Higgenbottom v. U.S., 03-CF-1187.

• Decision Date: 10 May 2007
• Docket Number: No. 03-CF-1187.,03-CF-1187.
• Citation: 923 A.2d 891
• Parties: Dock HIGGENBOTTOM, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

923 A.2d 891

Dock HIGGENBOTTOM, Appellant, v. UNITED STATES, Appellee.

No. 03-CF-1187.

District of Columbia Court of Appeals.

Argued March 29, 2007.

Decided May 10, 2007.

Robert S. Becker, Washington, DC, appointed by the court, for appellant.

John P. Mannarino, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, and Steven B. Snyder, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

After a jury trial, appellant was convicted of aggravated assault while armed, possession of a prohibited weapon (pipe), and two counts of assault with a dangerous weapon.¹ In this appeal, appellant challenges (1) the trial court's failure to hold additional hearings sua sponte before sentencing, in order to examine retroactively appellant's competency at trial;² (2) the court's refusal to give a self-defense jury instruction expressly concerning "duty to retreat"; and (3) the court's failure to take additional corrective action, beyond the limiting instruction that it gave sua sponte, during the prosecutor's cross-examination of appellant about his prior convictions. We conclude that no reversible error occurred and thus affirm appellant's judgment of conviction.

I.

On the night of July 10, 2002, the complainant, Tommy Bennett, in search of a misplaced ten-dollar bill, returned to the apartment of his neighbor, appellant Dock Higgenbottom, where Bennett had been drinking with appellant earlier in the evening. After the two briefly conversed in the apartment doorway, appellant struck Bennett twice in the head with a length of pipe. Appellant then slammed Bennett's hand in the door, crushing two fingertips that later had to be amputated, and continued to strike Bennett in the body with the pipe and a hammer as the altercation progressed down the apartment-building hallway.

At trial, appellant asserted self-defense and testified that Bennett had kicked open his apartment door and entered carrying a knife in his waistband, using profanity, and telling appellant "you owe me; you owe me." Appellant admitted striking Bennett with the pipe in the head, hand, and side of the body to remove Bennett from the doorway so that appellant could close the door. Appellant further testified that he had struck Bennett "because he scared me," not with any intent to kill him. Appellant added that he felt vulnerable because of recent abdominal surgery.

II.

After trial, appellant asked the court to appoint new counsel to represent him at sentencing. The court did so. Upon new counsel's request for an evaluation of appellant's competency, the court approved the services of Dr. Anita L. Boss, a private forensic psychologist who was formerly employed by the Commission for Mental Health. Dr. Boss evaluated appellant at the D.C. Detention Facility and, in a letter dated March 26, 2003, reported her conclusion that appellant was not competent to proceed with sentencing. Dr. Boss observed:

Not only was [appellant's] speech highly animated, but it was also replete with loose associations, tangentiality, and excessive non-essential detail. Mr. Higgenbottom was unable to sustain a discussion of any one topic through to completion without straying to a marginally related issue, though it was possible to re-direct him to the matter being discussed. Once he responded to re-direction, he often rambled off into another area once again. This is not to say that his speech was incoherent. It was easy to understand what he was talking about, but it was clear that he was unable to sustain concentration and communicate meaningfully and consistently about one issue at a time. This is the most important factor relating to his competency to proceed with sentencing, as it casts substantial doubt on his ability to follow legal proceedings and to effectively communicate with counsel.

. . . .

His delusional system was mostly related to racial themes, some of which stem from actual events he experienced as a young person. Some of the content of Mr. Higgenbottom's delusional ideation was directly related to his recent jury conviction and to Judge Canan. He was unable to sustain a rational discussion regarding the fact that he is facing sentencing after being convicted by a jury.

Dr. Boss also noted the need for further inquiry into appellant's competency at the time of trial because of "the possibility that he may have been actively mentally ill at the time." The doctor added, however, that "a full evaluation to determine if he is competent to waive an insanity defense seemed premature" until after mental health treatment was re-initiated. After receiving Dr. Boss's report, counsel filed a motion for appellant's transfer to St. Elizabeths Hospital for a competency evaluation, treatment, and a retroactive evaluation of competency at the time of trial.

