Before BAZELON, Chief Judge, and WILBUR K. MILLER, FAHY, WASHINGTON, DANAHER, BASTIAN, BURGER, WRIGHT and MCGOWAN, Circuit Judges, sitting en banc.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1964.CDC.52
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER
DANAHER, Circuit Judge, with whom BAZELON, Chief Judge, and FAHY, WASHINGTON and WRIGHT, Circuit Judges, join:
We are here concerned with two appeals from post-conviction orders. In No. 17176, the appellant on May 17, 1962 filed his notice of appeal from the District Court's order of May 8, 1962, which denied appellant's March 29, 1962 motion to reduce his death sentence to life imprisonment. The motion was based upon Public Law 87-423, infra note 8, and Rule 35 of the Federal Rules of Criminal Procedure. In No. 17177, the appellant on June 15, 1962 filed his notice of appeal from the District Court's order of June 8, 1962, which denied appellant's motion to vacate the sentence of death pronounced by trial Judge Letts on June 30, 1960. This latter motion, based upon Rule 35, asserted that the sentence was "unauthorized by law." *fn1
Indicted pursuant to D.C.CODE § 22-2401 (1951), the appellant on June 11, 1960 had been convicted of the murder of a police officer while appellant and his brother, Raymond S. Coleman, were perpetrating a robbery *fn2 At that time D.C.CODE § 22-2404 (1951) provided that the "punishment of murder in the first degree shall be death by electrocution" (emphasis added), and on June 30, 1960, the trial judge pronounced sentence accordingly *fn3 After en banc consideration of Coleman's appeal, this court on September 8, 1961 affirmed the conviction *fn4 Appellant's petition for a writ of certiorari was denied by the Supreme Court on March 5, 19625 Rehearing was denied on April 2, 19626 Thus the appellant's 1960 death sentence was mandatory, final and unreviewable7 A reduction of that sentence to life imprisonment might thereafter have been available only by Executive clemency except for possible relief under an intervening Act of Congress which became effective March 22, 1962, and which gives rise to questions hereinafter considered. I
The amendatory Act, Public Law 87-4238, in the main spoke prospectively in prescribing the death penalty unless a jury by unanimous vote should recommend life imprisonment. If the jury should fail to agree as to punishment, the trial judge was authorized to impose "either a sentence of death . . . or life imprisonment." But Congress was aware that there were pending various cases9 in which we had affirmed convictions of murder in the first degree wherein death sentences had already been imposed, the execution of which had been stayed pending exhaustion of appellate remedies.Separate provision was therefore made respecting such cases "tried prior to March 22, 1962" as to which relief might become available by action of the judge10
On March 29, 1962, appellant's counsel filed a motion to reduce the sentence to life imprisonment. Following FED.R.CRIM.P. 35 and based upon the proviso of the amendatory Act11, the motion invoked exercise of the court's discretion "upon consideration of the circumstances in mitigation and in aggravation." However, the motion was addressed simply to points which had already been considered and settled upon direct appeal. The motion alleged, for example, that of "prime importance" was the existence of a "reasonable doubt as to the legal correctness of defendant's conviction of first degree murder." In furtherance of that theme, the motion raised a question of the appropriateness of an instruction as to murder in the second degree. It was suggested as a matter of legislative history that Congress had deemed appropriate here a sentence of life imprisonment on the facts of the crime as committed12 Counsel so argued the motion, and the Government joined issue in the same tenor, but concluded it was making no "recommendation as to sentence in this case, but only points out that the argument made by the defense motion from the evidence does not have merit."
The motion contained no allegation of fact and no proffer13 of testimony as to other "circumstances" which might have tended to mitigate the sentence. To be sure, the statute before us contained no requirement that the "circumstances" to be relied upon must be presented by the testimony of witnesses examined in open court as had been true of the Oklahoma statute before the Court in Williams v. Oklahoma14 There, a post-conviction inquiry by the Court as to punishment was to be predicated upon the "suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment."15 The Oklahoma court had held that the prisoner "waived" the benefit of the statutory proceedings by failing to request a hearing. Since the petitioner had not requested or suggested that the trial court hear evidence in mitigation of the sentence, the Supreme Court of the United States found no deprivation of right or of fundamental fairness in the failure of the trial court to pursue the presentencing procedures prescribed by the Oklahoma statutes16 It would come with poor grace, to say the least, if the post-conviction successor judge in our unique situation were to be criticized for proceeding to decide the motion to reduce sentence on the only basis upon which it was proffered to and argued before him. He ruled in accordance with our earlier opinion17 on the merits, that the points urged upon him had been settled.
But he need not have been so limited in view of the purpose of the statute as Congress clearly intended it to be applied as to sentences imposed before its effective date. The appellant's death sentence when imposed in 1960 was "mandatory,"18 with no opportunity for a showing of mitigating circumstances, no matter what the claims might be.
Under that 1962 proviso, however, the judge was authorized to ascertain whether or not a sentence of life imprisonment might be justified, and if so, that sentence was to carry a minimum imprisonment of twenty years. Whereas in cases charging murder in the first degree after March 22, 1962, a jury was authorized to recommend life imprisonment19, as to the appellant's case a "procedure" was "established whereby" the judge was "to consider the circumstances in mitigation and in aggravation."20
We can not suppose that a judge in considering circumstances in mitigation was intended to be more narrowly restricted than the jury21 We know at once that matters entirely apart from the evidence at a trial may and frequently do - and in proper cases should - affect the punishment to be accorded once the issue of guilt has been resolved, as it had been here. Rule 32(c) provides for a pre-sentence report and specifies its scope to include such information as may be required by the court and "be helpful in imposing sentence." Rule 32(a) provides that the defendant shall be afforded "an opportunity to make a statement in his own behalf and to present any22 information in mitigation of punishment." While the facts of the crime are not without bearing, the purpose of the proviso of the amendatory Act was directed to the possible existence of circumstances in mitigation, not of the crime, per se, but of punishment23
Further to implement the procedure established by the proviso and in aid of the congressional purpose, it is clear the judge was not circumscribed in the inquiry he was intended to make.By the same token previously discussed, he was free to consider circumstances in aggravation. The task of the judge
"is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant - if not essential - to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent ...