United States v. Freeman

• Decision Date: 28 February 1966
• Docket Number: Docket 29688.,No. 182,182
• Citation: 357 F.2d 606
• Parties: UNITED STATES of America, Appellee, v. Charles FREEMAN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

357 F.2d 606 (1966)

UNITED STATES of America, Appellee, v. Charles FREEMAN, Appellant.

No. 182, Docket 29688.

United States Court of Appeals Second Circuit.

Argued December 15, 1965.

Decided February 28, 1966.

William E. Hellerstein, New York City (Anthony F. Marra, New York City, on the brief), for appellant.

Richard A. Givens, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, John E. Sprizzo, Asst. U. S. Atty., on the brief), for appellee.

Before WATERMAN, KAUFMAN and HAYS, Circuit Judges.^*

KAUFMAN, Circuit Judge:

As legislation proliferates and judicial decisions multiply, our criminal law daily takes on increased complexity and sophistication. Subtle distinctions are constantly drawn; more perfect refinements continue to evolve. At the same time, however, there are a small number of more basic questions which cut across the whole of this evolutionary process, questions so fundamental to the very notion of criminal justice that they must continue to be asked — and, insofar as possible, answered — if the criminal law is truly to reflect the moral sense of the community. This appeal poses one of those questions.

After a trial before Judge Tenney without a jury, Charles Freeman was found guilty on two counts of selling narcotics in violation of 21 U.S.C. §§ 173, 174, and sentenced to concurrent terms of five years on each count. Although Freeman denied commission of the substantive offense, his principal allegation at trial was that, at the time of the alleged sale of narcotics, he did not possess sufficient capacity and will to be held responsible for the criminality of his acts.¹ In rejecting this contention, the District Court understandably relied upon the familiar M'Naghten² Rules which, in their traditional formulation, permit acquittal only when it is proved that, "at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." 10 Clark and Fin. 200, 210 (1843). Since he could not find that Freeman's condition satisfied the rigid requirements of this test, Judge Tenney had no alternative but to hold the defendant guilty as charged.

For the reasons set forth below, we reverse and remand for a new trial. In so doing, we of course express no opinion as to the result which will or should be reached on the retrial. We do indicate, however, that the trial judge can in no way be faulted for following the M'Naghten test since, in so doing, he was unquestionably pursuing the course adopted by District Courts in this Circuit in the absence of appellate guidance on the subject.³

THE EVIDENCE OF SALE

If the issue of criminal responsibility is put to one side for the moment, the facts of Freeman's case do not rise above the routine. The government's evidence established that on the evening of June 24, 1963, narcotics agents Coursey and Fluhr met one James Lockhart, an informant (or, in the more polite lexicon of the government, a "special employee"), in uptown Manhattan. After making the usual search of the informant in order to be sure he did not possess narcotics prior to contact with the suspect, Lockhart and Coursey walked to the corner of 110th Street and Broadway while Fluhr remained behind. Lockhart introduced Freeman to Coursey and, after some preliminary discussion, Freeman stated, "I hear you want to buy some heroin." When Coursey indicated that he did and inquired about the price, Freeman replied that it would be $230 a "piece."⁴ At Freeman's suggestion, the three men then proceeded to the close-by Gold Rail bar, where Freeman gave Coursey a sealed brown paper bag in return for which Coursey mistakenly paid the defendant $130 instead of the stipulated $230. Coursey then left the bar and met Agent Fluhr and Agent Casale.⁵ Together they performed a field test on the contents of the brown paper bag which revealed the presence of heroin. A chemical analysis subsequently confirmed this result.

Shortly thereafter, Coursey was notified by car radio that Lockhart had called him. Coursey returned to 110th Street and Broadway and entered a taxi in which Freeman and Lockhart had been riding. When Freeman asked if Coursey was trying to "beat" him out of $100, Coursey explained that the failure to make full payment in the bar had been a mistake and he turned over an additional $100.