At an April 2, 2003, status hearing, the trial court ordered a forensic screening of appellant in the Superior Court cellblock. Later in the day, after receiving a report from clinical psychologist Dr. Robert Benedetti,³ the court ordered appellant transferred to St. Elizabeths Hospital for treatment and evaluation. At St. Elizabeths, he began a treatment program that included antipsychotic medications. On June 5, 2003, the trial court issued an order directing that appellant also be examined for a determination of his "competency to proceed with trial (retroactive competency exam)," with a report due by June 12, 2003.

By letter dated June 11, 2003, the D.C. Department of Mental Health (DMH) responded to the trial court's order:

Dr. Abdul Ahad, staff psychiatrist, recently examined Mr. Higgenbottom and the following determinations were made at a diagnostic staff conference. Although he has a factual understanding of the sentencing proceedings pending against him, he is incompetent to proceed with sentencing by virtue of not having a rational understanding of the proceedings pending against him and being unable to consult with counsel with a reasonable degree of rational understanding.

He has been diagnosed with Bipolar I Disorder, Most Recent Episode Manic, Moderate and Alcohol Abuse, By History. He also has a seizure disorder. He is currently receiving [four different medications]. Further, it is likely that Mr. Higgenbottom will attain competency to proceed with sentencing in the foreseeable future.

DMH then added: "We are unable to assess retroactive competency to stand trial at this time, since we have [not] received transcripts and other information needed to conduct this examination."

At a June 13, 2003, status hearing, the trial court reviewed the DMH report that appellant was not competent to proceed with sentencing. The court noted that the report "didn't resolve or give an opinion regarding [appellant's] competency back at the time of trial," and the court questioned counsel about the delay in transmitting the trial record to the doctors. Following the hearing, appellant continued treatment, and on or around August 7, 2003, sentencing counsel delivered the trial transcripts to St. Elizabeths Hospital.

On August 14, 2003, DMH reported an updated set of conclusions to the trial court:

Dr. Abdul Ahad, staff psychiatrist, recently re-examined Mr. Higgenbottom and the following determinations were made at a diagnostic staff conference. He is competent to proceed with sentencing by virtue of having a factual and rational understanding of the proceedings pending against him and being able to consult with counsel with a reasonable degree of rational understanding.

Further, regarding retroactive competency to stand trial, he was competent to stand trial by virtue of having a factual and rational understanding of the proceedings pending against him and being able to consult with counsel with a reasonable degree of understanding.

At a status hearing on August 15, 2003, the court acknowledged the findings in the DMH report that appellant had been restored to competency and that appellant had been competent at the time of trial. Appellant's sentencing counsel agreed that appellant was "competent to go forward," but asked to be allowed "to further investigate the issue of competency at the time of trial" because appellant had not been medicated at the time of trial and had a history of treatment for mental illness, including a period of commitment in the 1970s after pleading insanity in a murder trial. Counsel stated that she anticipated filing a motion for a new trial "raising issues of why [trial counsel] didn't raise any of these issues."

Over the government's objection, the trial court stayed the sentencing proceeding for thirty to forty-five days and invited appellant's sentencing counsel to investigate further the matter of competency. The court offered to authorize funds for additional examination of appellant and told counsel to "file whatever you feel is appropriate to file" to challenge sanity, competency, or trial counsel's failure to raise either issue at trial. The court explained that if a defense filing "causes me to think [the case] should be taken off the sentencing track, then I'll hear from the Government, I'll do it. If not then we won't and we'll go to sentencing and we can litigate it . . . in some other way." The court further commented:

It may be a moot point. . . . I mean, I did hear the trial . . . and had a lot of contact with Mr. Higgenbottom leading up to it, as well. And, you know, he was always very passionate about what he thought happened in this case, and testified, and et cetera. So this may all . . . not go very far, but it might. I don't know.

While the sentencing proceeding was stayed, neither appellant's sentencing counsel nor appellant himself (who by this time had been found competent) proffered any evidence or filed any motion in response to the court's invitation to "file whatever you...