United States v. Wilson

• Citation: 471 F.2d 1072,153 US App. DC 104
• Decision Date: 20 October 1972
• Docket Number: No. 71-1067.,71-1067.
• Parties: UNITED STATES of America v. Gerald A. WILSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

153 US App. DC 104, 471 F.2d 1072 (1972)

UNITED STATES of America v. Gerald A. WILSON, Appellant.

No. 71-1067.

United States Court of Appeals, District of Columbia Circuit.

Argued April 19, 1972.

Decided October 20, 1972.

Certiorari Denied February 26, 1973.

Mr. Lawrence A. Hymo, Washington, D. C. (appointed by this Court), for appellant.

Mr. Robert S. Tignor, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and Stephen W. Grafman, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, SIMON E. SOBELOFF,^* Senior Circuit Judge for the Fourth Circuit, and McGOWAN, Circuit Judge.

Certiorari Denied February 26, 1973. See 93 S.Ct. 1431.

BAZELON, Chief Judge:

Appellant was convicted of armed robbery, assault with a dangerous weapon, and carrying a dangerous weapon¹ in connection with the hold-up of a filling station. On this appeal he challenges the finding of the trial court, sitting without a jury, that the defendant was criminally responsible for his act. He also argues that the sentence of imprisonment imposed by the district court was cruel and unusual punishment in view of the district court's finding that the defendant is mentally ill. For the reasons set forth below we affirm.

I.

At a jury trial, the government introduced evidence that appellant entered a gasoline filling station at about 7:15 p. m., pointed a gun at two attendants, demanded money from both of them, and fled from the station on foot with more than $500 in cash. Arrested within minutes, appellant was transported back to the scene of the crime where he was identified by the two attendants and by a third witness to the hold-up. Cf. Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280 (1969). The jury returned a verdict of guilty.

Immediately before trial, appellant had indicated his intention to rely on a defense of non-responsibility, and moved for a mental examination at St. Elizabeths Hospital. Rather than delaying the trial on the merits, the district court concluded that the question of responsibility could be deferred to a separate hearing which would be held when and if the jury determined that the appellant had committed the acts in question. Cf. United States v. Bennett, 148 U.S.App. D.C. 364 at 370-374, 460 F.2d 872, 878-882 (1972), (advantages of bifurcation). Upon the return of the jury verdict, the trial court ordered appellant committed to St. Elizabeths for a mental examination.

On April 8, 1970, the hospital reported that appellant was not suffering from a mental disease or defect and that the offense was not the product of an abnormal condition of the mind. The report did point out, however, that appellant was suffering from "Drug Dependence, Heroin." One of the hospital's psychiatrists indicated in a separate report that he concurred in the diagnosis of Drug Dependence, Heroin. But in contrast to his colleagues, who were convinced that the condition had not impaired appellant's mental or emotional processes and behavior controls, he was "not sure of the extent to which this abnormal condition of the mind impaired appellant's behavior controls and affected his mental or emotional state."

On the grounds that the hospital's report was inadequate to permit counsel to prepare adequately for trial, appellant's counsel moved for an examination of appellant at government expense by a private psychiatrist. See 18 U.S.C. § 3006A. The motion was granted, and the private psychiatrist reported his findings as follows:

Patient seemingly has always been hard or difficult to manage or control. He has learned or profited little by experience, and has become callous or indifferent to society (or those around him). He is narcistic and egoistic caring little about any one but himself. This probably is the way the world looked to him. He is impulsive and his physical needs or desire are his concern and these must be met — hence his lack of control or judgment.

He has no ambition (expressed), no seriousness of purpose, and not able to identify with society or its laws. He is unable to accept the limits of reality, and must steal to up his salary to get the clothing he needs plus support his habit. He seems unable to profit by past experiences and there is no sense of guilt whatever in his behavior. His behavior seems to be rather an impulsive one.

Diagnosis — Psychopathic Personality (with strong impulsive overtones.)

A hearing was scheduled for September 24, 1970, but appellant could not be brought to court that day. The trial court explained:

I have been advised by the correctional people that Mr. Wilson today so resisted appearance in this court that he had to be put in irons and gas had to be used to quiet him. He therefore has not been brought up from the jail.

