Edmonds v. United States

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: PER CURIAM
• Citation: Edmonds v. United States, 260 F.2d 474, 104 U.S.App.D.C. 144 (D.C. Cir. 1958)
• Decision Date: 15 September 1958
• Docket Number: No. 14004.,14004.
• Parties: Jim B. EDMONDS, Appellant, v. UNITED STATES of America, Appellee.

104 US App. DC 144, 260 F.2d 474 (1958)

Jim B. EDMONDS, Appellant, v. UNITED STATES of America, Appellee.

No. 14004.

United States Court of Appeals District of Columbia Circuit.

Reargued April 23, 1958.

Decided September 15, 1958.

Mr. Edward J. Skeens, Washington, D. C., with whom Mr. Leo Michael Linehan, Washington, D. C., was on the brief, for appellant. Mr. Carl J. Morano, Washington, D. C., also entered an appearance for appellant.

Mr. Fred L. McIntyre, Asst. U. S. Atty., for appellee. Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Alexander L. Stevas, Asst. U. S. Attys., were on the brief for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting in banc.

PER CURIAM.

The judgment of conviction is reversed and the case is remanded for a new trial. Circuit Judge Bazelon, with whom Chief Judge Edgerton and Circuit Judges Fahy and Washington concur, files an opinion in support of the judgment of reversal. Circuit Judges Prettyman and Burger concur in the result. Circuit Judge Wilbur K. Miller, with whom Circuit Judges Danaher and Bastian join, files an opinion dissenting from the judgment of reversal.

BAZELON, Circuit Judge, with whom EDGERTON, Chief Judge, FAHY and WASHINGTON, Circuit Judges, join: Appellant, a 19-year old Marine, seeks reversal of his conviction of second-degree murder after trial upon charges of first-degree murder.

While stationed at the Marine Barracks, Washington, D. C., in November 1956, appellant was referred by his commanding officer to a naval psychiatrist for a neuropsychiatric consultation because of his behavior problems. After a thirty to forty-five minute consultation on November 16, 1956, the psychiatrist reported:

"His pertinent past history reveals an extremely traumatic childhood. His father killed his mother with a gun while in a drunken rage in the patient\'s presence at age eight years.

The patient was subsequently involved in the trial. The father recently completed 10 years of imprisonment. His school record was poor and his social activities were impulsive and isolated.

"On examination he was tense, bewildered and guarded. There was no evidence of a mood, affect or thinking disorder. His thinking was disorganized, erratic and he appeared on the verge of explosive rage and fear. He gives the impression of a confused, impulsive, immature young man who is coping with thinly disguised, overwhelming fear of his father and simultaneously violently aggressive fantasies towards him. He appears to have struggled with this conflict since early childhood but since release of his father from prison the conflict has erupted into his overt behavior. His current difficulties in the Marine Corps seem significantly related to this.

"It is my opinion that a transfer to another post is unlikely to enable him to adjust to the Marine Corps. There is the further possibility of violent loss of emotional control in relation to his father. He should be hospitalized for further observation for his own welfare, and whenever feasible should be separated from Service.

"Impression: Emotional Instability Reaction with Anxiety Features."

The next day, a Saturday, appellant went AWOL with the intention of going to Georgia to see his grandmother. He went to a bar where he had a few drinks and met a friend, one Price. The next few hours were spent in Price's company, first at a dance and later at Price's apartment. About 2:30 Sunday morning appellant left Price's apartment and went to the home of a girl friend, intending to sleep there. Finding that she was not at home, he decided to take a taxi back to his barracks and turn himself in as AWOL.

While waiting for a taxi, he was approached by Mr. Lefebvre, the deceased, and was invited to the latter's nearby apartment for coffee. He accepted the invitation. After they had coffee, according to appellant, Mr. Lefebvre began to make homosexual advances and there resulted a struggle in the course of which appellant choked Mr. Lefebvre to death. Thereafter appellant took from the apartment some money, a radio and the keys to the deceased's automobile, which was parked outside, and drove the automobile to Georgia. There he drove the automobile into an embankment in what he says was an attempt at suicide. The car was wrecked and appellant was hospitalized. The report of this accident was what led the police to appellant and brought his arrest for the killing.

