United States v. Grimes, 22382.

• Decision Date: 17 September 1969
• Docket Number: No. 22382.,22382.
• Citation: 421 F.2d 1119,137 US App. DC 184
• Parties: UNITED STATES of America v. Robert A. GRIMES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

137 US App. DC 184, 421 F.2d 1119 (1969)

UNITED STATES of America v. Robert A. GRIMES, Appellant.

No. 22382.

United States Court of Appeals District of Columbia Circuit.

Argued June 16, 1969.

Decided September 17, 1969.

Petition for Rehearing Denied March 10, 1970.

Mr. H. David Rosenbloom, with whom Mr. Peter Van N. Lockwood, Washington, D. C., (both appointed by this court) was on the brief, for appellant.

Mr. Gerald H. Cohen, Special Asst. U. S. Atty., of the bar of the Supreme Court of Georgia, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U. S. Atty. at the time the brief was filed, and Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee. Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, and Miss Carol Garfiel, Asst. U. S. Attys., at the time the brief was filed, also entered appearances for appellee.

Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

Petition for Rehearing En Banc Denied March 10, 1970.

McGOWAN, Circuit Judge:

This is an appeal from a conviction, after jury trial in the District Court, of two counts of assault with a dangerous weapon (22 D.C.Code § 502), and one count each of robbery and carrying a dangerous weapon (22 D.C.Code § 2901 and § 3204.) The principal reason urged for reversal is the failure of the District Court to grant appellant's request for a bifurcated trial because of his purpose to offer an insanity defense. The other issues relate to the scope of the cross-examination allowed of appellant, his impeachment by a prior conviction, and the propriety of an instruction. For the reasons appearing hereinafter, we view none of these as requiring reversal.

I

The criminal incident here involved was the armed robbery of a gasoline service station at eleven o'clock in the evening of February 14, 1967. One of the two attendants, Nichols, was in the office counting money. The other, Carter, was asleep in a car located in the bay of the filling station just outside the office. Both office and bay were brightly lit. Two men came into the office and attacked Nichols. Carter awakened and went toward the office. One of the men pointed a gun at him and pulled the trigger, but the gun did not function. That man then grabbed money lying on the desk and fled. Carter chased him for a distance, in the course of which the man once fell and dropped the gun. He got away, however, and Carter returned to the service station office to find Nichols with a bullet wound in his leg. Carter then retrieved the gun which had been dropped in flight, picking it up within a handkerchief, and delivered it to the police officer who had answered the alarm.

The gun was examined for fingerprints, and some were found. Carter gave the police officer a specific description of the man who had tried to shoot him and who had dropped the gun. From the witness stand Carter positively identified appellant as that man. There was also testimony that, after his arrest, appellant's fingerprints were taken, and were found to be the same as those on the gun. The Government's case was completed by the introduction of a certificate to the effect that appellant was lacking in the requisite authority to carry a gun.

The defense case was addressed to an asserted lack of criminal responsibility, and the witnesses were a psychiatrist,¹ a psychologist, and appellant himself. Appellant related how he had become a user of narcotics, and stated that he habitually carried a gun. On his direct examination, he said that he had, in company with another addict, been taking cocaine during the afternoon and evening of February 14, 1967. The two left appellant's apartment at 10:45 P.M. for the purpose of getting more cocaine, appellant being then "high" and carrying his gun as usual. Upon cross-examination, it was brought out that appellant recalled visiting the service station some 15 minutes later for the purpose of making a telephone call, which he could not complete. Because of the cocaine, he professed inability to recollect anything more of this visit than seeing his companion wrestling with someone and then running. At the close of his testimony, appellant was, over objection, impeached by the admission of a prior conviction for housebreaking.

