Gorham v. United States, 5992.

Citation339 A.2d 401
Decision Date07 May 1975
Docket NumberNo. 5992.,No. 5995.,5992.,5995.
PartiesLaverne F. GORHAM, Appellant, v. UNITED STATES, Appellee. Chester WILLIAMS, Jr., Appellant, v. UNITED STATES, Appellee.
CourtCourt of Appeals of Columbia District

M. Langhorne Keith, Washington, D. C., with whom John M. Ferren, Washington, D. C., was on the brief, for appellant Gorham.

Richard L. Hubbard, Washington, D. C., appointed by this court, for appellant Williams.

Ann K. Macrory, Washington, D. C., participated in the argument of this case for William Russell Franklin, whose appeal was consolidated with those of appellants Gorham and Williams for reargument before the court sitting en banc. A separate opinion was rendered in appellant Franklin's case.

Richard L. Cys, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Robert C. Crimmins, Roger M. Adelman and Oscar Altshuler, Asst. U. S. Attys., were on the brief, for appellee.

Robert L. Palmer, Washington, D. C., with whom Robert N. Sayler, Washington, D. C., was on the brief, for the Washington Area Council on Alcoholism and Drug Abuse, Inc., as amicus curiae.

Before REILLY, Chief Judge, and KELLY, FICKLING, KERN, GALLAGHER, NEBEKER, PAIR,* YEAG-LEY and HARRIS, Associate Judges.

GALLAGHER, Associate Judge:

These cases were consolidated for trial1 and on appeal. After a panel of this court had issued a decision in Franklin v. United States (D.C.App.) 339 A.2d 398 the court en banc vacated that decision sua sponte and consolidated these appeals therewith for reargument before the court sitting en banc. The basic issue presented is whether a criminal defendant charged with possession of heroin for personal use or possession of implements of crime (narcotics paraphernalia) may raise an affirmative defense of lack of common law criminal responsibility due to heroin addiction.

It is necessary, at the outset, to relate what this case actually involves and where appellants' contention leads us. We are considering heroin addiction in the context of crime. During the past several years has become increasingly evident that "the problem of urban crime is largely a problem of heroin addiction."2 Once a user becomes an addict, "[h]e is then bound to a treadmill that requires increasing amounts of heroin to feel healthy and increasing amounts of criminal activity to obtain the heroin."3 It has been reported that "[s]ome criminal court judges have found that 75 percent of all the cases they try involve defendants with a history of heroin abuse."4 Other estimates "attribute 33 percent to 50 percent of the hold-ups, burglaries, muggings and thefts committed in the nation's 34 major urban centers to heroin addicts."5 Whatever the accurate prevailing percentage may be, the argument advanced does not have the limited impact of a holding concerning a rare claim of duress, or the occasional defense of insanity,6 rather, it would cut deeply into the enforcement effort on a massive amount of crime in this city.

The defense sought to be asserted has been explored inch by inch and rejected in a recent en banc decision by the Circuit Court in this jurisdiction in United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139, cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973), with which we agree. The plurality opinion and the concurrence by Judge Leventhal searched all the nooks and crannies in this issue. Consequently, there is no point in retracing that ground. We will confine ourselves for the most part to the peculiarities of this case and a discussion of additional considerations.

I. PROCEDURAL HISTORY

Pursuant to the procedure suggested in Watson v. United States, 141 U.S.App.D.C. 335, 346-47, 439 F.2d 442, 453-54 (1970), the defendants made a pretrial motion to dismiss under Super.Ct.Cr.R. 12 and the trial court received extensive testimony from appellants and experts on their behalf which was directed at establishing that their addiction precluded prosecution for the charged offenses under the Eighth Amendment. In an order issued on March 14, 1971, the motion was denied.7 There is no contention here on the Eighth Amendment issue, as will appear.8

Before trial appellants sought leave to introduce evidence to establish that because of their addiction they were not criminally responsible, under common law principles, for possession of narcotics. They made a proffer of evidence and proposed jury instructions in support of their request which was denied by a pretrial order entered on May 18, 1971.9 At trial the court again denied appellants' motions to introduce evidence to establish an affirmative defense based on heroin addiction.

