JULIO HERNANDEZ-LOPEZ, PETITIONER V. UNITED STATES OF AMERICA No. 87-5103 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit Brief for the United States in Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. A1) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 29, 1987. The petition for a writ of certiorari was filed on July 8, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court erred by failing to consult with petitioner before giving supplemental instructions to the jury. 2. Whether the district court's supplemental instructions on malice and voluntary manslaughter were correct. STATEMENT Following a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted of second degree murder, in violation of 18 U.S.C. 1111. He was sentenced to life imprisonment. The court of appeals affirmed without opinion (Pet. App. A1). 1. During 1985 petitioner, a Cuban detainee, was a cellmate of Ismael Oliva-Velez at the federal penitentiary in Atlanta, Georgia. Both men possessed homemade knives in their cell. On October 25, 1985, petitioner found and concealed Oliva-Velez's knife. Later that evening, after prison guards had completed their 9:00 p.m. check, petitioner grabbed Oliva-Velez and tied his hands and feet with braided rope to the lower bed in the cell. After Oliva-Velez refused to give petitioner some information, petitioner covered Oliva-Velez's face with a sheet for one minute, removed the sheet, and then covered his face for another eight to ten minutes. When a guard arrived at the scene, petitioner admitted that he had killed Oliva-Velez. Later, petitioner told the FBI that he killed Oliva-Velez because he was afraid that Oliva-Velez was going to harm him. An autopsy on Oliva-Velez showed numerous bruises on his neck, abrasions, and hemorrhages. The report concluded that Oliva-Velez had died of asphyxia because of smothering or strangling, and that both had occurred. There were no defensive marks on petitioner. /1/ 2. The government charged petitioner with first degree murder, in violation of 18 U.S.C. 1111. During its final charge to the jury, the court instructed the jury that malice was an element of both first and second degree murder. Tr. 162-165. The court explained that the government could establish malice by showing either that petitioner intended to kill or that he intended to act in callous and wanton disregard of the consequences to human life. Tr. 162. The court also instructed the jury on the lesser included offense of voluntary manslaughter. Tr. 165-167. During the instructions on provocation and heat of passion, the court explained that the passion involved had to be of such a nature that it would have caused a reasonable, ordinary person to kill. Tr. 166-167. Petitioner did not object to those instructions. Tr. 151, 173. During its deliberations, the jury sent the court a message requesting a definition of malice and the "points that constitute manslaughter" (Tr. 174). To comply with the request, the court gave the jury supplemental instructions on those subjects. The court did not consult with either party before giving its supplemental instructions. Petitioner and his counsel, however, were present in court at the time the supplemental instructions were delivered. In its supplemental instructions, the court first repeated the definition of malice that the court gave during its original instructions (Tr. 174). The court then explained the meaning of the term by quoting from the opinion and discussing the facts of United States v. Fleming, 739 F.2d 945 (4th Cir. 1984), cert. denied, 469 U.S. 1193 (1985). /2/ The court used the facts of that case to explain to the jurors that driving a speeding car into a lane of oncoming traffic may constitute a wanton disregard for human life. Tr. 174-175. The court then applied that definition to the facts of this case. The court explained that if the government proved that petitioner planned ahead of time to kill the victim, there would clearly be malice (Tr. 174, 176). Similarly, the court explained that the jury would have found malice if it found that petitioner acted "in a callous and wanton disregard of the consequences (for) human life" so that he "would have been aware of the serious risk of death or bodily injury" (Tr. 175-176). The court reminded the jury that the government had the burden of proving the element of malice beyond a reasonable doubt and that the defendant had no duty to call witnesses or present any evidence (Tr. 176). The district court then reinstructed the jury on the subject of voluntary manslaughter. After repeating the definition it had given in its initial instructions (Tr. 177-178), the court illustrated the concepts of provocation and heat of passion by referring to the example from Blackstone's Commentaries of the person who acted on provocation and in the heat of passion when he discovered his spouse in bed with another person (Tr. 178). The court explained that the jury could reach a verdict of voluntary manslaughter if it found that the provocation in this case would have been sufficient "to naturally arouse in the mind of an ordinary reasonable person under the same circumstances a passion which would have led them to kill another" (Tr. 179). The court added that there were many provocation sin life that fell short of the kind of provocation that would induce an ordinary person to commit homicide (Tr. 179-180). After delivering its supplemental charge to the jury, the court asked the jurors whether its charge had assisted them. Several members of the jury nodded affirmatively. The court then asked the jury whether the supplemental instructions had left it more "puzzled." The jurors shook their heads negatively. The court then reminded the jury that petitioner was presumed to be innocent and that the government had to prove each element of the offense of voluntary manslaughter beyond a reasonable doubt. Tr. 180. At the conclusion of the charge, petitioner objected to the substance of the supplemental instructions but he did not object to the court's failure to consult with him before delivering its supplemental instructions to the jury. Tr. 180-182. ARGUMENT 1. Petitioner contends (Pet. 18-21) that the district court erred by failing to consult with him before giving its supplemental charge to the jury. A criminal defendant has a right under the Due Process Clause to be present at all stages of his trial whenever his presence has a substantial relationship to his opportunity to defend against the charge. United States v. Gagnon, 470 U.S. 522, 526 (1985). In addition, Fed. R. Crim. P. 43 guarantees a criminal defendant the right to be present at every stage of his trial. As this Court has noted, when a trial court receives a message from the jury, it should give the defendant's counsel an opportunity to be heard and then answer the message in open court. Rogers v. United States, 422 U.S. 35, 39 (1975). In this case, the district court gave