Thomas W. Whalem v. United States

346 F.2d 812, 120 U.S. App. D.C. 331, 1965 U.S. App. LEXIS 5807

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 23, 1965
• Docket: 18067_1
• Status: Published

Opinions

BASTIAN, Senior Circuit Judge, with whom WILBUR K. MILLER, Senior Circuit Judge, and DANAHER, BURGER and McGOWAN, Circuit Judges, join:

When this case was first argued to a division of three judges, appellant, convicted of robbery and attempt to commit rape, questioned, the sufficiency of the evidence of his indentification, the jury instructions which he alleges failed to properly emphasize evidence favorable to his case, and introduction into evidence of clothing taken from him after his arrest. Before an opinion was issued by the division the full Court sua sponte ordered a rehearing en banc. At the rehearing en banc two other issues were raised, namely (1) whether there was sufficient evidence in the record pertaining to appellant’s lack of sanity to raise the issue of insanity even though appellant himself refused to do so, and whether in view of such evidence the trial judge erréd by not raising the insanity issue sua sponte and instructing the jury thereon, despite appellant’s wishes to the contrary; and (2) whether the trial judge erred in proceeding to trial without holding a hearing to determine appellant’s competency to stand trial, which hearing, appellant now urges, was required notwithstanding his lack of objection to two hospital reports that he was competent.

We hold that appellant was adequately identified and that the instructions to the jury were fair in all respects. The clothing was properly admitted into evidence since it was taken from appellant after a valid arrest. Robinson v. United States, 109 U.S.App.D.C. 22, 283 F.2d 508, cert. denied, 364 U.S. 919, 81 S.Ct. 282, 5 L.Ed.2d 259 (1960).

Before turning to the remaining issues, we believe some background is necessary. At the time of the crimes in question appellant was on convalescent leave from St. Elizabeths Hospital, to which he had been civilly committed in 1956. After his arrest for the crimes in question, the Government, reciting appellant’s prior commitment, successfully moved for a mental examination and appellant was committed to St. Elizabeths pursuant to D.C.Code § 24-301 (a). The hospital superintendent subsequently informed the court that in his opinion appellant was “mentally competent to understand the nature of the charges pending against him and to assist properly in the preparation of his defense.” The court was also informed by the superintendent that appellant was, both then (at the time of the report in March 1963) and at the time of the crime, suffering from a mental disease, diagnosed as schizophrenic reaction, catatonic type (in remission), but that the crimes were not products of this disease. Appellant’s counsel then moved for a further mental examination and appellant was sent to D. C. General Hospital which reported that appellant was “mentally competent as to be able to understand the proceeding against him and to be able to properly assist in the preparation of his defense.” In addition, the D. C. General report noted that although appellant manifested a passive aggressive character disorder and a low I. Q., his condition did not constitute a mental disease or defect. After receipt of these reports neither the Government nor the defense objected to the hospitals’ certifications nor did they request a hearing. The case proceeded to trial without a hearing on the issue of appellant’s competency. At trial no issue of insanity was raised by defense counsel, who was acting under instructions given him by appellant as well as counsel’s own judgment that the issue of insanity should be left out of the case.

We deal first with the question of whether, in view of appellant’s prior (1956) commitment to St. Elizabeths and the reports from that institution and D. C. General Hospital, the trial judge erred in proceeding to trial without holding a hearing on the issue of appellant’s competency to stand trial. Appellant’s argument here is essentially that his 1956 commitment created a presumption of continuing incompetency to stand trial, as well as insanity, and therefore an affirmative determination, based on a hearing, was required to establish the contrary, and further that in any event a District Court hearing is always required after a mental examination pursuant to D.G. Code § 24-301 (a) even when the report is that the accused is competent and neither the accused nor the Government requests such a hearing.

The reports that came back from both hospitals to which appellant was referred for a mental examination were that appellant was competent — and it is right at this juncture that we get no explicit guidance from the statute. It is, therefore, without the help of an express prescription in § 301 as to the procedure to be followed at this point that we have to resolve the argument that, even though no objection of any kind was made to the reports and no request of any kind for a judicial inquiry was made, the trial court committed reversible error in letting the trial proceed without a judicial competency hearing.

Section 301(a) deals in terms with the procedure to be followed on the receipt by the court, after the granting of a motion for a mental examination, of the report of the hospital that the accused is not competent to stand trial. In such event, the statute states:

“[S]ueh report shall be sufficient to authorize the court to commit by order the accused to a hospital for the mentally ill unless the accused or the Government objects, in which event, the court, after hearing without a jury, shall make a judicial determination of the competency of the accused to stand trial.”

Of course, Congress was there concerned with the establishment of a reasonable and proper basis for the detention by commitment of an accused who might be mentally ill.

