Contee v. United States

• Decision Date: 14 February 1969
• Docket Number: No. 21693.,21693.
• Citation: 410 F.2d 249,133 US App. DC 261
• Parties: Marshall A. CONTEE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

133 US App. DC 261, 410 F.2d 249 (1969)

Marshall A. CONTEE, Appellant, v. UNITED STATES of America, Appellee.

No. 21693.

United States Court of Appeals District of Columbia Circuit.

Argued October 17, 1968.

Decided February 14, 1969.

Mr. David Cobb, Washington, D. C. (appointed by this court), for appellant.

Mr. Daniel J. Gibelber, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and TAMM, Circuit Judge.

BAZELON, Chief Judge:

Appellant murdered his wife with an ax in their bedroom during the night and turned himself in to the police. His principal defense at trial was insanity, though he also denied premeditation. On this appeal from his conviction for murder in the first degree, he contends that the trial court erred in benying his request for bifurcation of the trial on the merits from the trial on the issue of criminal responsibility, under Holmes v. United States, 124 U.S.App.D.C. 152, 363 F.2d 281 (1966).

In support of his pre-trial motion for a bifurcated trial, defense counsel told the court he had a case for self-defense and a case against the premeditation charged in the indictment for first degree murder. He was afraid the jury would confuse these defenses and the testimony relevant thereto with his insanity defense, which included some evidence inconsistent with the other defenses. Specifically, he cited appellant's statement — made during a sodium pentothal interview which was to be introduced as the basis for psychiatric diagnoses — that he had planned to kill his wife for several months. However, the court trusted itself to prevent confusion and offered to strike from the sodium pentothal interview the prejudicial admission concerning appellant's premeditation. Defense counsel declined the offer, saying that, if accepted, it would render the psychiatric reports incomplete. He concluded that, in a unitary trial, he would not argue self-defense to the jury for fear of their possible adverse reaction to such a contention when set against the sodium pentothal statement he had declined to have stricken. Appellant now contends that the evidence introduced in connection with his insanity defense included much additional matter, not called to the trial court's attention, which was highly prejudicial to his defenses on the merits.

Bifurcation lies in the first instance within the "sound discretion" of the trial court. Holmes v. United States, supra at 154, 363 F.2d at 284. Since the Holmes decision, we have refused to reverse denials of bifurcation where the defendant had no substantial defense on the merits besides a bare denial, Harried v. United States, 128 U.S.App.D.C. 330, 389 F.2d 281 (1967); where there was no substantial insanity defense, Higgins v. United States, 130 U.S.App.D.C. 331, 401 F.2d 396 (decided June 28, 1968); and where the request for bifurcation was unnecessarily conditioned upon impaneling of two separate juries, Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559 (decided May 20, 1968). However, a sound exercise of the trial court's discretion will ordinarily result in bifurcation whenever a defendant shows that he has a substantial insanity defense and a substantial defense on the merits to any element of the charge, either of which would be prejudiced by simultaneous presentation with the other. In cases of doubt, the question should be resolved in favor of bifurcation where the evidence on criminal responsibility does not significantly overlap the evidence on the merits and where the same jury can fairly determine both issues. In such cases, little judicial time will be lost by separating the issues. In addition, in many such cases bifurcation holds promise of a substantial economy in judicial resources, since an acquittal on the merits will eliminate altogether the frequently long and complex testimony on the insanity issue.

As noted in Holmes, supra, a unitary trial involving both the merits and the issue of criminal responsibility is replete with potential sources of prejudice. Accordingly, especially since the cost of bifurcation to substantial state interests is often minimal or even negative, the trial court should be alert to the need for separate trials whenever the accused proposes to present an insanity defense, regardless of whether defense counsel makes an initial request or an initially sufficient showing of need. In this area as in others, the realities of the contemporary criminal process, in which commonly indigent defendants are often represented by counsel unfamiliar with the intricacies of criminal law and procedure, require the trial court's active concern to insure the fairness of the trial.

At the same time, however, even when it takes the initiative the court must depend largely on defense counsel for the relevant information. The court may...