Stewart v. United States

• Citation: 247 F.2d 42,101 US App. DC 51
• Decision Date: 18 April 1957
• Docket Number: No. 12944.,12944.
• Parties: Willie Lee STEWART, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

101 US App. DC 51, 247 F.2d 42 (1957)

Willie Lee STEWART, Appellant, v. UNITED STATES of America, Appellee.

No. 12944.

United States Court of Appeals District of Columbia Circuit.

Argued January 8, 1957.

Decided April 18, 1957.

Mr. John Alvin Croghan, Alexandria, Va. (appointed by the District Court) and Mr. Henry Carter, Washington, D. C., for appellant.

Mr. John D. Lane, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty. at the time brief was filed, Oliver Gasch, U. S. Atty., Lewis Carroll, and Frederick G. Smithson, Asst. U. S. Attys., were on the brief, for appellee.

Messrs. Abraham Krash and William Lawrence McGovern, Washington, D. C., (both appointed by this Court as amici curiae) filed a brief urging reversal.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.

EDGERTON, Chief Judge, announced the judgment and division of the court as follows:

This conviction for first degree murder is reversed and the case is remanded to the District Court for a new trial. Judges Edgerton, Bazelon, Fahy, Washington and Burger vote for reversal. Judges Prettyman, Wilbur K. Miller, Danaher and Bastian vote for affirmance. Judge Bazelon files an opinion in which Judges Edgerton, Fahy and Washington concur, and in Part I of which Judges Prettyman and Burger concur. Judge Fahy files an opinion in which Judges Edgerton, Bazelon and Washington concur. Judge Burger concurs in the result reached by the majority for the reasons expressed in Judge Fahy's opinion. Judge Bastian files a dissenting opinion in which Judges Prettyman, Wilbur K. Miller and Danaher concur.

BAZELON, Circuit Judge.

This is appellant's second appeal to this court from his conviction of first degree murder. The facts are sufficiently stated in our opinion on the former appeal.¹ In both trials the evidence made it unmistakable that, if the appellant was legally sane, he was guilty of the homicide charged against him. His principal defense, however, was insanity. We reversed the first conviction because of an erroneous instruction to the jury to the effect that "only if appellant suffered from an abnormality due to physical deterioration of or injury to the brain could he be acquitted by reason of insanity."²

I.

The chief ground of the present appeal is that the two psychiatrists who testified on behalf of the prosecution based their testimony upon examination of the appellant made before we broadened the test of criminal responsibility in Durham v. United States, 1954, 94 U.S.App.D.C. 228, 214 F.2d 862. The psychiatric examinations, it is argued, were designed to determine appellant's cognitive powers, as required for the right-wrong test, and may not, therefore, support opinions relevant to the present test.

We cannot agree with this contention. The rule laid down in Durham requires no different examination by the psychiatrist, but only a different examination of the psychiatrist by the lawyers. The psychiatrists' pre-Durham examination of Stewart, if competent by medical standards, can support testimony on Stewart's mental illness, if any, and its relation, if any, to his homicidal act.

The Durham rule simply allows the psychiatrist to testify in terms of mental health or illness without being required necessarily to answer questions on what he may consider "non-medical topics such as `malice,' `right and wrong,' and `criminal intent.'"³ One of the purposes of the rule is to remove some of the "barriers to communication between lawyers and physicians."⁴ It allows greater latitude for evidence which throws material light on "whether the accused acted because of a mental disorder." Douglas v. United States, 1956, 99 U.S.App. D.C. 232, 239 F.2d 52, 58. This includes testimony, which a psychiatrist may be willing to give, that the accused did not know the difference between right and wrong when he committed the offense, or that he acted upon irresistible impulse. When such testimony exists, the jury should be instructed that it is relevant in determining whether the unlawful act was the product of mental disease or defect. Douglas v. United States, supra.

II.

The fault we find with the present conviction is one not brought to our attention by appellant. We notice it as a plain defect affecting substantial rights.⁵ Since the significance of this defect depends upon the nature of the evidence on the issue of sanity, we summarize that evidence.