II

When the trial was convened, the defense moved the court for a bifurcated trial because it proposed to defend on the ground of a want of criminal responsibility. The court twice inquired of defense counsel if there was to be any defense on the merits (i. e., any claim that appellant had not committed the acts charged), and was twice unequivocally told that there was no such other defense. The court stated on the record its awareness that the question of bifurcation was committed to its discretion, but, in the light of the explicit representations that the only available defense was insanity, it decided to deny the motion. It referred in this regard to our opinion in Harried v. United States, 128 U.S.App.D.C. 330, 389 F.2d 281 (1967), where we indicated doubt that prejudice arising to an abuse of discretion would ordinarily obtain in a denial of bifurcation "where there is no `defense' beyond putting the Government to its proof * * *."²

Counsel appointed for this appeal ably press upon us a frontal attack upon this formulation. They ask that we take this occasion to eliminate as a factor in the trial court's discretion the presence or absence of a defense on the merits, and that we designate as the single standard for that discretion the substantiality of the insanity defense. They argue that defendants should always, without adducing evidence on the merits themselves, be entitled to put the Government to its proof and also to interpose an insanity defense of serious dimensions. The rational administration of criminal justice, and perhaps the Constitution,³ dictate, so we are told, that bifurcation invariably be forthcoming in this situation.

We are not persuaded that a trial court's traditional control over the conduct of proceedings before him either should, or must, be subjected, invariably and in the abstract, to such rigid delimitation. Certainly we do not believe that the assurance of justice in the case immediately before us requires reversal solely because of the trial judge's failure to order bifurcation. We do not, in order to affirm here, need to say that there is no conceivable case where bifurcation would not be in order despite the failure to defend on any ground other than insanity. Perhaps Parman was such a case, since this court took no special note of the colloquy, quoted in its opinion,⁴ wherein counsel made clear that he had no defense on the merits other than the weakness of the Government's proof, and rested its finding of no abuse of discretion upon counsel's insistence upon two juries. But, whether it was or not, we think that the true inquiry for us at this stage of this litigation is whether the trial court exercised its discretion in such manner as to create a danger of injustice necessitating reversal.

We find no such danger here. The Government's case against appellant, insofar as his commission of the acts was concerned, was strong indeed.⁵ There was a good opportunity for identification, and a positive and unassailable one was made. Most significantly, the fingerprint evidence supplied one of the most powerful proofs known to the law, and one which forcefully and emphatically corroborated the identification. We think it irrational to suppose, even if appellant be assumed to have been wrongfully deprived of a right to bifurcation, that the jury might, absent the insanity evidence, have entertained a reasonable doubt that he was the one who robbed the filling station. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705, 24 A.L.R.3d 1065 (1967).⁶

III

Two of appellant's other alleged errors on the part of the trial judge are urged upon us in the special context of the bifurcation issue. The first relates to the scope of the cross-examination. It is said, that having denied bifurcation, the court should have been particularly alert to the need to restrict cross-examination in order that appellant be not compelled to incriminate himself with respect to the commission of the acts charged. The ordinary rule in this jurisdiction, as appellant recognizes, is as stated in Branch v. United States, 84 U.S.App.D.C. 165, 171 F.2d 337 (1948):

* * * If the accused testifies in his own behalf in a criminal case, he subjects himself to cross-examination to the same extent as any other witness. He cannot be compelled to testify as to facts not relevant to direct examination, but he can be required to supply the full details of matters within the scope of the direct examination but stated there only in part footnotes omitted.

Appellant asserts, however, that because appellant had to testify himself to give credence to his insanity defense (by describing his usage of drugs, and his consequent condition and state of mind on the evening in question), the court should preclude any questions which bore upon whether he participated in the commission of the crime.

When appellant finished his direct testimony, he had said that he was in a "high" condition from the injection of cocaine and that he had, armed with his gun, left his apartment with a friend for the purpose of going to get more narcotics. The prosecutor stated that she "would like to go further into what he did in pursuance of the claimed purpose." Appellant's counsel said he would have no objection to that. The court announced that, since appellant had testified about taking drugs just prior to the time of the alleged offense, about his carrying a gun, and about the effect of the drugs upon his consciousness, he would allow cross-examination "as to his state of mind at or about the time of the alleged offense," but that he would not permit the prosecutor to inquire as to his possible participation...