U.S. v. Robertson

• Decision Date: 22 October 1974
• Docket Number: No. 72-1781,72-1781
• Citation: 165 U.S. App. D.C. 325,507 F.2d 1148
• Parties: UNITED STATES of America v. Thomas L. ROBERTSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1148

507 F.2d 1148

165 U.S.App.D.C. 325

UNITED STATES of America v. Thomas L. ROBERTSON, Appellant.

No. 72-1781.

United States Court of Appeals, District of Columbia Circuit.

Decided Oct. 22, 1974, As Amended Oct. 22, 1974.

Mortimer M. Caplin and Leon E. Irish, Washington, D.C. (appointed by this Court), were on the brief for appellant.

Harold H. Titus, Jr., U.S. Atty., John A. Terry, Henry F. Greene, Warren L. Miller and Frederick C. Moss, Asst. U.S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, WILKEY, Circuit Judge, and KAUFMAN, ^* United States District Judge for the District of Maryland.

BAZELON, Chief Judge.

Appellant, Thomas Robertson, who was found mentally competent to stand trial, expressly refused to invoke the defense of insanity. He was convicted by a jury of second-degree murder, assault with intent to kill while armed and carrying a pistol without a license (22 D.C.Code 2403, 3202, 3204), for which he received concurrent sentences of ten years to life, two to fifteen years, and one year respectively.

After the jury found that Robertson committed the acts charged, the court held a hearing to consider whether it should raise the insanity defense sua sponte and submit the issue to the jury in a bifurcated proceeding. Robertson opposed imposition of the insanity defense. In accordance with that opposition, he called no witnesses and did not cross-examine the witnesses who testified for the prosecution. The hearing culminated in the court's determination not to raise the unsanity defense. Robertson now contends in this appeal that this decision was erroneous. ¹

For the reasons set forth herein, we remand the record to the District Court.

I.

A. Events of August 20, 1971

The facts in this case are not in dispute. Appellant Robertson suffered a bloody wound over his forehead during a fist fight outside the Academy pool hall sometime between 4:30 and 5:00 on the afternoon of August 20, 1971. The reason for the fight and the identity of Robertson's opponent were not disclosed at trial. After the fight was stopped by on-lookers, Robertson left in his car. He returned approximately one-half hour later and momentarily appeared at the entrance of the Academy pool hall. He then crossed the street to another pool hall before once again returning to the Academy. Passing by a table where two men were playing pool, he suddenly turned, whipped out a gun, and shot one of the men at the table, injuring him in the shoulder. Robertson then ran out of the pool hall, jumped into his car, and drove the wrong way down a one-way street. ²

About fifteen minutes later, Robertson was seen in the midst of rush hour traffic, speeding and careening down the wrong lane of busy U Street in the face of on-coming traffic. He collided with a parked car, swerved over into the opposite lane and, after striking still other cars, came to a stop. Robertson then got out of his car, drew a gun, and stopped to talk briefly with the occupants of a car directly behind him, all of whom were Black. ³ Robert Aleshire, whose parked car Robertson had struck initially, was inspecting the damage when Robertson strode across the street towards him. Aleshire, who was White, leaned against the car as Rovertson approached. When he reached Aleshire, Robertson shot him at point blank range, once in the shoulder and twice in the chest and abdomen. As one witness described it, '. . . (the) surprising thing (was) that he (Aleshire) made no motion at all. As the turned around, Mr. Robertson was there and he (Robertson) just lifted the gun and shot him.' ⁴

After shooting Aleshire, Robertson raced down the middle of the street, brandishing his pistol and cursing the 'white sons-of-bitches.' ⁵ Seeing a police officer, he shouted, 'You are doing it; why can't I?' ⁶ 'Yes, I shot the white honkey son-of-a-bitch. What are you all going to do about it?' ⁷ A witness who was taken to the police station with Robertson testified that he continued to make such statements throughout the trip, saying, for example: 'all of the white sons of bitches need to be killed or shot, I had did my part and I can't do anymore . . .. All the sons of bitches should be shot, . . . and that is the problem there isn't enough of us doing this sort of thing.' ⁸

B. Pre-trial Mental Examinations and Status Hearings on the Insanity Defense

At a preliminary hearing on August 30, 1971, the Superior Court of the District of Columbia ordered Robertson committed to Saint Elizabeths Hospital pursuant to 24 D.C.Code 301(a) for a psychiatric examination to determine competency and mental status at the time of the crime. Addressing the court, Robertson stated:

'. . . I'm not going to get justice, I realize this perfectly. See, I'm one who is well versed in whiteness . . .. You won't get your white vengeance . . .. I have never been guilty of nothing but being born black in a white America-- racist white America . . .. But, I am not going to let you think that I do not realize who I am and who you are. You are the beast and I am a man. You say I killed a man. I have killed no man in my whole life.'

