United States v. Gordon Alexander, United States of America v. Benjamin Murdock

The convictions appealed from are affirmed (Judges McGowan and Smith for the court, Chief Judge Bazelon dissenting), except that in No. 23,190 appellant Alexander’s convictions on three of the four counts of assault are vacated, as is also the sentence on the fourth, and the case is remanded for resentencing on such remaining assault count (Judges Bazelon and Smith for the court, Judge McGowan dissenting).

It is so ordered.

The extreme length of this opinion reflects the number and perplexity of the issues presented for review. While brevity may normally be a touchstone of good writing style as well as sound judicial practice, it is occasionally essential to write at length on issues of far-reaching importance. The grounds of error raised on this appeal cut across our entire system of criminal justice. Appellants raise a very substantial challenge to the trial court’s rulings on the admissibility of evidence, instructions to the jury, sentencing, expert testimony, and the nature of criminal responsibility.

At issue here' are much more than technical rules of law devoid of any significance outside a courtroom or law school lecture, hall. A racial epithet hurled at appellants by one of their victims touched off an explosion of violence and bloodshed, an explosion that reverberates the traumas of our entire society. We cannot rationally decry crime and brutality and racial animosity without at the same time struggling to enhance the fairness and integrity of the criminal justice system. That system has first-line responsibility for probing and coping with these complex problems.

The tragic events which gave rise to this appeal might possibly have been avoided by various means. Proponents of legislation for the effective control of firearms will find powerful ammunition here. But such measures can never reach the root causes of crime so long as we remain in ignorance of the mental agonies that produce bizarre and violent behavior. Criminal trials- — -and, above all, the responsibility defense — compel us to explore these problems, and thereby offer some slight hope that we will learn, in the course of deciding individual cases, something about the causes of crime. Not only the defendant but the criminal justice system as a whole has a vital interest in insuring that trials are conducted without significant error and in a manner that guarantees the ventilation of all the pertinent issues and information. 1 We cannot afford to obscure the difficult questions for the sake of speed and efficiency in obtaining convictions, since efficiency of that order yields a specious economy. Appellate courts must scrutinize carefully the record of trial, and expose — where necessary with opinions as lengthy as this one — the difficulties that plague our efforts to improve the quality of the criminal justice system.

On the evening of June 4, 1968, five men and a woman — all white — walked into a hamburger shop, stood by the take-out counter, and ordered some food. The men were United States Marine Lieutenants in formal dress white uniforms; the woman was a friend of one of them. They noticed three Negro men sitting at the other end of the counter; these were appellants Alexander and Murdock and one Cornelius Frazier.

What ensued in the restaurant had the tragic result that both Alexander and Murdock drew guns on the group, and that shots were fired that left two of the Marines dead and another and the woman seriously wounded. At a joint trial by jury in February, 1969, Alex *927 a3ider a3id Murdock were each found guilty of carrying a dangerous weapon, and of four counts of assault with a dangerous weapon. Murdock, in addition, was found guilty of two counts of second-degree murder. A separate hearing for Murdock on the issue of insanity was held in November, 1969, at the close of which the jury returned a verdict of guilty on all counts. Appellants received consecutive sentences as to several counts, totalling five to twenty-three years for Alexander, and twenty years to life for Murdock. 2

Since the-case presents numerous and complicated issues and since the reasoning which underlies the Court’s decision is expressed in part in this opinion and in part in the separate opinion by Judge McGowan, this opinion begins with a table of contents describing the Court’s disposition of each issue and indicating the pages at which the discussion of each issue is set forth.

PARTI: TRIAL ISSUES.........928

A. Detailed summary of the evidence concerning the incident in the restaurant...................928

B. Alexander: The imposition of separate convictions and consecutive sentences was improper where a defendant, by a single act, put in fear different members of a group toward whom his action was collectively directed.

BAZELON, C. J., for the Court 930

McGOWAN, J., dissenting .... 966

C. Alexander: It is unnecessary for the Court to decide whether the trial judge erred in instructing the jury that they could convict Alexander of murder, manslaughter, or assault with a dangerous weapon on the theory that he aided and abetted Murdock.

McGOWAN, J., for the Court .. 966

BAZELON, C. J., dissenting .. 934

D. Alexander: If erroneous, the submission to the jury of the murder and manslaughter counts was harmless.

McGOWAN, J., for the Court .. 966

BAZELON, C. J., dissenting .. 936

E. Murdock: The evidence was sufficient to support a finding of malice; the instruction on manslaughter was unnecessarily confusing, and a revised instruction is proposed.

