Brown v. United States

• Decision Date: 24 July 1968
• Docket Number: No. 4472.,4472.
• Citation: 244 A.2d 487
• Parties: Roger T. BROWN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

244 A.2d 487

Roger T. BROWN, Appellant, v. UNITED STATES, Appellee.

No. 4472.

District of Columbia Court of Appeals.

Argued April 22, 1968.

Decided July 24, 1968.

Thomas P. Abbott, Alexandria, Va., appointed by this court, for appellant.

James E. Kelley, Jr., Asst. U. S. Atty., with whom David G. Bress, U. S. Atty., Frank Q. Nebeker and Franklin S. Bonem, Asst. U. S. Attys., were on the brief, for appellee.

Before MYERS, KELLY and FICKLING, Associate Judges.

KELLY, Associate Judge.

After conviction by a jury on January 12, 1967, of petit larceny and unlawful entry appellant's pro se motion for new trial was granted and new counsel appointed on January 18. On the morning of February 8, 1967, the day before the scheduled new trial, counsel moved the Criminal Assignment judge for a continuance of at least a month on the ground that "information has been supplied me over the weekend that there are new facts to bring into this case." The motion was denied. Later that day counsel renewed the motion before the same judge, with the additional explanation that in his opinion there was a good possibility that appellant was insane or mentally irresponsible at the time of the alleged offense. To support this opinion he told the court he had spoken with a psychiatrist who had agreed to interview appellant under the Criminal Justice Act¹ and be his expert witness in the case. At the same time counsel declined to present a factual basis for his opinion lest he disclose his defense to the The motion was again denied.

The following morning a continuance on the same ground was requested of the trial judge. As a matter of new evidence counsel represented to the court that the previous evening he had spoken to a priest studying for his master's degree in social psychology at Catholic University who had confirmed the possibility that appellant, whom he knew, was suffering from a mental defect or disease at the time of the offense. Once again the motion was denied.

At trial the unlawful entry charge was dismissed at the close of the Government's case and thereafter the jury found appellant guilty of petit larceny. After verdict, counsel moved for a new trial on the ground that the lack of expert testimony had precluded an adequate presentation of an insanity defense. Prior to a hearing on the motion the trial judge ordered appellant examined by a staff psychiatrist of the Legal Psychiatric Services, who reported that

As a result of that examination it is my opinion that the defendant has a longstanding character disorder of the passive aggressive type but I find no direct connection between this and the alleged offense.

The motion for new trial was then heard and denied. Appellant was sentenced to nine months' imprisonment and has now served that sentence.² This appeal charges reversible error in the allegedly systematic denials of the motions for continuance.

Appellant's competency to stand trial was not questioned, nor was it disputed that he took without permission an inexpensive record player from the sales area of the dead parcel post branch of the Post Office. Insanity was the sole defense, and it developed at trial that the alleged insanity was of a temporary nature lasting for a period of approximately 48 hours immediately prior to and including the time of the alleged offense. The testimony of lay witnesses was to the effect that appellant was a sensitive person who became deeply depressed and detached upon the death of his father several days before the crime, just as he had five years before at the death of his mother. The night of the father's death appellant's sister told him that unless he could get some money for burial, the body would either be cremated or used for experimental purposes at medical school. She told appellant this not because she knew it was so, but because she thought it might move him, as the oldest child, to take the responsibility of providing funds for burial.³ Thereafter, according to the testimony, appellant was either unable to hold a rational conversation or would not speak at all, and while his sister was similarly upset, it was her opinion that appellant was not in his right mind "because he couldn't get himself together." To appellant's wife, who described his reaction in identical terms, it was in her words more like a "mental block" than a mental disease. On this testimony the issue of insanity was submitted to the jury.⁴

We think it settled that the grant or denial of a continuance is a matter within the sound discretion of the court and is not subject to review absent clear abuse. Gilmore v. United States; 106 U.S.App.D.C. 344, 348-349, 273 F.2d 79, 83-84 (1959), wherein it was stated that

A party seeking review of a refusal of a continuance must make a showing that the continuance is reasonably necessary for a just determination of the cause. Such a showing is made by offering to prove what evidence, if any, will be gained by the grant, and what relevance it has to the charge. Neufield v. United States, 1941, 73 App.D.C. 174, 118 F.2d 375. * * *

The question is whether there was such a clear abuse of discretion in this case.

We may grant appellant's claim that the motions for continuance should have been treated as motions for a mental examination expressly made under D.C. Code 1967, § 24-301(a),⁵ as well as for appointment of an independent expert under the Criminal Justice Act, and agree that on adequate averment the trial court has a duty to assist a defendant to develop an insanity defense. Cannady v. United States, 122 U.S.App.D.C. 120, 123, 351 F.2d 817, 820 (1965); Brown v. United States, 118 U.S.App.D.C. 76, 77, 331 F.2d 822, 823 (1964). We may also grant that despite the provisions of GS Criminal Rule 14 (III) (c)⁶ a continuance should be allowed upon a clear showing of the need for a mental examination, Mitchell v. United States, 114 U.S.App.D.C. 353, 357-359, n. 13, 316 F.2d 354, 358-360, n. 13 (1963), or for the appointment of an independent psychiatrist. Cf. Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965). But such a showing...