sudden heat and passion

Appellants Harris and Hart were jointly tried and convicted by a jury of first-degree murder. The government's evidence rested principally on the testimony of an eyewitness to the homicide who stated that he was inside the Federal City Liquor Store at 943 Ninth Street, N.W., at approximately 2:30 on the afternoon of January 21, 1975, when appellants and two other men, one of whom became the murder victim, entered the store. They appeared to the witness to be somewhat intoxicated. An argument ensued between Hart and the victim regarding a gun, and Hart pulled an ice pick out of his coat pocket and held it in his hands towards the victim's face. Hart then told the victim you are going to get my gun or else I am gonna kill you. According to the eyewitness, Harris then stated let's kill the victim. When the manager of the liquor store insisted they take the argument outside, Hart, the victim, and an unidentified third man left the premises, crossed the street and turned into a nearby alley. Harris followed shortly thereafter but he did not enter the alley until after the unidentified third man exited the alley and proceeded down Ninth Street. The witness then left the liquor store and walked down the street to get a direct view of the alley. A scuffle had started between the three men. Harris grabbed the victim from the back. The man was wrestled to the ground by both defendants and Harris struck him on top of the head. Hart then proceeded to stab the victim repeatedly with the ice pick. A second government witness was outside the liquor store during the time in which the homicide was committed. He testified that as Hart crossed the street he was holding the victim behind his neck. He also recalled that as Harris walked past him he said he stole his pistol and he is going to kill him. On January 22, 1975, the day after the homicide, the witness was shown an array of 10 photographs and he positively identified appellant Hart as the man who had been holding the victim behind the neck. Before his grand jury testimony on February 21, 1975, the witness was shown the exact same array of photographs with the exception that appellant Hart's photograph had been removed and replaced by a picture of Harris, and on that occasion the witness made a positive identification of Harris. Harris challenged his conviction on the ground that the court at a pretrial suppression hearing erroneously denied his motion to suppress identification evidence, and both appellants challenged the denial of their motions for judgment of acquittal.

In a New York state court, a jury found the appellant guilty of murder in the first degree. The trial lasted more than two weeks. The appellant was represented by three appointed lawyers who conducted his defense with fidelity and zeal. The jury recommended life imprisonment, but the trial judge imposed a sentence of death. About five weeks after the verdict, a statutory pre-sentence investigation report was submitted to the judge. The defendant was brought to court for sentencing. He protested his innocence. After his three lawyers appealed to the court to accept the jury's recommendation of life imprisonment, the judge gave reasons for imposing death. The judge referred to the pre-sentence investigation revealing the appellant's involvement in thirty other burglaries in the same vicinity. Some of these the appellant had confessed to, and he had been identified as the perpetrator of others. The judge also noted activities indicating a morbid sexuality and classification as a menace to society. The accuracy of these statements was not challenged by the appellant or his counsel. The Court of Appeals of New York affirmed the conviction and sentence. The affirmation was over the contention that the death sentence was based upon information supplied by witnesses with whom the accused had not been confronted and as to whom he had no opportunity for cross-examination or rebuttal. The case reached the Supreme Court of the United States on appeal under 28 U.S.C. § 1257(2).

