Lead Opinion
A jury found appellant Paula Frendak guilty of first-degree murder, D.C.Code 1973, § 22-2401, and carrying a pistol without a license, D.C.Code 1973, § 22-3204. Troubled by evidence introduced at Fren-dak’s competency hearings and at trial, the court conducted hearings on her sanity at the time of the crime. As a result, the court decided — over Frendak’s objection— to interpose the insanity defense at a
On appeal, Frendak challenges the verdict on alternate grounds. She asserts, first, that there was insufficient evidence of premeditation and deliberation to support the jury’s initial determination that she committed first-degree murder. Second, Frendak — joined by the government and amicus curiae — attacks the present validity of Whalem v. United States, 120 U.S. App.D.C 331,
We conclude that the government produced sufficient evidence to support a conviction for first-degree murder. As to the second issue, however, we reinterpret Wha-lem, supra. We hold that the trial judge may not force an insanity defense on a defendant found competent to stand trial if the individual intelligently and voluntarily decides to forego that defense. In reaching this result, however, we further hold that the court’s finding of competency to stand trial is not, in itself, sufficient to show that the defendant is capable of rejecting an insanity defense; the trial judge must make further inquiry into whether the defendant has made an intelligent and voluntary decision. Because it is unclear whether Frendak made such a decision, we remand for further proceedings.
I. Facts; Proceedings to Date
At approximately 2:15 on the afternoon of January 15, 1974, Willard Titlow left his office on the seventh floor of 1735 K Street, N.W. Appellant Paula Frendak, a co-worker, departed immediately afterwards, explaining to a secretary that she had an appointment with her attorney. Within minutes, Titlow was discovered fatally shot in the first floor hallway of the building.
Following the shooting, Frendak left Washington, traveling through Atlanta, Miami, Mexico City, Spain, and Turkey before she was arrested on February 11, 1974 in Abu Dhabi, United Arab Emirates, after refusing to surrender her passport at the airport. A later search of her baggage revealed that she was carrying a .38 caliber pistol, 45 rounds of ammunition, two empty cartridges, and a pocket knife. On March 13, 1974, authorities in Abu Dhabi surrendered Frendak to the United States Marshal, who brought her back to the District of Columbia to face charges relating to the murder of Willard Titlow. On May 29, 1974, Frendak was indicted for first-degree murder and carrying a pistol without a license.
In the months preceding her trial, Fren-dak underwent a series of psychiatric examinations to determine her competency. There were four competency hearings at which psychiatrists gave varying testimony about Frendak’s mental condition and her ability to consult with counsel concerning the proceedings against her. Ultimately, after the fourth hearing, the court determined that appellant was suffering from a personality disorder, was able to cooperate with her counsel, possessed a rational as well as factual understanding of the proceedings against her, and was fully cognizant of the charges.
In addition, Robert Hur, who had worked with both Frendak and Titlow, testified that on three occasions prior to January 15, 1974, Frendak had followed him and Titlow. Another co-worker, Thomas Voit, recalled a similar incident which occurred on the day of the murder. Frendak had followed Voit and Titlow as they left the office and took the elevator down. When the elevator reached the lobby, Frendak got off, turned to Titlow and said, “Willard, this is it,” meaning this is your floor. Titlow then explained that he and Voit were going to eat in the basement snack bar, although in fact they intended to slip out the basement door to avoid her. Because the basement door was locked, the men returned to the lobby and noticed Frendak standing nearby. She followed them out of the building to a cafeteria, but did not enter. When they returned from lunch, they found Frendak waiting in the lobby again, and she took the elevator up with them.
A secretary in the office recalled the incidents immediately preceding the shooting. She testified that as soon as Titlow had taken his coat from the closet and left the office for his regular sales call, Paula Fren-dak, who had been sitting at her desk, followed him out. As she left, she told the secretary that she had made arrangements with her supervisor to take time off to see her lawyer. A few minutes later, Titlow was found fatally wounded.
Ms. Frendak, the only defense witness, admitted owning the murder weapon and taking it with her to the scene of the murder. She explained, however, that she had brought it with her to sell to Titlow and had left the office with him shortly before his murder in order to complete the transaction. She stated that, after giving the pistol to Titlow in the first floor hallway of the building where they worked, an unknown woman had appeared, grabbed the gun, shot Titlow twice, and then fled. Frendak also testified that she had panicked and left the city, fearing that she had been framed. The jury found Frendak guilty of first-degree murder and carrying a pistol without a license.