BAZELON, C. J., for the Court 941

PART II: INSANITY HEARING ISSUES ................. 947

A. Murdock: The trial judge correctly denied the proposed instruction on diminished responsibility.

*928 McGOWAN, J., for the Court .. 967 -968

BAZELON, C. J., dissenting .. 948

B. Murdock: The trial judge did not err in refusing to grant a new trial despite the exclusion of conclusory testimony by a government psychologist testifying in favor of the insanity defense.

McGOWAN, J., for the Court .. 967 -968

BAZELON, C. J., dissenting . . 952

C. Murdock: The trial judge did not err in instructing the jury with respect to the testimony relating to the defendant’s “rotten social background.”

McGOWAN, J., for the Court .. 968

BAZELON, C. J., dissenting .. 957

PART I: THE TRIAL

A. The Evidence Presented at Trial

Five United States Marine Lieutenants —Ellsworth Kramer, Thaddeus Lesnick, William King, Frank Marasco, and Daniel LeGear — attended a dinner at the Marine Corps Base in Quantico, Virginia, on the evening of June 4, 1968, in celebration of their near-completion of basic officers’ training. After dinner, they drove to Washington, arriving about midnight, still wearing their formal dress white uniforms. They stopped for about an hour-and-a-half at a nightclub, where they each had a drink. They were well-behaved and “conducted themselves like gentlemen.” At the nightclub they met Barbara Kelly, a good friend of Lieutenant Kramer. They accompanied her to her apartment, which she shared with another young woman, and visited there with the two women until about 2:40 a. m. When the five Marines departed, Miss Kelly accompanied them, intending to return to the nightclub to meet another friend. Along the way, they decided to stop at a hamburger shop to get some coffee and sandwiches before the trip back to Quantico. The six of them entered the shop, stood by the take-out counter, and ordered their food. They noticed three Negro males sitting at the other end of the counter. As described by Lieutenant Kramer, “[T]heir hair was in Afro-bush cut, wearing medallions, jersey knit shirts, sport jackets. . . . [T]hey were what I consider in eccentric dress.” The three men were Alexander, Murdock, and Cornelius Frazier. The critical events which subsequently took place in the restaurant were described by the four survivors of the Marine group and by Murdock and Frazier. Alexander chose not to take the stand.

According to the prosecution witnesses, Lieutenant Kramer realized that appellant Alexander was staring at him, and he returned the stare. “[I]t was on the order of a Mexican stand-off type thing where you just keep staring at one another for an indefinite period of time.” No words were exchanged between the two men, and Lieutenant Kramer soon turned and faced the counter. Shortly thereafter Frazier, Murdock, and Alexander got up from where they were sitting and walked to the door behind the Marines. Murdock and Frazier left the shop, but Alexander stopped in the doorway. He tapped Lieutenant Kramer on the shoulder. When the Marine turned around, Alexander poked his uniform name tag and said, “You want to talk about it more? You want to come outside and talk about it more?” When Lieutenant Kramer replied, “Yes, I am ready to come out” or “Yes, I guess so,” Alexander added, “I am going to make you a Little Red Ridinghood.” At this point, Lieutenant King stepped up beside Lieutenant Kramer and made a remark variously reported by the prosecution witnesses as “What you God-damn niggers want?”, “What do you want, you nigger?”, “What do you want, dirty nigger bastard ?”, and “Get out of here nigger.” Thereupon Alexander abruptly drew a long-barrelled .38 caliber revolver, cocked it, and pointed it at the group or directly into Lieutenant King’s chest, saying, “I will show you what I want,” or “This is what I want.”

