Harried v. United States, 20372.

• Decision Date: 30 November 1967
• Docket Number: No. 20372.,20372.
• Citation: 128 US App. DC 330,389 F.2d 281
• Parties: Ernest W. HARRIED, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 330, 389 F.2d 281 (1967)

Ernest W. HARRIED, Appellant, v. UNITED STATES of America, Appellee.

No. 20372.

United States Court of Appeals District of Columbia Circuit.

Argued August 2, 1967.

Decided November 30, 1967.

Mr. Sidney Dickstein, Washington, D. C. (appointed by this court), for appellant.

Mr. Scott R. Schoenfeld, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Allan M. Palmer, Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and BURGER and WRIGHT, Circuit Judges.

BURGER, Circuit Judge:

Appellant was convicted of murder in the first degree and sentenced to life imprisonment upon the recommendation of the jury. Appellant filed a pro se motion in this Court for mandamus or habeas corpus which was treated as a timely motion for an appeal in forma pauperis and granted by the District Court.

The record reveals that at about 12:30 p. m. on June 10, 1965, the body of a six-year-old boy was discovered in a blue denim bag, bound with ropes and gagged with adhesive tape. Almost simultaneously, Lillian Catlett, accompanied by Appellant who was a friend, went to the boy's school to learn why her son Zachary had not returned for lunch. Appellant called the Missing Persons Bureau when the boy was not found at school and later accompanied the boy's mother to the police station. At trial Mrs. Catlett testified that the police did not ask Appellant to come to the station but he accompanied her to comfort her as a friend.

The record is unclear as to Appellant's movements thereafter. At some point the police asked him to indicate the route of the boy's trip to school and with police he went to the scene to identify the boy's body. On the way to the scene, an officer said to Appellant, "you know the boy's dead, don't you?" Appellant said "no."

After identifying the body as that of Zachary Catlett, Appellant asked where the boy's shoes were. He told the police that the boy had worn brown shoes and identified the shoes which the police showed him as the same brand that he had seen on a shoe box in the boy's house. All this occurred before 1:25, when the body was removed. Appellant stated that he did not believe he was "officially" under arrest at this time.

Appellant was apparently taken to the Homicide Squad room after the identification of the victim's body and there questioned. At some point before his arrest at 5:53 p. m., Appellant was identified by a witness as the man who had been seen carrying a full blue bag over his shoulder from his house that morning. At some point that afternoon not fixed in the record, Appellant stated both to the police and to the boy's mother that he had killed the boy, but this confession was not introduced.

Meanwhile, at 3:45 p. m. on the same afternoon, police officers investigating the case went to the rooming house in which Appellant lived. When there was no response to their knock on the front door they proceeded to the back door by way of the side yard, where they observed an empty adhesive tape dispenser. They also observed, through a rear door which was ajar, some crushed cookies, a metal hook and what appeared to be blood stains on pieces of cardboard. The officers then returned to police headquarters where they applied for a search warrant for Appellant's quarters on the basis of this information and recitals that the tape dispenser held the same size tape as that with which the boy was gagged, that the metal hook was similar to the one with which the boy's legs were fastened, and that the boy was known to have been carrying cookies to school.

The search warrant was issued at 5:25 p. m. It covered the "entire premises" and authorized the seizure of "a Johnson and Johnson two inch adhesive tape container; cookies, a metal hook, and cardboard appearing to be bloodstained and any other instrumentalities of the crime" of murder of Zachary Catlett. Pursuant to this warrant, several items in addition to those specifically listed were seized: two pairs of scissors, strips of adhesive tape, a sheet from Appellant's bed, a skid chain, two butcher knives, a pair of shorts and a shirt. Of those objects not itemized, only the strips of tape, scissors and bedsheet were introduced, without objection, into evidence.

Following indictment and arraignment, defense counsel's motion that Appellant be committed to St. Elizabeths Hospital for mental observation was granted. Appellant was found competent to stand trial. Subsequently, a motion by Appellant for a mental examination by the Legal Psychiatric Division of the Department of Health for the District of Columbia was granted. The resulting psychiatric report stated that Appellant was competent to stand trial, but that he had been suffering from a mental illness and that his criminal act was a product of this condition.

