PER CURIAM:
Appellant was found guilty by a jury of armed robbery, assault with a dangerous weapon, and carrying a pistol without a license (D.C. Code §§ 22-2901, -3202, -502, -3204), and was sentenced
to concurrent terms of five to fifteen years, two to six years, and one year respectively. The charges arose from a nighttime holdup of two men in the vicinity of the Gospel Mission, perpetrated by appellant and another on the evening of June 8, 1968. As the two robbers fled, they were pointed out to a passing police cruiser by the victims, and were apprehended and identified shortly thereafter. An initial frisk of appellant did not reveal the pistol, but after the victims identified appellant as the man who had robbed them at gunpoint the gun was found concealed in his underwear. The other man was tried separately in March 1969 and found guilty of armed robbery and assault with a dangerous weapon.
At trial appellant rested his case without introducing any evidence, and urges as his grounds for reversal here that the trial judge (1) impermissibly “blocked [defense] counsel’s efforts to explore the insanity defense,” and (2) erred by failing to sua sponte raise that defense before the jury. We find that neither of these contentions is sufficiently supported, and we accordingly affirm appellant’s convictions.
I
Appellant’s allegation of interference with counsel’s attempt to pursue the insanity issue is indeed a serious one, particularly in the absence of any other proferred defense. However, the portion of the record he presents to support this charge is wholly inadequate to carry that argument.
Following the return of the instant indictment in November 1968 appellant sought, and received, commitment to St. Elizabeths Hospital for mental observation, stating he had previously been hospitalized in Virginia for eight months in 1958 and again for three months in 1959. In April 1969 St. Elizabeths reported that he was competent to stand trial, that he was not suffering from any mental disease or defect, and there were no indications of the existence of such conditions at the time of the robbery. An independent psychiatric examination was requested and Dr. Donald A. Kellogg found appellant to be suffering from Sexual Deviation (homosexuality) and Schizophrenia, chronic and undifferentiated, with paranoid features. Dr. Kellogg considered appellant incompetent for trial, and also expressed the view that the robbery had been the product of his mental illness. On August 1, 1969 Judge Pratt, the trial judge here, after a full hearing found appellant incompetent for trial and ordered him committed. Later, on October 30, 1970, St. Elizabeths reported to the court that appellant, though suffering from homosexuality and transvestitism, was competent for trial and that his alleged offenses were not the product of his mental condition.
Thereafter a second hearing was held on December 17, 1970, at which the court heard the testimony of one psychiatrist from St. Elizabeths Hospital and the testimony of appellant. The court withheld ruling, however, pending receipt of a report from an independent psychiatrist, to be selected by defense counsel. This psychiatrist, Dr. Albert Marland, expressed the opinion that appellant was malingering and that he was without mental disease
or defect now or at the time of the crime.
On March 25, 1971 Judge Pratt found appellant competent,
and the trial on the instant offense was held before him on April 26, 1971.
Prior to trial, at which appellant appeared wearing a woman’s dress and a wig, Judge Pratt advised the prospective jurors that appellant had been found competent for trial after examination by St. Elizabeths and an independent psychiatrist and that no insanity defense was going to be raised. A bench conference followed, which is the source of appellant’s allegation of judicial interference:
[Defense counsel]: Your Honor, you mentioned about no defense of insanity. I got Kellog[g]’s report, and he said he thought this was a product of insanity. I hadn’t thought of it, it was so long ago, the interview, and I don’t even know whether I can find Dr. Kellog[g]. .
THE COURT: Well,
1 don’t think,
in view of the findings of two panels
at St. Elizabeths and also Dr. Mar-land,
that you are required to carry it any further.
* •>:- -x- * * -x-
THE COURT: I have heard about this man twice, the first time when he came up for release from St. Elizabeths. At that time I heard the testimony, and in view of the bizarre conduct, I sent him back to St. Elizabeths.
The second time he came up, there was a full report, we had another finding, and I decided that the man was malingering. That was the intimation that we got from St. Elizabeths.
In addition, we had a special examination under court order by Dr. Mar-land, and Dr. Marland concurred with the prior recommendations of St. Elizabeths.
[Defense counsel]: There was one . exception to that.
THE COURT: Dr. Kellog[g]. That’s right.
[Defense counsel]: Yes. And he did raise the issue of insanity.
THE COURT: I remember. I remember him particularly.
* -x * -x- -x- *
THE COURT: I am satisfied since St. Elizabeths had him over there under observation day and night, he’s been over there a matter of years.
x * * * x *
[Defense counsel]:
I just want to put on the record that my basic agreement is with the same position that you have taken here, Your Honor. I have been with this man for three years. I don’t want to interpose an insanity defense unless I feel I have a chance.