*929 The Marines possessed no weapons whatsoever and, according to their testimony, were not advancing toward Alexander. As they stood there, shocked at the sight of the gun, Murdock reentered the shop at Alexander’s left and rear, and drew a short-barrelled .38 caliber revolver. A series of shots suddenly rang out, and the Marines and Miss Kelly fell or dived to the floor. None attempted to retaliate because they all were taking cover and trying to get out of the line of fire. Alexander and Murdock withdrew from the shop, but one of them stuck his arm back into the shop and attempted— unsuccessfully — to fire his weapon several times more. Only Lieutenant Kramer attempted to identify this man, and he said it was Murdock. 3

Lieutenants King and Lesnick were mortally wounded in the fusillade; they died within minutes. Lieutenant Kramer was wounded in the head, but he remained conscious, as did Miss Kelly, who had been shot in the hip. Only Lieutenants LeGear and Marasco were not hit. 4

Alexander, Murdock, and Frazier fled to Alexander’s automobile and drove off rapidly in the wrong direction on a one-way street. Alexander was driving, and as the car drove off, Murdock fired three more shots from the window of the car, at the door of the hamburger shop, and at people in the street. A nearby scout car raced after the fleeing car and stopped them within a few blocks. Two revolvers were recovered from the front floorboard of Alexander’s automobile.

For the defense, Frazier and appellant Murdock testified that the Marines in the restaurant had been drunk and loud. Frazier testified that they had obstructed his exit as he left. He walked around them and left the restaurant just ahead of Murdock, but when he looked back, Murdock had gone back inside. He then heard shots and ran to Alexander’s car.

Murdock testified that when he realized that Alexander had not followed him out of the restaurant, he returned, and as he entered he heard someone say, “Get out, you black bastards.” He then saw the Marine advancing towards him. Murdock called to Alexander to leave with him, and Alexander turned as if to go. Murdock then heard a “sound like all the feet in the place were moving,” turned around himself, and saw Alexander’s drawn gun. Murdock pulled his own gun, as a reflex, and testified that he “commenced firing about the time one of them was actually right up on,me. [M]aybe a foot away.” He testified that the other Marines were advancing toward him fast, and he felt they were going to kill him. On cross-examination he admitted that he emptied his fully-loaded revolver at the Marine group in the restaurant, testified that he didn’t know if Alexander had fired, and admitted that he fired three shots from Alexander’s gun from the window of the car as it was driven off.

Who fired the bullets inside the restaurant was an issue of some importance during the trial, but because of the testimony of the Government’s firearms expert, both sides seem now to agree that Alexander did not fire his revolver inside the restaurant, and that Murdock— as he testified himself — emptied his gun at the Marines and Miss Kelly, picked up Alexander’s gun in the automobile, and fired three shots with it from the window. 5

*930 B. Multiple Assaults and Separate Convictions

Alexander was separately convicted of four counts of assault with a dangerous weapon for assaulting each of the four survivors of the Marine group. The trial judge made the sentences on three of the four counts consecutive to one another. 6 Alexander claims that the evidence does not justify a finding that he assaulted each of the four survivors individually, 7 and that, accordingly, he *931 could have been convicted of but one offense of assault. The separate convictions and the consecutive sentences raise a substantial issue for this court.

The Supreme Court has faced in several different contexts the question whether a single criminal act or episode constituted one or more violations of a given statute. 8 It is undisputed that the critical factor is the intent of Congress. In addition, where the language of the statute or the statutory scheme in general does not fix the punishment “clearly and without ambiguity,” a “rule of lenity” requires that courts resolve doubts about congressional intent against “turning a single transaction into multiple offenses.” 9

The facts of Ladner v. United States 10 resemble those of the present case, in that Ladner claimed to have fired but one shot at two federal officers; for that he was sentenced consecutively for separate violations of what is now 18 U.S.C. § 111, interfering with a federal officer in the performance of his duties. The Supreme Court held that there was insufficient evidence that Congress intended “that a single act of assault affecting two officers constitutes two offenses under the statute.” The Government attempts to distinguish Ladner, reasoning that the statute at issue there was designed to further a single legitimate federal purpose, “by proscribing conduct that would impede performance of a task by federal officers,” while the purpose of general assault statutes is to protect individual persons. 11 This distinction is supported *932 by Barringer v. United States, 12 in which this court upheld consecutive sentences for robbery of a store owner and his wife at the same time, in the same place. The court justified its holding by stating:

[T]he Supreme Court has clearly indicated that where the principal legislative purpose is the protection of individual victims, the rule of lenity does not obtain. Ladner v. United States, 358 U.S. 169, 174 [79 S.Ct. 209, 3 L.Ed.2d 199] (1958); Ebeling v. Morgan, 237 U.S. 625 [35 S.Ct. 710, 59 L.Ed. 1151] (1915). Since there is no doubt that the robbery statute was designed to safeguard individual citizens from being robbed, we do not think that the District Court was wholly lacking in power to impose consecutive sentences in respect to the robbery charges here.

