Robert J. Carter, Appellant, v. United States of America, Appellee, 437 F.2d 692 (D.C. Cir. 1971)

On October 1, 1966, appellant fired a single shot from his pistol, killing one Louis McKenzie. Indicted and tried for second-degree murder,¹  his sole defense at trial was that he acted in response to McKenzie's assaulting him with an eleven-inch butcher knife.²  Appellant was convicted by a jury of second-degree murder and sentenced to a mandatory minimum term of twenty years in prison. On this appeal, he raises numerous points, only two of which require extended discussion.

The government's prosecutor devoted much of his rebuttal argument to sarcastic attacks upon defense counsel, as well as the defendant himself:

Ladies and gentlemen of the jury, I am very happy that my opponent doesn't do the thing that I do, and that is try to inflame you. I know that he is only concerned with the facts. I know he is only concerned with bringing out what the evidence has shown, and he has no desire to inflame you one way or the other, particularly in favor of his client. I think Mr. _____ has demonstrated tremendous objectivity on behalf of his client. For instance, when he tells you about how Robert has served in the Navy, and how he worked for the last 15 years consistently; and how, ladies and gentlemen, on last Friday when you all had a holiday, what did Robert do? He worked that day.

Now that's all very, very objective on the part of Mr. _____, and hasn't any importance as far as inflaming you in favor of his client. You know that. Because you know Mr. _____ would only relate to you facts from the witness stand that bore upon the crime. And you know how important it is for you to know that Robert — pardon me — the defendant, worked last Friday. Now that's very material to what happened on the date of this killing, isn't it.

And Mr. _____ stood before you and told you that he doesn't know why the prosecutor talked to you about being a judge and jury. It was to inflame you, but not Mr. _____. Mr. _____ wouldn't do anything like that.

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I'm not going to say Mr. _____ said that to inflame you in favor of his client. I wouldn't do that, because I know Mr. _____ wouldn't think of such a thing.

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And, ladies and gentlemen of the jury, when we talk about lying, and talk about perjury, Mr. _____ has a way of saying to you, "Counsel says to you", "Counsel says this." I didn't say a thing. The witnesses said these things, not me.

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You reach your own decision, and leave out this "inflamed" argument that I use in this case; and only think of the objective argument of my opponent, please.

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In other words, we are painting a picture here of a man who just voluntarily surrenders himself to the whims of the jury, and takes the stand in order to tell the truth? Baloney. He took the stand in order to set up a defense — and he has a right to. What interest has he in lying to you?

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These are the, quote, "truths" you are to believe.

It should not be necessary to explain that the defendant, and not his attorney, is on trial in a criminal case. Nor should it be necessary to explain that sarcasm and ridicule are not the stuff of good argument or good taste in judicial proceedings.³  When the government's representative resorts to such behavior, we are the poorer for it.⁴  That the offensive remarks were made on rebuttal, rendering answer by defense counsel virtually impossible, makes them all the more regrettable.⁵ 

Prejudice in such matters is an imponderable difficult to discern upon a cold record.⁶  The effect of an argument upon the jury is best gauged by those who observe it. In this case, defense counsel was elsewhere alert to object to — and the trial court to correct — the prosecutor's unwarranted remarks.⁷  As for the prosecutor's attack upon the "truths" in appellant's testimony, we note that the trial took place before Gibson v. United States⁸  and Harris v. United States⁹  made clear our increasing concern with such remarks. Finally, we reiterate that both the prosecution and defense counsel should avoid inappropriate references to the accused.¹⁰  On the present record, we cannot say that the prosecutor's improper remarks were sufficiently prejudicial to warrant reversal.

Appellant likewise claims error in the trial judge's charge to the jury on the critical issue of malice. In accordance with his announced policy of relying whenever possible upon standardized jury instructions,¹¹  the judge defined malice for the jury¹²  in almost precisely the wording of the Junior Bar Section's Instruction 83,¹³  with a perceptive modification of the language of the last paragraph which the judge deemed wise in light of our decision in the Austin case.¹⁴  Appellant attacks one of the definitions of malice contained in that instruction, as follows:

Malice may also be defined as a condition of mind that prompts a person to do a wrongful act willfully, that is, on purpose, to the injury of another, or to do intentionally a wrongful act toward another without justification or excuse.

The argument is that the italicized portion of this definition erroneously informed the jury that an injurious, wrongful act is done with malice if done only "willfully, that is, on purpose."

