Cross v. United States

• Decision Date: 29 November 1965
• Docket Number: No. 19124.,19124.
• Parties: Harold S. CROSS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

122 US App. DC 380, 354 F.2d 512 (1965)

Harold S. CROSS, Appellant, v. UNITED STATES of America, Appellee.

No. 19124.

United States Court of Appeals District of Columbia Circuit.

Argued October 7, 1965.

Decided November 29, 1965.

Mr. Donald J. Capuano, Washington, D. C. (appointed by this court) for appellant.

Mr. Jerome Nelson, Asst. U. S. Atty., at the time of argument, with whom Mr. David C. Acheson, U. S. Atty. at the time the brief was filed, Messrs. Frank Q. Nebeker and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Mr. John C. Conliff, Jr., U. S. Atty. at time of argument, and Mr. John R. Kramer, Asst. U. S. Atty., at the time the record was filed, also entered appearances for appellee.

Before EDGERTON, Senior Circuit Judge, and FAHY and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge:

This appeal was heard at the same time as those of two other persons tried and convicted, together with appellant, of housebreaking and assault with a dangerous weapon. We have heretofore affirmed the other two convictions,¹ and we see no greater need here than there to discuss in detail certain contentions common to all three. At the argument of these appeals before us, the Government, by an oral motion at the outset, proposed a different disposition of this appeal; and we accede to that suggestion. In particular, the proposal was to remand this case to the District Court for reconsideration by it of the representations made to it at the trial by counsel as to appellant's mental condition which, so it is now argued to us, should have impelled the court, solely upon its own initiative, to have directed that the defense of insanity be interposed on appellant's behalf.

The circumstances giving rise to the Government's motion are as follows: Defense counsel had informed the court that, although the circumstances indicated that an insanity defense might be appropriate, appellant had forbidden him to raise it. In explanation, counsel related to the court certain circumstances which he regarded as suggesting a condition of mental irresponsibility. The court, at both the beginning and the ending of this recital, indicated in so many words that it did not believe itself possessed, under the applicable cases, of any discretion to inject the insanity issue into the trial over appellant's objections; and we must assume, therefore, that the representations made to the court were not considered on their merits.

The Government's oral motion recognizes that, whatever confusion may have obtained before with respect to the matter, see Lynch v. Overholser, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962), our opinion in Whalem v. United States, 120 U.S.App.D.C. 331, 346 F.2d 812 (1965), makes it clear that a trial judge does have the discretion which the District Court here thought it lacked. That opinion, of course, came after the trial under review here. We think it appropriate, therefore, for the Government to propose, and for us to order, a remand in order that the trial court may re-examine, in the consciousness of a discretionary power to act as it sees fit, the representations made to it at the trial by appellant's counsel as to the insanity defense. If it should conclude that that power should have been exercised in favor of a sua sponte introduction by it of the insanity defense, then a new trial will follow. If it decides otherwise, the conviction will stand.

At the hearing before us, appellant's counsel opposed the grant of the Government's motion in these terms. He contended that only a reversal for a new trial would comport adequately with Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). But Dusky dealt with what seems to us to have been the different problem of determining now whether there was mental competence to stand trial earlier, with all the uncertainties inherent in saying that, because a man first examined today is found competent, he may be deemed to have been so a year ago when he was tried. The Supreme Court there concluded that "the resulting difficulties of retrospectively determining * * * competency as of more than a year ago * * *" required a presently operative, and not a nunc pro tunc, determination, with a new trial to follow.

Although courts on occasion employ it, no nunc pro tunc procedure is ever fully satisfactory. There is always the danger that intervening events will provide a coloration which may, albeit subconsciously, be reflected in the determination. Here at least, and unlike Dusky, the new circumstances,² although capable perhaps of influencing the decision in the sense of creating new conditions against the background of which it must be made, do not partake directly of the issue to be decided. Certain facts were represented to the District Court's attention at the time of trial as bearing upon appellant's mental responsibility. The issue now is what the District Court would have done had it considered those representations on their merits. The facts represented are fixed in the transcript — immune to alteration by the mere passage of time. Though our remand does not entirely avoid the retrospective difficulty, since it is difficult if not impossible to know what one would have done a year or two ago if...