Although evidence of insanity had been introduced in the competency proceedings, Frendak refused to raise the insanity defense at trial. The court, therefore, appointed John Aldock, Esquire, as amicus curiae to aid it in deciding whether to raise the defense on its own motion, under authority of Whalem v. United States, supra. The court also ordered a mental examination of Frendak on the question of her criminal responsibility.
In a subsequent hearing, the court received reports by Dr. Edward C. Kirby of the staff of the Forensic Pyschiatry Office and Dr. Leon Yochelson of the Psychiatric Institute stating that, at the time of Tit-low’s murder, Frendak had been suffering from a mental illness which impaired her behavioral controls to such an extent that she could not appreciate the wrongfulness of her conduct and could not conform her conduct to the requirements of the law.
In oral argument at the hearing, amicus expressed reservations about the current status of Whalem, supra, in light of the later Supreme Court decisions in North Carolina v. Alford,
Assuming, as the Court does, that no higher level or degree of competency is required of the defendant with respect to her ability to raise or not raise the issue— the defense of insanity — I find that she is able to appreciate the decision; but I would be less than candid if I did not also point out that the Court would have reservations about her ability to appreciate all facets of such a decision on her own mental health if a higher degree of competency is required with respect to the ability to make that decision.
He then found that the psychiatric evidence adduced throughout the proceedings raised a sufficient question about appellant’s mental responsibility at the time of the crime to require that the court raise the insanity defense under the Whalem rule, although he expressed reservations about the current validity of that rule.
The insanity phase of the case was tried before the same jury which had heard the trial on the merits.
Dr. Pepper, on the other hand, believed that Frendak had only a personality disorder with at most a borderline tendency toward psychosis, a condition characterized by hyper-sensitivity, unwarranted suspicion, jealousy, excessive self-importance, and a tendency to blame others and ascribe evil motives to them. He found no connecting link between appellant’s mental disease and
Ms. Frendak testified in her own behalf, stating that she had had little contact with her former neighbor, Mr. Freedricks, and did not bear him any grudge; that she did not kill Titlow; and that the murder was all part of what she described as a “Rand Corporation game plan.” On April 29, 1976, the jury returned a verdict of not guilty by reason of insanity.
Because the judge had imposed the insanity defense over appellant’s opposition, he concluded that he could not commit appellant to a mental hospital pursuant to D.C.Code 1973, § 24-301(d).
II. Sufficiency of the Evidence
Appellant’s first argument is directed at the sufficiency of the evidence supporting the charge of first-degree murder. She concedes that the prosecution produced sufficient evidence of second-degree murder in its case-in-chief to warrant submission of the case to the jury, but she asserts that the trial court erred in denying her motion for judgment of acquittal on the first-degree murder count at the close of the government’s case because the government failed to introduce evidence sufficient to demonstrate that she had acted with premeditation and deliberation rather than on impulse.
In evaluating a claim of insufficient evidence, an appellate court must review the evidence in the light most favorable to the government, recognizing the jury’s right to determine the credibility of the witnesses and draw justifiable inferences from their testimony. See Franey v. United States, D.C.App.,
Under the District of Columbia first-degree murder statute, D.C.Code 1973, § 22-2401, the prosecution bears the burden of proving not only that a crime was committed intentionally but that it was done with premeditation and deliberation. See Harris v. United States, D.C.App.,
In this case, the evidence was sufficient to support the jury’s determination that Frendak acted with premeditation and deliberation, not on impulse. From the evidence introduced by the government in its case-in-chief, the jury could have found that Frendak brought the gun with her to the scene of the murder.
In addition, the evidence of Frendak’s behavior before the crime also supports the inference that she acted with premeditation, not impulsively. On a few occasions in the weeks before the murder, Frendak had followed Titlow as he left for work. On the day of the shooting, in particular, she trailed Titlow and his friend on their way to lunch and apparently waited in the lobby of the building where they worked until they returned from their meal. Furthermore, on the day before the murder, she advised her supervisor that she had to see her attorney that afternoon, but when Titlow failed to leave the office for his regular sales call that day, Frendak also remained in the office. On the following day, she again told
This evidence was sufficient to support the inference that Frendak acted with premeditation and deliberation rather than on impulse when she shot Titlow.
