Gorbey v. United States, Nos. 08–CF–1080

• Decision Date: 20 September 2012
• Docket Number: 10–CO–1075.,Nos. 08–CF–1080
• Citation: 54 A.3d 668
• Parties: Michael S. GORBEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

54 A.3d 668

Michael S. GORBEY, Appellant,

v.UNITED STATES, Appellee.

Nos. 08–CF–1080, 10–CO–1075.

District of Columbia Court of Appeals.

Argued Oct. 27, 2011.

Decided Sept. 20, 2012.

Preston Burton, with whom Kathleen Orr, Rebecca Mroz, and Lauren B. Muldoon, Washington, DC, were on the brief, for appellant. Appellant also filed two pro se briefs on his own behalf.

John P. Gidez, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and John M. Cummings, Jennifer A. Kerkhoff, and Mary Ann Snow, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE–RIGSBY and THOMPSON, Associate Judges, and PRYOR, Senior Judge.

THOMPSON, Associate Judge:

On January 18, 2008, at about 1:00 p.m., a woman approached a United States Capitol Police (“USCP”) Officer near the intersection of Delaware and D Streets, N.E., and told the officer that a man with a gun had asked her for directions to the United States Supreme Court. From the USCP command center, an officer watched the video feed from surveillance cameras in the area around the U.S. Capitol and saw images of a man walking with a shotgun. As shown on a recording from those cameras, USCP officers stopped and arrested the man—appellant Michael Gorbey—at the intersection of First and D Streets, N.E. At the time he was stopped, appellant had a shotgun in his hand and a sword on his back. Twenty-seven shotgun shells were stored in the bulletproof vest he was wearing, and he also was in possession of hunting knives and a .45–caliber round, which officers found in the backpack he was carrying. Appellant claimed that he was en route to a meeting with Chief Justice John Roberts of the United States Supreme Court.

Minutes after appellant was stopped, USCP officers found a truck illegally parked nearby and could see in it “heavy gauge wire coming out of [the] radio ... to the glove compartment ... [a]nd then ... coming out of the back of the vehicle,” as well as “the stock of a rifle and a homemade bow and arrow.” After canine-unit dogs responded to the truck in a manner that suggested that it contained explosives, officers secured the truck and called for the bomb squad to investigate. Bomb squad officers used a remote-control robot to punch through one of the windows of the truck and a tool to “disrupt” and neutralize any explosive device that might have been inside the passenger compartment. They then conducted a search of the inside of the truck (which was “in some disarray” from the disruptive tool). They found ammunition on the floorboard of the passenger compartment but, during this initial search, they did not find an explosive device. USCP officers found the keys to the truck in appellant's pocket and the certificate of title to the truck in the backpack appellant had been carrying at the time of his arrest.

The USCP officers moved appellant's truck to a secure storage area at 800 North Capitol Street, N.W., and, on February 8, 2008, conducted another search of the passenger compartment, pursuant to a search warrant. After moving the passenger seat forward, officers found an object that one of the officers described as a “home-made bomb.” The object (hereafter referred to as the “device”) consisted of “a metal can spray painted red” and “a clear bottle filled with what looked like lead pellets,” and “everything was duct taped.” After the bomb squad used a tool to “disrupt” the device, officers completed a search of the passenger compartment and cab of the truck. They recovered a “large amount” of black powder; firecrackers; lighters; primer or percussion caps; shotgun shells and shotgun cartridges; 550 rounds of long rifle ammunition; 200 rounds of other ammunition of various calibers; a rifle scope; and the (disrupted) components of the device (i.e., the metal can, duct tape, black powder, metal pellets, and glass fragments).

