United States v. Crosby, 71-1444.

• Decision Date: 10 May 1972
• Docket Number: No. 71-1444.,71-1444.
• Citation: 462 F.2d 1201,149 US App. DC 306
• Parties: UNITED STATES of America v. Robert H. CROSBY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

149 US App. DC 306, 462 F.2d 1201 (1972)

UNITED STATES of America v. Robert H. CROSBY, Appellant.

No. 71-1444.

United States Court of Appeals, District of Columbia Circuit.

Argued February 28, 1972.

Decided May 10, 1972.

Miss Marsha E. Swiss, Washington, D. C. (appointed by this court), for appellant.

Mr. Julius A. Johnson, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry and Warren L. Miller, Asst. U. S. Attys., were on the brief, for appellee. Mr. Harold H. Titus, Jr., present U. S. Atty., also entered an appearance for appellee.

Before WRIGHT and WILKEY, Circuit Judges, and JAMES F. GORDON,^* Chief Judge, U. S. District Court for the Western District of Kentucky.

JAMES F. GORDON, Chief Judge:

The appellant, Robert H. Crosby, appeals his conviction of murder in the second degree and possession of a prohibited weapon, violations of 22 D.C. Code § 2403 and 22 D.C.Code § 3214(b) respectively.

The offenses arose from a division of proceeds dispute between appellant and one Fred Lee Brooks as to the fruits gained from the sale of stolen property. The altercation resulting in Brooks' death was witnessed by one Farrie Chapman, a government informer and an habitual user of narcotics.

During the course of the trial, appellant's counsel requested, and properly received, from the learned District Judge a voir dire examination, out of the presence of the jury, of the government's chief witness, Chapman, for the purpose of ascertaining whether or not he was incompetent to testify.

During the voir dire examination there surfaced two pieces of intelligence to the effect that on occasions in 1961 and in 1969 Chapman had been locally hospitalized for worry and anxiety and observation for periods of 11 and 14 days, respectively; the latter hospitalization having occurred just some months prior to the altercation about which Chapman was purporting to testify as an eyewitness. As to this intelligence, the trial court denied a request by appellant's counsel that the hospitalization records be subpoenaed and examined by the Court as an aid to determination of competency; as well as a request for their use upon subsequent cross-examination for the purpose of an attempt at impeachment of Chapman, if necessary.

The trial judge determined Chapman competent, finding him not to be then under the influence of drugs and cogent in his responses. The trial proceeded to its conclusion with disclosure to the jury of Chapman's narcotic habit, including use of drugs on the day of trial. There was no indication during the trial of any incompetency on the part of Chapman.

The aforesaid voir dire rulings are the principal grounds urged upon us for reversal.

We are cognizant, as the government asserts, that the competency of a witness is a matter which addresses itself to the sound discretion of the trial court,¹ and that, as to witnesses, the clear error rule, as to discretionary exercise, has long been the test of this Circuit. Doran v. United States, 92 U.S. App.D.C. 305, 205 F.2d 717 (1953), cert. denied, 346 U.S. 828, 74 S.Ct. 49, 98 L. Ed. 352; Beausoliel v. United States, 71 App.D.C. 111, 107 F.2d 292 (1939).

We, likewise, recognize the ever present need, power and duty resting upon the trial court to protect witnesses from undue harassment or embarrassment;² as well as to move, with reasonable dispatch, the trial of the action and to limit its ranging too far afield.³

The foregoing doctrinal principles must nevertheless be weighed by the fact finder in the scale, opposite the common law principle that any witness offered must be competent to testify. A fortiori, once a trial judge is confronted by any "red flag" of material impact upon competency of a witness, an inquiry must be made into the facts and circumstances relevant thereto.

The competency of a defendant to stand trial is, of course, crucial to fairness, and is gauged by a somewhat stricter standard than is the competency of a witness to testify. Likewise, the competency standard for witnesses may vary depending on the importance of the witness to the case. Where, as here, the witness is the key witness for the prosecution, justice demands a strict standard of competency.

While Hansford v. United States, 124 U.S.App.D.C. 387, 365 F.2d 920 (1966), involved the competency of a defendant to stand trial, we turn to it for guidance as to nature of the hearing required to determine the competency of witness Chapman. In Hansford, referring to the scope of the competency hearing, Chief Judge Bazelon said:

. . . "A careful examination would seem necessary to determine the extent to which the defendant\'s memory and other rational faculties have been impaired by the drugs." (Citing Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), 124 U.S.App.D.C. at 391, 365 F.2d at 924 (and footnote 11). (Emphasis added.)

The teaching of Hansford is that a hearing into the competency of a defendant (or a witness) must be as careful and complete as reasonably feasible⁴ in order to insure a fair trial, especially in cases involving drug addiction. Only by the expenditure of reasonable time and effort in an exploration of all the facts and circumstances⁵ may the trial judge exercise sound discretion.

In the present situation we believe a "red flag" of material impact on competency was flying. Witness Chapman, like defendant Hansford, was a longtime drug addict....