I feel that tactically, if you introduce it and it falls on its face, you kill your other chances. (Tr. Ills, emphasis added)
Admittedly, in the face of the strength of the Government’s case, appellant had very little “other chance” besides putting the prosecution to its proof and pointing to its evidentiary weaknesses. But this exchange seems to us to unequivocally establish that after three years of representing appellant in these proceedings, defense counsel concurred with the conclusion reached by the psychiatrists and Judge Pratt that appellant was a malingerer. With this impression of his client, and with his expressed opinion that it was tactically unwise to raise an insanity defense “unless I feel I have a chance,” appellant’s present allegation of judicial interference with defense counsel’s decision not to raise the defense is without merit.
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PER CURIAM:
Appellant was found guilty by a jury of armed robbery, assault with a dangerous weapon, and carrying a pistol without a license (D.C. Code §§ 22-2901, -3202, -502, -3204), and was sentenced
to concurrent terms of five to fifteen years, two to six years, and one year respectively. The charges arose from a nighttime holdup of two men in the vicinity of the Gospel Mission, perpetrated by appellant and another on the evening of June 8, 1968. As the two robbers fled, they were pointed out to a passing police cruiser by the victims, and were apprehended and identified shortly thereafter. An initial frisk of appellant did not reveal the pistol, but after the victims identified appellant as the man who had robbed them at gunpoint the gun was found concealed in his underwear. The other man was tried separately in March 1969 and found guilty of armed robbery and assault with a dangerous weapon.
At trial appellant rested his case without introducing any evidence, and urges as his grounds for reversal here that the trial judge (1) impermissibly “blocked [defense] counsel’s efforts to explore the insanity defense,” and (2) erred by failing to sua sponte raise that defense before the jury. We find that neither of these contentions is sufficiently supported, and we accordingly affirm appellant’s convictions.
I
Appellant’s allegation of interference with counsel’s attempt to pursue the insanity issue is indeed a serious one, particularly in the absence of any other proferred defense. However, the portion of the record he presents to support this charge is wholly inadequate to carry that argument.
Following the return of the instant indictment in November 1968 appellant sought, and received, commitment to St. Elizabeths Hospital for mental observation, stating he had previously been hospitalized in Virginia for eight months in 1958 and again for three months in 1959. In April 1969 St. Elizabeths reported that he was competent to stand trial, that he was not suffering from any mental disease or defect, and there were no indications of the existence of such conditions at the time of the robbery. An independent psychiatric examination was requested and Dr. Donald A. Kellogg found appellant to be suffering from Sexual Deviation (homosexuality) and Schizophrenia, chronic and undifferentiated, with paranoid features. Dr. Kellogg considered appellant incompetent for trial, and also expressed the view that the robbery had been the product of his mental illness. On August 1, 1969 Judge Pratt, the trial judge here, after a full hearing found appellant incompetent for trial and ordered him committed. Later, on October 30, 1970, St. Elizabeths reported to the court that appellant, though suffering from homosexuality and transvestitism, was competent for trial and that his alleged offenses were not the product of his mental condition.
Thereafter a second hearing was held on December 17, 1970, at which the court heard the testimony of one psychiatrist from St. Elizabeths Hospital and the testimony of appellant. The court withheld ruling, however, pending receipt of a report from an independent psychiatrist, to be selected by defense counsel. This psychiatrist, Dr. Albert Marland, expressed the opinion that appellant was malingering and that he was without mental disease
or defect now or at the time of the crime.
On March 25, 1971 Judge Pratt found appellant competent,
and the trial on the instant offense was held before him on April 26, 1971.
Prior to trial, at which appellant appeared wearing a woman’s dress and a wig, Judge Pratt advised the prospective jurors that appellant had been found competent for trial after examination by St. Elizabeths and an independent psychiatrist and that no insanity defense was going to be raised. A bench conference followed, which is the source of appellant’s allegation of judicial interference:
[Defense counsel]: Your Honor, you mentioned about no defense of insanity. I got Kellog[g]’s report, and he said he thought this was a product of insanity. I hadn’t thought of it, it was so long ago, the interview, and I don’t even know whether I can find Dr. Kellog[g]. .
THE COURT: Well,
1 don’t think,
in view of the findings of two panels
at St. Elizabeths and also Dr. Mar-land,
that you are required to carry it any further.
* •>:- -x- * * -x-
THE COURT: I have heard about this man twice, the first time when he came up for release from St. Elizabeths. At that time I heard the testimony, and in view of the bizarre conduct, I sent him back to St. Elizabeths.