the jury supplemental instructions in open court after receiving the jury's message, but the court did not consult with petitioner before delivering the supplemental instructions. Nevertheless, petitioner was present when the supplemental instructions were given, and he objected to them afterwards. Although it might have been preferable for the district court to consult with petitioner's counsel before giving the supplemental instructions, that omission did not constitute reversible error in this case, for two reasons. First, petitioner has not preserved this issue for review. Petitioner did not object to the court's delivering the supplemental instructions without prior consultation with counsel, even though he was present in court when the supplemental instructions were given and could have requested an opportunity to discuss the jury's inquiry and the court's proposed response. See United States v. Gagnon, 470 U.S. at 527-530 (defendant's failure to invoke Fed. R. Crim. P. 43 right with knowledge that he was excluded from in camera proceeding waived the right). Second, petitioner was not prejudiced by the procedure the district court employed in this case. Petitioner was present in open court during the delivery of the supplemental instructions, and he objected to them afterwards. He therefore had an opportunity to be heard on the propriety of the court's supplemental instructions. In addition, the court consulted with petitioner before the original instructions were given, and the supplemental instructions consisted in large part of a repetition of the court's original instructions on malice and voluntary manslaughter. And, as we argue below, the supplemental instructions were legally correct and responsive to the jury's inquiry. Thus, it is difficult to believe that the court would have reacted differently to the jury's message and given different supplemental instructions if petitioner had been given an opportunity to be heard before the court gave its supplemental instructions. Therefore, the court's failure to consult with petitioner just before giving its supplemental instructions was, at most, harmless error. See United States v. Bustamante, 805 F.2d 201, 202-203 (6th Cir. 1986); United States v. Frazin, 780 F.2d 1461, 1469-1471 (9th Cir.), cert. denied, No. 85-7058 (Oct. 6, 1986); United States v. Widgery, 778 F.2d 325, 330 (7th Cir. 1985). /3/ 2. Petitioner also maintains (Pet. 22-25) that the district court's supplemental instructions unfairly favored the government and, in effect, directed the jury to return a verdict of second degree murder against petitioner. The supplemental instructions correctly stated that the government could establish malice by showing either an intent to kill or an intent to act in callous and wanton disregard for the consequences to human life. See, e.g., United States v. Chagra, 807 F.2d 398, 402 (5th Cir. 1986); United States v. Fleming, supra; United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978). Thus, contrary to petitioner's suggestion (Pet. 22-23), the court was correct in advising the jury that malice could be established by showing that petitioner intended to act in wanton disregard of the consequences for human life; that instruction therefore did not "assure() the jury that it could not acquit the defendant of either first or second degree murder" (Pet. 23). Second, the court's instruction that there are many provocations in life that do not provoke ordinary persons to commit homicide was also correct. Voluntary manslaughter is defined as a homicide committed under the kind of passion that would cause an ordinary person to act rashly and without deliberation and reflection. See United States v. Collins, 690 F.2d 431, 437 (5th Cir. 1982), cert. denied, 460 U.S. 1046 (1983); United States v. Elk, 658 F.2d 644, 649 (8th Cir. 1981). The court's instruction on provocation properly reminded the jury that the provocation had to be sufficiently serious to induce an ordinary person to take rash action. See United States v. Collins, 690 F.2d at 431 (passion aroused by, among other things, unsatisfactory work rating did not justify charge on voluntary manslaughter). See generally R. Perkins and R. Boyce, Criminal Law, 85-88 (3d ed. 1982). Contrary to petitioner's contention, that reminder certainly did not suggest to the jury that petitioner's claims regarding this issue were "meritless" (Pet. 23). Finally, petitioner's contention (Pet. 24-25) that the court's instructions took away the jury's power of nullification is meritless. A defendant has no right to have a jury told that it may refuse to convict him notwithstanding clear proof of his guilt. See Sparf and Hansen v. United States, 156 U.S. 51, 65 (1895); United States v. Drefke, 707 F.2d 978, 982 (8th Cir.), cert. denied, 464 U.S. 942 (1983)); United States v. Buttorff, 572 F.2d 619, 627 (8th Cir. 1978); United States v. Dougherty, 473 F.2d 1113, 1130-1137 (D.C. Cir. 1972); United States v. Dellinger, 472 F.2d 340, 408 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973); United States v. Moylan, 417 F.2d 1002, 1005-1007 (4th Cir. 1969), cert. denied, 397 U.S. 910 (1970). In this case, the court correctly instructed the jury concerning the relevant concepts of malice and voluntary manslaughter. The effect of the court's instruction -- and the point on which the jury obviously wanted assistance -- was to explain the circumstances that would require a verdict of murder rather than voluntary manslaughter. The supplemental instructions were therefore proper and did not unfairly lead the jury to a guilty verdict on the charge of murder. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General THOMAS E. BOOTH Attorney SEPTEMBER 1987 /1/ The statement of facts is taken from the government's brief in the court of appeals. /2/ In Fleming, the court of appeals stated that the element of malice did not require proof that the defendant felt hatred or ill will towards the victim or others, nor did it require proof of an intent to kill or injure. Rather, the court concluded that malice could be established by proof of conduct that was reckless and wanton and a gross deviation from a reasonable standard of care; that is, conduct of a sort that would warrant a jury inference that the defendant was aware of the serious risk of death or grievous bodily harm. 739 F.2d at 947-948. /3/ This case is readily distinguishable from Rogers v. United States, supra, or Shields v. United States, 273 U.S. 583 (1927). In those cases, the court addressed the jury outside the presence of the defendant, and the defendant was therefore given no opportunity to be heard on the issue of how the court should respond to the jury's inquiry. In this case, by contrast, petitioner was present in open court during the court's supplemental instructions to the jury and had an opportunity to object to the court's response after the supplemental instructions were given.