The judgment of the District Court is reversed. Chief Judge BAZELON files an opinion. Circuit Judge FAHY files a separate opinion concurring with Chief Judge BAZELON in reversal. Circuit Judge BURGER dissents.
Appellant was convicted of robbery, D.C.Code § 22-2901, and sentenced to imprisonment for two to six years. His conviction rested on the testimony of the complaining witness, Cornell Watson. In its brief the Government described this testimony as follows:
Appellant now claims errors in the jury instructions which he did not assert at the trial. A discussion of the evidence is essential in determining whether these claims are valid and, if so, whether they affect substantial rights within the meaning of the "plain error" rule. Rule 52 (b), Fed.R.Crim.P.
I discuss first the evidence relating to the corpus delicti. Although there was no direct evidence that the wallet was taken from the person of the complaining witness, there was testimony of circumstances from which the jury could have inferred either that the wallet was picked from his pocket, or that it was accidentally dropped from his pocket and was picked up by someone who ran off with it.
The jury therefore had two principal tasks to perform. It had to pass on the truth of the complaining witness' uncontradicted testimony that he had "felt a slight jostle" and had been told that "two people [were] running down Florida Avenue." If it believed this testimony, the jury then had to decide the further question whether these circumstances warranted an inference that the wallet was stolen rather than dropped accidentally.
No instruction outlining this two step process
This may well have conveyed to the jury the erroneous impression that the Government's case rested on direct testimony which, if believed, practically required the conclusion that the wallet had been stolen from the pocket of the complaining witness.
The trial judge's emphasis on the jury's task of determining the credibility of testimony, and his minimizing the difficulty of its task of drawing inferences, was the more misleading because most of the testimony involved was uncontradicted. The more difficult question was not whether the evidence was true, but what inference should be drawn from it. In my opinion, it was plain error affecting substantial rights to tell the jury that the answer to this question was "relatively simple to arrive at." Rule 52 (b), Fed.R.Crim.P. It follows that there must be a new trial.
There is another matter which I think we should consider because it will probably arise in a new trial. It relates to the proof of appellant's complicity in the alleged crime. Here also there was no direct evidence. No one saw him pick the complaining witness' pocket (if the pocket was indeed picked); no one identified him as being on or near the bus at the time of the alleged offense; and no one identified him as one of the persons who got off the bus and was "running down Florida Avenue."
The Government sought to link appellant to the alleged crime by inferences of guilt from (1) unexplained possession of recently stolen property, and (2) flight.
The trial judge's careful instruction on the first of these points was in complete accord with our rulings in Bray v. United States, 113 U.S.App.D.C. 136, 306 F.2d 743 (1962); and McKnight v. United States, C.A.D.C., 309 F.2d 660 (1962).
In his instruction on flight, however, the trial judge erroneously used the word "presumption."
Two factual assumptions underlie the legal relationship between flight and guilt: (1) that one who flees shortly after a criminal act is committed or when he is accused of committing it does so because he feels some guilt concerning that act; and (2) that one who feels some guilt concerning an act has committed that act.
The first assumption — that one who flees shortly after a criminal act is committed or when he is accused of committing it does so because he feels some guilt concerning that act — has been subjected to a good deal of judicial criticism, on the ground that, in fact, common experience does not support it.
The New York Court of Appeals, in a leading case decided over eighty years ago,
In a series of cases decided late in the 19th century, the United States Supreme Court also depreciated the evidentiary value of flight. In Hickory v. United States, 160 U.S. 408, 16 S.Ct. 327, 40 L. Ed. 474 (1896), it reversed a conviction because the trial judge had charged the jury that flight created a presumption of guilt. Referring to "several marked * * * instances where a person had fled who was undoubtedly innocent," id. 160 U.S. at 420, 16 S.Ct. at 332, 40 L. Ed. 474, the Court concluded that flight (and concealment) "are mere circumstances to be considered and weighed in connection with other proof with that caution and circumspection which their inconclusiveness when standing alone require." Id. 160 U.S. at 417, 16 S.Ct. at 330, 10 L.Ed. 474. In Alberty v. United States, 162 U.S. 499, 511, 16 S.Ct. 864, 868, 40 L.Ed. 1051 (1896), the Court again reversed a conviction because the jury was wrongly instructed on flight. It noted that
Recent appellate opinions also have noted the ambiguity of flight as indicating feelings of guilt. In Vick v. United States, 216 F.2d 228 (1954), the Fifth Circuit reversed a conviction substantially predicated on flight. The court noted that "[f]light alone has been said to be ordinarily `of slight value, and of none whatever unless there are facts pointing to the motive which prompted it'" (citing cases); it went on to observe that "[a]ppellant may have fled because of a sense of guilt, or because he thought that his presence * * * was a suspicious circumstance which might lead to his indictment, or because he did not want either to disclose the guilt of his brother and his nephew, or to be punished for contempt for refusing to do so. One motive is about as likely as another. Appellant may be guilty, but his conviction cannot rest upon mere conjecture and suspicion." Id. 216 F.2d at 232, 233.
