Phenis v. U.S., No. 02-CF-536.

• Decision Date: 05 October 2006
• Docket Number: No. 02-CF-536.
• Citation: 909 A.2d 138
• Parties: Jamar PHENIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 138

909 A.2d 138

Jamar PHENIS, Appellant, v. UNITED STATES, Appellee.

No. 02-CF-536.

District of Columbia Court of Appeals.

Argued March 7, 2006.

Decided October 5, 2006.

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Margaret Anthony, Washington, DC, for appellant.

Chrisellen R. Kolb, Assistant United States Attorney, with whom Kenneth L. Wainstein, United States Attorney at the time the brief was filed, John R. Fisher, Assistant United States Attorney at the time the brief was filed, Roy W. McLeese III, Deborah L. Connor, and Emily A. Miller, Assistant United States Attorneys, were on the brief, for appellee.

Before RUIZ and GLICKMAN, Associate Judges, and SCHWELB,^* Senior Judge.

RUIZ, Associate Judge:

Jamar Phenis¹ was convicted of arson (D.C.Code § 22-401),² malicious destruction of property (D.C.Code § 22-403),³ and second degree cruelty to children (D.C.Code § 22-901).⁴ He claims on appeal that the trial court should have sua sponte ordered a competency evaluation during trial; that the trial court erred in failing to conduct a Frendak⁵ inquiry; that the trial court improperly precluded him from defending against the specific intent element of arson; that there was error in the arson jury instruction; that the trial court erred when it corrected appellant's illegal sentence; that appellant's convictions for malicious destruction of property and arson merge; and that there was insufficient evidence to support his convictions. We conclude there is no merit to these contentions except for the claim that the trial court should have conducted a Frendak hearing into the potential availability of an insanity defense. We therefore remand the case to the trial court to conduct such a hearing.

I. Facts

On June 27, 2000, appellant and his mother, Ardis Phenis, lived in the Randle Hill apartment complex located at 3364 Sixth St. S.E. At around 5:00 p.m. that day, the property manager, Coral Satcher, directed the maintenance supervisor, Andre Spinner, and his maintenance assistance, Joseph Sharon, to go to appellant's apartment because a patio window had been broken. When the maintenance crew arrived, Ms. Phenis opened the door. Appellant and appellant's six year old niece, Nigeri Cooper, were in the apartment as well. The sliding glass patio window, which measured about three by seven feet, was broken, and had left shattered glass on the outside patio and inside the apartment. Appellant was sitting on the couch and he "was very upset, arguing with his mother" about "some money she spent of his." The maintenance crew overheard Ms. Phenis say that the real reason for his anger was because she would not let his girlfriend stay in the apartment.

As Spinner stood on the balcony, appellant approached the stationary balcony window and started shaking it, saying "this one is going next." Appellant then went back inside the apartment and continued arguing with his mother. As the argument between them continued and escalated, appellant "got mad and kicked the living room table . . . across the room." Spinner and Sharon decided to leave the apartment because they were both "nervous" about the situation.

Spinner and Sharon reported the altercation to Coral Satcher in the management office. About three to five minutes later, Ms. Phenis arrived at the management office. She was "hysterical" and asked Satcher to call the police because her son was "going off." Satcher called the police and then gave Ms. Phenis the telephone so that she could describe what was going on.

As Spinner and Sharon began walking back toward the apartment, they saw appellant "holding a chair in the air that was on fire" and watched him throw the large chair, a recliner, "off the balcony." The recliner landed on the sidewalk. Appellant did not say anything at the time or call out for assistance.

Shortly thereafter, appellant's 6-year old niece, Nigeri, ran out of the building. She was acting "nervously and scared" and was crying. The little girl said that "her uncle was going crazy, he was going off . . . acting strange." She went to Satcher's office, where she again reported that her uncle had "gone crazy" and had "set the place on fire" with her doll inside.

Fire began shooting out from the balcony. Spinner and Sharon banged on residents' doors telling them to exit and pulled the fire alarms. While Spinner and Sharon stood outside waiting for the police and fire departments to arrive, they saw appellant walk out of the building and head toward the exit of the complex. Appellant "wasn't in [a] hurry. He was walking at a slow pace." Appellant had not called for help nor had he reported the fire to the apartment manager's office.