Ladner does, in fact, seem to suggest that if the Court had found that the principal legislative purpose of the statute were the protection of individual officers, so that each officer defined a unit of prosecution, then it would have upheld the consecutive sentences. But the other Supreme Court opinion cited in Barringer, Ebeling v. Morgan, points toward an altogether different theme. Ebeling pleaded guilty to six counts of tearing or cutting mail bags of the United States used in conveyance of the mails, with intent to steal the contents. Each count concerned a separate bag, and Ebeling received consecutive sentences on five of the counts; the Supreme Court affirmed. Although the Court said “[I]t was the intention of the lawmakers to.protect each and every mail bag from felonious injury and mutilation,” it immediately continued :

Whenever any one mail bag is thus torn, cut, or injured, the offense is complete. Although the transaction of cutting the mail bags was in a sense continuous, the complete statutory offense was committed every time a mail bag was cut in the manner described, with the intent charged.

This theme of distinct, successive offenses is consistent with the result in Barringer, for separate acts were necessary in that case to take different amounts of money from the owner and then from his wife. 13 The Fifth Circuit clearly had such an approach in mind when it approved consecutive sentences on two counts of assault with intent to murder two different individuals. 14 The defendant below had fired two shots, one at each victim. The court said:

These were intentionally separate and distinct assaults upon two human beings. They constitute separate offenses. . . . If a single shot struck two people a different result might obtain [citing Ladner];. but that is not the case here.

The same theme recurs in this court’s determinations whether to approve consecutive sentences when two different statutes have been violated during the same criminal episode. 15 Finally, we *933 think that the successive offenses approach is fully consistent with the Supreme Court’s opinion in Ladner (in spite of the suggestion to the contrary in Bar-ringer) and is in fact reinforced by that opinion.

The Court in Ladner was not content to rest upon its uncertainty over whether Congress meant to protect individual federal officers or “the orderly functioning of the federal government.” It continued with a striking paragraph:

Moreover, an interpretation that there are as many assaults committed as there are officers affected would produce incongruous results. Punishments totally disproportionate to the act of assault could be imposed because it will often be the case that the number of officers affected will have little bearing upon the seriousness of the criminal act. For an assault is ordinarily held to be committed merely by putting another in apprehension of harm whether or not the actor actually intends to inflict or is capable of inflicting that harm. Thus under the meaning for which the Government contends, one who shoots and seriously wounds an officer would commit one offense punishable by 10 years’ imprisonment, but if he points a gun at five officers, putting all of them in apprehension of harm, he would commit five offenses punishable by 50 years’ imprisonment, even though he does not fire the gun and no officer actually suffers injury. It is difficult, without a clearer indication than the materials before us provide, to find that Congress intended this result. 16

This line of argument seems to us fully applicable to Alexander’s assaults. Under the Government’s interpretation of the law, Alexander could have committed in this restaurant six offenses punishable by 60 years imprisonment, even if he did no more than draw his gun and hold it in such a manner that the five Marines and Miss Kelly were all put in apprehension. Such a disproportionate result requires a clearer showing of congressional intent than the present statutory scheme provides.

We hold, therefore, that where by a single act or course of action a defendant has put in fear different members of a group towards which the action is collectively directed, he is guilty of but one offense. 17 Multiple convic *934 tions and consecutive sentences will be appropriate only where distinct, successive assaults have been committed upon the individual victims. 18 Accordingly, we must vacate the conviction on three of the four counts, 19 vacate the sentence on the remaining count, and remand to the District Court for re-sentencing on a single count. 20

C. The Aiding and Abet,ting Instruction

At the close of the trial the judge charged the jury that they could find either defendant guilty of second-degree murder or assault with a dangerous weapon on an aiding and abetting theory. For the reasons set forth in Judge McGowan’s opinion, a majority of the panel finds it unnecessary to decide the validity of the charge to the jury on aiding and abetting. It is my view that the charge was erroneous and that the error was prejudicial to the defendant. As a result, I would reverse the one count of assault left standing by Part B of this opinion, and I would remand for a new trial.

Defending the charge, the Government does not contend that the jury could have found that Alexander fired his gun at the same time that Murdock did, and by doing so aided and abetted Murdock. Such an argument would run headlong into the insufficiency of the evidence that Alexander fired his gun inside the restaurant. 21 Rather, the Government argues that the evidence “permits an inference of concerted criminal action . . . . The jury could find that appellant knowingly associated himself in some way with the criminal venture and sought by his presence or some action to make it succeed. [Emphasis added.]” In my view, a conviction based on the theory that Alexander aided and abetted Murdock’s actions would be founded upon sheer speculation.

