Charles D. Pouncey v. United States ( 1965 )

EDGERTON, Senior Circuit Judge:

This is an appeal from a conviction for assaulting a Federal officer. 18 U.S.C. § 111. The alleged assault occurred while appellant was in the United States Courthouse in the District of Columbia, but not in a courtroom, awaiting a hearing on his motion to withdraw a guilty plea he had entered in another case. In discussing that motion with his counsel he became agitated and boisterously threatened to leave the room. When he seemed about to do so, there was a struggle between him and the attending Deputy Marshal on which the assault charge is based.

Appellant urges that the trial court erred in failing (1) to direct a verdict of acquittal; (2) to direct a verdict of not guilty by reason of insanity; and (3) to subpoena a ward attendant from St. Elizabeths Hospital, by whoffi appellant hoped to show that his mental examination at the Hospital was inadequate. We think none of these matters requires reversal. The evidence was ample to establish guilt unless the jury believed the insanity defense. That defense, though meritorious, was not so overpowering as “to compel a reasonable juror to entertain a reasonable doubt concerning the accused’s responsibility.” McDonald v. United States, 114 U.S.App. D.C. 120, 123, 312 F.2d 847, 850 (1962). Refusal to call the ward attendant was not an abuse of discretion. Calling him would hkve necessitated a continuance late in the trial, and his testimony would necessarily have been limited to the time he was on duty.

An issue not urged at trial but briefed at our request on appeal is whether appellant’s behavior during the trial required reconsideration of his competence. Shortly after the outburst which led to this prosecution, appellant’s new counsel raised questions of his mental condition at the time of the crime and his competence to stand trial. He was sent to St. Elizabeths Hospital for a mental examination. The Superintendent of the Hospital reported in conelusory terms that he was without mental disease or defect and competent to stand trial. Counsel did not request a hearing on competence and no formal action on the report was noted.¹ Though it would have been better to get more light on the question of competence, our in banc decision in Whalem v. United States, 120 U. S.App.D.C. -•, 346 F.2d 812 (1965), precludes a decision that the trial judge abused his discretion in permitting the case to go to trial. But a judge’s responsibility to guard against the possibility that an accused person may have become incompetent does not end when the trial begins. A hospital report is only a prediction that when the accused is tried he will be able to participate adequately in the proceedings. Later developments may throw doubt on the prediction, particularly when, as in this case, the report does not show the hospital’s understanding of “competence”, the tests it employed, or the certainty of its diagnosis.²

Some occurrences at trial tend to support the Hospital’s prediction. Appellant testified lucidly and relevantly when he first took the witness stand. When he afterwards interrupted counsel’s cross-examination of a St. Elizabeths psychiatrist to undertake his own, the question he asked was to the point. The psychiatrist’s testimony supplemented the Hospital’s report and revealed that there was no disagreement in the examining panel as to the psychiatric conclusions reached. The psychiatric testimony, generally, negated any serious mental defect or illness.

On the other hand, there were significant events throwing grave doubt on the Hospital’s prediction. At the beginning of the trial, appointed counsel informed the court that appellant had just accused him of being “in cahoots with the Government, that [he] was part of a conspiracy to send [appellant] to jail. * * ” Later, previous counsel testified to events which showed that appellant had a habit of distrusting his attorneys. After two major defense witnesses had testified on the question of appellant’s sanity, a recess was called so that he and his counsel could confer. Counsel informed the court that, during the recess, appellant had again accused him of being “in league with the prosecutor to more or less hurt him.” Shortly thereafter appellant expressed a wish to retake the witness stand. He said, in the jury’s presence, “Plead me guilty to the charge.” ³

As the Government says in its brief: “[Competency] denotes the intellectual and emotional capacity of the accused to perform the functions which are essential to the fairness and accuracy of a criminal proceeding.” This includes “present ability to consult with his lawyer with a reasonable degree of rational understanding,” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1962), and a reasonable ability to understand the proceedings and comprehend the effect of his actions upon them. Events during the trial cast serious doubt on appellant’s “ability to consult with his lawyer.” If, as the judge apparently thought, appellant’s brash request to enter a guilty plea at the conclusion of his defense was not to be taken seriously, it was a warning of incompetence.

Recognizing the question to be close on these facts, we nonetheless conclude that the judge should have responded in some way to appellant’s erratic behavior.⁴ Although a judge has wide discretion in matters respecting competence, as we held in Whalem, he should recognize factors pertinent to its exercise. Here, the judge allowed the trial to proceed without even an intimation that a problem was presented.

We are faced with the question of a remedy. Reversal of the conviction would be the normal course. Inquiry into a defendant’s mental condition in the distant past is necessarily difficult and should usually be avoided. Dusky v. United States, supra; Wider v. United States, 120 U.S.App.D.C. -, 348 F.2d 358 (1965). But an appellate court may “remand the cause and * * * require such further proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106. Appellant’s sentence will soon be served. It would not be just to subject him unnecessarily to the risk of another trial and another sentence. Justice will be better served, in our opinion, by remanding the case for a mental examination and a nunc pro tunc hearing. The trial transcript will enable court and counsel to refresh their recollections of appellant’s demeanor and what took place at the trial. The presence of two St. Elizabeths staff members during some of the disturbing events may facilitate inquiry. Probation officers who made a pre-sen-tence investigation and' prison officials who had appellant in custody may have useful testimony. If the court finds that appellant was competent during his trial, the conviction will stand, subject to the right to appeal from this finding. If the court finds that he was not competent during his trial, it should vacate the conviction and, provided he is found to be competent now, hold a new trial.

Remanded with directions.

1 . Compare Chief Judge Bazelon’s dissent in Whalem v. United States, 120 U.S.App. D.C. -,-, 346 F.2d 812, 819 (1965), on counsel’s responsibility.

2 . Whalem v. United States, supra, 120 U.S. App.D.C. p. --, 346 F.2d p. 816 n. 6. Compare Amador Beltran v. United States, 302 F.2d 48, 50 (1st Cir. 1962).

The need for observation and response by the judge during the trial is the greater because he may not have seen the defendant or his counsel before trial. Observation of defendant and discussion with counsel during trial may be the judge’s only source of specific information.

3 . The immediately ensuing proceedings were as follows:

Me. Heetne [Assistant United States Attorney]: Your Honor, I think questions should be directed to him, not a statement.

The Court : You heard what he said.

Me. Kekne : I heard what he said.

The Court: Very well.

Mr. Smith: The defense rests, Your Honor.

The Oouet: Very well.

4 . This could have been done without serious delay or prejudice, e.g., by recessing the trial overnight and asking the Hospital or the Legal Psychiatric Service for a prompt report.