Appellant was charged and subsequently convicted, on May 16, 2008, of fourteen separate offenses in connection with the events described above: unlawful possession of a firearm by a convicted felon; two counts of carrying a dangerous weapon outside the home or business (shotgun and sword) (“CDW”); possession of an unregistered firearm (“UF”); eight counts of unlawful possession of ammunition (“UA”); manufacture, transfer, use, possession, or transportation of explosives for an unlawful purpose; ¹ and attempted manufacture or possession of a weapon of mass destruction (“WMD”).² As described more fully below, appellant insisted on representing himself at trial and did so, assisted by counsel from the Public Defender Service (PDS) who served as his standby counsel or attorney-advisor.³ After sentencing, appellant made filings in support of a pro se motion to vacate or set aside his conviction pursuant to D.C.Code § 23–110 (2001), and appellate counsel appointed by this court supplemented that motion, which the trial court denied without a hearing on August 18, 2010.

Before us now are consolidated appeals: appellant's direct appeal from each of his convictions and his appeal from the trial court's denial of his § 23–110 motion. The issues on appeal have been presented in opening and reply briefs filed by counsel, and in opening and reply briefs filed by appellant pro se.⁴ The briefs raise a battery of claims. Through counsel, appellant principally argues that his convictions should be overturned because the trial court “failed to order an evaluation of his competency to stand trial, his competency to proceed pro se, and his competency to waive his right to present the insanity defense despite warnings of incompetence.” The briefs also argue that the evidence was not sufficient to support the convictions for CDW, possession of an explosive device, and attempted manufacture or possession of a WMD; that the WMD statute is unconstitutionally vague; that appellant was deprived of an impartial jury; that PDS counsel deprived appellant of effective assistance of counsel by failing “to pursue mental health-related issues” and by failing to “secure a rebuttal [expert] witness” for the defense to address the WMD and explosive device charges; and that several of appellant's convictions merge. Appellant's pro se briefs also present several additional claims, which we identify and address summarily at the end of this opinion.

For the reasons set out below, we reject the claim—advanced by counsel, but not by appellant in his pro se briefs—that the trial court abused its discretion by not ordering an evaluation of appellant's competence to stand trial and by permitting appellant to represent himself at trial. Our close review of the record persuades us that nothing presented to the trial court—neither the “aggregate of [relevant] indicia” nor any factor “stand[ing] alone,” Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (internal quotation marks and citations omitted)—raised a substantial question about appellant's competence. We also conclude, however, that by the time the matter proceeded to sentencing, sufficient “red flags” had been raised that the trial court was required to conduct an inquiry (a so-called Frendak inquiry ⁵) to determine whether appellant intelligently, knowingly and voluntarily waived a (possible) insanity defense. Accordingly, we remand for that inquiry.

We reject appellant's other challenges; however, we conclude that several of appellant's convictions merge, and we direct the trial court to vacate the affected convictions, including the conviction for possession of the .45 caliber round. Accordingly,if the trial court determines upon remand that appellant has validly waived an insanity defense, his convictions (other than those that merge) will stand.⁶ In its discretion, the trial court may re-sentence appellant if it determines that to be the appropriate course in light of information adduced upon remand.

I. Whether the Trial Court Abused Its Discretion in Failing to Order an Evaluation of Appellant's Competence to Stand Trial, His Capacity to Represent Himself, and His Capacity to Waive An Insanity DefenseA. The Trial Proceedings

1. Appellant's Competence to Stand Trial

Due process “prohibits the criminal prosecution of a defendant who is not competent to stand trial.” Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992); see also Drope, 420 U.S. at 171, 95 S.Ct. 896 (“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”). The test for determining competency to stand trial is whether a defendant has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as a factual understanding of the proceedings against him.” Higgenbottom v. United States, 923 A.2d 891, 897 (D.C.2007) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)) (internal quotation marks omitted). “Where there is evidence raising a substantial doubt as to a defendant's competency to stand trial, the trial judge is under a constitutional duty to order a hearing sua sponte.” Phenis, 909 A.2d at 152 (quoting Holmes v. United States, 407 A.2d 705, 706 (D.C.1979)) (internal quotation marks omitted); see also Clyburn v. United States, 381 A.2d 260, 263 (D.C.1977) (A trial court is “obligated to make or compel inquiry if it is in receipt of information which raises a bona fide doubt of defendant's competence.”). In determining whether a competency hearing is warranted, factors such as a defendant's irrational behavior, demeanor at trial, prior medical opinions, evidence of mental illness, and representations by defense counsel are all...