The evidence offered by the Government is insufficient to disprove the hypothesis — strongly suggested by the tes *935 timony of all the witnesses — that Alexander was acting entirely on his own when he tapped Lieutenant Kramer on the shoulder and asked him to step outside, that it was entirely for his own protection that he drew his gun when Lieutenant King stepped forward, and that he had every intention of backing out of the restaurant and leaving. At that point Murdock reentered the restaurant, drew his own gun, and commenced firing. The Government’s evidence is insufficient to prove that this was not a complete and horrifying surprise to Alexander. No evidence shows that Alexander even knew Murdock had a gun, much less expected him to fire it at insulting strangers. To refer to the Government’s own theory, there is insufficient evidence of a “criminal venture.” The Government does not suggest that appellants entered the restaurant intending to wait for Marines who had not yet arrived, and it would be sheer speculation for the jury to find that they hatched a plan of assault or murder after the Marines came in.

In arguing the motion for judgment of acquittal to the judge below, the Government suggested that the jury could infer that Alexander “was assisting Murdock in the sense that he was holding back King and holding back Kramer while Murdock was performing the fatal shooting.” If Alexander’s action had apparently had such a result, perhaps even if it had been intended to have such a result, a basis of aiding and abetting may have been laid. But there was no evidence that any of the victims were in fact “held back” by Alexander’s gun while Murdock was shooting. On the contrary, all the testimony indicates that as soon as shots began to be fired the Marines and Miss Kelly dived for cover and did everything they could to get out of the way. And on the circumstances of this incident, the jury could not possibly be convinced beyond a reasonable doubt that Alexander intended to aid Murdock by holding back any Marine who tried to attack them while Murdock was firing.

Another argument — one that appealed to the trial judge below — is that in some sense Alexander incited the behavior that resulted, since it was he who precipitated the confrontation with Lieutenant Kramer. The difficulty with this argument is that Alexander’s “inciting” words and action were directed to the wrong person — to Lieutenant Kramer, not to Murdock, who was apparently already outside when Alexander’s “inciting” began. The aiding and abetting statute 22 is aimed, inter alia, at one who incites another to commit a criminal offense — that is, spurs him on, encourages him, arouses him to action. The incitor is then as guilty as the principal he has encouraged. It would fly in the face of language as well as legal tradition 23 to hold that one can violate an aiding and abetting statute' by “inciting a situation” or “inciting” one who becomes a victim of the criminal act at issue. 24

*936 I would hold, therefore, that it was error to instruct the jury that it could convict Alexander of second degree murder and assault with a dangerous weapon, even if his own actions did not constitute these offenses, by finding that he aided and abetted Murdock.

D. Harmless Error

While I am convinced that the aiding and abetting theory should not have been placed before the jury, it does not follow automatically that Alexander’s conviction on all counts of assault must be reversed. 25 It could be argued, after all, that the defense was in no sense prejudiced by the submission of the erroneous charge.

The prejudicial impact of the instruction must be assessed in light of our holding that a defendant who puts a group of people in fear by a single act has committed only one offense. The evidence in this case demonstrates that Alexander did not take separate, distinct acts which would support multiple convictions. At most, he was guilty of one assault, and his guilt on that count would be established if even a single person had been placed in fear.

At first glance it seems unlikely that the defendant would have been acquitted if the aiding and abetting instruction had not been offered. The evidence is very strong that Alexander drew his gun and aimed it at Lieutenant King (whom he was not charged with assaulting) and equally strong that that act placed a group of people in fear. But in considering the weight of the evidence against Alexander, it is essential to keep in mind his substantial claim of self-defense.