III. The Current Validity of the Whalem Rule
Evidence presented during the four competency hearings and at trial had suggested that Paula Frendak may have been insane at the time she shot Willard Titlow. Thus, after the jury had convicted Frendak of first-degree murder, the trial judge found himself squarely confronted with the question whether, apropos of Whalem, supra, he should raise an insanity defense over the opposition of a competent defendant. After conducting a thorough inquiry with the help of amicus,
The parties do not assert that the trial court abused its discretion in applying the Whalem rule. They argue, rather, that Whalem has been substantially undermined by the Supreme Court’s decisions in Faretta and Alford, and that the rule accordingly must be reconstructed. We therefore begin our analysis by considering Whalem and succeeding cases.
A. Whalem and Later Cases
In Whalem, the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held that
when there is sufficient question as to a defendant’s mental responsibility at the time of the crime, that issue must become part of the case. . . . [I]n the pursuit of justice, a trial judge must have the discretion to impose an unwanted defense on a defendant . . . [Id.120 U.S.App.D.C. at 337-38 ,346 F.2d at 818-19 .] [11 ]
The court declined to establish specific standards to guide trial judges in exercising their discretion.
Although the circuit court has reaffirmed Whalem on several occasions,
The circuit court’s deemphasis of the defendant’s choice is generally consistent with the stated aim of the Whalem rule. In explaining its rationale, the court declared that the trial judge has a responsibility to prevent the conviction of one who was insane at the time of committing an offense, because such an individual lacks criminal responsibility and, accordingly, must not be punished.
All the parties to this appeal assert, nonetheless, that the Whalem rule does not accord sufficient respect to the intelligent choice of a competent defendant. They argue that the rule leaves the trial judge too much discretion to force an unwanted insanity defense on a competent defendant if the evidence supporting such a defense is sufficiently compelling. Such a result, they maintain, is inconsistent with the Supreme Court’s recent decisions in Faretta, supra, and Alford, supra, which emphasize that defendants must have the right to make decisions central to their defense, since they must bear the consequences of these decisions. We turn, therefore, to these Supreme Court cases, in order to assess their impact on Whalem.
B. The Impact of North Carolina v. Alford and Faretta v. California on the Whalem Rule
In Alford, supra, the Supreme Court held that it was not unconstitutional for a trial judge to accept a guilty plea from a defendant who protested his innocence.
The prohibitions against involuntary or unintelligent pleas should not be relaxed, but neither should an exercise in arid logic render those constitutional guarantees counterproductive and put in jeopardy the very human values they were meant to preserve. [Id.400 U.S. at 39 ,91 S.Ct. at 168 .]
A few years later in Faretta, supra, the Court expressed a similar concern for the right of a defendant to control the defense; it recognized that the Sixth Amendment guarantees “the right to self-representation — to make one’s own defense personally.” Id.
Alford and Faretta both stress the importance of permitting a defendant to make decisions central to the defense — a concern given little if any significance in Whalem. Neither case, however, renders the Whalem rule unconstitutional. In Alford, the Court expressly stated that a defendant does not have an absolute, constitutional right to have the trial court accept a guilty plea. Alford, supra
Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal System.
Nevertheless, the underlying philosophy of Alford and Faretta is inconsistent with Whalem as currently interpreted. Whalem and succeeding cases have laid substantially more emphasis on the strength of the evidence supporting an insanity defense than on the defendant’s choice. In contrast, Alford and Faretta reason that respect for a defendant’s freedom as a person mandates that he or she be permitted to make fundamental decisions about the course of the proceedings.
We find the rationale underlying Faretta and Alford compelling support for appellant’s position in this case, since there are persuasive reasons why defendants convicted of an offense may choose to accept the jury’s verdict rather than raise a potentially successful insanity defense. First, a defendant may fear that an insanity acquittal will result in the institution of commitment proceedings which lead to confinement in a mental institution for a period longer than the potential jail sentence. E. g., Robertson, supra,
Second, the defendant may object to the quality of treatment or the type of confinement to which he or she may be subject in an institution for the mentally ill. If in need of psychiatric care, the individual may prefer the prospect of receiving whatever treatment is available in the prison. There are, moreover, “numerous restrictions and routines in a mental hospital which differ significantly from those in a prison.” Matthews v. Hardy,
hospitalization itself interferes with privacy, since the patient cannot shield himself from constant observation by both his fellow patients and the staff of the institution. Furthermore, patients in hospitals risk brutality at the hands of their fellow residents and even their attendants, and may be subject to life in an institution which is overcrowded, inadequately staffed, poorly maintained, and unsanitary. [Developments in the Law— Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1195-97 (1974) (footnotes omitted); see Parham v. J. R., - U.S. -, -,99 S.Ct. 2493 , 2516,61 L.Ed.2d 101 (1979) (Brennan, J., dissenting in relevant part).]