At trial, photographs of the dead body and black and white photographs of the grease covered cardboard pieces that contained some blood spots were introduced by the Government, without objection.

Before offering any evidence defense counsel informed the judge that he desired to raise the claim of insanity but that Appellant objected to this course. After conferences with the prosecutor and the defense attorney, and a recess, the District Judge decided to exercise his discretion to raise the criminal responsibility issue notwithstanding Appellant's objection. The judge noted that one psychiatrist had reported that Appellant was suffering from a mental disease at the time of the crime.

The defense introduced testimony by the psychiatrist who had reported that Appellant had a mental disease. Without objection he testified to having examined Appellant in connection with another child assault case in 1962 and again in connection with this case and concluding that Appellant was schizophrenic. He further testified, after defense counsel assured the Court that he wanted this evidence in, to an assault on the child of a woman with whom (as with Lillian Catlett) Appellant was romantically involved. The defense also called an uncle of Appellant's who testified to attacks on women and children by Appellant.

At the conclusion of the case, the Government proposed a charge to the effect that a verdict of not guilty by reason of insanity would permit the Appellant to go free unless the Government instituted civil commitment proceedings. Defense counsel objected to this charge, but offered no alternative, and no charge was given on this question.

Appellant raises three challenges to his conviction: (1) that it was error for the trial court not to direct, sua sponte, a bifurcated trial once the court had injected the issue of insanity into the case; (2) that Appellant was not informed of his right to have two attorneys appointed to represent him in a capital case; and (3) that he was denied effective assistance of counsel.

(1)

The trial judge has discretion to grant a bifurcated trial on the issue of criminal responsibility, Holmes v. United States, 124 U.S.App.D.C. 152, 363 F.2d 281 (1966), but it is not his duty to consider the question of bifurcation absent a request from defense counsel. Here no request was made. Appellant contends, however, that the trial judge should have considered the matter sua sponte, because it was at the trial court's instance that the issue of insanity was injected over the objection of the Appellant.¹ See Overholser v. Lynch, 109 U.S.App.D.C. 404, 288 F.2d 388 (1961), rev'd on other grounds, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962). But the Court's determination that insanity should be raised in no way interfered with trial counsel's power to request a bifurcated trial. In fact, the decision was made only after several conferences with Appellant's attorney.

The asserted right to a bifurcated trial suffers from another defect. Here, as Appellant's brief states, he "staked all on the insanity defense." He took the stand to deny his guilt but his testimony substantially corroborated that of the Government's witnesses. Indeed it was in part the lack of any real defense on the merits that influenced the trial judge to exercise his discretion to interpose the insanity issue. It is clearly not the import of Holmes to require a bifurcated trial in every case where there is a substantial insanity question. If it were, this Court would not have left it to the "broad discretion" of the trial judge to weigh the factors of substantiality of the claim and possible prejudice to the defense on the merits to determine if bifurcation is appropriate.

Where there is no "defense" beyond putting the Government to its proof, we fail to see how there can be prejudice to the defense on the merits due to failure to bifurcate.

(2)

Appellant asserts error in the failure of the United States Commissioner or the Court to advise him of his right to have two attorneys appointed to represent him in a capital case. 18 U.S.C. § 3005 (1964). But Appellant was represented from the preliminary hearing on by a retained attorney. Since the rights under § 3005 relate to appointed counsel, they are inapplicable to the present case. See United States v. Morris, 178 F.Supp. 694 (E.D.Pa.1959), aff'd, 277 F.2d 927 (3d Cir.), cert. denied, 364 U.S. 848, 81 S.Ct. 91, 5 L.Ed.2d 72 (1960).

(3)

The burden on the Appellant to establish his claim of ineffective assistance of counsel is heavy. See Bruce v. United States, D.C.Cir., 379 F.2d 113 (1967); Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed. 2d 86 (1958). The question here is whether his representation was so ineffective that Appellant was denied a fair trial. We conclude that he was not denied this right. On the contrary, the record reveals a careful defense, built upon the claim of insanity once it was raised by the court.

In assessing a claim of ineffective assistance of counsel, we look to the entire...