Vernon Cooper v. United States of America, Joseph Kennedy v. United States
337 F.2d 538
D.C. Cir.
1964
Check Treatment

Vernon COOPER, Appellant, v. UNITED STATES of America, Appellee. Joseph KENNEDY, Appellant, v. UNITED STATES of America, Appellee.

Nos. 17669, 17670.

United States Court of Appeals District of Columbia Circuit.

Argued March 17, 1964. Decided April 9, 1964.

Petition for Rehearing en Banc Denied Oct. 1, 1964.

337 F.2d 538

48 for the fractional branch of the industry; $1.73 for the nonfractional branch of the industry), defendant will direct that the challengеd minimum wage determination remain in full force and effect. If this supplementary evidence shows that the minimum wage rates now prevailing are lоwer for either branch of the industry than the challenged minimum wage determination for that branch, defendant will revoke the outstanding minimum wage determination for that branch, and publish a new minimum wage determination at the minimum wage rates found to be now prevailing for that branch of the industry.

“(f) Plaintiffs will be affоrded an opportunity to apply to defendant for reconsideration of this supplementary written order. In light of such representatiоns as plaintiffs may make, defendant will enter such further written order in the matter as in his judgment appears just and proper.

*

*

*

*

*

*

[Second Proposal]

“8. Alternatively, defendant has determined that, if the proposal for supplemental proceedings outlined in paragraph 7, above, is not acceptаble to the Court of Appeals, defendant desires to be authorized, while the Court of Appeals retains jurisdiction over the cause to dispose of the appeal with finality, to conduct an entirely new survey, under a new pledge of confidentiality, substantially in the same mannеr as is set forth in paragraph 7. This would include a new formal hearing. Defendant estimates that accomplishment of the proposal set forth in paragraph 7 would require approximately three to four months. Accomplishment of an entirely new survey, hearing, etc., as altеrnatively proposed, would require approximately nine months.”

Mr. Martin J. Gaynes, Washington, D. C., with whom Mr. Leonard H. Marks, Washington, ‍​​‌‌​‌‌​‌​‌​‌​​​​​​​‌‌​​​​​​​​​‌​​​‌‌‌​​‌‌​​‌​‌​‍D. C. (both appointed by this court), was on the brief, for appellant in No. 17,669.

Mr. William J. Garber, Washington, D. C., for appellant in No. 17,670. Mr. Monroe H. Freedman, Washington, D. C. (appointed by this court), also entered an appearance for appellant in No. 17,670.

Mr. David Epstein, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Alfred Hantman, Asst. U. S. Attys., were on the brief, for appellee. Mr. Barry I. Fredericks, Asst. U. S. Atty., also entered an appearance for appellee.

Before BASTIAN, BURGER and WRIGHT, Circuit Judges.

PER CURIAM.

JUDGMENT

These cases came on to be heard on the record on appeals from the United States District Court for the District of Columbia, and were argued by counsel.

ON CONSIDERATION WHEREOF, It is ordered and adjudged by this court that the judgments of the District Court appealed from in these cases are hereby affirmed.

WRIGHT, Circuit Judge (concurring).

Vernon Cooper and Joseph Kennedy appeal from convictions on three counts of robbery. 22 D.C. Code § 2901. Appellant Kennedy‘s primary contention concerns the sufficiency of the evidence to support the convictions, particularly the adequacy of the identification. In view of the trial ‍​​‌‌​‌‌​‌​‌​‌​​​​​​​‌‌​​​​​​​​​‌​​​‌‌‌​​‌‌​​‌​‌​‍cоurt‘s remarks concerning the sufficiency of the proof as to Kennedy, I have studied the record with special care. I agree with this cоurt that no reversible error is disclosed.

Appellant Cooper raises a number of points, but I think that in his case, too, the record does not provide basis for reversal. I agree with Cooper that, in a proper case, the District Court should appoint independent experts, at Government expense, to assist an indigent defendant and to provide expert psychiatric testimony. An indigent defendant cannot be offered Government doctors as experts on a take-it-or-leave-it basis, particularly where those doctors have already indicated their testimony would be adverse to his interests.1 Where the Government doctors at St. Elizabeths, for example, have reported that, if called, their testimony would favor the Government, the trial court may look elsewhere for psychiatric assistance for the indigent defendant.

Under Rule 28, F.R.Cr.P., the court has the power to appoint independent experts to assist the defendant. And, of course, such experts are subject to subpoena under Rule 17(b), F.R.Cr.P. Moreover, Congress has provided in the District of Columbia a Commission on Mental Health,2 staffed with experts, subject to call by the court. Congress has also provided in the District of Columbia a Legal Psychiatric Service3 to be used as needed by the District Court in its discretion. These avenues of help are open to, and must be considered by, the District Court in determining whether or not ‍​​‌‌​‌‌​‌​‌​‌​​​​​​​‌‌​​​​​​​​​‌​​​‌‌‌​​‌‌​​‌​‌​‍psychiatric assistanсe and expert testimony, other than that afforded by the Government doctors at St. Elizabeths, should be made available to assist the indigent defendant.

This does not mean, of course, that the power in the District Court to make outside psychiatric assistance available to the indigent defendant should be exercised in every case when a mere request therefor is made. Ordinarily, the trial court will accept the representations of counsel as to the evidentiary basis for the motion. See

. If such representations are deemed insufficient, medicаl reports or sworn testimony, expert or lay, may be offered, by affidavit or otherwise, to provide a basis on which the District Court can exеrcise its discretion. Again, a Rule 17(b) subpoena may be available for this purpose. Here no such offer was made, nor was any attempt tо raise the question of insanity made at trial.

Under 24 D.C. Code § 301, it is the duty of the District Court to make a specific judicial determination of competence to stand trial, rather than accept psychiatric advice as determinative on this issue.4 See

. In the record here, as Cooper contends, there is no specific determination of competency. The court did not in terms hold that Cooper was competent. But its ruling to this еffect is clear from its actions. In any event, no timely objection was made. Any possible doubt as to the court‘s ruling ‍​​‌‌​‌‌​‌​‌​‌​​​​​​​‌‌​​​​​​​​​‌​​​‌‌‌​​‌‌​​‌​‌​‍could have been dispеlled by an appropriate motion.

Counsel for Kennedy improperly made statements which could be taken to imply Cooper‘s guilt. Compare

. But again no timely objection was made, perhaps because the statements were merely passing comment which implied guilt only indirectly. There is no occasion, therefore, to invoke the plain error rule. Rule 52(b), F.R.Cr.P.

On cross-examination, the prosecutor attеmpted to impeach a defense witness by questioning him concerning prior convictions. In so doing, the prosecutor asked the witness about offenses for which he had been arrested but not convicted, pleas having been entered to lesser offenses. This was improper аnd should be avoided. In the circumstances of this case, however, where the witness is not the defendant, I cannot say that it constitutes reversible error.

Notes

2
21 D.C. Code § 308.
3
24 D.C. Code § 106.
4
Judicial questioning of the accused and his trial counsel may be of special use in revealing whether the defendant is able to assist in the defense of his case.