Holmes v. United States, 19678.

Decision Date16 May 1966
Docket NumberNo. 19678.,19678.
Citation124 US App. DC 152,363 F.2d 281
PartiesFrank W. HOLMES, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. John J. Nealon, Washington, D. C. (appointed by the District Court), for appellant. Mr. James S. Gardiner, Washington, D. C., also entered an appearance for appellant, submitted on the brief, for appellant.

Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker, Joel D. Blackwell and Oscar Altshuler, Asst. U. S. Attys., were on the brief, submitted on the brief, for appellee.

Before BAZELON, Chief Judge, and FAHY and LEVENTHAL, Circuit Judges.

BAZELON, Chief Judge:

This is an appeal from the District Court's denial, after hearing, of appellant's post-conviction motion under 28 U.S.C. § 2255 to vacate his sentence for robbery and impersonating an officer. The motion alleged that counsel rendered ineffective assistance by failing to invoke the insanity defense at trial.

Before trial, counsel obtained a report from Dr. Hyman Shapiro, a psychiatrist who had treated appellant on several occasions, stating that appellant was suffering from a mental disease, "psychoneurosis with anxiety and depression, chronic, superimposed upon the schizoid personality makeup." At the hearing on the present motion Dr. Shapiro testified that the acts "were definitely a product of his long standing mental disorder"; but it appears that counsel did not pursue that question with Dr. Shapiro before or at trial, or seek examinations by others.

Trial counsel testified that appellant vehemently objected to raising the insanity defense. Appellant stated that he would not have objected had he been apprised of Dr. Shapiro's report. Trial counsel stated that he did apprise him. This conflict was not resolved.

However, as the government concedes, counsel's prime concern was the threat of prejudice. He testified:

I would find, as a practitioner with some experience involving defenses of insanity, it would be a most impractical approach or request to make of a jury.
I would say, coupled with that defense of insanity, if you also attempted to have a defense on the merits, you would jeopardize the defendant\'s position as regards both defenses * * * and I would have found great difficulty without first admitting to the jury that the defendant Holmes was guilty of all counts before interjecting a defense of insanity.

This view is entirely reasonable and could not, of course, render counsel's assistance "ineffective." This court has recognized that substantial prejudice may result from the simultaneous trial on the pleas of insanity and "not guilty."1 The former requires testimony that the crime charged was the product of the accused's mental illness.2 Ordinarily, this testimony will tend to make the jury believe that he did the act. Also, evidence of past anti-social behavior and present anti-social propensities, which tend to support a defense of insanity, is highly prejudicial with respect to other defenses. Moreover, evidence that the defendant has a dangerous mental illness invites the jury to resolve doubts concerning commission of the act by finding him not guilty by reason of insanity, instead of acquitting him, so as to assure his confinement in a mental hospital. It appears that such doubts may have existed here since the jury found appellant not guilty on the charge of assault with intent to rape and the court dismissed a second charge of impersonating an officer.

Although trial counsel's appraisal of the prejudicial effect of the insanity defense on the defense of not guilty was entirely reasonable, it does not follow that the insanity defense had to be abandoned. He could have made a motion, like that made by able counsel in another case recently before us,3 that the District Court avoid the prejudice by exercising its discretion to first submit to the jury issues raised by the not guilty plea before the introduction of evidence on insanity. The power of courts to control the order of criminal trial and submission of issues to the jury has its roots in the common law,4 and is in no way inconsistent with the Federal Rules of Criminal Procedure.5Cf. United States v. Curry, 358 F.2d 904 (2d Cir. 1966).6 Federal Courts in civil cases are specifically authorized to order the separate trial of any issue "to avoid prejudice." Rule 42(b), Fed.R.Civ.P. The need to avoid prejudice in criminal trials is even greater.7

Relevant considerations upon a request for bifurcation include the substantiality of appellant's insanity defense and its prejudicial effect on other defenses. The court not only has a broad discretion in considering bifurcation, but also in prescribing its procedure, the form of the charge and submission of the questions to the jury, the admissibility of evidence in each stage, and even the impaneling of a second jury to hear the second stage if this appears necessary to eliminate prejudice.

The issue we face is whether collateral relief is available although bifurcation was not requested. In my opinion, § 2255, which applies not only to constitutional claims but also where the judgment "is otherwise subject to collateral attack,"8 may be invoked here in order to avoid manifest prejudice.9 My brethren agree that the issue of prejudice raised by appellant is a serious one. They join in the preceding paragraphs of this opinion which are addressed to the problem of that type of prejudice, and indicate how such prejudice may be averted in the future, where the remedy of bifurcated trial is adopted in the sound discretion of the trial court in the interest of justice. They think, however, that appellant's claim is not such as to warrant retrospective application of this remedy, to judgments that have already become final, through a motion...

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  • Wisehart v. State, 48S00-9005-PD-378
    • United States
    • Supreme Court of Indiana
    • March 19, 1998
    ...v. Ward, 301 N.C. 469, 272 S.E.2d 84, 87 (1980); Leick v. State, 131 Colo. 353, 281 P.2d 806, 811 (1955). Contra, Holmes v. United States, 363 F.2d 281, 284 (D.C.Cir.1966). At bottom, we conclude from these lines of cases that in the absence of other compelling circumstances, a criminal def......
  • State v. Johnston
    • United States
    • New Jersey Superior Court – Appellate Division
    • May 29, 1992
    ...States v. Taylor, 510 F.2d 1283, 1288 (D.C.Cir.1975). See, also, Contee v. United States, 410 F.2d 249, 250 (D.C. Cir.1969); Holmes v. United States, 363 F.2d 281 (D.C.Cir. [1966] 1977). In the unique circumstances here present, we think that the issues must be bifurcated at the trial, with......
  • U.S. v. Alvarez
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 16, 1975
    ...burden, and in this circuit guilt includes capacity. Government of the Virgin Islands v. Bellott, supra. In Holmes v. United States, 124 U.S.App.D.C. 152, 363 F.2d 281 (1966), Judge Bazelon, in a § 2255 application, rejected a claim that the petitioner had been inadequately represented by c......
  • Fuller v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 20, 1967
    ...do not specifically provide for special findings of fact, Rule 57(b) might serve as authorization. See, e.g., Holmes v. United States, 124 U.S.App.D.C. 152, 363 F. 2d 281 (1966). Special jury verdicts in criminal cases have deep common law roots. See for example Judge Palmieri's careful opi......
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