The evidence of insanity introduced by the defense may be divided into two categories. First, there was testimony by appellant's wife, sister-in-law, brother-in-law and two friends or acquaintances describing acts allegedly done by appellant which seemed to have no rational explanation and which appellant seemed to forget immediately after doing them. The behavior in question included such things as trying to throw one of his children out of a window on one occasion and into a burning stove on another; with his bare fist and without apparent provocation, breaking down doors, punching a hole in a wall, and smashing a refrigerator door; cutting up and throwing away his new hat and shoes; throwing out of the window all of his household dishes and a child's piano; and sitting on and beating his pregnant wife in an attempt to squeeze the baby out. The second category of evidence was the testimony of Dr. Williams, a neuropsychiatrist who had made a two-hour examination of appellant at the District Jail three months after the alleged crime. He testified that he was unable to form a conclusion from that examination because appellant was very depressed and uncommunicative. But he said he did form a conclusion on the basis of information he obtained from other sources, including material collected by appellant's counsel. Counsel then put to Dr. Williams a hypothetical case comprising largely⁶ the irrational behavior testified to by the witnesses, as hereinabove detailed, and the doctor replied that, assuming the facts to be true, appellant had been mentally ill for a number of years and would probably remain so all his life. He diagnosed the illness as manic depressive psychosis.

The Government introduced in rebuttal the testimony of James Hamilton, an acquaintance of appellant, that he had never observed appellant behaving irrationally and the testimony of Drs. Klein and Kleinerman, psychiatrists who had examined appellant at the District Jail about two weeks after the alleged crime. Dr. Klein, who spent an hour with appellant, said appellant described to him what little he knew about his family background. He also said there was no necessity to talk to any one other than Stewart to obtain a family history or background. Dr. Kleinerman, whose examination of appellant took two hours, said appellant gave him a history adequate for the purpose of the examination. Both doctors testified that their examinations had shown no mental disease or defect in appellant and that, assuming the facts in the hypothetical question which had been put to Dr. Williams, appellant was not mentally ill.

The insanity defense, as is shown above, rested, in the final analysis, completely upon the testimony of appellant's relatives and friends, chiefly his wife, concerning his alleged irrational behavior. If the jury disbelieved them, that was the end of the defense, for even Dr. Williams' testimony depended upon the testimony of those witnesses.

No evidence was introduced by the Government to dispute the testimony of defendant's witnesses concerning the various incidents of irrational conduct. James Hamilton did not dispute it. He simply said that he had not seen irrational conduct. He did not claim to have been present on any of the occasions mentioned by the other witnesses. Those witnesses could, of course, have been disbelieved by the jury, either because of their demeanor or because of the natural bias in favor of the defendant which they could be expected to have. But if it is likely that an impropriety in prosecution contributed to the jury's disbelief of evidence so central and fundamental to the defense, there has not been a fair trial. Exactly such an impropriety occurred here and, on that account, the conviction must be reversed and the case remanded for a new trial.

In his closing argument to the jury, the Assistant United States Attorney correctly pointed out that Dr. Williams' testimony depended upon the truth of the testimony of appellant's relatives and friends, especially that of his wife. And he pointed out, quite permissibly, that appellant's wife "is here to do whatever she can to assist" one who "is the father of her children, her husband." Then he declared, referring to Mrs. Stewart's testimony, "All that is, I must say, are statements which I believe constitute perjury." And referring to an alleged conflict of testimony between Mrs. Stewart and her sister, he said, "It shows, I believe the complete fabrication which they have submitted to you for your consideration." True, a prosecutor's words are not prejudicial error if the jury would understand from the context that they represent merely advocacy rather than testimony. United States v. Battiato, 7 Cir., 1953, 204 F.2d 717. But we do not think it can be said that the jury so understood the matter because, within a few minutes after denouncing these witnesses as perjurers and fabricators, he said, referring to the testimony of Dr. Williams: "I think he was mistaken. I wouldn't assert he would testify falsely. I wouldn't make that accusation against any witness unless I could prove it." (Emphasis supplied.) Since the prosecutor had very recently made that accusation against Mrs. Stewart and her sister, the jury might well "believe that the prosecutor had personal knowledge" that they did testify falsely.⁷ Id. at page 718.

The extent of permissible comment by the prosecutor is illustrated in our decision in Pritchett v. United States, 1950, 87...