Third, a defendant, with good reason, may choose to avoid the stigma of insanity. In the District of Columbia, a jury may consider an insanity defense only after it has found the accused guilty of an offense beyond a reasonable doubt. Bethea v. United States, D.C.App.,
Fourth, other collateral consequences of an insanity acquittal can also follow the defendant throughout life. See generally
In re Ballay,
Finally, a defendant also may oppose the imposition of an insanity defense because he or she views the crime as a political or religious protest which a finding of insanity would denigrate. See Robertson, supra,
In our view, these reasons substantially outweigh the express purpose of Whalem : to ensure that some abstract concept of justice is satisfied by protecting one who may be morally blameless from a conviction and punishment which he or she might choose to accept. Because the defendant must bear the ultimate consequences of any decision, we conclude that if a defendant has acted intelligently and voluntarily, a trial court must defer to his or her decision to waive the insanity defense.
It follows, however, that the underlying protective rationale of Whalem is sufficiently compelling that the trial court still must have the discretion to raise an insanity defense, sua sponte, when a defendant does not have the capacity to reject the defense. We acknowledge that a defendant who chooses to forego an insanity defense relinquishes important safeguards intended to protect persons who are not legally responsible for their acts from punishment and culpability in the eyes of society.
In summary, by our holding here we do not abolish the Whalem rule; rather, we
C. Procedures for Determining Whether a Trial Court May Raise an Insanity Defense Sua Sponte
It is the government’s position that a finding of competency to stand trial is, in itself, sufficient indication that the defendant is capable of intelligently waiving an insanity defense and that the court should not look further when deciding whether to raise the defense sua sponte. We disagree. Such a finding indicates only that a defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States,
For this reason, we hold that whenever the evidence suggests a substantial question of the defendant’s sanity at the time of the crime, the trial judge must conduct an inquiry designed to assure that the defendant has been fully informed of the alternatives available, comprehends the consequences of failing to assert the defense, and freely chooses to raise or waive the defense. The scope of the inquiry for this determination will vary according to the circumstances present in each case, especially in relation to the background and condition of the defendant. See Johnson v. Zerbst,
In some instances, nonetheless, it may be sufficient for a trial judge to advise the defendant of the possible consequences of the insanity plea, become assured that the defendant understands those consequences by questioning the defendant about his or her reasons for rejecting the defense, and make a decision on the basis of the reasons given, the manner in which they are expressed, and any evidence of the defendant’s mental capacity already in the record. In other cases, the judge still may have doubts after such an inquiry and may desire additional information. In those situations the judge may order psychiatric examinations to determine whether the defendant’s mental condition has impaired his or her ability to decide whether to raise the defense.
If the judge finds that the defendant is capable of making a voluntary and intelligent decision to forego an insanity defense, the judge must respect the defendant’s decision and permit the jury’s verdict to stand. See People v. Redmond, supra,
In this case, Judge Ugast conducted a thorough inquiry into Paula Frendak’s condition at the time of the crime and considered her present opposition to the defense. He did not however, make a specific finding with regard to whether Frendak had made an intelligent and voluntary decision on whether to raise the defense. He stated, in fact, that he “would be less than candid if he did not also point out that the Court would have reservations about her ability to appreciate all facets of such a decision on her own mental health. . .” This statement suggests that the court had doubts about whether Frendak was making an intelligent and voluntary decision. Accordingly, we must remand the case for further proceedings.
Because the trial court has already conducted an extensive inquiry into the question of appellant’s sanity, the court, on remand, may decide that it already has sufficient evidence to make a determination. If so, no further inquiry is necessary. See Sieling, supra at 215. Recognizing the inherent difficulties of making a retrospective determination of the validity of a waiver made years before, however, we leave to the trial court the option of conducting a new hearing to decide whether Frendak would still choose to refuse an insanity defense, and whether she would now voluntarily and intelligently waive that defense. Pate v. Robinson,
If the court finds that Frendak did not intelligently and voluntarily reject an insanity defense (or, if necessary, finds that Frendak is not so rejecting it after remand) —and the court thus decides that interposing the defense is an appropriate exercise of its discretion — the insanity acquittal will be valid.
So ordered.
