William C. Coleman v. United States

BURGER and McGOWAN, Circuit Judges,

concurring in the result:

We concur in the remand, but we can find no basis in this record, read in light of the statute and its legislative history, to support reversal on the ground upon which the majority relies. We think a remand necessary only because appellant was not affirmatively tendered an opportunity to speak on his own behalf. Although the point was not raised on appeal, it cannot be ignored in a capital case, which affords a special status to the right of allocution.

(1)

Appellant, represented by counsel highly experienced in criminal matters, had an unlimited opportunity to present to the District Court in mitigation whatever information, evidence or argument he desired. We can see no difference between this and the undefined “eviden-tiary hearing” now directed.

We are, of course, dealing here with the special provisions of a statute, 22 D.C.Code ANN. § 2404 (Supp. II 1963), addressed by Congress to those cases in which unexecuted death sentences had been imposed in the District of Columbia before the change in the law eliminating the mandatory character of this particular punishment. 22 D.C.Code Ann. § 2404 (1961). We find no mystery as to *567■the process which Congress intended ■should be employed in these circumstances. Upon motion made pursuant to the amendatory Act, the District Court was to hold a hearing in order to be able to exercise an informed discretion in determining whether the sentence should be the death sentence already imposed ■or life imprisonment. At such hearing the District Court was to listen ■to all representations seriously advanced ~vvith respect to the alternatives; to receive all relevant evidence tendered; and thereafter to choose between the two •available sentences. Our reading of the record fails to disclose that the District 'Court departed from this procedure.

At a hearing in open court, the District Judge very carefully refused to begin until appellant himself was present. Counsel for appellant, obviously sensitive to his grave responsibility, made a long •and impressive statement which incorporated significant factual information relating to appellant’s personal life and ¡background. Counsel was not restricted in any way, either as to the length or content of his argument. Had he chosen to offer corroborative matter by way of •documentary or testimonial evidence, nothing in the record indicates that it would not have been received. We do not intend any criticism of counsel for not having proffered such evidence; it was his responsibility to decide what should be presented. His statements about the facts of appellant’s life and background were unchallenged. Further, in this as in other areas of our jurisprudence, the client’s protection must depend primarily upon his attorney’s strategic wisdom and tactical .skill — his familiarity with all the facts, good and bad, from which his presentation may be drawn. Counsel was here engaged in the most sobering effort at persuasion that can devolve upon any lawyer. The majority opinion, by implication at least, seems to suggest that appellant will be better served if the District Court actively undertakes the conception and development of this effort. We doubt this; and, in any event, Congress has not directed judicial intervention of this nature by the presiding judge.

(2)

When Coleman was first sentenced by Judge Letts on June 30, 1960, after verdict and judgment of guilty for first degree murder, the District Court was bound by the then existing mandatory death sentence. 22 D.C.Code Ann § 2404 (1961).1 Before imposing the mandatory death sentence required by law, Judge Letts, pursuant to Rule 32 (a), 2 allowed appellant to make a statement, but it is clear that, under the mandatory statute then controlling, such statement could not have influenced the result.

On March 22, 1962, Congress amended the D.C.Code to provide alternatives to the death sentence for subsequent first degree murder convictions. 22 D.C.Code Ann. § 2404 (Supp. II 1963). See Jones v. United States, 117 U.S.App.D.C. --, 327 F.2d 867, 870-871 (1963). This Act provided further that as to cases tried prior to March 22, 1962, which are before the court for resentencing, “the judge may, in his sole discretion, consider circumstances in mitigation and in aggravation and make a determination as to whether the case in his opinion justifies a sentence of life imprisonment, in which event he shall sentence the defendant to life imprisonment.” 22 D.C. Code Ann. § 2404 (Supp. II 1963). (Em*568phasis added.) In Jones v. United States, supra, we held that sentences imposed prior to the effective date of the amendatory Act were not vacated by that Act; however, we stated that “should [the judge] decide that life imprisonment was appropriate he was to resentence appellant * * 327 F.2d at 871. Thus “resentencing” would occur only when the original sentence is altered.

On March 22, 1962, the effective date of the amendatory Act, appellant filed in the District Court a motion styled “Motion For Reduction Of Sentence To Life Imprisonment” pursuant to the “resen-tencing” provision of the amendatory Act and Fed.R.Crim.P. 35. This was not an accurate characterization of a motion addi’essed to the District Court’s discretion under this statute, but the caption of a motion does not determine its essential nature.3 This motion, insofar as it was filed pursuant to Rule 35, was indeed one for reduction of sentence, in the sense that it sought a lesser sentence than death, but as to the amendatory Act it was a motion praying that the court “consider circumstances” which might lead to resentencing appellant to life imprisonment. See Jones v. United States, supra. On May 4, 1962, the motion was argued before the District Court in appellant’s presence.4

Although appellant’s attorney made extensive representations on appellant’s behalf, he did not request that appellant be allowed to speak. Notwithstanding this, we believe that judicial policy calls for an opportunity for appellant to speak; when so much is at stake, “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). Although the particular statute under which the District Court’s discretion was invoked does not expressly provide for a right of allocution, it is probable that Congress, in light of the historic standing of allocution — particularly in capital cases — and its more modern codification in Rule 32(a), passed the amendatory Act with the expectation that allocution would be accorded.5