Appellant was indicted for first-degree murder and, on April 29, 1957, went on trial for his life. His defenses were justifiable homicide and insanity. The justifiable homicide defense was based on a contention that he had killed Lefebvre in resisting the latter's homosexual attack. The theory of the insanity defense was that the killing was attributable to appellant's mental derangement traceable to the childhood traumatic experience referred to in the naval psychiatrist's report quoted supra. We have studied the record of the trial with great care. See Williams v. United States, 1942, 76 U.S.App.D.C. 299, 300, 131 F.2d 21, 22. In our opinion, the Government exceeded permissible bounds in its efforts to refute the defenses, so tainting the jury's verdict as to require reversal of the conviction and remand of the case for a new trial.

The Justifiable Homicide Defense

Appellant testified that Lefebvre made a series of homosexual advances to him, becoming more aggressive as appellant repulsed him, and finally pouncing on appellant and trying to take him by force. Appellant claimed that he choked Lefebvre in resisting this forcible attack. The Government's theory was that, while resistance to a homosexual attack may in some circumstances justify homicide, appellant had not, in fact, resisted Lefebvre's homosexual advances. He had demurred, the Government contends, only to Lefebvre's attempts to kiss him, which would hardly justify killing.

To establish its contention, the Government first sought an admission from appellant on cross-examination that he had told Dr. William G. Cushard that he had objected only to the kissing. This admission not being forthcoming, the Government called Dr. Cushard as a witness for the purpose of showing "what the defendant said to him concerning the activities of the deceased, that he didn't object to the man fondling him; that it was the kissing he objected to." Over defense objections, Dr. Cushard was permitted to testify that appellant had told him it was Lefebvre's "method of approach" he had found objectionable. Dr. Cushard's testimony was used to advantage in the Government's argument to the jury. The prosecutor said:

"* * * you need only refer or refresh your recollection of the testimony of Doctor Cushard late yesterday afternoon when asked what the feelings of the defendant were as represented to Doctor Cushard concerning these so-called, as he termed it, `improper advances\'.

"He objected to the method of approach! Nowhere does he say to Doctor Cushard, as he testified, that this defendant `objected\' to the deceased fondling him; but he objected to the `method of approach\'! Nowhere does he say his testicles and penis were being squeezed and he was in pain! * * *"

Defense counsel objected to this whole line of inquiry, pointing out that Dr. Cushard had examined appellant for the purpose of determining his competency to stand trial and citing the provision of 18 U.S.C. § 4244 that: "No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding. * * *" The District Court overruled the objection on the ground that the Act of August 9, 1955, 69 Stat. 609, 612, amending D.C.Code § 14-308, superseded the quoted provision of 18 U.S.C. § 4244.

D.C.Code § 14-308 established the physician-patient privilege. The 1955 amendment to this section provides:

"That this section shall not apply to evidence relating to the mental competency or sanity of an accused in criminal trials where the accused raises the defense of insanity * * *." Emphasis supplied.

There is no conflict between this provision and the provision of 18 U.S.C. § 4244 barring a doctor's revelation of the accused's statements relating to "guilt." The legislative history of the Act of August 9, 1955, makes it clear and explicit that Congress meant to remove the privilege from statements relevant to mental competency or sanity, but to leave privileged statements relevant to the issue of guilt or innocence. The Committee on Mental Disorder as a Criminal Defense, Council on Law Enforcement of the District of Columbia, which drafted the legislation, said in its Report of April 25, 1955, which was adopted by both the House and Senate Committee Reports in recommending the legislation:

"It is to be noted that this recommendation pertains only to evidence as to mental competency or sanity. All other existing privileges would be retained, including the provision in 18 U.S.C. § 4244, that no statement made by an accused to a physician in the course of an examination should be admitted in evidence against the accused on the issue of guilt in any criminal proceedings."¹

As the Report further said, "* * * many difficult questions may be presented to the trial courts in determining whether a particular statement bears on the mental competency or sanity of an accused or whether it bears on his guilt. The Committee is quite confident that our very able trial courts will be able to decide these questions properly in each individual case as they arise."²

In the instant case, the trial judge, since he erroneously assumed that the amendment destroyed all privilege in a case where sanity is in issue, did not undertake to decide whether the statement Dr. Cushard testified...