The trial judge also indicated that he was "wondering whether in view of the conduct of the defendant, which was reported to the court today, whether it may not be that this man is either sicker than he was, or is acting up, and that the thing to do would be perhaps get him back to St. Elizabeths."

Appellant was recommitted to the hospital that same day. On October 29, the hospital filed a new report, concluding that at the time of the alleged offense appellant was, after all, "suffering from a mental disease which substantially affected his emotional processes but not his mental processes and which substantially impaired his behavior controls." The report added, however, that "if the alleged offenses were committed by him, they were not the products of a mental disease or defect." The report also pointed out that appellant was receiving major tranquilizer medication, Thorazine, "100 milligrams twice a day." At the time of the earlier report, appellant was not under medication.

On December 7, 1970, the responsibility issue was tried to the district court sitting without a jury. Appellant was called to testify and he indicated that at the time of the offense he had been employed as a hotel night watchman, earning $59 per week. His drug habit at that time amounted to ten to fifteen heroin capsules per day at a cost of $1.50 each. Appellant also testified that he was suffering from withdrawal at the time of the offense: "I could get around, you know, but, I said my stomach was cramping, my nose was running, I was walking bent over."

Appellant's mother also testified for the defense. She stated that appellant's abnormal behavior could be traced to an incident when appellant was thirteen years old. At that time appellant was swimming with his brother, Otto.

Otto was pulled down, apparently by undertow, while swimming very close to appellant. Appellant grasped Otto\'s leg, but was unable to hold him. Appellant had been very close to Otto, who was two years older than him, and he looked up to him as a model. The incident troubled appellant deeply.²

Appellant's mother also referred to an incident in which Otto, apparently one of the first black children to be sent to a white school in the District of Columbia, was assaulted by a group of white boys. "He received a very serious knife wound in the leg requiring many stitches. Appellant, who has repeatedly referred to this incident * * * was disturbed by it because Otto was such a well-behaved boy." Appellant's mother also explained:

I couldn\'t trust the other children around him, I couldn\'t leave them, because he would beat them up as soon as I would leave the house. They were afraid of him. His grandmother was afraid of him. His father was afraid of him. I tried and tried to get some psychiatric help for the boy. He was sent to Cedar Knolls; he still didn\'t get any help. In fact, I think he advanced more in crime when he went there. He has been in so many institutions with hardened criminals until his outlook on life just changed. There was nothing I could do. He was only seventeen when they first sent him away.

One of the staff psychiatrists at St. Elizabeths testified for the defense that appellant had a "severe antisocial reaction" which may be associated with "atrocious behavior, with loss of control of behavior, or some emotional difficulties." He also described the incident at the D.C. Jail that had prevented appellant's appearance at the hearing scheduled for September 24:

This patient did have an episode in the jail which did influence me in order to report this incident, because he has an additional — this loss of control, impulsivity, the episode in the jail when he threw the pipes and threatened to kill the guards and broke what I understood was windows and a toilet bowl and wash basin. They thought they might even be killed. He did throw the pipe in their direction. If they hadn\'t been careful, they might have been hurt seriously.

In response to the trial court's inquiry into the manifestations of appellant's "antisocial personality," the psychiatrist responded:

Well, it is chronic habitual offenses against property, in the belief that he has the right to and he plans to steal what he wants and as he pleases, a disregard for the property of others, and a great hostility, inability to learn by experience, and loss of conscience, not feeling remorse about his actions.

The trial court also questioned the witness about the report by St. Elizabeths that the offenses allegedly committed by appellant were not the product of his abnormal condition.

THE COURT: Doctor, your letter indicates that it is the view of yourself and your colleagues that if the offense was committed by him, and it was — you can assume that it was committed by him because the jury has so found — if the offense was committed by him, it was not the product of a mental disease or defect; and yet you have described to the Court an individual who, you say, has an abnormal degree of hostility toward others.

THE WITNESS: Yes.

THE COURT: A feeling that he can assert himself in any way he wishes without remorse, and that he should, as he pleases,

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