249 F.2d 129 | D.C. Cir. | 1957
Lead Opinion
Appellant was convicted of carnal knowledge of a nine-year-old child, following reversal of a prior conviction by this court.
The first question is whether the trial court erred in admitting the testimony of an expert witness who admittedly had no independent recollection of the facts to which he testified,
The challenged testimony involves conclusions that appellant was mentally competent at the time of the crime, based on mental examinations of appellant made by the witness in August and September of 1949. The first trial, the record of which formed the basis of the witness’ present testimony, occurred in early February of 1950.
The effect of the witness’ testimony in the circumstances of this case was to introduce in evidence the substance of his testimony as recorded at the first trial. “Whether the record is directly admitted into evidence, or indirectly by the permissive parroting of the witness, it is nevertheless a substitute for his memory and is offered for the truth of its contents.” United States v. Riccardi, 3 Cir., 1949, 174 F.2d 883, 887.
There is no doubt that had the witness been legally unavailable his former testimony would have been admissible and could have been proved by the stenographic transcript of the first trial. Cf. Meyers v. United States, 1948, 84 U.S.App.D.C. 101, 171 F.2d 800, 11 A.L.R.2d 1, certiorari denied, 1949, 336 U.S. 912, 69 S.Ct. 602, 93 L.Ed. 1076. Court reporters are officials appointed by the court under authority of statute for the purpose of preserving testimony, and their transcripts, by statute,
Nor should it be disputed that a judicial transcript is the proper subject for a record of past recollection.
The use of a judicial transcript recorded by an official court reporter at a time when the events to which the wit
In the present case the witness reviewed the transcript before the trial. Perhaps a more orderly judicial procedure in this situation would recommend that the witness produce and use the transcript while testifying.
Appellant also urges the trial court committed reversible error in failing to charge the jury that if appellant should b.e acquitted by reason of insanity he would be sent to a mental institution for as long as his safety and that of the public require. Appellant contends that under Taylor v. United States
The Taylor case did not make such an instruction mandatory in the sense that in all circumstances its omission is reversible error. We need not interpret the precise effect of the language there used, for this instruction, like others, is subject to Rule 30.
The record in this case shows that defense counsel did not request the court to so instruct the jury. Following the judge’s charge, the United States Attorney raised the issue of the possible application of the Taylor ease. The trial judge indicated he did not regard the instruction as mandatory. Defense counsel neither urged that it be given nor objected to its omission. The defendant having thus consciously and deliberately refrained from asking for the instruction and similarly having failed to object to its omission, he will not be heard to complain of it now, seven years after the offense and six years after his first trial. Considering the entire record, we do not believe the omission of this instruction so prejudiced the appellant’s substantial rights as to deprive him of a fair trial.
The judgment below is therefore
Affirmed.
. Tatum v. United States, 1951, 88 U.S.App.D.C. 386, 190 F.2d 612.
. Upon cross-examination the witness admitted that his present recollection consisted solely of a present recognition of appellant and the fact that he had examined him in the past.
. 28 U.S.C. § 753(b) (1952).
. Wigmore advocated the acceptance of former testimony whenever the witness was presently unable to testify, even where lapse of time was responsible for the loss of present recollection. 5 Wig-more, Evidence § 1408 (3d ed.1940).
. We note a paucity of authority on this point. See cases cited at 125 A.L.R. 246 (1940).
. 3 Wigmore, Evidence 100 (3d ed.1940).
. It has been held, however, that the production in court of the memorandum of past recollection is not an essential prerequisite to the admission of the testimony. Loose v. State, 1903, 120 Wis. 115, 97 N.W. 526.
. 1955, 95 U.S.App.D.C. 373, 222 F.2d 398, 404. In this case the court stated: “But we think that when an accused person has pleaded insanity, counsel may and the judge should inform the jury that if he is acquitted by reason of insanity he will be presumed to be insane and may be confined in a ‘hospital for the insane’ as long as ‘the public safety and * * * [his] welfare’ require.” (Footnotes omitted). Id. at page 379, 222 F.2d at page 404. The omission of this instruction, however, was not made a ground of reversal in Taylor. Ibid. See also Durham v. United States, 1956, 99 U.S.App.D.C. 132, 237 F.2d 760; Kelley v. United States, 1956, 99 U.S.App.D.C. 13, 236 F.2d 746.
. In Lyles v. United States, 1957,-U.S. App.D.C.-, --F.2d-, we made such an instruction mandatory prospectively from that decision.
. Rule 30, Fed.R.Crim.P., 18 U.S.C., provides in part; “No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” The complaining witness was 9 years old when the offense occurred in 1949. One purpose of Rule 30 was to preclude a defendant from exploiting his own failure to make timely objections. In this case there is not even a basis for suggesting the failure was an oversight of counsel.
To encourage, or even tolerate this one-sided “Russian Roulette” with the courts could lead to a breakdown of all law enforcement in a system already plagued by multiple trials. Tatum’s next plea, if we gave him one, could well be that he has been denied a speedy trial. See Williams v. United States, 1957, 102 U.S.App.D.C.-, 250 F.2d 19.