Notes
. Judge Penn first found Frendak incompetent to stand trial on October 23, 1974, then competent on April 4, 1975. Because of the length of time that had elapsed since the previous competency hearing, and in view of the fact that the judge and the attorneys who had appeared at that hearing were no longer involved in the case, Judge Ugast conducted a third hearing and found Frendak incompetent on July 1, 1975. Finally, after a fourth hearing, he concluded that she was competent on December 23, 1975.
. Dr. Kirby described Frendak’s illness as a “schizophrenic reaction, paranoid type,” while Dr. Yochelson stated that she suffered from “paranoid psychosis, probably schizophrenic.”
. Dr. Pepper explained that the main reason appellant had given for refusing to raise the defense was that it would be an admission of guilt.
. In the District of Columbia, a bifurcated proceeding may be conducted when a defendant raises an insanity defense; accordingly, the trier of fact does not consider the issue of insanity until the government has established the essential elements of the offense beyond a reasonable doubt. Only then, in the second phase, may the trier of fact reach the question of insanity. See In re C. W. M., D.C.App.,
. When a defendant raises an insanity defense and is acquitted on that ground, the individual is automatically “committed to a hospital for the mentally ül” for up to 50 days, within which period he or she is entitled to a release hearing at which “the person confined shall have the burden of proof’ that sanity has been restored. D.C.Code 1973, § 24-301(d). The automatic commitment provisions of § 301(d) do not apply when the trial court raises an insanity defense over the defendant’s objection. United States v. Wright,
. With the consent of all parties, the court stayed its order pending appeal; Frendak therefore remains in the Women’s Detention Center.
. In Franey v. United States, D.C.App.,
. The government’s evidence demonstrated that appellant purchased the gun a few months prior to Titlow’s murder; on the day after the murder, the police discovered in appellant’s apartment an empty gun box with the serial number of the gun later identified as the murder weapon printed on the box; and, although appellant never returned home after the murder, she had the murder weapon with her when she was arrested in Abu Dhabi.
. Appellant relies on Austin, supra, and Hemp-hill, supra. This case, however, is distinguishable from Austin and Hemphill, where the victims were killed with multiple blows, suggesting that the murders were done in the heat of passion. In contrast, in this case the deceased was shot only twice. In addition, the evidence indicates that Frendak followed the deceased for several days before the killing and made a prearranged excuse to leave the office. These facts are far more indicative of a planned shooting than an impulsive one.
. The trial court conducted the type of eviden-tiary hearing-on insanity mandated by the circuit court in United States v. Robertson,
. Whalem was in part based upon the circuit court’s decision in Overholser v. Lynch,
. In a footnote, the court stated:
No rigid standard exists to control the District Court in deciding whether it should require the insanity issue to be submitted. As a matter within the sound discretion of the*373 District Court, this question must be resolved on a case by case basis. [Whalem, supra120 U.S.App.D.C. at 338 n.10,346 F.2d at 819 n.10.]
. It appears that only a few courts in other jurisdictions have considered this issue. While most of these courts have accorded trial judges the discretion to impose an insanity defense on the accused, they generally have not explained the rationale behind the decision, and, by and large, their decisions are not very helpful. See State v. Fernald,
But see People v. Gauze,
. The court has consistently upheld the discretion of trial judges, both when they decided to raise the defense and when they did not. Compare United States v. Wright,
. On remand, the District Court in Robertson summarized several factors relevant to a judge’s decision to raise the defense: (1) the quality of the evidence supporting the defense, (2) the defendant’s wishes, (3) the quality of the defendant’s decision not to raise the defense, (4) the reasonableness of the defendant’s motives for opposing the defense, and (5) the court’s personal observation throughout the proceedings against the defendant. See Robertson,
. The court stated:
One of the major foundations for the structure of the criminal law is the concept of responsibility, ... If [a defendant] does not know what he is doing or cannot control his conduct or his acts are the product of a mental disease or defect, he is morally blameless and not criminally responsible. . . . In other words, the legal definition of insanity in a criminal case is a codification of the moral judgment of society as respects a man’s criminal responsibility; and if a man is insane in the eyes of the law, he is blameless in the eyes of society and is not subject to punishment in the criminal court's.
In the courtroom confrontations between the individual and society the trial judge must uphold this structural foundation by refusing to allow the conviction of an obviously mentally irresponsible defendant, and when there is sufficient question as to a defendant’s mental responsibility at the time of the crime, that issue must become part of the case. [Whalem, supra120 U.S.App.D.C. at 337 ,346 F.2d at 818 (footnote omitted). See generally ABA Standards, The Function of the Trial Judge § 1.1(a) (1972).]
