*1 POUNCEY, Appellant, D. Charles America,
UNITED STATES of Appellee.
No. 18565. Appeals
United States Court District of Columbia Circuit.
Argued Nov.
Decided June
Burger, Judge, dissented. (appointed this Dickson R.
Mr.
Loos
Washington,
C.,
court),
appellant.
D.
*2
Atty.,
Millеr,
would
Asst. U. S.
hkve necessitated a
Mr. David W.
continuance
Acheson,
testimony
U.
in
David C.
late
the
and
with whom Messrs.
his
Q.
Atty.,
Nebeker,
U.
Asst.
have been limited
the
S.
and Frank
to
time
appellee.
duty.
Atty.,
brief,
on
he was on
S.
were
the
urged
Edger-
Judge,
An
not
at trial but
Before
Chief
issue
Bazelon,
appeal
Judge,
request
our
on
is wheth
Senior Circuit
briefed at
Burger,
ton,
during
Judge.
appellant’s
trial
Circuit
er
behavior
the
compe
required reconsideration of his
Shortly
after the outburst
tence.
EDGERTON,
Judge:
Senior
appellant’s
prosecution,
new
led to this
from a conviction for
This is
questions
mental
of his
counsel raised
аssaulting a Federal
18
officer.
U.S.C.
his
the time
the crime
condition at
alleged
111.
while
The
assault occurred
competence
He was sent
§
trial.
to stand
appellant was in
Court-
Hospital
the
a mental
Elizabeths
to St.
Columbia,
in
Superintendent
house
the District
The
examination.
courtroom, awaiting hearing
conelusory
in a
a
on his Hospital reported
terms
in
guilty plea
motion to withdraw a
or
he
mental disease
he was without
that
discussing
entered in
In
competent
another case.
trial.
to stand
defect and
hearing
that motion with
counsel he became
on
request
his
а
did not
Counsel
agitated
boisterously
to
threatened
on the
competence
action
and no formal
Though
leave the room. When
seemed about
report
he
it would
noted.1
was
so,
struggle
light
to do
there
a
between
the
was
on
been better
to
attending Deputy
him and the
deci
competence,
in banc
question
our
charge
on which
assault
is
the
based.
States, 120 U.
v. United
sion in Whalem
(1965),
-(cid:127),
S.App.D.C.
F.2d 812
346
urges
Appellant
that
trial
the
trial
precludes
that
the
decision
a
failing (1)
erred
to direct a ver
per-
judge
his discretion
abused
(2)
acquittal;
dict of
to
a verdict
direct
go
But
mitting
trial.
case to
the
guilty by
insanity;
of not
reason
against
guard
responsibility
judge’s
(3)
subpoena
from
ward attendant
person
possibility
an accused
Hospital,
appel
St.
the
Elizabeths
whoffi
hoped
incompetent does
may
lant
to show that
mental ex
his
become
Hospital
amination
hospital
at
the
was inade
begins. A
trial
end when the
quate. We
none of
matters
think
these
the
only prediction
when
report
requires
am
reversal.
evidence was
par-
able
he will be
is tried
accused
ple
guilt
to establish
be
unless the
proceedings.
ticipate adequatеly in the
insanity
lieved the
defense. That de
may
on
developments
doubt
throw
fense,
though meritorious,
not so
when,
inas
particularly
prediction,
the
overpowering
compel
as “to
a reasonable
the
case,
report
not show
does
this
juror to entertain a reasonable doubt con
“competence”,
understanding
hospital’s
cerning
responsibility.”
the accused’s
certainty of
employed,
it
the tests
States,
U.S.App.
McDonald
114
diagnosis.2
its
120, 123,
847,
(1962).
D.C.
312 F.2d
850
sup-
tend
Refusal
call
the ward attendant was
Some occurrences
Appel-
Calling
Hospital’s prediction.
pоrt
not an abuse of
discretion.
response
Compare
for observation and
Chief
dissent
The need
Bazelon’s
great-
during
judge
States,
U.S.App.
the trial is
Whalem v. United
120
may
812,
(1965),
-,-,
not have seen
er because
D.C.
346 F.2d
819
responsibility.
trial.
or his counsel
on counsel’s
defendant
and discussion
of defendant
Observation
States, supra,
Whalem United
120 U.S.
during
with counsel
App.D.C. p. --,
p.
F.2d
346
816 n. 6.
only
specific
judge’s
informa-
source of
Compare
Amador Beltran v. United
tion.
48,
1962).
(1st
F.2d
50
Cir.
lucidly
relevantly
when
lant testified
U.S.