The second time he came up, there was a full report, we had another finding, and I decided that the man was malingering. That was the intimation that we got from St. Elizabeths.
In addition, we had a special examination under court order by Dr. Mar-land, and Dr. Marland concurred with the prior recommendations of St. Elizabeths.
[Defense counsel]: There was one . exception to that.
THE COURT: Dr. Kellog[g]. That’s right.
[Defense counsel]: Yes. And he did raise the issue of insanity.
THE COURT: I remember. I remember him particularly.
* -x * -x- -x- *
THE COURT: I am satisfied since St. Elizabeths had him over there under observation day and night, he’s been over there a matter of years.
x * * * x *
[Defense counsel]:
I just want to put on the record that my basic agreement is with the same position that you have taken here, Your Honor. I have been with this man for three years. I don’t want to interpose an insanity defense unless I feel I have a chance.
I feel that tactically, if you introduce it and it falls on its face, you kill your other chances. (Tr. Ills, emphasis added)
Admittedly, in the face of the strength of the Government’s case, appellant had very little “other chance” besides putting the prosecution to its proof and pointing to its evidentiary weaknesses. But this exchange seems to us to unequivocally establish that after three years of representing appellant in these proceedings, defense counsel concurred with the conclusion reached by the psychiatrists and Judge Pratt that appellant was a malingerer. With this impression of his client, and with his expressed opinion that it was tactically unwise to raise an insanity defense “unless I feel I have a chance,” appellant’s present allegation of judicial interference with defense counsel’s decision not to raise the defense is without merit. In reaching this conclusion we note that the tenor of the statement by defense counsel indicates he did not consider himself bound by Judge Pratt’s statement and that he desired to express his own independent conclusion. We conclude this indicates that his decision was voluntary and not coerced and hence the judge did not block an insanity defense.
II
Whether the trial judge should have interposed the defense sua sponte presents a different issue. This court sitting en banc in Whalem v. United States
held that
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 ease. . . .So,
our query is whether in this case there was a combination of factors ivhich 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.
We added, by means of a footnote:
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 i'esolved on a case by case basis.
To evaluate the trial judge’s exercise of that “sound discretion” we must examine the factors before him.
We are not confronted in this case with a situation in which the trial judge’s decision is complicated by the potentially prejudicial effect evidence of insanity or the implied admission of culpability inherent in the defense might have on the defendant’s other substantive defenses,
or by the absence, or an inconclusive report, of a psychiatric observation.
We are instead presented with a situation in which the prosecution’s evidence against appellant was overwhelming beyond all possibility of rebuttal by an experienced trial counsel, and where appellant had previously had the benefit of extraordinarily extensive psychiatric observation. Faced with conflicting psychiatric testimony at the first competency hearing, appellant was given the benefit of the doubt and committed for further treatment. After 15 months of observation and treatment the staff at St. Elizabeths, in an evaluation subsequently reaffirmed by an independent psychiatrist selected by the defense, concluded that appellant was not then, and had not been at the time of the robbery, suffering from any mental disease or defect that could have produced his criminal behavior. The additional suggestion was made that appellant was malingering; a suggestion in which the trial judge concurred following the second competency hearing. At trial, with the same judge presiding as had served at both competency hearings, and with appellant represented by the same counsel who had been appointed to his case three years previously, the bench conference quoted above occurred. Both counsel and court agreed that appellant had no chance of establishing a successful insanity defense on the strength of the psychiatric evidence available. The appellant’s uncooperative, seemingly uncomprehending behavior at trial,
if genuine, would raise some question of his mental condition. Under such circum
stances it would not be absolutely certain that his counsel’s waiver of the insanity defense represented appellant’s wishes in that regard. However that behavior is consistent with the psychiatric evaluation of appellant as a malingerer and under the circumstances the court was entitled to rely upon the finding of competency made at the hearing held the previous month. The prior experience and contacts of Judge Pratt and defense counsel with appellant justify their independent decisions that such behavior was not bona fide.
When we consider all the attention the trial judge gave to appellant prior to trial, and the conclusion of the psychiatrists at the time of trial that appellant was without mental disease or defect and was malingering, we conclude that the trial judge’s decision not to interpose an insanity defense was not an abuse of his discretion constituting reversible error. We appreciate the substantial effort devoted to this case by appellant’s court-appointed counsel, an effort that emphasized aspects of the case that would have been more troublesome without the fully supported finding that appellant was malingering. In view of that finding, however, appellant’s convictions must be
Affirmed.