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United States v. Johnson

decided: August 15, 1974.



Seitz, Chief Judge, and Kalodner, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Adams, Circuit Judge, concurring. Kalodner, Circuit Judge, dissenting.

Author: Aldisert


ALDISERT, Circuit Judge.

This court is required to resolve a knotty Fourteenth Amendment problem in Pennsylvania murder trials which has evenly divided the justices on that state's highest court.*fn1 We are to decide whether, in a prosecution on a murder indictment, the Fourteenth Amendment requires the trial court, upon request, to give the jury the option of returning a verdict of voluntary manslaughter.*fn2 Adopting a Magistrate's Report and Recommendation, the district court reasoned that because Pennsylvania case law permits a jury verdict of voluntary manslaughter in the absence of evidence supporting the elements of that offense,*fn3 and also permits the trial court to exercise its discretion in deciding whether to give instructions on voluntary manslaughter,*fn4 a failure to submit the issue to the jury violated the defendant's constitutional rights of Due Process and Equal Protection. Accordingly, it granted a writ of habeas corpus. The Commonwealth appealed. Without reaching the Equal Protection issue, we affirm.

The relevant facts were summarized briefly in Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510, 511 (1971):

From the evidence, the jury was warranted in finding that Matthews, on February 23, 1968, acting in concert with his nephew, James Williams, and a friend, James Jackson, robbed Randolph Butts in Philadelphia and during the perpetration of the robbery Butts was stabbed four times by one of the felons, causing injury which resulted in Butts' death.


We begin our analysis with the Pennsylvania substantive law of voluntary manslaughter. For federal purposes we accept Justice Pomeroy's statement of the appropriate state law:

While it is considered felonious, voluntary manslaughter is the least culpable form of homicide included within a murder indictment. Thus, when considering the degree of culpability of an individual being tried under such an indictment, a jury may return a voluntary manslaughter verdict if it finds that the killing, although intentional, was committed without malice; that is, the accused may be shown to have been acting under the influence of sudden passion which was caused by legally adequate provocation that placed him beyond the control of reason.*fn5 See e.g., Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968); Commonwealth v. Paese, 220 Pa. 371, 69 A. 891 (1908). These elements need not always be present, however, to support a voluntary manslaughter verdict. Pennsylvania courts have long accepted the common law rule that the jury has the power to find a defendant guilty of voluntary manslaughter even in the absence of passion or provocation, where the evidence is sufficient to support a first or second degree murder verdict. Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970); Commonwealth v. Kellyon, 278 Pa. 59, 122 A. 166 (1923); Commonwealth v. Gable, 7 Serg. & R. 423 (1821). Although superficially such a rule may seem incongruous, it does have a rational basis. In essence, the rationale of the rule is founded on two considerations: (1) the legal concept that voluntary manslaughter is by definition a lesser offense than murder but one included within a murder indictment, (2) a realistic appreciation of the fact that factors such as sympathy or extenuating circumstances may lead a jury to find a defendant guilty of the lesser included offense of voluntary manslaughter even though the evidence is enough to establish guilt of murder in the second or even the first degree. Commonwealth v. Hoffman, supra.

Imposed upon this conceptual framework is a second rule. . . . That rule gives a trial judge complete discretion in deciding whether or not to submit voluntary manslaughter to the jury as a possible verdict in a case where there is no evidence of passion or provocation.*fn6 See, e.g., Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955); Commonwealth v. Yeager, 329 Pa. 81, 196 A. 827 (1938). The reason for this rule is said to be that a charge on a point or issue which is unsupported by any evidence ". . . is likely to confuse the jury and obstruct Justice." Commonwealth v. Pavillard, 421 Pa. 571, 220 A.2d 807 (1966).

Commonwealth v. Matthews, supra, 285 A.2d at 517.


The genesis of the federal constitutional problem is the anomaly that although the jury has unfettered power to return a voluntary manslaughter verdict as a lesser included offense of a murder indictment, it could not do so if the trial judge refused to charge on this point. Thus, whether the jury was given this opportunity was solely dependent upon the unrestricted discretion of the trial judge.*fn7 Justice Pomeroy, speaking for himself and Justice Roberts, concluded:

In my view, the due process and equal protection clauses of the Fourteenth Amendment require the abandonment of the procedure now again sanctioned by the court. Due process is violated where a state procedure denies to those subject to it the fundamental fairness required in a system of ordered liberty. Rochin v. California, 342 U.S. 165, 169, 72 S. Ct. 205, 96 L. Ed. 183 (1952). The procedure here, grounded as it is upon the exercise of absolute discretion by the trial judge, without the benefit of any objective standards to guide him, is patently arbitrary and unfair.

Commonwealth v. Matthews, supra, 285 A.2d at 518.*fn8

The majority in Matthews did not meet the constitutional issue:

Appellant next asserts the trial court committed error in refusing a specific request to instruct the jury on voluntary manslaughter, and also in failing to submit to the jury such a finding as a possible verdict. Since there was no evidence which pointed in the slightest degree to the offense of manslaughter, the court's action did not constitute error. Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362 (1955); and Commonwealth v. Flax, 331 Pa. 145, 200 A. 632 (1938).