On June 14, 1960, at about 1 a.m., petitioner Nathan Jackson and Nora Elliott entered a Brooklyn hotel where Elliott registered for both. Jackson drew a gun, took money from the room clerk, ordered the clerk and others into an upstairs room, and left. He encountered Elliott and a policeman on the street. During a struggle both drew guns, the policeman was fatally wounded, and Jackson was shot twice in the body. Jackson hailed a cab and was taken to the hospital. A detective questioned Jackson at about 2 a.m. soon after arrival. Jackson stated his name, said he had shot the colored cop and got the drop on him, and admitted the hotel robbery. According to the detective, Jackson was in strong condition despite his wounds. At 3:55 a.m. Jackson, who had been shot in the liver and lung and had lost about 500 cc. of blood, was given 50 milligrams of demerol and 1/50 of a grain of scopolamine. Immediately thereafter an Assistant District Attorney questioned him in the presence of police officers and hospital personnel. The interrogation was recorded by a stenographer. Jackson again admitted the robbery and, in response to further questions, admitted shooting the policeman and firing the first shot. The interview ended at 4 a.m. An operation began at 5 a.m. and was completed at 8 a.m. Jackson and Elliott were indicted for murder in the first degree and tried together. The statements made by Jackson at 2 a.m. and 3:55 a.m. were introduced in evidence without objection by his counsel. Jackson took the stand in his own defense. His account of the robbery and of the shooting of the policeman differed in important respects from his confession. According to Jackson's testimony, there was a substantial interval of time between his leaving the hotel and the shooting, and the policeman attempted to draw his gun first and fired the first shot. As to the questioning at the hospital, Jackson recalled that he was in pain and gasping for breath at the time. He was refused water and told he would not be let alone until the police had the answers they wanted. He knew that he had been interrogated but could remember neither the questions nor the answers. The State offered testimony from the attending physician and others that Jackson was refused water because of the impending operation rather than his refusal to answer questions. On cross-examination of the doctor, Jackson's counsel, with the help of the hospital records, elicited the fact that demerol and scopolamine were administered to Jackson immediately before his interrogation. But any effect of these drugs on Jackson during the interrogation was denied. Although Jackson's counsel did not specifically object to admission of the confession initially, the trial court indicated awareness that counsel was questioning the circumstances of the interrogation. In closing argument counsel sought a verdict of second-degree murder or manslaughter rather than acquittal, stressing the interval between the robbery and the shooting and the evidence that the policeman fired first. Consistent with New York practice, the trial court submitted the voluntariness issue to the jury along with the other issues. The jury was instructed that if it found the confession involuntary it was to disregard it and determine guilt or innocence from the other evidence. If it found the confession voluntary it was to determine its truth or reliability and afford it weight accordingly. The jury found Jackson guilty of murder in the first degree and he was sentenced to death. Elliott was convicted of manslaughter in the first degree. Jackson's conviction was affirmed by the New York Court of Appeals, whose remittitur was amended to show that it had necessarily passed upon the voluntariness of the confession and found no violation of constitutional rights. Certiorari was denied. Jackson then filed a petition for habeas corpus in federal district court claiming that the New York procedure for determining voluntariness was unconstitutional and that his confession was involuntary. After examining the state court record the district court denied the petition without an evidentiary hearing, finding no clear and conclusive proof that the statements were extorted or given involuntarily and no constitutional infirmity in the New York procedure. The Court of Appeals for the Second Circuit affirmed.

The appellant was convicted by a jury on two counts of an indictment charging him with bank robbery in violation of 18 U.S.C. § 2113(a) and (d). He was sentenced to twenty-five years imprisonment. Count One charged that Austin, by force and violence and by intimidation, took from the person and presence of a bank teller approximately $10,000.00. Count Two charged that in committing the offense he assaulted the teller and put her in jeopardy by the use of a dangerous weapon, to-wit, a pistol. The sole question presented on this appeal is whether the lesser offense proscribed by 18 U.S.C. § 2113(a) is included in the offense proscribed by 18 U.S.C. § 2113(d), so that a defendant may not be convicted and punished for both. The statute defines the basic robbery offense in subsection (a) and provides an enhanced penalty in subsection (d) for committing any offense defined in subsections (a), (b), and (c) by assaulting a person or putting a life in jeopardy with a dangerous weapon or device. The Government argued that the two counts state separate and distinct offenses for which the defendant may be convicted and punished. It relied on the principle that a single transaction may give rise to a violation of more than one statute as in Blockburger v. United States and Gore v. United States. The court noted that the question is one of legislative intent. The court cited Prince v. United States, where the Supreme Court held that a defendant could not be validly sentenced on both a count charging entry into a bank with intent to rob and a count charging robbery. The Government sought to distinguish Prince on the ground that the two offenses there involved were proscribed by separate subsections of the statute, while here both offenses are embraced within a single subsection, namely (d). The court rejected this distinction. The plain meaning of the language in (d) is that the use of a dangerous weapon must occur in the course of the commission of one of the offenses defined in the earlier subsections. Subsection (d) does not define a separate and distinct offense but provides for an increased penalty. This interpretation was confirmed by the legislative history of the statute. The original bank robbery statute was enacted in 1934. It contained what is now subsection (a) and a subsection (b) which is now (d). House reports from 1934 and 1935 treated the use of a dangerous weapon as an aggravation of the offense of taking by force and violence or by intimidation. The statute was amended in 1948 to its present form. The Reviser's Note stated that the section consolidates the earlier statutes without change of substance. The court concluded that Congress at no time intended to provide for cumulative penalties for the single offense of bank robbery. The judgment of the District Court is reversed and the case is remanded with directions to vacate the conviction and sentence on Count One of the indictment.