.In Lynch, supra, the circuit court advanced another rationale for a Whalem -type rule. It explained that society has an interest in ensuring that one who was criminally insane receives rehabilitation. See Lynch, supra
. The Court expressed a similar concern for the rights of the defendant in Estelle v. Williams,
. Lower courts have been careful to construe Faretta to grant nothing more than a right to self-representation. See United States v. Wilhelm,
. The District of Columbia, however, provides unqualified protection for the civil rights of those adjudicated insane, even those persons who are currently institutionalized. D.C.Code 1973, § 21-564(a).
. We recognize that a defendant who chooses not to raise an insanity defense, although mentally ill and in need of treatment, can be transferred because of present mental illness to a mental institution after trial and before sentencing, D.C.Code 1973, § 24-301(a), or while in prison, D.C.Code 1973, § 24-302. In either situation, he or she would very likely suffer many if not all the deprivations and social approbation which follow an insanity acquittal. A defendant with a potential insanity defense must be made aware of these possibilities before the court accepts his or her decision. Nevertheless, because an individual who was mentally ill at the time of the crime may no longer be insane, or may not be so disturbed that a transfer would be advisable, he or she must have the right to consider and, if capable, accept these risks.
.Ms. Frendak, for example, who maintained that the CIA framed her for Titlow’s murder as part of a plot, may feel that a finding of insanity would make a lie of the defense that she vigorously and sincerely asserted.
. As we noted earlier, the Supreme Court in Alford, supra, declined to hold that a judge was constitutionally required to accept an intelligent and voluntary guilty plea. It stated, however, that the states “by statute or otherwise” could confer on defendants a right to have their guilty plea accepted, or, in the alternative, could bar the courts from accepting the plea of one who maintains his or her innocence. Id.
. Although the right to raise an insanity defense is well accepted in this country, the Supreme Court has never held that a criminal defendant has a constitutional right to raise an insanity defense. See Powell v. Texas,
. The defendant in Faretta in choosing to proceed pro se was, of course, waiving his Sixth Amendment right to the assistance of counsel. An individual like Alford who pleads guilty waives several constitutional rights, including the right to trial by jury and to confront his or her accusers, as well as the privilege against self-incrimination. Boykin v. Alabama,
.The requirement that a defendant knowingly and intelligently waive a right or privilege has been applied in a number of contexts. See e. g., Boykin, supra (decision to plead guilty); Miranda v. Arizona,
. On April 10, 1978, appellant filed a motion for a hearing en banc in this case, suggesting that a favorable ruling here might require rejection of Whalem a decision binding on a division of this court. See M.A.P. v. Ryan, supra. This motion was subsequently denied by the order of the en banc court on July 6, 1978.
Our decision today does not reject Whalem. In fact, a decision of the United States District Court in the District of Columbia has adopted a similar view, finding it to be consistent with the Whalem rule. That court stated:
The Court’s decision to honor defendant’s opposition to imposition of an insanity defense is supported by the language and implication of the United States Supreme Court’s opinions in Faretta v. California,422 U.S. 806 ,95 S.Ct. 2525 ,45 L.Ed.2d 562 (1975) and North Carolina v. Alford,400 U.S. 25 ,91 S.Ct. 160 ,27 L.Ed.2d 162 (1970). Just as a defendant may elect to forgo representation by counsel and just as a defendant may enter a plea of guilty for reasons bother than his guilt, so too should a defendant who is competent and whose decision is made rationally and with an awareness of . its consequences be allowed to proceed to trial without introduction of an insanity defense, even though there may be evidence in the case which could support such a defense. What the opinion in the Whalem case protects against is the conviction of a defendant who is obviously mentally irresponsible and who should not be held criminally responsible for his acts. In the judgment of this Court, the facts in this case do not approach the type of situation which the Court of Appeals had in mind in Whalem. [Robertson,430 F.Supp. at 447 n.4.]
While not rejecting Whalem, we are aware that our holding here does reinterpret that rule. We do not believe, however, that M.A.P. v. Ryan, supra, obliges us to follow, inflexibly, a ruling whose philosophical basis has been substantially undermined by subsequent Supreme Court decisions. See generally Ralpho v. Bell,186 U.S.App.D.C. 368 , 390,569 F.2d 607 , 629 (1977) (panel cannot blindly follow prior ruling in the face of clearly controlling doctrine later enunciated by the Supreme Court); M.A.S., Inc. v. Van Curler Broadcasting Corp.,357 F.Supp. 686 , 691 (D.D.C.1973) (court need not follow prior ruling if the earlier decision failed to consider facts or law which, had they been dealt with, would have mandated a different result). All the parties here agree that reinterpretation of Whalem is in order; they differ only as to the proper formulation.