285 A.2d at 514.*fn9


Thus, to offset Justice Pomeroy's constitutional contentions we must turn to the argument presented by the Commonwealth. It builds first on Sparf v. United States, 156 U.S. 51, 39 L. Ed. 343, 15 S. Ct. 273 (1895), which approved a jury charge given in a trial for murder on the high seas, which charge instructed the jury that it was not authorized to return a verdict of manslaughter because there was no evidence showing that crime. The Court stated: "A verdict of guilty of an offense less than the one charged would have been in flagrant disregard of all the proof, and in violation by the jury of their obligation to render a true verdict. There was an entire absence of evidence upon which to rest a verdict of guilty of manslaughter or simple assault. A verdict of that kind would have been the exercise by the jury of the power to commute the punishment for an offense actually committed, and thus impose a punishment different from that prescribed by law." Id. at 64. Moreover, the Commonwealth directs us to Government of the Virgin Islands v. Carmona, 422 F.2d 95, 101 (3d Cir. 1970), in which we held "there was no error in failing to charge as to voluntary manslaughter in the circumstances of the instant case. As there was no evidence of a quarrel or fit of passion, the jury could not have correctly found Carmona guilty of voluntary manslaughter," citing Stevenson v. United States, 162 U.S. 313, 315, 40 L. Ed. 980, 16 S. Ct. 839 (1896).

Next, the Commonwealth argues that notwithstanding these and other cases, courts have found it necessary to uphold a defendant's conviction of a lesser included offense where a trial judge erroneously submitted the offense to the jury. The underlying rationale of these latter cases is that the Constitutional prohibition against double jeopardy*fn10 barred correction of the trial judge's error.

But neither Sparf nor Carmona meets the Due Process argument properly presented in these federal habeas corpus proceedings. The Supreme Court in Sparf and this court in Carmona were confronted with issues of statutory construction only;*fn11 neither discussed the Pennsylvania practice presently under review.*fn12

The Commonwealth then emphasizes that "no court has held that because jury instructions not recognized by the law and overly favorable to one defendant were given at his trial, that thereafter every defendant is entitled to those same instructions."*fn13 Underlying this argument is the assumption that, in Pennsylvania, the jury could not properly return a verdict of voluntary manslaughter on a murder indictment absent evidence of passion or provocation. However the common law*fn14 and Pennsylvania substantive law recognize the jury's "power,"*fn15 indeed "prerogative,"*fn16 to return such a verdict if the court submits the issue to them. Moreover, in upholding such verdicts, the Pennsylvania Supreme Court has not relied on double jeopardy grounds but on the twofold consideration stated recently in Commonwealth v. Hoffman, supra, 266 A.2d at 732: "a realistic appreciation of the humanity of those who sit on our juries, and the legal concept that voluntary manslaughter is by definition a lesser [included] offense than murder but one included in a murder indictment."

Our research has not disclosed a Pennsylvania Supreme Court decision which unequivocally held that, on an indictment for murder, it would be error for a trial judge to charge on voluntary manslaughter where there was no evidence of passion or provocation. The court has had numerous opportunities to do so*fn17 but instead has framed its holding in terms of what a defendant has a right to expect or whether the trial court's refusal to instruct was in error. These cases still leave the final decision on whether to charge within the discretion of the trial judge. We now proceed to a consideration of the Due Process argument.


At a time when the contours of procedural due process were beginning to become visible, Mr. Justice Cardozo recognized the difficulty in establishing a universal definition of due process: "The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. * * * Does it violate those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions'?" Palko v. Connecticut, 302 U.S. 319, 325, 328, 82 L. Ed. 288, 58 S. Ct. 149 (1937) (citations omitted).*fn18 Later Mr. Justice Frankfurter would emphasize that "regard for the requirements of the Due Process Clause 'inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.'" Rochin v. California, 342 U.S. 165, 169, 96 L. Ed. 183, 72 S. Ct. 205 (1952) (citation omitted).

In the decades which have followed, the Supreme Court has not formulated a bright line definition. But, in discussing the right to a jury trial in a criminal case, the Court expressed this country's historic desire to minimize arbitrary judicial activity: "The framers of the Constitution strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the complaint, biased or eccentric judge. * * * Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power -- a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges." Duncan v. Louisiana, 391 U.S. 145, 156, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968) (emphasis supplied).

To recite these broad-base principles is to reinforce the conclusion reached by Pennsylvania Justices Roberts, Pomeroy and Manderino in Commonwealth v. Jones, supra, that the Pennsylvania practice did not comport with the protections extended this appellee by the Constitution. At the time he was tried, the jury was given the option of returning a verdict of murder in the first degree calling for life imprisonment or death,*fn19 or alternatively, a verdict of murder in the second degree, calling for a sentence of up to twenty years. Another trial judge, or the same judge on another day, could have permitted the jury to return a verdict of voluntary manslaughter, calling for a sentence of no more than twelve years. To deny appellee the possibility of a lesser verdict with a lesser restraint of liberty is permissible only if the denial comports with due process. To deny appellee the possibility of a lesser restraint of liberty because of a practice which permits arbitrary trial court activity is offensive to those settled concepts of due process.

