Smith v. United States

• Decision Date: 04 November 1965
• Docket Number: No. 19148,19149.,19148
• Citation: 353 F.2d 838,122 US App. DC 300
• Parties: Edward L. SMITH, Appellant, v. UNITED STATES of America, Appellee. Wayman R. CUNNINGHAM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

122 US App. DC 300, 353 F.2d 838 (1965)

Edward L. SMITH, Appellant, v. UNITED STATES of America, Appellee.

Wayman R. CUNNINGHAM, Appellant, v. UNITED STATES of America, Appellee.

Nos. 19148, 19149.

United States Court of Appeals District of Columbia Circuit.

Argued June 16, 1965.

Decided November 4, 1965.

Petition for Rehearing Denied December 21, 1965.

Mr. Charles W. Halleck, Washington, D. C., with whom Mr. Howard F. Roycroft, Washington, D. C. (both appointed by this court), was on the brief, for appellant in No. 19,148.

Mr. J. Roger Wollenberg, Washington, D. C., with whom Mr. Arthur Z. Gardiner, Jr., Washington, D. C. (both appointed by this court), was on the brief, for appellant in No. 19,149.

Mr. Allan M. Palmer, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty. at the time the brief was filed, and Frank Q. Nebeker and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

Petition for Rehearing in No. 19148 Denied December 21, 1965.

J. SKELLY WRIGHT, Circuit Judge:

These appeals are from convictions of first degree murder (felony-murder), robbery, assault with a dangerous weapon, and carrying a dangerous weapon — all arising out of the same incident.

Near one o'clock on the morning of January 24, 1964, appellants Smith and Cunningham, armed with pistols, entered Natoli's Delicatessen in the District of Columbia. While holding the proprietor and several customers at gunpoint, they began to remove the cash from the cash register. Before they finished, however, two police officers arrived and attempted to thwart the robbery. A gunfight ensued during which one of the officers was killed and appellant Cunningham was seriously wounded. Appellant Smith fled and was arrested about an hour later sitting with his wife in a parked car several miles from the scene of the crime.

I

The circumstances of appellant Smith's arrest must be stated in some detail in order to appraise his claim that the arrest was made without probable cause. It appears that Police Detective Eger arrived at the scene of the crime a very short time after Smith had fled. While there he heard a police broadcast describe Cunningham's accomplice as "a Negro male, 25 to 35, five-three to five-four, dark brown complexion, has pants rolled up to the top of his shoes, dark sunglasses, grey cap, three-quarter length dark grey coat, brogan shoes." One of the other police officers at the scene gave Detective Eger an address found on Cunningham, and Eger and three other officers immediately set out for that address. They there learned that they might get more information about Cunningham from his sister, who resided at 4227 H Street, S. E., Washington, D. C.

Upon arriving at the 4200 block of H Street, Detective Eger noticed a car parked with its motor running. He walked over and tapped on the window. The detective testified that when the window was rolled part of the way down, he recognized the operator of the car as fitting the broadcast description. He asked the man, later identified as appellant Smith, several questions. When he received evasive answers, Eger ordered Smith to produce his driver's permit. The other police officers had meanwhile surrounded the car. Before he could produce the permit, Smith was ordered to get out of the car, and as he got out Detective Eger saw a pistol in his belt. Eger thereupon formally placed Smith under arrest and searched him. The search disclosed two other pistols and two wallets which had been taken from persons in the delicatessen.

On appeal, Smith's argument centered around the proposition that Detective Eger, when looking through the partially opened window of Smith's car in the middle of the night, could not possibly have recognized Smith as meeting the description given in the police broadcast. It was Eger's clear testimony, however, that he did so recognize Smith. Whether he actually did or not was a question of credibility which, having been resolved on sufficient evidence in favor of the Government by the trial judge, will not be disturbed on this appeal. With such recognition, supported by the other information which led them to the scene of the arrest, the police had sufficient evidence to arrest Smith on the spot¹ and to conduct the search incident thereto.

II

Appellant Smith requested instructions submitting to the jury the question of his mental responsibility at the time the fatal shots were fired. His theory was that, if at some time during the course of the robbery he became insane in the legal sense,² then at that time his culpable participation in the felony would have ended. If such insanity had overtaken him before the killing, he contends, he should not be held responsible for the felony-murder.

