White v. United States

• Court: D.C. Court of Appeals
• Writing for the Court: Newman
• Citation: White v. United States, 451 A.2d 848 (D.C. 1982)
• Decision Date: 01 October 1982
• Docket Number: No. 81-470.,81-470.
• Parties: Dwayne WHITE, Appellant, v. UNITED STATES, Appellee.

Page 848

451 A.2d 848

Dwayne WHITE, Appellant, v. UNITED STATES, Appellee.

No. 81-470.

District of Columbia Court of Appeals.

Submitted June 29, 1982.

Decided October 1, 1982.

Frederick Scott Avery III, Washington, D.C., appointed by this court, was on the brief for appellant.

Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, R. Dennis Osterman, and Karen J. Krug, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.

Before NEWMAN, Chief Judge, BELSON, Associate Judge, and YEAGLEY, Associate Judge, Retired.

NEWMAN, Chief Judge:

This is an appeal from a jury conviction for assault with intent to kill while armed, in violation of D.C.Code 1981, § 22-501. Appellant raises numerous issues on appeal, the most important of which is whether the admission of testimony regarding statements he made to a psychologist in the course of a court ordered pretrial mental examination violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the effective assistance of counsel. We hold that neither constitutional right was violated and affirm.¹

I

There is no dispute as to the basic fact that appellant, while on unauthorized leave from St. Elizabeths Hospital, visited his wife's apartment on December 7, 1979, and stabbed her approximately fifty times with a pair of scissors. The defense counsel acknowledged in his opening statement that appellant committed the act charged. The sole issue at trial was appellant's state of mind when he committed the offense — i.e., whether he was not guilty by reason of insanity.

At the time of the offense, appellant was a patient at St. Elizabeths Hospital, having been continually confined since found not guilty by reason of insanity by the United States District Court for the District of Columbia of first-degree murder in 1969 and armed robbery in 1973. The day after the offense, the Superior Court appointed counsel and ordered, pursuant to D.C.Code 1981, § 24-301(a), that appellant undergo a comprehensive mental examination at St. Elizabeths to determine both his competency to stand trial and his mental state at the time of the offense.² In accordance with this order, appellant was examined by a team of St. Elizabeths medical staff who concluded, in a written report filed with the court, that he was competent for trial and was not suffering from a mental disease or defect at the time of the offense that rendered him unable to conform his conduct to the requirements of the law.

To prove his insanity defense at trial, appellant relied heavily on the fact that he was under a continuing adjudication of insanity as of the date of the offense.³ In addition, appellant presented a clinical psychologist from St. Elizabeths Hospital, Dr. John Maher, to testify that appellant's prior mental disease and defects continued at the time of the offense. While Dr. Maher did not participate in the pretrial examination ordered by the court,⁴ he concluded on the basis of his numerous clinical contacts with appellant from mid-1975 through 1978, that appellant's crime was the result of his continuing mental illness. Appellant did not take the stand.

Two clinical psychologists who had participated in the court-ordered pretrial examination of appellant testified for the government in rebuttal. Dr. Robert Madsen's opinion was that the crime was not the product of mental illness because his prior testing of appellant showed no signs of mental illness. Dr. Robert Polley, the Clinical Administrator of the Pretrial Evaluation Ward at St. Elizabeths, was of the same viewpoint. Dr. Polley testified, based on the pretrial examination, that appellant understood at the time of the offense that what he was doing was wrong and had sufficient control to prevent himself from doing it; that the defendant's actions were the conscious result of a decision to kill his wife because of perceived infidelity. Dr. Polley further testified that his conclusions were based in part on appellant's own description and explanation of the events of December 7, 1979. Dr. Polley testified at length regarding what appellant told him about the offense and its surrounding circumstances.

Though appellant failed to object to this testimony below,⁵ he now contends that testimony regarding statements about the crime obtained from him in the court-ordered pretrial psychiatric examination (as well as conclusions reached by Dr. Polley based on those statements), was incriminating within the meaning of the Fifth Amendment as used by the government to oppose his insanity defense. Additionally, despite the absence of any objection below, appellant argues that the pretrial examination was conducted in violation of his right to the effective assistance of counsel under the Sixth Amendment, because of the absence of his counsel from the examination.