The opinion in support of affirmance*fn20 in Commonwealth v. Davis, supra, 297 A.2d at 821, essentially acknowledged the absence of standards prior to May 2, 1974: "The establishment of standards for application in all cases must await further development of our case law. . . ." A lack of any standard to guide a decision which has the capability of restricting the liberty or property of a defendant would seem to offend settled concepts of due process. Thus, in invalidating a Pennsylvania practice which failed to furnish a criminal court jury with standards to guide a decision as to whether costs should be imposed upon a defendant in whose favor a not guilty verdict was rendered, the Supreme Court found the practice "vague and standardless," and therefore offensive to due process:

It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. See e.g., Lanzetta v. New Jersey, 306 U.S. 451, 83 L. Ed. 888, 59 S. Ct. 618; Baggett v. Bullitt, 377 U.S. 360, 12 L. Ed. 2d 377, 84 S. Ct. 1316. This 1860 Pennsylvania Act contains no standards at all, nor does it place any conditions of any kind upon the jury's power to impose costs upon a defendant who has been found by the jury to be not guilty of the crime charged against him. * * * Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce. This state Act as written does not even begin to meet this constitutional requirement.

Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 15 L. Ed. 2d 447, 86 S. Ct. 518 (1966).

It is undisputed that there are no "legal standards that courts must enforce" in giving or not giving the manslaughter charge in a Pennsylvania murder indictment. Accordingly, we conclude that the powerful rationale of Giaccio commands a similar result in this case.

We believe that the safeguards of due process will be satisfied only when all defendants in Pennsylvania murder trials are given the same opportunity, upon request duly made, to have a jury return a verdict of voluntary manslaughter as well as first and second degree murder.*fn21 To hold otherwise is to expose a defendant to the idiosyncracies of the trial judge to whom the case has been assigned, or the "whim or caprice"*fn22 of a given judge on a given day. Accordingly, we affirm the judgment of the district court.*fn22a


The Commonwealth advances the argument that "if this Court should conclude that a valid constitutional issue is presented, it would be inappropriate to reverse Matthews' conviction." (Commonwealth brief at 6 n.1.) It reasons that this defendant has suffered no prejudice because the jury in fact returned a verdict of first degree and not second degree murder. Thus, the Commonwealth argues harmless error. This contention overlooks the possibility that if a jury had three options instead of two, the jury could have compromised on the middle ground of second degree. Although of course no one can say with precision that given three alternatives, the jury has a greater probability of compromise, we do recognize that with three alternatives, at least "there is a reasonable possibility" of compromise. Schneble v. Florida, 405 U.S. 427, 432, 31 L. Ed. 2d 340, 92 S. Ct. 1056 (1972).*fn23 Therefore, we cannot say that failure to give the charge "was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). Moreover, the Pennsylvania Supreme Court has long recognized and approved the compromising propensities of juries. Commonwealth v. Kellyon, supra, 122 A. at 168; Commonwealth v. Hoffman, supra, 266 A.2d at 732. This recognition dilutes the potency of the harmless error argument advanced by the Commonwealth.


Cognizant of the potential pervasive ramifications of the ruling we announce today, Judges Rosenn, Weis and the writer of this opinion are willing to consider the retroactivity issue. A majority of the court have concluded that the issue should not be resolved in this case.

In Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), the Court squarely decided the retroactivity issue when it announced its ruling:

We have considered the suggestion . . . that we should "give prospective application only to any new constitutional ruling in this area." . . . [We] have concluded that neither the reliance of law enforcement officials . . . nor the impact of a retroactive holding on the administration of justice . . . warrants a decision against the fully retroactive application of the holding we announce today.

391 U.S. at 523 n.22. And in its most recent pronouncement in the area of prisoners' rights, Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935, (42 U.S.L.W. 5190, 1974), the Court had the opportunity to defer ruling on the retroactivity of its newly announced procedures. It did not. Instead, the Court followed its lead in Morrissey v. Brewer, 408 U.S. 471, 490, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), and decided the retroactivity issue:

The Court of Appeals held that the due process requirements in prison disciplinary proceedings were to apply retroactively so as to require that prison records containing determinations of misconduct, not in accord with required procedures, be expunged. We disagree and reverse on this point.

The question of retroactivity of new procedural rules affecting inquiries into infractions of prison discipline is effectively foreclosed by this Court's ruling in Morrissey that the due process requirements there announced were to be "applicable to future revocations of parole," 408 U.S., at 490 (emphasis supplied). Despite the fact that procedures are related to the integrity of the fact-finding process, in the context of disciplinary proceedings, where less is generally at stake for an individual than at a criminal trial, great weight should be given to the significant impact a retroactivity ruling would have on the administration of all prisons in the country, and the reliance prison officials placed, in good faith, on prior law not requiring such procedures. During 1973, the Federal Government alone conducted 19,000 misconduct hearings, as compared with 1,173 parole revocation hearings, and 2,023 probation revocation hearings. If Morrissey-Scarpelli rules are not retroactive out of consideration for burden on federal and state officials, this case is a fortiori. We also ...

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