However improbable it is that a jury would disbelieve the evidence that Alexander drew his gun on the Marine group, we can scarcely be as certain that they would take the additional step of rejecting his attempt to excuse the act. Whether he drew his gun is a simple question of fact; whether he has an adequate defense, however, involves (1) the reasonableness of his grounds to believe that he was in imminent danger of death or serious bodily injury, (2) the relevance of his failure to retreat, (3) the degree to which the force he used was proportionate to the danger he faced, and (4) whether he so provoked the conflict that he lost his claim of self-defense. 26 These, at any rate, were issues committed to the jury in the self-defense instruction in this case. Without this claim, the evidence that Alexander was guilty of at least one of the counts of assault with a dangerous weapon would indeed be overwhelming. Its presence, however, raises the possibility that some members of the jury allayed their doubts about Alexander’s justification for drawing his gun by reminding themselves that they had been instructed that they could find him guilty of aiding and abetting Murdock’s assaults. 27

*937 It may seem anomalous to argue that the aiding and abetting instruction contributed to the jury’s verdict on the assault counts, since Alexander was acquitted of second-degree murder while Murdock was convicted of that offense. Given the jury’s apparent rejection of the theory that Alexander aided and abetted Murdock as to the killing of Lieutenant King, it appears unlikely that the jury would have relied on that very theory in convicting Alexander of assault.

Nevertheless, prejudice may take subtle and diverse forms, especially where improper counts are submitted to the jury. Since the evidence could not, in my view, support a conviction on the theory that Alexander aided and abetted Murdock in the killing of Lieutenant King — much less on the theory that Alexander himself killed King — it is clear to me that the count charging murder in the second degree was improperly submitted. We should not affirm Alexander’s conviction until we have examined the different kinds of prejudice that may result from the submission to the jury of improper counts, even though a verdict of acquittal has been returned on those counts.

A landmark case in this area is United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965) (Marshall, J.), cert. denied, Mancusi v. Hetenyi, 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966). There, the Second Circuit reversed a second-degree murder conviction on the ground that

there was a reasonable possibility that the conduct of the trial and the deliberations of the jury were affected by the fact that Hetenyi was [improperly] indicted, prosecuted and charged with first degree murder .... 28

Specifying the kind of prejudice it had in mind, the court said:

The mere fact that Hetenyi could have ■ — logically and legally- — been convicted of second degree murder on the basis of all the evidence, does not mean that he would have been so convicted if he were not also charged with first degree murder. For example, it is entirely possible that without the inclusion of the first degree murder charge, the jury, reflecting a not unfamiliar desire to compromise might have returned a guilty verdict on the first degree manslaughter charge on the same evidence. 29

Such concerns — the effect of having additional, more serious issues in the case, the probability of a compromise verdict, the effect upon trial counsel’s focus and tactics — have been deemed worthy of serious consideration by this court. 30 And the Supreme Court, in a *938 unanimous opinion by Chief Justice Burger, has recently endorsed the Wilkins decision. In Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), the Court held that a state could not retry an accused for murder after an earlier guilty verdict on the lesser included offense of voluntary manslaughter had been set aside because of trial error. In response to Georgia’s plea that the second jeopardy was harmless error because appellant was not convicted of murder, the Court said:

The Double Jeopardy Clause . is cast in terms of the risk of hazard of trial and conviction, not of the ultimate consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence. See United States ex rel Hetenyi v. Wilkins, . . 31

In one particular context, the Wilkins case has been cited repeatedly to this court, and its apparent lesson rejected. 32 These are cases in which the death penalty was improperly before the jury, and the grounds for the court’s decision are instructive for this case. In Bailey v. United States (Humphries v. United States) 33 appellant was charged with violation of the District of Columbia rape statute, 34 but convicted only of carnal knowledge of a female under sixteen years. The court held that the death penalty provision of the rape statute was void under United States v. Jackson, 35 and the dissent argued vigorously that the conviction for carnal knowledge must therefore be reversed, relying on Wilkins *939 and Justice Fortas’s dissenting opinion in Cichos v. Indiana. 36 In the text of its opinion, the Bailey court distinguished Wilkins on the following ground:

In Wilkins the indictment in all three trials was for first degree murder and the prosecutor actively sought the death penalty and presented evidence for that purpose. Unlike Wilkins, the prosecutor here specifically stated that he was not going to seek the death penalty and presented no evidence to that end. 37

In a footnote, the court offered still another ground for distinguishing Wilkins :

. . Wilkins, like the dissent in Cichos, was dealing not with penalties but with the submission of improper offenses to the jury. Here, the offense was the same, there was no “choice” offered to the jury in this respect . . . . 38

In later cases, the court has been content to rest, implicitly, on the holding in Bailey and Humphries. 39 In at least one of these later cases, the opinions reveal, again, that the Government was not seeking the death penalty. 40

