United States v. Day

1 M.J. 1167, 1975 CMR LEXIS 684

• Court: U S Coast Guard Court of Military Review
• Decided: November 20, 1975
• Docket: CGCMS 9938; Docket No. 765
• Status: Published

Opinions

OPINION OF THE COURT

ROSENWASSER, Chief Judge:

David Day, the accused, who is white, shot and killed Charlton W. Little, a black Coastguardsman, when the latter began to dance with a white girl at the Enlisted Men’s Club of the Coast Guard Training Center, Cape May, New Jersey, on 13 October 1973. He also shot, but did not kill, Seaman Curtis D. Garner, who had come to the aid of Little. As Day’s counsel stated at the trial, “there was no rational basis” for the shootings. Tried by judge alone, Day was found guilty of unpremeditated murder under a charge of premeditated murder. He was also found guilty of aggravated assault against Garner, by shooting him in the abdomen with a pistol, and of simple assault by pointing a pistol at one Newton.

The fact that Day did the shootings was established by the uncontradicted testimony of several eyewitnesses, and was not contested. Day’s counsel explained on voir dire, that the defense was “temporary insanity”. Insanity, of course, is a short-cut word. It does not mean the same thing in the context of a criminal trial that it might mean outside the courtroom. In court-martial law, the defense of insanity has reference to a standard, defined with particularity in the Manual for Courts-Martial, for determining the mental responsibility of an accused — his criminal accountability — for the offenses charged against him.¹ Stated in terms of this standard, David Day’s defense was that he was either unable to distinguish right from wrong, or not able to adhere to the right, at the time of the acts charged against him; and that his inability proceeded from some mental defect, disease or derangement, and not from something less than a mental defect, disease or derangement.

Day’s trial occupied 24 days. It began on 27 February 1974 and proceeded intermittently until 2 May 1974. On that date the judge sentenced him to confinement at hard labor for 14 years, total forfeitures, reduction to Seaman Recruit and a bad conduct discharge. The convening authority approved. The case first came on for hearing before the Court of Military Review on 5 March 1975. We directed a new review and convening authority action. (50 C.M.R. 122). The case was thereafter reviewed by the staff legal officer of the First Coast Guard District and, on 2 June 1975, the District Commander issued the current action of the convening authority. He reduced the confinement to 13 years and six months, but otherwise approved. (Although the legal officer had recommended that the confinement be reduced to ten years, the District Commander subsequently explained that he did not adopt that recommendation because of the seriousness of the offenses, and that the six months reduction was made only to “give Day credit for the long period he was in confinement before and during the trial”.) We heard the case for the second time on 17 September 1975.

The assignments of error before us include two jurisdictional points. The first argues that the Commander, Third Coast Guard District, who convened the court, had no legal power to do‘so. The other urges that the court-martial lost jurisdiction because this was a capital case and it was tried by judge alone. We shall discuss these two points before taking up the sanity issue: whether the Government failed to prove beyond a reasonable doubt that the accused was mentally responsible for the offenses of which he stands convicted.

If the District Commander who created this court lacked the power in law to do so, then no one in the Coast Guard wa's authorized to convene a general court-martial. Yet, it is a matter of record that, on 31 May 1951, when the Uniform Code of Military Justice became effective, the Commandant and each District Commander had been duly empowered as general court-martial convening authorities, pursuant to a designation by the Secretary of the Treasury under Article 22 of the Code (10 U.S.C. § 822).

Appellant’s argument is constructed on the circumstance that the Coast Guard was transferred from the Treasury Department to the Department of Transportation on 1 April 1967. Prior to that date, the Secretarial designation of the Commandant and District Commanders as general court-martial convening authorities had never been revoked, cancelled or withdrawn by any authority empowered to do so. On and after that date, the savings provision of the Department of Transportation Act, section 12(a) of Public Law 89-670 (80 Stat. 931) operated to keep it in force. No action of the President or of the Congress or of the Secretary of Transportation withdrew from any District Commander the power given to such officers in 1951 to convene general courts-martial.

Shortly after the Coast Guard was transferred to the Department of Transportation, the Commandant on 3 May 1967 issued an amendment to the Coast Guard Supplement to the Manual for Courts-Martial. Section 0102 thereof confirmed the continuation in existence of the power possessed by the Commandant and the District Commanders by reciting:

By virtue of the authority contained in Article 22(a)(6) of the Code, the following commanding officers of the Coast Guard have been designated as general court-martial convening authorities:

The Commandant of the Coast Guard. The Commander of any Coast Guard District.

