Whalem v. United States

• Citation: 120 US App. DC 331,346 F.2d 812
• Decision Date: 23 April 1965
• Docket Number: No. 18067.,18067.
• Parties: Thomas W. WHALEM, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

120 US App. DC 331, 346 F.2d 812 (1965)

Thomas W. WHALEM, Appellant, v. UNITED STATES of America, Appellee.

No. 18067.

United States Court of Appeals District of Columbia Circuit.

Argued December 7, 1964.

Decided April 23, 1965.

Mr. Robert N. Kharasch (appointed by this court), Washington, D. C., for appellant.

Mr. Frank Q. Nebeker, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Joel D. Blackwell and Max Frescoln, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge,^* and FAHY, WASHINGTON, DANAHER, BASTIAN,^† BURGER, WRIGHT and McGOWAN, Circuit Judges, sitting en banc.

BASTIAN, Senior Circuit Judge, with whom WILBUR K. MILLER, Senior Circuit Judge, and DANAHER, BURGER and McGOWAN, Circuit Judges, join:

When this case was first argued to a division of three judges, appellant, convicted of robbery and attempt to commit rape, questioned the sufficiency of the evidence of his indentification, the jury instructions which he alleges failed to properly emphasize evidence favorable to his case, and introduction into evidence of clothing taken from him after his arrest. Before an opinion was issued by the division the full Court sua sponte ordered a rehearing en banc. At the rehearing en banc two other issues were raised, namely (1) whether there was sufficient evidence in the record pertaining to appellant's lack of sanity to raise the issue of insanity even though appellant himself refused to do so, and whether in view of such evidence the trial judge erred by not raising the insanity issue sua sponte and instructing the jury thereon, despite appellant's wishes to the contrary; and (2) whether the trial judge erred in proceeding to trial without holding a hearing to determine appellant's competency to stand trial, which hearing, appellant now urges, was required notwithstanding his lack of objection to two hospital reports that he was competent.

We hold that appellant was adequately identified and that the instructions to the jury were fair in all respects. The clothing was properly admitted into evidence since it was taken from appellant after a valid arrest. Robinson v. United States, 109 U.S.App.D.C. 22, 283 F.2d 508, cert. denied, 364 U.S. 919, 81 S.Ct. 282, 5 L.Ed.2d 259 (1960).

Before turning to the remaining issues, we believe some background is necessary. At the time of the crimes in question appellant was on convalescent leave from St. Elizabeths Hospital, to which he had been civilly committed in 1956. After his arrest for the crimes in question, the Government, reciting appellant's prior commitment, successfully moved for a mental examination and appellant was committed to St. Elizabeths pursuant to D.C.Code § 24-301(a). The hospital superintendent subsequently informed the court that in his opinion appellant was "mentally competent to understand the nature of the charges pending against him and to assist properly in the preparation of his defense." The court was also informed by the superintendent that appellant was, both then (at the time of the report in March 1963) and at the time of the crime, suffering from a mental disease, diagnosed as schizophrenic reaction, catatonic type (in remission), but that the crimes were not products of this disease. Appellant's counsel then moved for a further mental examination and appellant was sent to D. C. General Hospital which reported that appellant was "mentally competent as to be able to understand the proceeding against him and to be able to properly assist in the preparation of his defense." In addition, the D. C. General report noted that although appellant manifested a passive aggressive character disorder and a low I. Q., his condition did not constitute a mental disease or defect. After receipt of these reports neither the Government nor the defense objected to the hospitals' certifications nor did they request a hearing. The case proceeded to trial without a hearing on the issue of appellant's competency. At trial no issue of insanity was raised by defense counsel, who was acting under instructions given him by appellant as well as counsel's own judgment that the issue of insanity should be left out of the case.