In Green v. United States,¹⁵  upon which appellant relies, we condemned an instruction stating that a wrongful act intentionally done was "therefore" done with malice. We said:

A wrongful act intentionally done is not therefore done with malice. Omitted from [such a] definition of malice is the element of wilfulness, which the court elsewhere included in its definition of malice, or that the intentionally done wrongful act was without justification or excuse.¹⁶ 

As Green makes plain, malice cannot be equated with conduct involving no more than an intentional act. "Malice aforethought is an unjustifiable, inexcusable and unmitigated man-endangering state of mind;"¹⁷  intent to do an injurious act, even one highly dangerous to human life, is equivalent to malice only in the absence of justification, extenuation or excuse for that state of mind. Intent may be, and often is, an ingredient of malice,¹⁸  but never its exact counterpart. The necessary additional element is supplied only by an absence of circumstances justifying, mitigating or excusing "the man-endangering state of mind."¹⁹ 

We think, however, that appellant's reliance on Green is misdirected. The instruction in the present case does not feature the vice that Green pointed out; certainly not in so many words, nor even inferentially without ignoring the final modifying phrase — "without justification or excuse."²⁰  In this regard, Instruction 83, at the very worst, does no more than leave it ambiguous as to whether the final phrase modifies only the last clause of the sentence, or the first — and assertedly the offending — clause as well. And other language in Instruction 83, outside the sentence under scrutiny, connoted the "man-endangering" ingredient that a state of mind amounting to malice must possess.²¹ 

There is nothing, however, to suggest that the jury resolved this ambiguity by a misinterpretation of the governing law, and much to argue that it did not. The instructional flaws, if any, are subtle, a far cry from the flatly erroneous statement in Green. For years, any difficulty has escaped lawyers and judges alike.²²  Moreover, a considerable part of the charge was devoted to an accurate statement of the contrasting elements of murder and manslaughter, which was perhaps the key element in the case. It is hard to believe that the jury could have been misled by imprecision in the solitary sentence under attack. Then, too, appellant's trial counsel was given ample opportunity to consider and object to the charge, and explicitly voiced his approval. This we believe, fortifies our conclusion that on the evidence in this case, the instruction had no erroneously adverse impact.

Nonetheless it must be said that Instruction 83, in distinguishing malice from mere purposefulness, is less than luminously clear. And, undeniably, clarity is extremely important in the definition of malice — "the sole element differentiating murder from manslaughter".²³  Admittedly, malice is a difficult concept to articulate; in recent times, we ourselves have struggled with the term,²⁴  and even now we seek to make it more meaningful to trial juries. We believe that we perform this mission best by pointing to one of our own decisions, rendered after the case at bar was tried, for the amelioration sought.

In United States v. Bush²⁵  we modified Instruction 83 to eliminate still another ambiguity.²⁶  The revised version reads:

"Malice" does not necessarily imply ill-will, spite, hatred, or hostility by the defendant toward the person killed. "Malice" is a state of mind showing a heart regardless of the life and safety of others, a mind deliberately bent on mischief, a generally depraved, wicked and malicious spirit. "Malice" may also be defined as the condition of mind which prompts a person to do willfully, that is, on purpose, without adequate provocation, justification or excuse, a wrongful act whose foreseeable consequence is death or serious bodily injury to another.²⁷ 

This definition should be used in instructions given after the Bush decision to avoid a claim of reversible error based either on the challenge appellant has presented, or on other difficulties in Instruction 83.²⁸ 

Affirmed.

ROBB, Circuit Judge, (concurring):

I concur in the affirmance of the judgment; however, I must respectfully disagree with the majority's criticism of the prosecutor. The portions of his closing argument which are quoted in the opinion are fragments taken out of context. Also, no reference is made to the argument of the defendant's counsel to which the prosecutor was responding. In that argument counsel painted with a broad brush and with considerable fervor. He accused the prosecutor of attempting to inflame the jury. He repeatedly referred to his client as "Robert" although the prosecutor had not done so in his opening argument. Counsel spoke of "Robert's" industry, his service in the Navy, his humble abode. He quoted from the Bible. After reading from the transcript of the prosecutor's opening statement, he said:

"What disturbs me, and what disturbs you, no doubt, is that some people believe that you recompense no man evil for evil. Some people believe that you love those who mistreat you. And some people believe that hatred has no place in your heart. The famous recording of history may be summed up in a few words, `Forgive them for they know not what they do.'"

Counsel suggested that the jurors should judge not, that they be not judged. He said that "Robert" was "telling the truth, no question about it",¹  and asked "What would he gain by lying?". In short, counsel delivered a wide-ranging, free-style jury argument.

It was in response to these statements by the appellant's counsel that the prosecutor made the remarks which are criticized by the majority. Although one of us might not have answered as the prosecutor did, I think we should consider his remarks in context, and in the context of the argument that provoked them. When so considered they do not, in my judgment, merit the majority's criticism.

I suggest in addition that we should be reluctant to condemn an argument by the prosecutor which evoked no complaint from the defendant's experienced and able counsel, who heard it, and who apparently accepted it as fair comment on his own remarks.