The Government, both during the trial and on appeal, takes no issue with appellant Smith's theory as such. Its position, which prevailed below, is that the trial judge was not required to give the requested instructions since the issue of Smith's mental condition was not raised by sufficient evidence.

Evidence on the insanity issue consisted solely of the expert testimony of defense witness Dr. Mauris M. Platkin. After establishing that Dr. Platkin had examined appellant Smith at St. Elizabeths Hospital, defense counsel referred to a psychiatric diagnosis rendered in 1946 which stated that Smith was at that time "a bit unusual in that he shows no moral sense of any kind which is unusual with his intelligence." It further stated, "He can be classified as an immaterial sic adolescent with neurotic traits." Smith's experiences as a professional boxer during 1951 and 1952, including his being knocked unconscious during four bouts, and some facts concerning Smith's unstable family background and disorganized early years³ were brought out during the examination of Dr. Platkin. Finally, defense counsel read a report by a psychologist who had recently examined Smith at St. Elizabeths Hospital. The report stated:

"Superficially this is a hostile, defiant resentful young man with the inconsistencies and ambivalence evident in the test protocol evidences a need for support, recognition and security from others.

"Nevertheless, he is becoming progressively more pessimistic regarding the finding of any satisfactory solution to his problems. He appears to be calloused, evasive and guarded in his relationships, and if the current trend is not interrupted, he is likely to evolve a schizophrenic solution to his difficulties."⁴

Counsel then propounded a lengthy hypothetical question which assumed all the facts of the crime and which culminated in the following colloquy:

"Q by defense counsel Doctor, would you say with any degree of psychiatric certainty, whether or not the defendant Smith at the moment the killing took place actually had any control over his actions * *?

"A by Dr. Platkin I think this would be speculation again."

On cross-examination, Dr. Platkin testified that, in his opinion, appellant Smith was without mental disease or defect at the time of the offense.

On redirect, the following took place:

"Q by defense counsel Doctor, can you say unequivocally that the defendant Smith did not suffer from an acute or momentary psychotic episode in that store when that police officer advanced toward him firing this gun?

"A by Dr. Platkin I would say it is highly improbable. I never heard of such a brief psychotic episode.

"Q Could a psychotic episode be triggered at that point which continued on for some period of time?

"A Not very probable, not in my experience. It does not fit with what I know and understand of psychiatric conditions and with what I am familiar with from the psychiatric literature.

"Q Can you say unequivocally that it did not occur, or are you saying that it is just not probable?

"MR. LOWTHER Government counsel: I think he says as a physician it was improbable. The doctor has been asked that and I object to the question again as being repetitious.

"THE COURT: You may ask the question.

"THE WITNESS: I cannot say with 100 per cent certainty. I say that it is highly improbable in the light of my own experience and with the familiarity with the literature that I have and from what I understand from it, and from dealing with my other patients."

On this record, it is unlikely that any jury would have a reasonable doubt regarding appellant Smith's responsibility for the crime. This, however, is beside the point. It has been the consistent teaching of our past cases that whenever "some evidence"⁵ of mental disease or defect is presented, the question of responsibility must be answered by the jury.⁶ Therefore, the question before us is whether the evidence in this case required the mental issue to be submitted to the jury.

Appellant relies upon the 1946 diagnosis and the report of the St. Elizabeths psychologist as providing "some evidence" of mental disorder. This court, in Lyles v. United States, 103 U.S.App. D.C. 22, 28, 254 F.2d 725, 731 (1957) (en banc), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), held that a report containing a psychiatric opinion could not be admitted into evidence as a record under the Federal Shop Book Act, 28 U.S.C. § 1732. While an expert who testifies that the defendant was not suffering from a mental disease or defect can be questioned about reports he considered in reaching that conclusion,⁷ this alone does not convert the reports into affirmative evidence of insanity.⁸ Competent counsel for the defendant, being familiar with this principle, did not offer the reports for this purpose.⁹

Nor is there any indication in the record that the knockouts as a boxer or Smith's unstable family background and disorganized youth affected his mental condition. Thus, when boiled down to its essentials, the claim that a question of mental responsibility exists on this record rests on the fact that Dr. Platkin did not categorically...