In a recent case which raised the issue "whether the petitioner's flight justified an inference of guilt sufficient to generate probable cause for his arrest," the Supreme Court said, "[W]e have consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime." Wong Sun v. United States, 371 U.S. 471, 483-484, 83 S.Ct. 407, 415-416, 9 L.Ed.2d 441 (1963).
This chorus of judicial caution, however, has been limited to the first assumption that one who flees shortly after a criminal act is committed or when he is accused of committing it feels some guilt concerning that act. It has not been extended to the second assumption that one who feels some guilt concerning an act has committed that act. Courts and commentators have commonly accepted this second assumption without criticism. Wigmore summarizes the judicial attitude by saying that this assumption "gives rise to no dispute * * *."
Thus, although some courts recognize that flight may be prompted by something other than feelings of guilt, judicial opinion seems to assume that if flight is prompted by feelings of guilt, the accused is certainly the guilty doer.
The observation that feelings of guilt may be present without actual guilt in so-called normal as well as neurotic people has been made by many recognized scholars and is a significant factor in the contemporary view of the dynamics of human behavior.
When evidence of flight has been introduced into a case, in my opinion the trial court should, if requested, explain to the jury, in appropriate language, that flight does not necessarily reflect feelings of guilt, and that feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. This explanation may help the jury to understand and follow the instruction which should then be given, that they are not to presume guilt from flight; that they may, but need not, consider flight as one circumstance tending to show feelings of guilt; and that they may, but need not, consider feelings of guilt as evidence tending to show actual guilt.
I agree with Chief Judge BAZELON:
(1) That it was error for the District Court to create the impression that the Government's case rested on testimony — direct or otherwise — which, if believed, required the conclusion that the wallet had been picked from the complaining witness' pocket rather than dropped accidentally. In this connection I also think the court should not have remarked to the jury that its task was relatively simple;
(2) That in instructing on flight it should be made clear to the jury that there is no presumption but only that flight may be, but is not required to be, the basis for an inference indicating guilt. There is an important distinction the law draws between a presumption and the right of a jury to draw an inference;
(3) That in the event of a new trial the appellant should be permitted to plead anew since the change in the plea made by the District Court was in appellant's absence and without his knowledge or consent when made.
Judge BAZELON joins in noting that the dissenting opinion shows a misunderstanding of our decision. For example, we do not suggest that any juror was compelled to find that flight means guilt. And although Judge BAZELON and I file separate opinions our position on the grounds for reversal coincide.
BURGER, Circuit Judge (dissenting).
Judge FAHY'S vote for reversal is based essentially on the District Judge's mention of "a presumption or an element" in his instruction on flight.
This is not a case of flight as Judge BAZELON argues, but rather one of a chain of circumstances commencing with evidence from which the jury could reasonably conclude that the appellant boarded the bus, left it one block later, was found moments later with the victim's wallet and engaged with others dividing the contents. It was in this sequence that flight occurred when the owner demanded return of his wallet. With or without instructions, reasonable minds would be likely to draw from all of these circumstances inferences somewhat unfavorable to the accused. To isolate flight and treat it as though the evidence and instruction placed it in a vacuum as something separate and apart from the events leading up to it tends to distort the facts.