Congress next had to provide a mechanism for steps yet to follow. It would have been more logical just as it certainly would have been more helpful if Congress had dealt specifically with the situation where, as here, following an order granting a mental examination, the hospital submits its report that the accused is competent to stand trial. Since the statute is completely silent on this point, we must deal with the situation in light of what Congress surely intended, as may be discerned from the very next paragraph following the one quoted above. This is § 301(b), which deals with the case where the accused, having once been committed to the hospital as incompetent to stand trial, is later found by the superintendent of the hospital to be restored to competency. In such event, the statute says:

“[T]he superintendent shall certify such fact to the clerk of the court * * * and such certification shall be sufficient to authorize the court to enter an order thereon adjudicating him to be competent to stand trial, unless the accused or the Government objects, in which event, the court, after hearing without a jury, shall make a judicial determination of the competency of the accused to stand trial.”

This was, of course, the statute Congress adopted for the explicit purpose of altering our holding in Gunther.1

As between § 301(a) and § 301 (b), we cannot see any substantial differences in the language used to characterize the course which the court is authorized to follow upon the return of a certification of incompetency, in the one case, and restoration of competency, in the other. We read the present prescription as being very clear to the effect that, whenever the court receives a certification of incompetency or a certification of restoration of competency and there is no objection by either the accused or the Government, the court may, in the one case, forthwith commit the accused to a mental hospital and, in the other, immediately proceed with the trial.

By its unbalanced discussion of the alternatives in § 301(a) Congress could conceivably be thought to have attached more horrendous consequences to being committed to .a mental hospital than it did to being certified to be competent to stand trial. Contrarily, it could be taken to have left out the one alternative on the implicit assumption that a person should not be forced to stand trial without a judicial inquiry going behind the hospital’s certification of competence, even though no objection is made to the certificate and no such inquiry is sought. This latter interpretation is, however, pretty well destroyed by Congress’ enactment of § 301(b).

Accordingly, we conclude that Congress intended that a certification of competency following a § 301(a) referral should be sufficient to authorize the court in its discretion to proceed with the trial unless the accused or the Government objects, in which case a hearing must be held to determine competency.² This is the same procedure which Congress expressly established for use in handling certifications of either incompetency or restoration to competency, and we believe it to be equally applicable to the alternative presented in this case.³

By arguing, in effect, that we should require a hearing on an accused’s competency to stand trial in all cases, whether or not an objection to a competency certification has been made, appellant would have us do precisely what Congress has said we should not do. In enacting the 1955 amendments to § 301 Congress, as we read the statute, specifically overruled that much of the Gunther and Contee ⁴ cases which held that an accused could not be ordered to trial on the basis of the certification of the accused’s competency to stand trial by the superintendent of the mental institution wherein the accused has been examined.⁵ To adopt appellant’s argument in this case would be to legislate judicially the reinstatement of Gunther in the teeth of Congress’ clear mandate to the contrary.

In holding that a trial judge may proceed to trial on the basis of the hospital’s certification of competency when no objection is made thereto, we neither say nor imply that he must do so merely because the hospital’s report is not objected to by either of the parties. Unquestionably a trial judge is always free to pursue whatever inquiry into the question of an accused’s competency he feels necessary. He may conclude that the hospital’s report is inadequate and sua sponte request an elaboration of the report or order a hearing, and indeed, there may be cases in which, on the basis of what he knows and can see about the accused, he should do so, notwithstanding the certification. We hold only that he is not bound to hold a hearing on the issue of competency when an accused is certified to be competent and there is no objection to such certification.⁶

Since, as we hold, the desirability of a hearing on the matter of competency following receipt of the hospital’s report that the accused is competent is a question that lies within the discretion of the trial judge when the report is not objected to by either party, the real question before us is whether the failure to hold such a hearing in this case constituted an abuse of discretion.

Appellant’s reliance on his earlier commitment to St. Elizabeths as a basis for urging that a hearing was mandatory overlooks entirely the clear distinction between incompetency to stand trial and insanity.⁷ In the circumstances of this case the distinction is highly significant, for although appellant had been committed in 1956, at no time had he been found incompetent to stand trial. Indeed, his competency to stand trial was not in issue in 1956. As a matter of fact, appellant was determined to be competent to stand trial by both St. Elizabeths and D. C. General prior to the proceedings involved here.

Consequently, the Gunther, Contee and Kelley⁸ cases are inapplicable in this case. In each of those cases, we held that a judicial determination of competency based on a hearing was required, in view of an earlier judicial finding, after a hearing, of the accused’s incompetency to stand trial. As we pointed out in Kelley v. United States, 95 U.S.App.D.C. 267, 270, 221 F.2d 822, 824 (1954) :

“[A] judicial determination of mental competency to stand trial is required when * * * there has been an earlier judicial determination of incompetency and no subsequent judicial determination of competency.” [Emphasis supplied.]