The court responded, 'I will sign the order, gentlemen. We'll make it forthwith. I think he should be at the hospital and not in jail.' ⁹

While awaiting admission to Saint Elizabeths, Robertson was arraigned before the District Court, which on September 20 entered a new order for commitment to Saint Elizabeths. Shortly thereafter Robertson was admitted for examination. Two letters to the court from Saint Elizabeths Hospital, dated October 21 and November 9, 1971, reported Robertson competent and not suffering from a mental disease or defect. On September 28, the court granted the government's motion for examination of Robertson by Dr. John Cavanagh, a private psychiatric practitioner. Shortly thereafter the court granted Robertson's motions for an examination by Dr. Alyce Gullattee, a psychiatrist, and by Dr. Ronald Dockett, a psychologist, both engaged in private practice.

After all pre-trial mental examinations had been completed, Robertson notified the court at a March 24 status hearing held for purposes of scheduling the trial that, against advice of his counsel, he would not rely on the defense of insanity. Because all of the psychiatric evaluations found Robertson competent to stand trial, his counsel said that they would abide by his decision. The government, however, cited the 'bizarre facts of this case' and called the court's attention to the fact that some of the experts' reports contained information supporting an insanity defense. ¹⁰

When the court asked Robertson his reasons for refusing to rely on the insanity defense, he declined to respond, but wrote a note that read: 'I refuse to communicate in your language for the duration of my last six hours of incar ceration. By my left side.' After reading the note, the court agreed with the government that a pre-trial hearing was necessary to decide whether the insanity defense should be raised sua sponte over Robertson's objection. ¹¹

At the pre-trial insanity defense hearing held April 10, Robertson's counsel informed the court that they had discussed with him the 'substantial' merits of an insanity defense, but that he still declined to raise it. ¹² Therefore, Robertson's counsel argued, inter alia, that imposition of the insanity defense would violate Robertson's Sixth Amendment right to effective assistance of counsel, would improperly interfere with the conduct of the defense, and would violate his right to due process since D.C.Code 24-301(j), enacted in 1970, transfers the burden of proof of insanity onto the defendant. ¹³

The government urged the court to hear and determine the merits first, and then to turn to the insanity issue in a bifurcated proceeding. The court thereupon certified Robertson competent to stand trial and set a trial on the merits. It also announced that if the jury found against Robertson, the court would determine whether a sufficient basis existed for imposing the insanity defense in a bifurcated trial. ¹⁴

C. Trial on the Merits

On Robertson's motion at the close of the government's case, the court directed a verdict of acquittal on the first degree murder charge and submitted to the jury the lesser included offense of second degree murder. The court characterized the circumstances surrounding the death of Aleshire as 'uncontradicted evidence that this was an impulsive frenzied act.' ¹⁵ The court explained:

'We have here testimony in this case what this man's state of mind was, what the situation was at the poolroom, room, outside the poolroom, . . . inside the poolroom, . . . the Hart shooting (in the poolroom) happened so quickly and under such circumstances there can be no reasonable inference that his state of mind when he left the poolroom was any different from his state of mind when he arrived at 13th and U.' ¹⁶

During the last two days of the trial, Robertson had to be carried into the courtroom; his posture was 'limp' and his head often rested on the table as if he were in a stupor. ¹⁷ The trial court viewed Robertson's conduct as intentional posturing: 'I am convinced that he is feigning. I am convinced that it is an act.' ¹⁸ At a subsequent hearing on whether the insanity defense should be raised sua sponte, witnesses called by the government supported the trial court's observations. The Superintendent of the District of Columbia Jail and a United States Marshal reported that, when observed outside the courtroom, Robertson acted 'normally.' ¹⁹ Dr. Albert E. Marland, a psychiatric consultant at Saint Elizabeths Hospital, and Dr. John Cavanagh, a private psychiatrist appointed at the government's request, ²⁰ testified that Robertson's conduct did not indicate a mental disorder but rather conscious malingering. ²¹

D. Consideration of the Insanity Defense

After the jury found Robertson had committed the acts in question, the court held a hearing on...