Moreover, this court, pursuant to its supervisory powers, has directed that under Fed.R.Crim.P. 32(a) a sentencing judge in all cases must address an inquiry directly to a defendant in order “to afford him a personal opportunity to make a statement in his own behalf, which might include information in mitigation of punishment.” Couch v. United States, 98 U.S.App.D.C. 292, 294, 235 F.2d 519, 521 (1956) (per curiam).6 *569The Supreme Court has since approved this rule.7 Literally read, of course, Couch and the Supreme Court cases apply only to sentencing, and, although consideration whether or not to resentence appellant to life imprisonment is not strictly a “sentencing” process, it seems to us that the rationale of those cases applies with equal force here. Viewed realistically, the hearing presented appellant’s first meaningful opportunity to be heard personally by way of a plea for leniency, since this was the first occasion when he was before a judge who had any choice as to sentence on the first degree murder conviction. Thus, at this point, before the District Judge decided whether to allow the prior sentence of death to stand or to resentence appellant to life imprisonment, appellant had not only his first but his last opportunity to make, in his own behalf, some statement that might influence the decision of the District Judge on the death sentence. The Supreme Court said recently, although in another context: “It is only [when final sentence is determined] * * that the judge’s final words are spoken and the defendant’s punishment is fixed. It is then that the right of the defendant to be afforded an opportunity to make a statement to the judge in his own behalf is of most importance. * * * This right [of allocution] would be largely lost * * * if for administrative convenience the defendant were not permitted to invoke it when the sentence that counts is pronounced.” United States v. Behrens, 375 U.S. 162, 165-166, 84 S.Ct. 295, 297 (1963). (Emphasis added.) And as Mr. Justice Harlan said, concurring in the same case: “Even if he has spoken earlier, a defendant has no assurance that when the time comes for final sentence the district judge will remember the defendant’s words in his absence and give them due weight.” Id. 375 U.S. at 168, 84 S.Ct. at 298 (concurring opinion) 8

Having in mind, as we have noted, that Coleman’s exercise of his right to speak before Judge Letts imposed sentence was pointless because the statute then controlling required the death penalty, we conclude that Coleman has not yet been afforded the meaningful opportunity contemplated by prior opinions to address himself personally to the court empowered to make the decision “that counts.”

. Coleman’s conviction was affirmed by this court and he exhausted all appellate procedures in this court and the Supreme Court. Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555 (Sept. 8, 1961) (en banc), pet. for rehearing en banc denied (Oct. 10, 1961), cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (March 5, 1962), pet. for rehearing denied, 369 U.S. 842, 82 S.Ct. 870, 7 L.Ed.2d 847 (Apr. 2, 1962).

. Fed.R.Crim.P. 32(a) provides in part: “Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation-of punishment.”

. Rubenstein v. United States, 227 F.2d 638, 642 (10th Cir. 1955), cert. denied, 350 U.S. 993, 76 S.Ct. 542, 100 L.Ed. 858 (1956):

There is no controlling magic in the title, name, or description which a party litigant gives to his pleading. The substance rather than the name or denomination given to a pleading is the yardstick for determining its character and sufficiency.

. “The defendant’s presence is not required at a reduction of sentence under Rule 35.” Fed.R.Crim.P. 43. The logical corollary of this proposition would be that Fed.R.Crim.P. 32(a), note 2, supra, would not entitle a defendant to allocution on a motion for reduction of sentence. The same reasoning would not necessarily apply to a motion for resentencing, however. Cf. United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963); Williamson v. United States, 265 F.2d 236, 239 (5th Cir. 1959).

. The right of allocution did not, of course, spring into being with Rule 32 (a); its ancient origins derive from capital cases in which failure of the sentencing judge to ask the defendant if he had anything to say before imposition of sentence required reversal. See, e. g. Anonymous, 3 Mod. 265, 87 Eng.Rep. 175 (K.B. 1689) (alternative ground); Barrett, Allocution, 9 Mo.L.Rev. 115 (1955).

. Compare Gadsden v. United States, 96 U.S.App.D.C. 162, 167-168, 223 F.2d 627, 632-633 (1955) (alternative ground), with Hudson v. United States, 97 U.S.App.D.C. 153, 229 F.2d 36 (1956) (per curiam).

. See Green v. United States, supra at 305 (principal opinion) (dictum), 306, 81 S.Ct. at 655, 656 (concurring opinion expressly adopting Couch); Van Hook v. United States, 365 U.S. 609, 81 S.Ct. 823, 5 L.Ed.2d 821 (1961) (per curiam reversal and remand on the authority of the Green dictum; characterized in Hill v. United States, infra at 429 n. 6); Hill v. United States, 368 U.S. 424, 426, 82 S.Ct. 468, 470, 7 L.Ed.2d 417 (1962) (dictum):

“Although there was no Court opinion in the Green case, eight members of the Court concurred in the view that Rule 32(a) requires a district judge before imposing sentence to afford every convicted defendant an opportunity personally to speak in his own behalf.

The ninth Justice in Green, Mr. Justice Stewart, in a concurring opinion agreed on the desirability of the practice, although doubting that Rule 32(a) required the procedure in every case. He stated:

“But I do think the better practice in sentencing is to assure the defendant an express opportunity to speak for himself, in addition to anything that his lawyer may have to say. I would apply such a rule prospectively, in the exercise of our supervisory capacity.”

Green v. United States, supra 365 U.S. at 306, 81 S.Ct. at 656 (concurring opinion).

. Especially is this so when as here the first sentence was imposed by a judge other than the one later considering the possibility of imposing a sentence different from the death penalty.