Appellant construes the issuance of this simple statement by the Commandant as having “terminated the prior Treasury Secretarial designations”. We do not agree. The Commandant could not, even if he wished to, terminate a Secretarial designation made pursuant to Article 22. Appellant says also that there was no jurisdiction “because the Commander, Third Coast Guard District, has not been designated a general court-martial convening authority by the Secretary of Transportation”. Again, we do not agree. A new designation by the Secretary of Transportation was not needed.

The other jurisdictional point asserts that the court-martial lost jurisdiction because the military judge alone tried a capital case.²

The point is insubstantial for two reasons: first, because on the opening day of the trial, on motion of the defense, the military judge ruled, and it became the law of the case, that the penalty of death could not be adjudged. This occurred before the accused requested that he be tried by judge alone. The second reason is: the judge did not arraign and try the accused until after the convening authority signed an amendment to the convening order referring the case to trial as a noncapital case.

Having in mind the mandate of Article 118 that a person found guilty of premeditated murder “shall suffer death or imprisonment for life as a court-martial may direct”, the defense moved for a ruling that the maximum punishment in this case is life imprisonment. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The judge so ruled. When he made his ruling, the trial counsel inquired:

I would ask the court for a ruling as to whether or not, if there is a finding of guilty with regard to the issue of premeditated murder, will Your Honor direct the military jury to return a verdict of life imprisonment?

The judge replied that he would. Clearly then, it was the law of the case, declared on the first day of the trial, that this court-martial could not adjudge the penalty of death; and it is immaterial whether Furman v. Georgia compelled that result or not.

Later, on 12 March 1974, a military jury of five members was impaneled; but the accused never faced the jury. On the next trial date, 1 April, the defense presented a written request for trial by judge alone. On 3 April the judge approved the request and only then the court became a general court-martial composed of judge alone. At 1220 hours on 4 April, the convening authority signed the amendment referring the case as noncapital; and it was not until 1335 hours on that day that the accused appeared before the court and was arraigned. In fact, then, he was not tried by judge alone under an unrestrictive referral order.

In any event, the referral order is not of primary significance. Under Article 18 of the Code and paragraph 14 of the Manual, the factor of primary significance in determining whether the case is one which can be tried by the judge alone, is whether the death penalty can be adjudged. The death penalty could not be adjudged in this case; the military judge had jurisdiction throughout the trial.

We turn now to a consideration of whether the evidence proved beyond a reasonable doubt that the accused was mentally responsible (“sane”) at the time of his offenses.

The issue of the accused’s sanity was not introduced as a concrete issue in the case until the 13th day of the trial. The testimony of an expert witness called by the defense made it an issue. The witness was Dr. Thrasher, a Commander in the Medical Corps, U.S. Navy, and a forensic psychiatrist. He expressed the opinion that David Day had suffered an acute paranoid psychotic reaction at the time of the shootings. In his opinion David Day could distinguish right from wrong at the time, but he was not able to adhere to the right.

Dr. Thrasher’s testimony was extensive, covering 147 pages of the record, and included the narration of a detailed psychiatric history of the accused, a description of his development of a “very deep-seated hatred for blacks”, and an account the accused had given of the events of 13 October 1973. Dr. Thrasher also commented from the witness stand on a videotape recording of one of the 14 interviews he had had with the accused. The tape showed David Day in the doctor’s office talking about matters pertaining to his background, his racial attitudes, and his perception of the events when he was shooting Little and Garner. (The tape was allowed to be shown, despite objection, on the theory that it was solely for the purpose of showing the court the method and technic employed by Dr. Thrasher.)

During cross-examination, Dr. Thrasher declined to say that the accused was not mentally responsible when he brought his gun into the Enlisted Men’s club on the fatal night, but reiterated the opinion that he was not sane at the time of the shooting, as the following extract shows:

Q. Doctor was this man able to adhere to the right when he strapped his gun on that night?

A. I didn’t examine him for — to obtain information for his ability to adhere to the right at that time. I don’t know.

Q. Doctor, when did this thing start that you call his acute paranoid psychotic reaction? Exactly when did that start?

A. I don’t know exactly when it started. It started about the time that he observed Little and the girl get up and he went in — he felt this welling up of the anger and the rage. It began approximately about that time, right there.