II

The privilege against self-incrimination derives from the Fifth Amendment provision that "[N]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ." According to the Supreme Court, "[t]he essence of this basic constitutional principle is `the requirement that the state which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.'" Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 1872, 68 L.Ed.2d 359 (1981), quoting Culombe v. Connecticut, 367 U.S. 568, 581-82, 81 S.Ct. 1860, 1867-1868, 6 L.Ed.2d 1037 (1961) (opinion announcing the judgment).

The Fifth Amendment privilege clearly applies to "testimony which might tend to show that [the defendant] . . . committed a crime." Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892). See also Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thus, as established by case law as well as statutes and rules designed to secure a defendant's Fifth Amendment privilege against self-incrimination, no statement made by a defendant during a court-ordered psychiatric examination may be admitted in evidence against the defendant on the issue of whether he is guilty of the crime charged. See 18 U.S.C. § 4244 (1969); Super.Ct.Cr.R. 12.2(c); Fed.R. Crim.P. 12.2(c); United States v. Leonard, 609 F.2d 1163, 1165-66 (5th Cir.1980); Gibson v. Zahradnick, 581 F.2d 75, 78 (4th Cir.), cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 669 (1978); United States v. Cohen, 530 F.2d 43, 47 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976); United States v. Alvarez, 519 F.2d 1036, 1042 (3d Cir.1975); United States v. Julian, 469 F.2d 371, 376 (10th Cir.1972); United States v. Bohle, 445 F.2d 54, 66-67 (7th Cir.1971); United States v. Albright, 388 F.2d 719, 725 (4th Cir.1968). In other words, the Fifth Amendment prohibits the defendant from being made "the deluded instrument of his own conviction." Culombe v. Connecticut, supra, 367 U.S. at 581, 81 S.Ct. at 1867, quoting 2 HAWKINS, PLEAS OF THE CROWN 595 (8th ed. 1824).

Likewise, it has recently been made clear that, absent appropriate warnings prior to a court-ordered psychiatric examination, no testimony based on the defendant's statement at that examination can be used in the determination of a defendant's punishment. Estelle v. Smith, supra. In Estelle, a jury found Smith guilty of murder. Texas law required the jury to resolve three additional issues in a separate sentencing proceeding before the court could impose the death penalty, one of which was whether the defendant will be dangerous in the future and posed a continuing threat to society. Despite the fact that Smith called no psychiatric witnesses at the sentencing hearing, the state called a psychiatrist, Dr. Grigson, who had conducted a pretrial psychiatric examination to determine Smith's competency to stand trial. Dr. Grigson testified, based on information obtained from his pretrial examination of Smith, that he found Smith to be a severe sociopath who would commit similar criminal acts if given the opportunity. The jury found Smith dangerous and the death penalty was imposed.

The Supreme Court, however, held that Smith's Fifth Amendment privilege against self-incrimination barred the use of Dr. Grigson's testimony at the penalty phase of his trial, unless he is advised prior to the pretrial examination of his right to remain silent and that any statement he made could be used against him at the sentencing proceeding. The State argued that Smith was not entitled to the protection of the Fifth Amendment because Dr. Grigson's testimony was used only to determine punishment after conviction, not to establish guilt. The Court, however, found no reason to distinguish between the guilt and penalty issues of the capital murder trial with respect to the Fifth Amendment protections.⁶

Yet, the protection of the Fifth Amendment does not extend to the sanity determination,⁷ for the government's use of the defendant's statement obtained in a court-ordered psychiatric examination is not incriminating within the meaning of the Fifth Amendment when used solely for the purpose of rebutting the defendant's insanity claim. United States v. Whitlock, 214 U.S.App.D.C. 1094, 663 F.2d 1094, 1106-07 (1980). See also United States v. Bennett, 148 U.S.App.D.C. 364, 370-71, 460 F.2d 872, 878-79 (1972); Edmonds v. United States, 106 U.S.App.D.C. 373, 375, 273 F.2d 108, 114 (1959) (en banc), cert. denied, 362 U.S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012 (1960) (distinguishing between use of defendant's statements on factual guilt and sanity for purposes of 18 U.S.C. § 4244). First, the psychiatric evidence did not assist the government in proving that appellant committed the offense since sanity is not an element of a criminal offense in the District of Columbia. Bethea v. United States, D.C.App., 365 A.2d 64, 94 (1976), cert....