Richard L. VICKS, Appellant, v. UNITED STATES, Appellee.
No. 6905.
District of Columbia Court of Appeals.
Oct. 2, 1973.
As Amended Oct. 11, 1973.
247
In the instant case, the trial court should reconsider whether adequate study was given to appellant‘s mental condition in light of the record, which reveals the doctor interviewed appellant for a total of 90 minutes and failed to examine his prior psychiatric records.
Although other courts have set forth definitions of what is “necessary to an adequate defense,” see United States v. Chavis, 476 F.2d 1137, 1143 (D.C.Cir. 1973); United States v. Theriault, supra at 717 (concurring opinion); United States v. Schultz, supra at 911, we feel the standards to govern the determination “are not susceptible of arbitrary articulation but can best be developed on a case by case basis.”4 United States v. Theriault, supra at 715. If the trial court finds after an ex parte hearing that appellant is entitled under the statute to the assistance of a private psychiatrist, one shall be appointed. Thereafter, if defense counsel, after review of the psychiatrist‘s report, represents to the court that he will interpose an insanity defense, a new trial must be granted. If, however, a contrary determination is reached, the conviction shall stand.
Remanded for further proceedings.
William A. White, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Douglass J. McCollum, Asst. U. S. Attys., were on the brief, for appellee.
Before FICKLING, NEBEKER and PAIR, Associate Judges.
PAIR, Associate Judge:
Arrested and charged with possession of desoxyn in violation of
At the hearing on the motion to suppress there was testimony by Officer Kennedy of the Third District Vice Unit in substance as follows. In the early afternoon of August 14, 1972, Officer Kennedy and another officer were proceeding in an unmarked police car in an easterly direction in the 1200 block of T Street, N. W. The officers observed appellant1 and several other men, one of whom handed appellant some money. The police vehicle was immediately stopped and the officers got out, whereupon appellant—observing the officers—began to walk away. Officer Kennedy then stopped appellant, identified himself as a police officer and asked appellant if he had any money. At this point a lady came up to appellant and he attempted to hand her “a package of cigarettes in a white handkerchief.” According to the officer‘s testimony the following then transpired:
We asked Mr. Vicks what was in it, and he stated, he didn‘t know, he had just found it. We asked him again, and he was still trying to give it to the female. Again, he said he didn‘t know, when we asked him. At this time the female had it. At this time we asked the female to hand us the item, and she asked him
After the officer‘s testimony the following colloquy ensued:
THE COURT: If it was not a search how are you going to suppress that? All they did was take something right out there in plain view.
MR. HOWELL: It was in a handkerchief, Your Honor.
THE COURT: Didn‘t they ask the girl, and she gave it to them?
MR. HOWELL: They asked the girl, but if you mean it was consent, it was not. Clearly, they were police officers.
THE COURT: You tell me what I mean—
MR. HOWELL: All I am saying is that it seems clear to me that these persons weren‘t voluntarily giving a handkerchief to someone. They had been told by police officers to give them the handkerchief. It seems to me they must establish this fact, relying on the voluntary surrender. They must prove it was voluntary. I would hope, under the circumstances, it wasn‘t voluntary.
THE COURT: I don‘t have any problem with the case at all.
It is right on its face, and I am going to deny your motion because there was no search here. They got actually, they got it certainly at the time—under the circumstances in which she handed it over—or, rather, he handed it over—that suggested right then to make a seizure of it—very suspicious circumstances—very. And they really never searched his person, but they took it from his vicinity. It doesn‘t present any problem at all. Denied. I deny your motion. [Emphasis in original.]
MR. HOWELL: Is Your Honor finding, as a matter of fact, that it was or was not in his possession?
THE COURT: Well—it was in the vicinity. It was in the vicinity—but there was never a search of his person in this case. There was never a search in this case. All we had was a seizure. And, under the circumstances of the type of [1] area in which it occurred and the [2] passing of money, which is somewhat indicative of a transaction and the [3] walking away from the police officers—and when they stopped them—and [4] his actions with that girl—it gave them all the right in the world to be suspicious of what was going on, and to examine what was in the girl‘s hands.
I so rule. Denied. [Emphasis added.]
As authority for its ruling the trial court relied upon this court‘s decision in Peterkin v. United States, D.C.App., 281 A.2d 567 (1971). Peterkin, like the appellant in the case at bar, was arrested in a high narcotics area and charged with possession of desoxyn. The distinguishing facts are, however, that Peterkin was observed to give something out of a vial in exchange for cash, and when he saw the officers he “stepped back.” Later as Peterkin was attempting to comply with the officer‘s request for identification, the vial came into plain view. The officers then seized the vial and placed Peterkin under arrest. We recognized that the case presented a borderline situation but held that the two-way exchange tipped the scale from innocent activity to illicit bargaining. Here, of course, there was no “two-way exchange” and no “plain view” of the desoxyn. Thus, there existed no probable cause to arrest appellant and seize the handkerchief.
In our view, the sole ground upon which the denial of the motion to suppress could be upheld is that the evi-
So Ordered.
NEBEKER, Associate Judge (concurring):
While I believe the able trial court judge properly held there was a reasonable basis for seizing the handkerchief and its contents for examination, I concur that we should not finally dispose of this case without a determination whether, under the circumstances, and in any event, the evidence was voluntarily surrendered. Patently guilty people are often insulated from prosecution by suppression of evidence through a process of microscopic analysis and comparison of facts in one case as compared with those of decided cases. Such a technical and finite approach to criminal law enforcement, aside from producing so many opinions that support can be found for any ruling, tends to stray from the basic thesis of the Fourth Amendment decisions—reasonableness. If admissibility of evidence can be sustained on any reasonably available basis, courts in my view, should do so.