On August 1, 1963, a second transaction took place; in many respects it was a sequel to the first. This time, Coursey and a different informant, Alfred Roach, entered Marvin's Bar on Broadway near 111th Street. Freeman, standing at the bar, said that he had been sick, but, nevertheless, had heard that Coursey had been buying large amounts of heroin and indicated that he would like to make another sale. A price of $235 per ounce was agreed upon and Freeman and Coursey adjourned to the men's room where Freeman handed Coursey another brown paper bag.⁶ Coursey made payment, this time in the correct amount, and departed. A field test on the contents of the bag showed that it contained heroin and a chemical analysis confirmed the accuracy of this result.

While Freeman admitted taking part in the transactions of June 24 and August 1, he presented a different version of his participation. He testified that rather than being the culprit, he was merely a conduit being used by the informant to pass the brown paper packages to Agent Coursey. The money which the agent paid, Freeman said, was not his to keep, but was turned over to the informant who had furnished him in each instance with the brown paper bag. Judge Tenney chose to discredit Freeman's version of these transactions and we see no reason to disagree with his resolution of the credibility issue.

THE DEFENSE OF LACK OF RESPONSIBILITY

As is not uncommon in cases in which the defense is raised, the bulk of the evidence directly relating to the issue of criminal responsibility took the form of expert psychiatric testimony of witnesses called by both the government and the defense. Freeman's expert witness at trial was Dr. Herman Denber, Associate Professor of Clinical Psychiatry at New York Medical College and Director of Psychiatric Research at Manhattan State Hospital. Dr. Denber, who had examined the defendant on the previous afternoon, testified that Freeman was not only a narcotics addict, but also a confirmed alcoholic. The Doctor noted that Freeman's body had become accustomed to the consumption of large amounts of heroin over a fourteen-year period, and that the defendant was in the habit of drinking one or two bottles of wine daily to increase the potency of the narcotics. In addition, he observed, Freeman regularly imbibed six to nine "shots" of whiskey each day.

Describing his examination in some detail, Dr. Denber testified that Freeman displayed no depth or variation in his emotional reactions, spoke in a flat monotone and paused for excessively long periods before responding to questions. Dr. Denber also noted that as a result of taking impure narcotics for so long a time, Freeman suffered from frequent episodes of toxic psychosis⁷ leading to a clouding of the sensorium (inability to know what one is doing or where one is) as well as delusions, hallucinations, epileptic convulsions and, at times, amnesia.⁸ The witness testified, moreover, that Freeman had suffered "knock-outs" on three occasions while engaging in prize fighting, and that these had led to a general vagueness about details. Finally, Dr. Denber observed that Freeman had experienced "innumerable brain traumata" which produced such organic and structural changes as destroyed brain tissue.

Restricted to stating a conclusory opinion within the confines of M'Naghten, Dr. Denber initially averred that Freeman was incapable of knowing right from wrong, even under a strict interpretation of that limited test. However, upon amplifying this conclusion, the defense expert acknowledged that Freeman had an awareness of what he was doing on the nights of June 24 and August 1 in the sense that he possessed cognition that he was selling heroin. The Doctor also added that Freeman was not in "such a state of toxicity that he did not remember the dates. He told me the story of the narcotics transactions clearly, but it is my feeling about him, in particular, that as far as the social implications or the nature or meaning of what this meant to him at that moment he was not aware of it."

To respond to Dr. Denber's testimony, the government called on Dr. Robert S. Carson, a former staff physician at Payne-Whitney Clinic of The New York Hospital and Clinical Instructor in Psychiatry at Cornell University. Dr. Carson testified that Freeman was able to distinguish between right and wrong within the meaning of the M'Naghten test despite his heavy use of narcotics and alcohol. He noted that Freeman possessed the capacity to enter into purposeful activity such as the sale of narcotics, and he expressed the opinion that the defendant had been aware of the wrongfulness of his acts. In support of this view, Dr. Carson pointed to the fact that on the evening of August 1, 1963, Freeman had been sufficiently fearful of being apprehended that he had suggested that the transfer of narcotics take place in the privacy of the men's room of Marvin's Bar. In summary, Dr. Carson significantly acknowledged that Freeman had "some limitations" on his ability to distinguish right from wrong, but not to the degree required by the M'Naghten test.

Our examination of the record and medical reports also reveals that this thirty-five year old defendant possessed a minimal education and at the time of trial had been continuously addicted to narcotics for approximately 15 years, consuming as much as three bags of heroin a day. On several occasions, moreover, Freeman had sought medical help to...