Appellant Gorham was found guilty of possession of heroin10 and possession of implements of crime (narcotics paraphernalia)11 while appellant Williams found guilty only of the latter crime. They contend it was error to deny the motions wherein they sought to establish an affirmative defense of lack of common law criminal responsibility due to heroin addiction.

II. THE RECORD

Appellant Gorham was arrested on August 4, 1970. That morning her room was entered and searched by Metropolitan Police Department officers pursuant to a search warrant. The officers discovered a quantity of white powder containing heroin and various narcotics paraphernalia which contained traces of heroin. On these facts she was found guilty with imposition of sentence suspended and probation imposed.12

Appellant Williams was arrested July 16, 1970, when a police officer discovered him seated on the floor in an abandoned house in this city surrounded by various narcotics paraphernalia, all of which contained traces of heroin. On these facts he was found guilty with imposition of sentence suspended and conditions imposed.13

Because these cases were tried upon stipulated facts appellants' personal histories as to narcotic usage were not developed on the record now before us. However, Judge Belson's comprehensive memorandum opinion and order (Appendix A) disposing of appellants' pretrial motion to dismiss sets out these facts concisely at pp. 10-14.

III. THE PROFFERED DEFENSES

Appellants, unsuccessful in their attempt to prevail on the motion to dismiss, made an extensive proffer of evidence and jury instructions to the trial court. The proffer, boiled down to its essentials, is as follows:

Defendants offer to prove, through their own testimony, the testimony of psychologists and psychiatrists who have interviewed, examined, and diagnosed them, and through the testimony of expert witnesses who have substantial reputations in the field of drug dependence, that each defendant was a heroin dependent person at the time of [his] arrest; that as such each was unable to restrain from further use of injectable heroin; that each had an overpowering desire or need to continue taking the drug and to obtain it by any means either because of the psychic dependence or the physical dependence on the drug, or both; that this dependence took the form of an overpowering and irresistible craving or compulsion to continue taking the drug and to obtain it by any means; that this dependence resulted in such an overwhelming involvement with the use of heroin and the securing of its supply that their need to obtain and use it was the central feature of their lives; and that it resulted in a substantial impairment of their behavior controls and lack of choice or control and directly caused the acts with which they are presently charged.

Concomitantly, appellants proffered that they were "so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to [their] addiction," D.C.Code 1973, § 24-602, 28 U.S.C. § 2901(a) (1970), and that they were "drug dependent person(s)" in that each was using heroin and was in "a state of psychic or physical dependence, or both, arising from the use of that substance on a continuous basis" and were under "a strong compulsion to take the substance on a continuous basis in order to experience its psychic effects or to avoid the discomfort caused by its absence." 42 U.S.C. § 201(q) (1970).

Appellants then proffered a series of jury instructions which boil down to an instruction that the jury must acquit the accused unless it is convinced beyond a reasonable doubt that he was not heroin dependent at the time of the offense or that his possession of heroin or narcotics paraphernalia was not a direct product of his heroin dependence. The jury was to be instructed that a person is heroin dependent if, by reason of long and intensive use of heroin, the ability to refrain from using heroin is substantially impaired.

Although the proffer is in the language of federal and local statutes relating to drug addiction in a medical sense, appellants' proposed defense is based upon common law doctrines of criminal responsibility which they seek to have extended to provide a defense for the heroin addicted individual who is charged with possession of heroin or possession of implements of possession is for personal use only. Simply put, they argue the heroin dependent individual is compelled to commit the crimes of possession of heroin and the narcotics paraphernalia necessary to administer it by reason of addiction.

The trial court declined to permit appellants to develop the evidence to support their theory of defense when it ruled as a matter of law that their proffered test of criminal responsibility was not in accord with existing precedent because it was not framed in terms of the insanity defense.14 It is from this ruling that this appeal is mainly taken.

The United States Supreme Court has stated that "[t]he contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as a belief in freedom of the human will and a consequent ability and duty of the normal...

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