Q. Well, do you equate his ability to adhere to' the right with the starting of that or would it begin earlier or later than that?

A. His ability would begin — his—his ability to adhere or not adhere to the right would begin about that time, in that frame of reference. At that point he was — he was psychotic and out of control of what he was doing.

In rebuttal, the prosecution adduced the testimony of three Army psychiatrists. Each of the three expressed the opinion that the accused was so far free from mental defect, disease or derangement as to be able both to distinguish right from wrong and to adhere to the right at the times in question. Major Saul Faerstein, the Army doctor who examined the accused first, but who was the last to testify, diagnosed his condition as a paranoid personality disorder. The other Army doctors, Dr. Anderson and Dr. Ira Feirstein, testified to the same diagnosis. Thus the government’s expert witnesses were agreed that what David Day suffered from was a character and behavior disorder rather than a mental condition.

Appellant contends that “the entire testimony of the Government psychiatric witnesses must be stricken” (Brief, p. 15 and p. 18) and that the accused was unlawfully prejudiced by the reception of their testimony. It appears that during the cross-examination of Major Faerstein, the last government witness, defense counsel referred to the initial interview Major Faerstein had with the accused and asked:

Q. Did you give him any form of warning?

A. No, I did not. I’m not sure what kind of warning you referred to.

Despite knowledge of the absence of any warning, defense counsel did not move to strike Major Faerstein’s testimony, but continued to cross-examine him at length (R.859 to R.892) and elicited from him a number of unwarned statements made by David Day to the witness. On the next trial date following the completion of the psychiatrist’s testimony, the defense counsel moved to strike his entire testimony on the ground that warnings required by Article 31 of the Code, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967) had not been given. Further, he moved to strike the testimony of Dr. Anderson and Dr. Ira Feirstein on the ground that their testimony was “fruit of the poisonous tree” since Major Faerstein had passed on to the other doctors “tainted information” he had obtained from the accused; and on the further ground that full and proper warnings had not been given by them to the accused.

The end result of these motions was that the judge struck out in part the testimony of each of the government doctors. He went through the transcript and indicated the testimony stricken by bracketing. He struck out every single specific answer or statement made by David Day testified to by the doctors. Their remaining testimony dealt with their ultimate conclusions, diagnoses, methodology, procedures and general psychiatric ideas and concepts. We need not examine the correctness of the judge’s action with regard to the testimony he excluded, except to say that he probably erred in striking testimony which the defense counsel himself elicited from Major Faerstein knowing that no warning had been given. United States v. Gustafson, 17 U.S.C.M.A. 150, 37 C.M.R. 414 (1967). It is enough to observe that what was excluded was not considered by the trial court in arriving at the conclusion that David Day was mentally responsible for his offenses; it was not considered by the staff legal officer and the convening authority in approving the conviction; and our appellate court has not utilized or considered it in deciding to affirm. Cf. United States v. Starr, 23 U.S.C.M.A. 584, 50 C.M.R. 849, 1 M.J. 186 (1975); United States v. DeLeon, 5 U.S.C.M.A. 747, 19 C.M.R. 43 (1955).

The contention that the entire testimony should have been stricken is without basic merit. It is now settled law, that the answers to the standard trilogy of questions concerning the sanity of the accused (see para. 121, MCM 1969) as testified to by government doctors, and their conclusions as to his mental responsibility based on interviews with the accused conducted without warning him and advising him of his rights are admissible in evidence as rebuttal testimony. United States v. Babbidge, 18 U.S.C.M.A. 327, 40 C.M.R. 39; United States v. Wilson, 18 U.S.C.M.A. 400, 40 C.M.R. 112; United States v. Schell, 18 U.S.C.M.A. 410, 40 C.M.R. 122; United States v. Ross, 19 U.S.C.M.A. 51, 41 C.M.R. 51 (all 1969). Indeed, paragraph 140a (2) of the Manual as amended 27 January 1975 now provides:

Where the defense presents expert testimony concerning the accused’s mental condition, a Government expert, testifying in rebuttal, may testify as to his conclusions concerning the accused’s mental responsibility or capacity based on interviews with the accused conducted without advising him of the (MirandaTempia) rights.

Also quite without merit is the contention that the “fruit of the poisonous tree” doctrine requires striking the testimony of two of the government doctors. See United States v. Wilson, supra; see also United States v. Ross, supra.