Spinner and Sharon flagged down a passing police car, informed the police that appellant had started the fire, and pointed the officers in appellant's direction. The police stopped appellant at the entrance to the property.

Appellant was transported to the Seventh District police station and, after being read his Miranda rights, appellant gave a statement to an investigator for the fire department. In response to questioning about how the fire started, appellant stated "Well, I guess I did it. . . . I struck a couple of matches. . . . About maybe four, maybe two. . . . Yes, there was two matches. . . . I threw the first match on a pile of newspaper. . . . I threw [the second match] on the couch." When the investigator asked if that was how the fire started, appellant responded "Yes, but I feel it was an accident. But when I get the power I am going to do it right. The thing will — and I am not tripping."

At trial the government presented an expert in the field of fire and arson investigation. He concluded that the fire was "incendiary," meaning that it was deliberately set by a person who knows that a fire should not be set in a particular case. His opinion rested on several facts, including that there were two separate areas of origin to the fire (the recliner that appellant threw out of the apartment, which only had localized damage to the seat cushion, and the couch); there was a short time period before the fire spread (ruling out a smoldering event such as a cigarette); the witnesses' statements about what they saw before the fire started and the throwing of the recliner off the balcony; appellant's statement that he had used matches; and District of Columbia Fire Department Investigator Ruth Cade's finding that there were no other sources of fire in the living room or dining room. The expert ruled out gas leakage, an electrical problem, or any other accidental causes as the source of the fire. He also opined that the monetary amount of damage to the apartment and its contents "was well in excess of $25,000," and that the structural damage to the apartment alone was at least $10,000.

Appellant did not testify or present any witnesses. In closing argument, defense counsel argued that the fire was an accident that the defendant had unsuccessfully tried to put out.

II. Appellant's Competence and Possible Insanity

Because the obligation to order a competency examination and conduct a Frendak inquiry is triggered by the specific circumstances of the individual case, see Frendak, 408 A.2d at 380, we set out the pre-trial, trial and sentencing proceedings in detail as they pertain to appellant's mental condition.

A. Pretrial Proceedings

At presentment on July 7, 2000 — nine days after the offense — Judge Harold Cushenberry granted the government's request that appellant be held without bond and referred for a forensic screening due to his unusual behavior at the time of arrest. That same day Dr. Lawrence Oliver, a clinical psychologist, conducted a thirty-minute competency examination of appellant in the District of Columbia Superior Court cellblock. Dr. Oliver's report indicated that appellant had in the last year received inpatient treatment at St. Elizabeths Hospital, from August 23-September 1, 1999, when, according to appellant's recollection, he was there to detoxify from illicit drugs and alcohol, but he received no medications. The report noted that on June 28, 2000, the day after the charged offense occurred, appellant tested negative for cocaine, PCP, and opiates, but was not tested for cannabis or alcohol. Dr. Oliver observed that appellant's "judgment and insight were distorted by unrealistic thinking." For example, he "could not be dissuaded from the notion that his legal difficulties were minor because [he stated:] `they'll let me go. They always do.'" In addition, "[d]espite past experience with the criminal justice system, Mr. Phenis was unable or unwilling to demonstrate even the most basic knowledge of the judicial process and the roles of various court officials." He was also unable to "demonstrate any knowledge of his plea options, rights and the concept of plea bargaining. He was unable or unwilling to retain simple explanations of these issues." Dr. Oliver concluded that "[i]n his current state, Mr. Phenis would be unlikely to work effectively with his defense attorney or to maintain proper decorum in a courtroom." Dr. Oliver was not able to determine if appellant's behavior during the interview was "the result of volitional characterological traits, mental illness, substance abuse, or some combination of these factors."

A court order, issued on July 12, 2000, instructed Dr. Oliver to conduct a complete competency examination of appellant at the mental health unit of the District of Columbia Jail. The examination was conducted on August 15, 2000, but lasted only five minutes because appellant refused to participate in the evaluation. Dr. Oliver's report stated:

In fact, he refused to leave his cell and when asked the reason for his refusal to participate said only "I'm ready to return to society. They should give me bond. I don't want to talk to you about anything." Mr. Phenis spoke in a rapid and disjointed manner as he said this and then fell silent. Because he has...