Similarly, in the Gunther case, emphasis was placed on the need to find a restoration of competency before one earlier adjudicated incompetent could be required to stand trial.

In this case there was no prior adjudication of incompetency. We do not imply that the fact of appellant’s commitment to St. Elizabeths in 1956 was of no evidentiary value. Indeed, the fact of that commitment would be relevant to the question of whether a motion for a § 301 (a) mental examination to determine competency should be granted. Whether such a prior commitment alone makes out the prima facie showing required by § 301(a) we do not decide, nor do we need to, since two such motions for examination were granted in this case.

Nothing in the record of this case could warrant our holding that the trial judge abused his discretion by proceeding to trial without a competency hearing. Accordingly, we sustain the trial judge in this respect.

One final difficulty in this aspect of the case cannot be ignored. While § 301(b) clearly refers to the certification authorizing “the court to enter an order thereon adjudicating [the accused] to be competent to stand trial” [emphasis supplied], no formal order appears in the record of this case. However, since the trial judge had before him the certifications of St. Elizabeths and D. C. General of appellant’s competency to stand trial, he was certainly acting on the basis of those certifications in permitting the case to proceed. The question, therefore, is whether, in the circumstances of this case, the absence of a formal order was sufficiently prejudicial to appellant to require our vacating his conviction.

We think that a reversal on the basis of such a procedural defect would be an unwarranted elevation of form over substance. There had been no prior determination of appellant’s incompetency, the present certifications were before the trial judge, neither an objection to the certifications nor a request for a hearing was made, and finally, neither reference to nor dependence on appellant’s incompetency appears in the trial record. We are of the opinion that, in this case, the failure to enter a formal order was harmless error, although we strongly suggest that such orders be entered in future cases to record the fact that the District Judge considered the report and that it was available to the parties. There is no suggestion in this case that the District Judge ignored the report or was not acting on it in proceeding to trial. Nor is there any indication of a lack of either notice of the certifications or opportunity to object to them.

Thus the posture of the case as we turn to the sanity issue is that appellant was competent to assist in his defense, and the question is whether or not a competent defendant may refuse to plead insanity even though there may be facts available to support that defense; and if so, whether the trial judge commits error by not raising the issue of insanity sua sponte and instructing the jury thereon (assuming, of course, that the trial judge knows of the facts which could support an insanity plea).

In our view, a defendant may not keep the issue of insanity out of the case altogether. He may, if he wishes, refuse to raise the issue of insanity, but he may not, in a proper case, prevent the court from injecting it. We as much as held this in Overholser v. Lynch, 109 U.S.App.D.C. 404, 288 F.2d 388 (1961), and that aspect of our holding was not disturbed by the Supreme Court. However, in the event of acquittal by reason of insanity following a defendant’s affirmative refusal to rely on this ground, the automatic commitment procedures of D.C.Code § 24-301(d) would not apply. Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962).

One of the major foundations for the structure of the criminal law is the concept of responsibility, and the law is clear that one whose acts would otherwise be criminal has committed no crime at all if because of incapacity due to age or mental condition he is not responsible for those acts. If he does not know what he is doing or cannot control his conduct or his acts are the product of a mental disease or defect, he is morally blameless and not criminally responsible. The judgment of society and the law in this respect is tested in any given case by an inquiry into the sanity of the accused. In other words, the legal definition of insanity in a criminal case is a codification of the moral judgment of society as respects a man’s criminal responsibility; and if a man is insane in the eyes of the law, he is blameless in the eyes of society and is not subject to punishment in the criminal courts.⁹

In the courtroom confrontations between the individual and society the trial judge must uphold this structural foundation by refusing to allow the conviction of an obviously mentally irresponsible defendant, and when there is sufficient question as to a defendant’s mental responsibility at the time of the crime, that issue must become part of the case. Just as the judge must insist that the corpus delicti be proved before a defendant who has confessed may be convicted, so too must the judge forestall the conviction of one who in the eyes of the law is not mentally responsible for his otherwise criminal acts. We believe then that, in the pursuit of justice, a trial judge must have the discretion to impose an unwanted defense on a defendant and the consequent additional burden of proof on the Government prosecutor. So, our query is whether in this case there was a combination of factors which required the trial judge to inject the insanity issue for, if such factors existed, his failure to do so is an abuse of discretion and constitutes error.¹⁰

In the instant case, both hospital reports available to the trial judge negated a defense of insanity (the one indicating no mental disease or defect, the other indicating lack of productivity). There was testimony by appellant on cross-examination that he had previously been committed to St. Elizabeths, but the details were not brought out since the Government was trying to show only that appellant was familiar with the hospital grounds where the attack took place. At the time of this testimony, the trial judge, in a bench conference, quite properly advised defense counsel¹¹ that if there was an insanity issue to be raised it should be raised. Near the end of the trial, defense counsel informed the court that both he and his client agreed that the insanity issue should not be raised. There was, of course, no request by appellant for any insanity instructions and none were given. Under these circumstances we conclude that the trial judge did not abuse his discretion by not injecting the issue of insanity into the case. Accordingly, there being no error, the convictions are affirmed.