.The mental health of defendants with potentially successful insanity defenses may vary significantly. The insanity defense relates solely to an individual’s mental condition at the time of the crime. It indicates nothing about the person’s sanity at the time of a trial that may take place months or even years after the offense. Even if a defendant was mentally ill at the time of the crime, he or she could have regained sanity in the interim. In any event, even if the defendant is still mentally disturbed, it does not follow that he or she is incapable of making an intelligent choice regarding the defense. See generally In re Boyd,
. One factor which could impede a defendant’s ability to make an intelligent choice would be the inability of one who is currently mentally ill to recognize his or her present condition. Such refusals are a “common phenomenon” among the mentally ill. O’Connor v. Donaldson,
. Ordinarily in this situation, the trial judge will choose to raise the defense and appoint amicus curiae to present evidence bearing on the defense to the jury, as Judge Ugast did in this case. In some instances, when the most reasonable choice from the defendant’s standpoint is to refuse the defense — for example, if the defendant is facing conviction for a misdemeanor and a short sentence — the court may choose not to raise the defense.
. In accordance with our holding today, once a “sufficient question” of insanity confronts the court, it can decline to impose the defense on either of two grounds: (1) the defendant is presently capable of intelligently and voluntarily waiving the defense, or (2) there is insufficient evidence of insanity at the time of the offense to warrant submitting that issue to the jury. Accordingly, in conducting the inquiry, the court may choose to hold a hearing into the defendant’s mental health at either point in time, although judicial economy will often dictate a hearing on both issues.
. The automatic commitment provisions of D.C.Code 1973, § 24-301(d), do not apply if the judge, rather than the defendant, raises an insanity defense. In such a situation, it appears that a defendant could be committed only under the civil commitment procedures of D.C. Code 1973, § 21-542. See United States v. Wright, supra; note 5 supra.
Concurrence Opinion
concurring:
This case poses for the trial court quite a difficult question: What action should a trial judge take when confronted with evidence which raises a “sufficient question as to a defendant’s mental responsibility at the time of the crime,” yet the defendant, adjudged competent to stand trial, insists the defense of insanity should not be raised? On the one hand, Whalem v. United States,
This court, properly in my view, accommodates Whalem with Alford and Faretta by concluding that when there is evidence sufficient to support the defense of insanity yet the defendant objects to raising such defense
we require the judge to respect the choice of a defendant capable of voluntarily and intelligently making that choice. The court will now have the discretion to raise an insanity defense sua sponte only if the defendant is not capable of making, and has not made, an intelligent and voluntary decision. [At 379; (emphasis added.)]
It seems to me that our decision enables a trial judge to strike the proper balance between preventing guilt from being imposed upon a defendant not mentally responsible for his otherwise criminal act yet permitting the defendant, who is capable of choosing and who must bear the ultimate consequence of his choice, to decide finally whether to accept conviction and risk possible imprisonment or to avoid criminal responsibility and risk possible hospitalization.
Given the extraordinary importance to both the community and a defendant of his decision to waive the insanity defense, it seems correct to conclude, as we do in this opinion, that a defendant’s competency to undergo trial, standing alone, does not automatically mean that at trial he is also capable of “voluntarily and intelligently” waiving the defense of insanity. Rather, this court concludes, (At 380):
[T]he trial judge must conduct an inquiry designed to assure that the defendant has been fully informed of the alternatives available, comprehends the consequences of failing to assert the defense, and freely chooses to raise or waive the defense.
Here, the conscientious trial judge, with the assistance of amicus, assumed that since the defendant was competent to stand trial, it followed she was competent also to decide not to raise the defense of insanity. However, he expressed “reservations about her ability to appreciate all facets [of her decision not to defend on the basis of insanity] if a higher degree of competency [than competency to stand trial] is required with respect to the ability to make that decision.” Under these circumstances a remand is necessary so that the trial court can ascertain whether the defendant was capable of waiving the insanity defense. If so, the court must accept her decision and proceed to impose punishment; if not, proceedings appropriate after a verdict of not guilty by reason of insanity must take place.
