Starr v. United States
| Decision Date | 17 October 1958 |
| Docket Number | No. 13865.,13865. |
| Parties | Robert STARR, Jr., Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. E. T. Cheyfitz, Washington, D. C. (appointed by this Court), and Mr. Vincent J. Fuller, Washington, D. C., for appellant. Mr. John A. Shorter, Jr., Washington, D. C., also entered an appearance for appellant.
Mr. John W. Kern, III, Asst. U. S. Atty., for appellee. Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief for appellee.
Argued on Rehearing En Banc April 22, 1958.
Decided On Rehearing En Banc October 17, 1958. Certiorari Denied 79 S.Ct. 652.
Decided on Rehearing en Banc
Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.
On the evening of June 10, 1956, Robert Starr knocked on the door of Bernice Askew's apartment and, when she answered, asked if his wife, Louvenia, was there. Upon being told she was not, Starr exhibited a butcher knife, which he took from his pocket, and said, A short time later he pursued and overtook his wife on the street and stabbed her to death with the knife. He was indicted and tried for murder in the first degree.
Having heard the evidence and having heard and observed Starr as he testified in his own defense, the jury found the accused guilty of murder, but only in the second degree. He appeals. At the trial, Starr's principal defense was insanity.2 He first contends there was insufficient evidence of his sanity at the time of the killing to sustain his conviction. The argument must be rejected. While there was conflicting evidence on the issue, the testimony showing sanity was ample to support the verdict, as will hereinafter appear.
Three psychiatrists testified. One of them, who was introduced by the appellant, said the accused was of unsound mind at the time he killed his wife. He based this opinion on a single interview at the District jail on August 5, 1956, which lasted approximately one hour and ten minutes.
Two psychiatrists testified for the Government, both of whom had examined Starr many times during his hospitalization of about two months ending in December, 1956. Both testified that the accused was of sound mind when examined. One said he could not determine whether appellant was suffering from a psychosis when he killed his wife; but the other, the assistant chief psychiatrist at the District of Columbia General Hospital, who had examined appellant "at least ten times at some length and probably twenty times briefly," gave the opinion that the appellant was sane then and when the killing occurred, and was malingering. This doctor said, "There is nothing that would make me believe that he had been suffering from mental illness at that time the time of the killing."
Another bit of evidence which perhaps tended somewhat to show sanity at the critical time was a written statement which the appellant gave the police before he was arraigned. It is not a confession, but is exculpatory in nature, and was introduced in evidence by the prosecution to show "the state of mind of the defendant as to his alertness and as to his memory at the time he made the statement." That is to say, it was offered and received in support of the Government's burden to show the appellant was sane at the time of the killing.
Thus the Mallory opinion excludes only "incriminating statements elicited from defendants." It follows that none of the three Supreme Court opinions mentioned applies to the present situation where the statement given by Starr was not incriminating but was clearly exculpatory.3
But, if the Mallory opinion be construed to hold inadmissible an exculpatory statement taken during unnecessary delay in arraignment, the question arises whether that decision changes the law concerning non-prejudicial error in the reception or rejection of evidence.
Under the law as it existed before the Mallory case was decided, the harmless error rule required that if, upon an examination of the entire record, substantial prejudice does not appear, any error must be disregarded as harmless. This is commanded by the salutary statute which Congress passed to correct the abuses that had grown up because, as one trial judge put it, courts of review had come to "tower above the trials of criminal cases as impregnable citadels of technicality."4 The statute, which is now found in 28 U.S.C. § 2111, is as follows:
"On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties."
It is reflected and made specifically applicable to criminal cases in Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., which is: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."
The Supreme Court said in Berger v. United States, 1935, 295 U.S. 78, 82, 55 S.Ct. 629, 631, 79 L.Ed. 1314:
The Supreme Court has also said, in Palmer v. Hoffman, 1943, 318 U.S. 109, 116, 63 S.Ct. 477, 482, 87 L.Ed. 645, 144 A.L.R. 7195:
* * *"
This applies as well to a criminal case, unless a constitutional right is infringed. See Pulley v. United States, 8 Cir., 1958, 253 F.2d 796, and compare Davis v. United States, 8 Cir., 1956, 229 F.2d 181, 187, certiorari denied 351 U.S. 904, 76 S.Ct. 706, 100 L.Ed. 1441.
A settled rule is that "When guilt is clearly established by competent evidence, error in the admission or exclusion of other evidence or in the charge to the jury which does not affect the substantial rights of the accused does not call for the reversal of a conviction." Guy v. United States, 71 App.D.C. 89, 91-92, 107 F.2d 288, 290-291, and numerous authorities there cited, certiorari denied 1939, 308 U.S. 618, 60 S.Ct. 296, 84 L.Ed. 516; Wheeler v. United States, 1947, 82 U.S.App.D.C. 363, 165 F.2d 225, certiorari denied 1948, 333 U.S. 829, 68 S.Ct. 448, 92 L.Ed. 1115.
There is no contention here that admitting the statement violated a constitutional right. It remains then to decide whether the Mallory opinion should be construed as holding that the admission of an exculpatory statement on the issue of sanity is reversible error, even though it did not affect substantial rights of the accused and so produced no prejudice. The Mallory decision, although it reverses the conviction, does not expressly say that admission of the confession there was prejudicial. We think, however, that a holding of prejudice from the incriminatory statement is implicit in it; for in the two cases to which it refers — one as having established the rule before the adoption of the Criminal Rules and the other as having affirmed it thereafter — there was specific mention of prejudice resulting from the confessions involved.6
Moreover, the subsequent history of the Mallory case confirms the fact that the admission of the confession, which the Supreme Court condemned, did in fact prejudicially affect his substantial rights, for after remand to the District Court following reversal by the Supreme Court, the United States Attorney's motion to dismiss the indictment for lack of evidence, in the absence of the confession, was granted.
It is not believed, therefore, that the Supreme Court intended the Mallory opinion to hold that the erroneous admission of a confession requires reversal even though no prejudice resulted from its admission; for that would reverse the line of authorities holding otherwise and would emasculate the harmless error statute and Rule 52(a), which the Supreme Court gave no indication of intending.
The statute and the cases cited above leave open the...
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