Affirmed.

WASHINGTON, Circuit Judge,

did not participate in this opinion but reserves the right to file a statement of his views at a later date.

1 . Gunther v. United States, 94 U.S.App.D.C. 243, 215 F.2d 493 (1954).

2 . A similar conclusion has been reached by other circuits in dealing with the problem of the procedure to be followed under 18 U.S.C. § 4244, which, like § 301(a), contains no express prescription for the court to follow when the mental examination results in a certificate of competency. See Coffman v. United States, 290 F.2d 212 (10th Cir. 1961); Formhals v. United States, 278 F.2d 43 (9th Cir. 1960); Krupnick v. United States, 264 F.2d 213 (8th Cir. 1959); and see Miller v. United States, 207 F.Supp. 5 (D.C.N.D.Fla.1962).

3 . It is not impossible that Congress intended the granting of a § 301(a) motion for mental examination (which requires a prima facie showing of insanity or incompetency) and the consequent commitment to St. Elizabeths to be sufficient, without more, to call into operation the provisions of § 301(b) dealing with restoration of competency. By this reasoning a certification of competency after a § 301(a) examination and commitment would, under § 301(b), authorize the court to go ahead with the trial in the absence of objection. Admittedly the legislative history is unclear on this point, yet the result accords with the congressional designs “to speed up procedures without prejudicing the accused” and “to avoid the burden of a judicial hearing and determination unless the accused or the Government desires it.” S.Rep. No. 1170, 84th Cong., 1st Sess. 3 (1955); H.R.Rep. No. 892, 84th Cong., 1st Sess. 3 (1955).

4 . Contee v. United States, 94 U.S.App.D.C. 297, 215 F.2d 324 (1954).

5 . We recognize that the question of competence to stand trial has been held to be reviewable both by habeas corpus and under 28 U.S.C. § 2255. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Sanders v. Allen, 69 App.D.C. 307, 100 F.2d 717 (1938). We do not consider those cases as controlling in this ease. In those cases there had been no certificate of competency and' the issue had not been raised until the collateral attach upon the conviction was filed, and it was held that a hearing was required to determine the issue. Here, on the other hand, we have a certificate of competency and a statute which we read as requiring a hearing only if the accused or the Government objects to the certification.

6 . The primary concern of the dissent seems to be that often, and specifically in this case, the report from the hospital merely sets forth the opinion of the superintendent in a conclusionary, “boiler-plate” form and that such reports are per se inadequate. With all due respect, we suggest that this position overlooks the language of the statute that a report or certification of the opinion of the superintendent as to an accused’s competency “shall be sufficient” to authorize the entry of an appropriate order. We cannot say that the District Judge abused his discretion in letting the trial proceed on the basis of such a report, certainly in the absence of objection by the defendant and of any other circumstances which render the superintendent’s opinion substantially suspect. In this case there is no question of lack of notice to the defendant and his counsel of the report or of their acceptance of it without objection, nor do there appear to be any such other circumstances.

7 . Stewart v. United States, 107 U.S.App.D.C. 159, 161, 275 F.2d 617, 619 (1960), rev’d on other grounds, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961).

8 . Kelley v. United States, 95 U.S.App.D.C. 267, 221 F.2d 822 (1954).

9 . “The legal and moral traditions of the western world require that those who, of their own free will and with evil intent (sometimes called mens rea), commit acts which violate the law, shall he criminally responsible for those acts. Our traditions also require that where such acts stem from and are the product of a mental disease or defect as those terms are used herein, moral blame shall not attach, and hence there will not be criminal responsibility.” Durham v. United States, 94 U.S.App.D.C. 228, 242, 214 F.2d 862, 876, 45 A.L.R..2d 1430 (1954).

10 . No rigid standard exists to control' the District Court in deciding whether it should require the insanity issue to be submitted. As a matter within the sound discretion of the District Court, this question must be resolved on a case by case basis.

11 . Defense counsel had objected to the testimony on the grounds that if it were admitted he would probably have to raise the insanity issue.