant is entitled to separate trials, first on the issue of the commission of the offense, and second on the issue of mental responsibility.

In our opinion the Government's evidence was insufficient to warrant submission to the jury of the issue of premeditation and deliberation. The police produced and the prosecutor presented ample evidence of intent to kill and malice aforethought -- putting to one side appellant's claim of insanity. Indeed there was evidence of a particularly frightful and horrible murder, of a crime that was murder at common law and is murder under our statute.

The frightful facts were certainly not glossed over by counsel -- neither by the prosecutor seeking to convict, nor by the defense counsel whose pursuit of a verdict in effect finding defendant committed the act but was insane21 was likewise advanced by intensifying the awful horror of the crime.

The facts of a savage murder generate a powerful drive, almost a juggernaut for jurors, and indeed for judges, to crush the crime with the utmost condemnation available, to seize whatever words or terms reflect maximum denunciation, to cry out murder "in the first degree." But it is the task and conscience of a judge to transcend emotional momentum with reflective analysis. The judge is aware that many murders most brutish and bestial are committed in a consuming frenzy or heat of passion, and that these are in law only murder in the second degree. The Government's evidence sufficed to establish an intentional and horrible murder -- the kind that could be committed in a frenzy or heat of passion. However the core responsibility of the court requires it to reflect on the sufficiency of the Government's case. We conclude that, making all due allowance for the trial court's function, but applying proper criteria as to the elements of murder in the first degree, the Government's evidence in this case did not establish a basis for a reasoned finding, surpassing speculation, that beyond ...

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