United States v. Albright, 11222.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: BRYAN, WINTER and BUTZNER, Circuit
• Citation: 388 F.2d 719
• Parties: UNITED STATES of America, Appellee, v. Jerry Neale ALBRIGHT, Appellant.
• Docket Number: No. 11222.,11222.
• Decision Date: 04 January 1968

388 F.2d 719 (1968)

UNITED STATES of America, Appellee,
v.
Jerry Neale ALBRIGHT, Appellant.

No. 11222.

United States Court of Appeals Fourth Circuit.

Argued October 4, 1967.

Decided January 4, 1968.

388 F.2d 720

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388 F.2d 721

Chester Lovett, Charleston, W. Va. (Court-appointed counsel), for appellant

W. Warren Upton, Asst. U. S. Atty. (Milton J. Ferguson, U. S. Atty., and Charles M. Love, III, Asst. U. S. Atty., on brief), for appellee.

Before BRYAN, WINTER and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

Whether the defendant's right not to be compelled to incriminate himself was violated by requiring him to submit to a psychiatric examination, the results of which were used to overcome his defense of insanity is the principal question presented to us in this appeal. Defendant was found guilty of multiple charges of forging and uttering forged United States postal money orders, with intent to defraud, notwithstanding his defense of insanity. We affirm the judgment entered on his conviction.

On the day that defendant's trial began, his counsel disclosed that defendant would interpose insanity as a defense. Admittedly, no question of sanity had been previously raised, and this disclosure came as a surprise to government counsel.¹ The government presented its case against the defendant; and when its efforts to preclude the defendant from presenting psychiatric testimony to support his defense were unsuccessful, it sought and obtained, over defendant's objection, a recess of the trial² and an order to require him to submit to a psychiatric examination. The trial was in recess for twenty-three days. When it resumed defendant presented the testimony of Dr. Thelma Owen, a qualified psychiatrist, and the government presented as a rebuttal witness the testimony of Dr. William B. Rossman, also a qualified psychiatrist, whose testimony controverted that of Dr. Owen.³

Three contentions are pressed by defendant arising out of these facts. First, it is asserted that defendant's Fifth Amendment right against self-incrimination was violated when he was required, over his objection, to submit to an examination by Dr. Rossman. Next, it is claimed that defendant's right to counsel was abridged because defendant's counsel was not permitted to be present during the course of the examination. Third, defendant claims that he was deprived of his right to a speedy trial by reason of the twenty-three day recess of the trial to permit the psychiatric examination to be made.

A fourth claim of error, also advanced, relates to events prior to the beginning of the trial. At the time of defendant's arrest, a United States postal inspector obtained handwriting samples from defendant which were introduced in evidence for the government at trial. No evidence was adduced at trial that defendant was told of his right to counsel or that the samples could be used against him at trial. Thus, defendant contends that his privilege against self-incrimination and his right to counsel were violated in this regard.

388 F.2d 722

I

Authority for a district court to inquire into a defendant's mental condition is contained in 18 U.S.C.A. § 4244, the text of which is set forth in the margin.⁴ It is true, however, that § 4244, by its terms, has application only if there is reasonable cause to believe that a defendant is presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense. It thus has no literal application to a case where a defendant pleads temporary insanity, that is, that he was insane at the time of commission of the alleged offense but sane at the time of trial, except where the claim of previous insanity may provide reasonable cause to believe present insanity.

On the facts of the case at bar, the psychiatric examination of the defendant at the instance of the government did not occur until after defense counsel disclosed in chambers that Dr. Owen was ready and waiting to be called to testify as to defendant's sanity. At that time, there was no specification as to whether the claim of insanity was limited to the dates of the alleged offenses or whether it continued to the time of trial; but since the colloquy at which the disclosure was made occurred approximately eleven months after the date of the alleged offenses, the district judge could properly treat the disclosure as one providing reasonable cause to believe present insanity.⁵ There was, thus, reasonable cause to believe that defendant was presently insane at the time the government obtained the order requiring the examination, within the literal application of § 4244.

Even if resort to § 4244 might not have properly been had, the principle seems established that a district court in a criminal case has inherent power to require a psychiatric examination of a defendant, where the defendant has pleaded insanity as a defense, submitted to examination by examiners of his own choosing and presented testimony to support his defense. Alexander v. United States, 380 F.2d 33 (8 Cir. 1967); Pope

388 F.2d 723

v. United States, 372 F.2d 710, 719 (8 Cir. 1967); Winn v. United States, 106 U.S.App.D.C. 133, 270 F.2d 326 (1959). Among the authorities, both state and federal, only State v. Olson, 274 Minn. 225, 143 N.W.2d 69 (1966), holds that, absent an enabling statute having specific application, a court lacks inherent power to require a defendant to submit to a psychiatric examination

In the Olson case, the result was reached because of the Court's concern over the danger of self-incrimination to a defendant who is required to submit to an examination and because of a feeling that protective procedures could only be supplied by carefully drafted legislation. We find the Olson case unpersuasive, because, as we shall shortly explain, the problem of potential self-incrimination is not of such magnitude as to be insurmountable, and there are even weightier reasons why expert medical opinion should be sought when the mental condition of a defendant is brought into issue. Sanity, as defined by law, under many authorities can be determined by lay opinion. But with the advance of medical science in general, and the study and knowledge of mental illness in particular, we would unduly limit the ability of a court to find the truth in a criminal case where sanity is an issue were we to turn our backs on the tool of expert medical knowledge. Rather, the use of expert medical opinion is to be encouraged. Alexander v. United States, supra, 380 F.2d at p. 39; Pope v. United States, supra, 372 F.2d at pp. 720-721; State v. Whitlow, 45 N.J. 3, 210 A.2d 763 (1965). We hold, therefore, that the district court had ample authority to order defendant to submit to a psychiatric examination. We turn next to a consideration of whether such an examination violated his Fifth Amendment rights.

Explicit in Pope v. United States, supra, and implicit in Winn v. United States, supra, is the ruling that a defendant's right not to incriminate himself is not violated per se by requiring him, in an appropriate case, to submit to a mental examination. We adopt the rule in this circuit on the authority of those cases and the following considerations:

The manifest purpose of the examination in this case was, and the proper objective of a mental examination in any criminal case where a defendant's sanity is in issue should be, to obtain knowledge not about facts concerning defendant's participation in the criminal acts charged, but about facts concerning a defendant which are themselves material to the case.⁶ Cf. United States v. Wade, 388 U.S. 218, 219, 222, 87 S.Ct.1926, 18 L.Ed.2d 1149 (1967). The purpose is not to prove by evidence wrested from a defendant whether he is guilty as charged but, rather, to prove whether a defendant possesses the requisite mentality to be guilty as charged, assuming that his guilt is otherwise established, or whether, legally, he cannot be held criminally responsible, irrespective of what other proof may establish he has done. The "testimonial" or "communicative" test of what is and what is not within the privilege against self-incrimination, invoked in Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), is not an appropriate distinction to be applied in the case at bar, but that test is not absolute because, as stated in Schmerber, it is only "a helpful framework for analysis," and "There will be many cases in which such a distinction is not readily drawn." 384 U.S. 764, 86 S. Ct. 1832.

388 F.2d 724

In Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892), the principle was stated that the privilege against self-incrimination "is as broad as the mischief against which it seeks to guard." The underlying purposes of this Fifth Amendment protection have been recently restated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966), in the portion of the Court's opinion set forth in the margin.⁷ We are of the view that those purposes were served and not defeated by requiring the examination in this case.

The maintenance of a "fair state-individual balance" clearly required that the government be permitted to have defendant examined. Once...