The lesson to be drawn from these cases seems clear. The presence of a higher count when it is not warranted does not automatically require reversal of a conviction on a lower count. The question is exactly what it is in all harmless error determinations: what effect is the error likely to have had on the jury’s understanding of the ease and its deliberations ? 41 All the factors listed in the cases discussed will be relevant, together with the weight of all the evidence. 42

To what result do the relevant considerations point in Alexander’s case? First and foremost, the Government’s evidence was insufficient to support a finding either that Alexander fired the shots that killed Lieutenant King or Lieutenant Lesnick or that Alexander aided and abetted Murdock’s firing of the fatal shots. Therefore, unlike Bailey & Humphries, Johnson, and Duckett 43 in this case the jury was improperly provided with a choice among offenses. 44

Second, the primary focus of the entire case was upon the murder and manslaughter counts. Unlike Howard, Bailey & Humphries, and Johnson 45 the prosecution eagerly pursued Alexander’s conviction on the higher counts. The Government’s closing argument explicitly mentioned both the possibility that Alexander fired some shots and the aiding and abetting theory as grounds for convicting him of second degree murder. Alexander’s able defense counsel, in turn, felt obliged to devote nearly twice as much time to the murder counts as he did to Alexander’s self-defense claim to assault. Finally, the major portion of the trial judge’s instructions necessarily concerned the murder and manslaughter counts.

*940 Third, since the evidence that Alexander was guilty of the offense of assault with a dangerous weapon was not overwhelming — because of the presence of the self-defense claim — the possibility that the verdict was reached as a result of a compromise is a real one. 46

All of these considerations must be viewed in the light of various confusing elements in the ease. In particular, the jury may have been misled about the self-defense claims. The trial judge gave a single, lengthy instruction on this issue which did not explicitly differentiate between Alexander and Murdock, between the different times at which their self-defense claims could have arisen, or between the different amounts of force they used. The potential confusion here is critical for Alexander; to the extent that his self-defense claim is made to appear little different from Murdock’s, Alexander is seriously prejudiced. It is difficult to believe that either the trial judge or Alexander’s able trial counsel would have let this instruction pass without objection had their attention not been so focused upon the four more serious charges.

Whatever result might be appropriate if these considerations stood alone, taken together they compel us to conclude that Alexander did not receive the trial to which he was entitled on the charge of assault with a dangerous weapon. On this particular record, the possibilities of prejudice from errors which occurred are too substantial to permit me to vote for affirmance of an assault conviction. 47 The question is, admittedly, a close one. It is more likely than not that Alexander would have been convicted of assault even if the trial had been conducted without error or confusion. More is at stake, however, than the result of the trial. It is our responsibility to insure not only that Alexander is guilty, but also that his guilt is determined by a process which is conducive to a full and fair ventilation of the pertinent facts and issues. Even outstanding trial counsel, such as Alexander’s, cannot provide his client with the best possible defense if he is compelled, through no fault of his own, to tilt at windmills. I am unable to say that the result of trial would inevitably have been the same if Alexander’s counsel and the *941 jury had been able to focus their attention on the questions genuinely in issue. I am unable to say that the claim of self-defense would not have been accepted if counsel and the jury had not been sidetracked by an improperly submitted count. Under these circumstances,' I would conclude that the instruction on aiding and abetting was prejudicial error, and I would reverse and remand for a new trial.

E. Sufficiency of the Evidence and Instructions on Provocation

Turning to Murdock’s contentions, we consider first his claim that the evidence was insufficient to permit the jury to find him guilty of second degree murder rather than manslaughter. Though the question is a close one — as it must almost invariably be when a defendant's state of mind is at issue — the panel agrees that the evidence presented in this case justifies a finding of malice.

While it appeal's that Murdock was inside the restaurant or close enough to the door to hear Lieutenant King’s racial remark, the surviving Marines and Miss Kelly all denied that any other provocative conduct took place. 48 According to their testimony, they were all standing motionless — in shock — staring at Alexander’s gun when Murdock came in, drew his gun, and began firing. We think, therefore, that the jury was presented with sufficient evidence to find that Murdock was not adequately provoked to justify the deadly force with which he retaliated.

But though we resolve the sufficiency of the evidence question against Murdock, our study of the record in this case has brought to our attention a difficulty with the existing instructions on manslaughter. To present the problem in the context of a concrete example, we quote in the margin the entire instruction on manslaughter given by the able trial judge in this case