Dissenting Opinion
(dissenting).
In Taylor v. United States, 1955, 95 U.S.App.D.C. 373, 379, 222 F.2d 398, 404, we established the rule that “when an accused person has pleaded insanity, counsel may and the judge should inform the jury that if he is acquitted by reason of insanity he will be presumed to be insane and may be confined in a ‘hospital for the insane’ as long as ‘the public safety and * * * [his] welfare’ require.” We cited D.C.Code § 24-301 (1951) which provided that, in case of such acquittal, the court “may” certify the fact to the Federal Security Administrator who, in turn “may” order confinement. After our Taylor decision, Congress amended the statute to make commitment to a mental institution mandatory in cases of acquittal by reason of insanity and providing standards and procedure for termination of confinement.
What effect the enactment of this statute had upon the instruction to be given the jury came before the full court in Lyles v. United States, - U.S.App.D.C.-,-F.2d-. We held that, unless it “appears affirmatively on the record” that the “defendant [does] not want such an instruction given * * * s whenever hereafter the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity * * * .” Exactly what the jury must be told we merely indicated, but did not elaborate, referring, instead, to our discussion of the problem in Taylor v. United States, 95 U.S.App.D.C. at page 379, 222 F.2d at page 404.
The reason for requiring the instruction, as I pointed out in my dissenting opinion in Lyles, - U.S.App.D.C. at -,-F.2d at-, is that, without it, a jury, influenced by the specter of violent lunatics turned loose in the community, may “convict, despite strong evidence of insanity at the time of the crime.” See also Durham v. United States, 99 U.S. App.D.C. 132, 237 F.2d 760 (1956). If justice is to be done, “the jury has a right to know the meaning of [a verdict of not guilty by reason of insanity] as accurately as it knows by common knowledge the meaning of the other two possible verdicts.” Lyles v. United States, - U.S.App.D.C. at -, - F.2d at -.
It is usually impossible to show the exact extent of prejudice to the defendant resulting from omission of an instruction which justice requires. We obviated future questions as to prejudicial effect by holding in Lyles that the instruction is mandatory unless the defendant affirmatively shows that he does not want it. In so doing, of course, we did not overrule Taylor or in any way dimin
The judge’s refusal to give the Taylor instruction in the instant case is sustained by the majority on the ground that the defense “consciously and deliberately refrained from” requesting it and objecting to its omission. They do not hold, It should be noted, that mere neglect by the defense to request the instruction or «object to its omission justifies refusal, ¡but only that conscious and deliberate refraining does so. The question is, then, whether there was such conscious and «deliberate rejection of the instruction by the defense as to amount to clear waiver.
What happened below is not in dispute. After the judge had given his charge to the jury, there was a bench conference at which the prosecutor said:
“Your Honor, as I recall, the Taylor case says that you should tell the jury, and I understand they all tell the jury, if the defendant’s verdict is ■«of unsound mind, why, then, he will be committed to St. Elizabeth’s until the authorities over there — ”
The judge interrupted:
“I am perfectly familiar with the Taylor case and I want to put it in the record that I will do no such thing. In the first place, it is obiter dicta; and in the second place, it is not so and I will not do it unless the Court of Appeals demands that it be «done.”
About two months later, in comment upon appellant’s affidavit in support of his application for leave to proceed without prepayment of costs, the judge filed a memorandum for the purpose of explaining his reasons for refusing the instruction. Those reasons were (1) that the language as to the instruction was obiter dicta in Taylor; (2) that the Taylor rule is not mandatory; and (3) that in this case, the testimony made it clear that the psychiatrists considered appellant mentally sound. In view of the foregoing reasons, stated the memorandum, “This Court sincerely believes that it would have been mentally dishonest for it to give the instruction.”
Waiver is defined by the Supreme Court as “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 1938, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. My colleagues put it in terms of “consciously and deliberately” rejecting the right or privilege. It cannot be said that it was “known” to appellant that he had a right to the Taylor instruction, when the trial judge had just finished saying, “ * * * it is not so * * *.” And it cannot be said that appellant’s silence was an “intentional” relinquishment of the instruction, in the face of the trial judge’s flat announcement that he would not give the instruction unless forced to do so by this court.
The fact that the suggestion that the Taylor instruction be given emanated from the prosecution rather than the defense had nothing to do with the trial judge’s refusal to give it. That refusal, as I have shown, was based on a theory that the giving of the instruction is discretionary and on a considered judgment that, in the proper exercise of discretion in this case, the instruction should be refused, whether asked by the one side or the other. Nor did the Government, in its argument here, seek to justify the refusal of the instruction on a waiver theory. Rather, it defended it upon the ground that the refusal was a proper exercise of discretion. There is no support
. Act of Aug. 9, 1955, 09 Slat. 609, D.C.Code, § 24-301 (d) and (e) (1951 Supp. V).