United States v. Babbidge, supra, was a landmark case. There, the accused had refused to cooperate in a pretrial psychiatric evaluation by Government doctors. When the defense called a medical expert to testify at the trial, the Government moved to exclude any such testimony unless the accused agreed to submit to an evaluation by Government experts. The court required the accused to do so as a condition precedent to the defense doctor testifying. The legality of the ruling was upheld by the Court of Military Appeals. Its opinion stated:

When the accused opened his mind to a psychiatrist in an attempt to prove temporary insanity, his mind was opened for a sanity examination by the Government. His action constituted a qualified waiver of his right to silence under Article 31.

The decision in Babbidge was strongly influenced by the reasoning in United States v. Albright, 388 F.2d 719 (C.A.4, 1968). The opinion of that court observed that the “maintenance of a fair state-individual balance clearly required that the government be permitted to have the defendant examined”.

Under the law, then, Day could not have remained silent when interviewed by the Government doctors, thus frustrating their evaluation, without forfeiting his right to present an insanity defense supported by an expert witness’ testimony at the trial. However in the absence of proof that proper warnings had been given, he was entitled to the exclusion of testimony by the Government doctors as to statements made by him tending to show that he did the criminal acts charged. In the instant case the testimony of the Government doctors which had any tendency toward proving that the accused did the acts charged was excluded from evidence. Testimony tending to show that he possessed the requisite mental capacity to be criminally responsible for the acts charged did not have to be excluded. We find no prejudicial error in connection with the Government’s psychiatric evidence. As indicated above, we have determined that the evidence of record was legally sufficient to, and did in fact, prove the mental responsibility of the accused for the offenses of which he was found guilty, beyond a reasonable doubt.

After the findings and during the presentencing proceedings the defense presented the testimony of a second psychiatric expert, Dr. Robert Sadoff, director of studies in legal psychiatry at the University of Pennsylvania. This post-conviction psychiatric testimony does not raise a reasonable doubt as to the accused’s mental responsibility for the offenses.

Appellant also assigned as error that the accused was denied his right to a speedy trial. The accused was held in confinement 137 days from the date of the offenses until trial commenced on 27 February 1974. The period of delay between 18 October and 4 December 1973, 47 days, is attributable to defense-requests. The record shows also that the Government was ready to proceed to trial on 11 February 1974 but the defense requested the further 16-day delay. All told, the Government was responsible for substantially less than 90 days delay. Accordingly the presumption of a prejudicial violation of Article 10 UCMJ did not arise. United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). The Government proceeded with diligence to bring the accused to trial; the assignment is without merit.

Another assignment of error asserts that the judge erred in denying the defense motion to dismiss the specification charging the accused with assault with a dangerous weapon on Charles Newton. The motion was made on the theory that there was an improper joinder of a minor offense with a major offense. See para. 26 c MCM 1969. The relatively minor charge, as compared with murder, alleged an occurrence 15 minutes after the murder and involved a surrounding circumstance. Accordingly it was permissibly joined with the other two offenses.

We do not deem it necessary to list the remaining assignments of error. We have examined them and, in our opinion, they lack merit and do not warrant discussion.

The findings of guilty and the sentence as approved by the Commander, First Coast Guard District, are found to be correct in law and fact, and are affirmed.

ROSENWASSER, YOUNG and LYNCH, Appellate Military Judges (concurring). MAGUIRE, Appellate Military Judge (dissenting as to jurisdiction).

1 . Para. 1205 MCM 1969, states in part: “A person is not mentally responsible in a criminal sense for an offense unless he was, at the time, so far free from mental defect, disease, or derangement as to be able concerning the particular act charged both to distinguish right from wrong and to adhere to the right. The phrase ‘mental defect, disease, or derangement’ comprehends those irrational states of mind which are the result of deterioration, destruction, or malfunction of the mental, as distinguished from the moral, faculties. To constitute lack of mental responsibility, the impairment must not only be the result of mental defect, disease, or derangement but must also deprive the accused of his ability to distinguish right from wrong or to adhere to the right as to the act charged.” Para. 120d prescribes: “No person shall be brought to trial unless he possesses sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his defense.”

2 . Article 18 UCMJ, in its last sentence, provides that a general court-martial composed solely of a military judge “shall not have jurisdiction to try any person for any offense for which the death penalty may be adjudged unless the case has been previously referred to trial as a noncapital case.”