80 S.Ct.
staff members turbing may inquiry. case facilitate or motion I events Court at pre-sen- the time. Probation officers who made a investigation prisоn and' officials tence I was taken from the cell block appellant custody who had in, into the room. I went sat testimony. If the court finds that useful down, begun talk with Mr. competent during trial, appellant was Nelson. Mr. Nelson had told me stand, subject conviction the right will thing that the best I should do was finding. from this If my to withdraw motion or either competent finds that let the vacate sentence and it should vacate again. plea guilty make a I told and, provided conviction he is found to Mr. Nelson I would not do this be- *4 competent now, hold a new trial. cause of the fact that I guilty, my I and now had chanсe to Remanded with directions. prove my innocence. BURGER, Judge (dissent- me, well, Later Mr. Nelson told ing) : actually case, did not want the but majority assigned by nunc remands he was the Court and he finding Pouncey’s competency had to continue. ISo told Mr. Nel- despite possible stand son present his failurе assert that if would he incompeteney either asking here or in the Dis- motion before the Court despite trict finding my Court and St. Elizabeths’ to withdraw from case. He told statutory certification of com- me he would not. petency. finding on remand will upset, I then became and I stood large part bе based in on the got up, my my I briefcase and coat transcript which wp have us. and hat and went to the Marshal transcript To me that discloses no basis asked to take me back to whatever a remand since no reasona- block, through the cell I was discuss- reading ble could lead to conclusion ing my case with Mr. Nelson. competency but to stand trial. explained The Marshal to me that But the best majority answer to the had a case in Court at position very testimony lucid that time and I would have wait. I went back and sat Pouncey himself. Accordingly, I set I down. was forth his acсount of the circumstances upset around; so I wanted to walk gave rise to his trial: so I stood and I walked around Q Now, directing your attention the table about two or three times. July 23, to on or you about do on I to the went Marshal being represented recall by a Mr. again and asked him to tаke back me Nelson, attorney? Rex K. to the cell block. At I this time was Yes, A I do. speaking in a loud man- boisterous Q you being Do recall called from ner. The Marshal told me calm the cell block or taken from the cell myself go down, sit and he would block a United see what he could do. brоught jury to the room in I went back end of far rear of the Court? room. The Marshal went out Yes, A I do. they back and told me that Q you yet. I want tell the Court hadn’t finished the courtroom gentlemen picked up my and jury Then I the ladies and briefcase and transpired him: what told Let’s out of here. He push room rаised his hand as me on that if date. tendency you step tendency I I So took a back. raised or do back. my push highly upset hand to his hand out of the become excited way. on certain occasions? Yes, A I do. Marshal told to calm
Then the said, Q long sit down. I O. K. voice and And how has tend- grabbеd turned, ency persisted long you IAs the Marshal ? How me around the neck. So said: had it? tough; you You want want to be far I As back as can remem- to be bad. ber. I I I said: will down. said: sit Q you you psychia- Do think need choking stop And me. tric treatment for this condition? He said: You one of these bad fel- great еxtent, A Not to a lows. help. do need you please go.
I said: Will let me Tr. 67-70. put pressure on the He then shows, Pouneey the record As has a had, choke hold that he which is a history liking appointed law- hold. yers; he seems to want to run own grabbed arm, litigation. genu- the Marshal’s There be casеs of to, you know, incompetency I tried loosen the hold. ine to stand trial which *5 history may symptomatic, then He threw me to the floor. such a nothing Me. be present suggests Nelson went out the door to record [sic] help. Pouncey’s call The condition is such a in; grabbed my legs case. Indeеd he one of one manifestation of his quite convincingly, hurt- distrust of counsel kneeled down on it. It was I think, ing, “competent” I how so kicked him off. reveals Pouneey his own He behalf. on, rest the Marshals Owens, assumed to cross-examine Dr. came with the chains. So one of them hit me with the chain across Elizabeths, Clinical Director at St. who concerning testing had testified cey Poun my leg my legs still; to hold I was hospital. at the In received kicking; they chained me and following questioned whether manner took me downstairs. anyone except had seen the man who Q Now, Charles, you did have psychological administered his tests: any assaulting intention of this Mar- me, Excuse The Defendant: any shal at time ? Honor, Your I would to ask Dr. like No, A couple questions. I did not. Owens a Q you any Did may keep your intention of The Court: You resisting way any him in ? seat. No, may,
A : If I will sir. Mr. Smith Defendant, confer with Your Q you But did want to back Honor, quеstions what see block; you to the cell did not want ask, propound wants to and I will any to have further conversations them. your attorney, with then Mr. Nel- son? (Whereupon counsel con- defense Defendant.) with the Yes, ferred I did. please,
Q you If the Court Now, this, Mr. Smith: let me ask long you Charles: How had a to ask Defendant wants successful, questions. He doesn’t want risk that an will be own resulting through in a remand for a new me. them to ask by must borne who is one which one step Have him The Court: appellate processes an invokes the may do so. here. He new court order to secure a trial. Owеns, Dr. Defendant: I was over Saint the time exactly Hospital, how Elizabeths any many did ever talk times over does there of the doctors your the amount show
records any conference or I had times that any by given tests had been LAWRENCE UN- TYPOGRAPHICAL except Dr. Silberman? other doctor ION, Typo- Affiliated with Internаtional graphical Union, AFL-CIO, Appellant, Beginning with The Witness: 15, 1964, January the date you conference, were examined staff al., Frank W. McCULLOCH et individual- approximately period ly constituting and as members of and Board, hour a half Dr. hour to an the National Labor Relations Appellees. Ross, Dobbs, Owens, Dr. Dr. Dr. Chyhandi, McGeehan, Simco, Dr. Dr. No. 18247. Sheegan, psychologists, Miss two Appeals Court of Pink, Wilberman, and Miss Mr. District of Columbia Circuit. present. social also worker was Argued Oct. Pouncey’s 148-149. In view Tr. May 6, the remand now
conduct forecloses Decided here ground never ordered sought by Appellant. majority’s ob action further *6 Dusky
jectionable. L.Ed.2d 80 S.Ct.
U.S. pre (1962), requires a new trial often present com a determination
ceded petency diffi asserted
because of the determining
culty former the issue of majority retrospectively; competency pro tunc de a nunc orders
nonetheless that this It
termination here. proper remand here if be the all,1 ques proper were
remand majority’s for this dis rationale
tion the They say,
position. would not be “It [Pouncey] subject unneces
sarily of another trial to the risk merely sentence,” because
another
fortuity soon have will sentence
been It seems to served. difficulty capacity which is far more elusive All of tlie discussion as determining competency nunc an issue to resolve and often must subtle many ignore generations make the determination as of date years seems question. experience In such the trial of the in will contest cases. testamentary cases the courts deal with