We deal first with the question of whether, in view of appellant's prior (1956) commitment to St. Elizabeths and the reports from that institution and D. C. General Hospital, the trial judge erred in proceeding to trial without holding a hearing on the issue of appellant's competency to stand trial. Appellant's argument here is essentially that his 1956 commitment created a presumption of continuing incompetency to stand trial, as well as insanity, and therefore an affirmative determination, based on a hearing, was required to establish the contrary, and further that in any event a District Court hearing is always required after a mental examination pursuant to D.C. Code § 24-301(a) even when the report is that the accused is competent and neither the accused nor the Government requests such a hearing.

The reports that came back from both hospitals to which appellant was referred for a mental examination were that appellant was competent — and it is right at this juncture that we get no explicit guidance from the statute. It is, therefore, without the help of an express prescription in § 301 as to the procedure to be followed at this point that we have to resolve the argument that, even though no objection of any kind was made to the reports and no request of any kind for a judicial inquiry was made, the trial court committed reversible error in letting the trial proceed without a judicial competency hearing.

Section 301(a) deals in terms with the procedure to be followed on the receipt by the court, after the granting of a motion for a mental examination, of the report of the hospital that the accused is not competent to stand trial. In such event, the statute states:

"Such report shall be sufficient to authorize the court to commit by order the accused to a hospital for the mentally ill unless the accused or the Government objects, in which event, the court, after hearing without a jury, shall make a judicial determination of the competency of the accused to stand trial."

Of course, Congress was there concerned with the establishment of a reasonable and proper basis for the detention by commitment of an accused who might be mentally ill.

Congress next had to provide a mechanism for steps yet to follow. It would have been more logical just as it certainly would have been more helpful if Congress had dealt specifically with the situation where, as here, following an order granting a mental examination, the hospital submits its report that the accused is competent to stand trial. Since the statute is completely silent on this point, we must deal with the situation in light of what Congress surely intended, as may be discerned from the very next paragraph following the one quoted above. This is § 301(b), which deals with the case where the accused, having once been committed to the hospital as incompetent to stand trial, is later found by the superintendent of the hospital to be restored to competency. In such event, the statute says:

"The superintendent shall certify such fact to the clerk of the court * * * and such certification shall be sufficient to authorize the court to enter an order thereon adjudicating him to be competent to stand trial, unless the accused or the Government objects, in which event, the court, after hearing without a jury, shall make a judicial determination of the competency of the accused to stand trial."

This was, of course, the statute Congress adopted for the explicit purpose of altering our holding in Gunther.¹

As between § 301(a) and § 301 (b), we cannot see any substantial differences in the language used to characterize the course which the court is authorized to follow upon the return of a certification of incompetency, in the one case, and restoration of competency, in the other. We read the present prescription as being very clear to the effect that, whenever the court receives a certification of incompetency or a certification of restoration of competency and there is no objection by either the accused or the Government, the court may, in the one case, forthwith commit the accused to a mental hospital and, in the other, immediately proceed with the trial.

By its unbalanced discussion of the alternatives in § 301(a) Congress could conceivably be thought to have attached more horrendous consequences to being committed to a mental hospital than it did to being certified to be competent to stand trial. Contrarily, it could be taken to have left out the one alternative on the implicit assumption that a person should not be forced to stand trial without a judicial inquiry going behind the hospital's certification of competence, even though no objection is made to the certificate and no such inquiry is sought. This latter interpretation is, however, pretty well destroyed by Congress' enactment of § 301(b).

Accordingly, we conclude that Congress intended that a certification of competency following a § 301(a) referral should be sufficient to authorize the court in its discretion to proceed with the trial unless the accused or the Government objects, in which case a hearing must be held to determine competency.² This is the same procedure which Congress expressly established for use in handling certifications of either incompetency or restoration to competency, and we believe it to be equally applicable to the alternative presented in this case.³

By arguing, in effect, that we should require a hearing on an accused's competency to stand trial in all cases, whether or not an objection to a competency certification has been made, appellant would have us do precisely what Congress has said we should not do. In enacting the 1955 amendments to § 301 Congress, as we read the statute, specifically overruled...