The District Judge's charge in this case accurately informed the jury that flight alone is not sufficient evidence of guilt, but a fact from which the jury could infer guilt if it believed that the defendant was leaving the scene "under consciousness of guilt and for the purpose of evading arrest." This instruction properly informed the jury that it is permissible to draw inferences from flight in the appropriate case when common human experience would suggest such an inference. In so doing the District Court was entirely within what we have often and most recently held in Hunt v. United States, 115 U.S.App.D.C. ___, 316 F.2d 652, 1963:
Fortunately the court does not accept Judge BAZELON'S position which, as I read it, would have us adopt an instruction which would at least confuse and probably inhibit juries in drawing such inferences. Fact issues and the reasonable inferences from accepted fact are for juries — not judges — in criminal trials and if we trust the jury system we do no need to attempt to guide every detail of jury deliberations. Let alone with a minimum of basic instruction juries can infuse the law with a sense of reality and can temper judicial technicality with the leaven of the common experience and community conscience. We should not attempt to limit the scope of jury deliberations by telling jurors to ignore their own experience and common sense, and in a case like the one before us, denigrate other evidence in the case which plainly suggests that flight was indeed indicative of guilt.
The desire to minimize if not eliminate flight as a source of reasonable inferences represents a futile attempt to require jurors to "unring the bell" of their individual and collective experiences. The portions of the instruction italicized in the margin disclose how carefully the District Judge instructed the jury that only limited inferences can be drawn from flight and that flight can be explained but in scrupulous compliance with our holding in Bray v. United States.
At best jurors get only a few general impressions from the trial judge's charge. I think it is fair to say that they understand such concepts as presumptions of innocence, burden of proof, criminal intent and credibility. Beyond these fundamentals and description of the specific elements of a particular crime, most instructions probably become confusing and blur the juror's recollection of the really vital elements of the charge.
This trial was not complicated; it was not a tax fraud case based on a net worth method of proof, or a complex conspiracy case. It was, under the evidence, a simple case of a "pickpocket" operating on a bus. In order to convict the jury had to find, beyond a reasonable doubt, that complainant's purse had been pilfered and that appellant committed the act. The charge on credibility, which is attacked by Judge BAZELON, was entirely correct and fair to the accused. If the jury believed the complaining witness and disbelieved appellant's explanation, of course, the rest of the case was "relatively simple" as the District Judge said. I do not believe a judge's comment that a simple case is "relatively simple" constitutes error.
Since I find it difficult to imagine a case more clearly one for summary affirmance, I must dissent.
There was no challenge to the sufficiency of the evidence either at trial or on appeal, and I am not prepared on the basis of this record to hold that the case was improperly submitted to the jury.
Appellant argues that, since all the evidence that a crime was committed was "circumstantial," an instruction was required that "unless there is substantial evidence of facts which exclude every reasonable hypothesis but that of guilt, the verdict must be not guilty * * *." Carter v. United States, 102 U.S.App. D.C. 227, 231-232, 252 F.2d 608, 612-613 (1956). In Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 137-138, 99 L.Ed. 150 (1954), the Supreme Court stated that "the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect." This court, at first, apparently interpreted the Supreme Court's view as permissive rather than mandatory with the various circuits; for in Carter, decided after Holland, we reversed for failure to give the requested traditional circumstantial evidence instruction. But in Hunt v. United States, 115 U.S.App.D.C. ___, 316 F.2d 652, (1963), the "better rule" was apparently adopted. In any event, our appellant did not request the Carter instruction. And, absent such a request, omission of such an instruction is not "plain error." See Macaboy v. United States, 82 U.S.App.D.C. 53, 160 F.2d 279 (1947).
Freud was, of course, not the first to notice this phenomenon. See, e.g., Dostoevski Brothers Karamazov (Mod.Lib. 1950) 757-70, wherein the author describes how Ivan — the brother who had desired the death of the father but had not perpetrated the act — manifests all the traditional symptoms of guilt described by Wigmore, whereas the actual murderer reacts in a cool dispassionate way, consistent — according to Wigmore — with innocence. For a similar, more recent and more detailed treatment of this problem, see Reik, The Compulsion to Confess (1959) 32, 39, 41, 149, 266.
The dissent also says that "if we trust the jury system we do not need to attempt to guide every detail of jury deliberations." This recalls the response of Chief Justice Vinson, then Associate Justice of this court, to a similar argument: "The average man has some idea of what murder is, but we would not expect a judge to say, Jurors, you know what murder is, go and decide if this man is guilty of it." Williams v. United States, 76 U.S.App.D.C. 299, 300-301, 131 F.2d 21, 22-23 (1942).
"The Court desires to point out one further element in this case and that is the fact that the identification of the defendant has been made by a single witness, that is, the complaining witness, Cornell Watson. You must consider in your deliberations whether there is any possibility of mistake on the part of the complaining witness in this matter of identification. * * *"