Concurrence Opinion
concurring in the result:
I do not have the difficulty the majority opinion has with the United States Circuit Court’s decision in Whalem,
I will discuss first what genuine effect, if any, Alford and Faretta have had on the issue in this case. I will then look briefly at Whalem to determine whether it has the shortcomings the majority attributes to it, and then examine whether in the succeeding 15 years the United States District Court appears to have had any real difficulty applying it as it pertains to a defendant’s declination to plead insanity.
What apparently triggered the re-examination of Whalem in this case is the conten
One of the major foundations for the structure of the criminal law is the concept of responsibility, and the law is clear that one whose acts would otherwise be criminal has committed no crime at all if because of incapacity due to age or mental condition he is not responsible for those acts. If he does not know what he is doing or cannot control his conduct or his acts are the product of a mental disease or defect, he is morally blameless and not criminally responsible. The judgment of society and the law in this respect is tested in any given case by an inquiry into the sanity of the accused. In other words, the legal definition of insanity in a criminal case is a codification of the moral judgment of society as respects a man’s criminal responsibility; and if a man is insane in the eyes of the law, he is blameless in the eyes of society and is not subject to punishment in the criminal courts.
In the courtroom confrontations between the individual and society the trial judge must uphold this structural foundation by refusing to allow the conviction of an obviously mentally irresponsible defendant, and when there is sufficient question as to a defendant’s mental responsibility at the time of the crime, that issue must become part of the case. Just as the judge must insist that the corpus delicti be proved before a defendant who has confessed may be convicted, so too must the judge forestall the conviction of one who in the eyes of the law is not mentally responsible for his otherwise criminal acts. We believe then that, in the pursuit of justice, a trial judge must have the discretion to impose an unwanted defense on a defendant and the consequent additional burden of proof on the Government prosecutor. So, our query is whether in this case there was a combination of factors which required the trial judge to inject the insanity issue for, if such factors existed, his failure to do so is an abuse of discretion and constitutes error. [Id.120 U.S.App.D.C., at 337-38 ,346 F.2d at 819-20 ; emphasis added; footnotes omitted.]
We have previously rejected the contention that Faretta overrules Whalem in the matter of a sua sponte hearing. We said in Clyburn v. United States, D.C.App.,
Faretta does not hold that a court must recognize an incompetent or insane defendant’s right to represent himself. The right to conduct one’s own defense would indeed be hollow under such circumstances. Moreover, the right to counsel and the defense of insanity rest on different considerations; the former affords protection against the sovereign, while the latter, if successful, removes culpability in the absence of the requisite mental state.
I see no reason to disturb this conclusion, even if a division of this court might properly do so, as it seems to me to be not seriously in doubt. I might say the Supreme Court commented in Faretta that “the right of self-representation has been protected by statute since the beginnings of our Nation. . . . With few exceptions, each of the several States also accords a defendant the right to represent himself . . . .”
The majority complains that, among other things, Whalem does not show sufficient sensitivity to the desire of the defendant to
Later on, in United States v. Robertson,
[SJince it is a defendant’s rejection which triggers a Whalem inquiry, that rejection should not have been controlling. [Id.165 U.S.App.D.C. at 377 ,507 F.2d at 1160 ; emphasis in original.]
The court goes on to say that [the defendant’s] rejection and his reasons for it should have been weighed with evidence derived from a full presentation of testimony relevant to the issue of criminal responsibility. [Id.; emphasis added.]
That seems plain enough. True it is that Whalem expressly declined to lay down a rigid standard to bind the trial court in deciding whether to require the insanity issue to be submitted, and instead left the problem to the trial court to resolve — as a matter of discretion on a case to case basis. However, contrary to the majority opinion, I do not view that as manifesting insensitivity to the wishes of the defendant. Certainly it does not appear to have been construed insensitively by the United States District Court in this jurisdiction. On remand in United States v. Robertson,
(a) “the quality of the evidence supporting the insanity defense;”
(b) “the defendant’s wish in the matter;”
(c) “the quality of defendant's decision not to raise the defense;”
(d) “the reasonableness of defendant’s motives in opposing presentation of the defense;”
(e) “the Court’s personal observations of the defendant throughout the course of the proceedings against him.” [Id. at 446.]
It seems to me that Whalem has not caused any difficulty of implementation over the years in the District Court in this jurisdiction. That court seems to have gone about its business in doing so, as has the Circuit Court of Appeals. As the majority opinion points out, in cases posing the problem sometimes the trial judges have decided to raise sua sponte the insanity defense and sometimes they have not. The Circuit Court has almost always affirmed.
. Whalem v. United States,
. See note 14 in the majority opinion, supra.