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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 04-CF-299 & 05-CO-1328
ERIC R. WALLACE , APPELLANT ,
v.
UNITED STATES , APPELLEE .
Appeals from the Superior Court of the
District of Columbia
(F-7221-02)
(Hon. Patricia A. Broderick, Trial Judge)
(Argued December 20, 2006
Decided September 13, 2007)
J. Alex Ward, with whom David A. Handzo appeared on the brief, for appellant.
Robert E. Leidenheimer, Jr., Assistant United States Attorney, with whom Kenneth L.
Wainstein, United States Attorney at the time the brief was filed, and Roy W. McLeese III, David
B. Goodhand, Michael T. Ambrosino, and James S. Sweeney, Assistant United States Attorneys,
appeared on the brief, for the appellee.
Before FARRELL , RUIZ and THOMPSON , Associate Judges.
THOMPSON , Associate Judge: After accepting a guilty plea from appellant Eric R.
Wallace, the trial court found Wallace guilty of second-degree murder and sentenced him to
thirty-five years in prison, to be followed by five years of supervised release. Wallace contends
that the court erred in finding that he was competent to stand trial and to enter a guilty plea, and
that the trial judge abused her discretion in denying his motion to withdraw his guilty plea. He
argues in the alternative that his sentence must be vacated because it was based on
2
uncorroborated and unreliable information.
We agree with the trial judge that this is a difficult case. However, finding no clear error
or abuse of discretion in the court’s rulings, we affirm Wallace’s conviction and deny the
requested relief.
Background
During early 2002, doctors at St. Elizabeths Hospital found appellant incompetent to
stand trial in three misdemeanor assault cases that were then pending. The government thereafter
petitioned to have appellant civilly committed. Appellant opposed the government’s request that
he be held at St. Elizabeths pending resolution of the commitment petition, and he was released
on October 10, 2002. Later that same day, appellant encountered Claude McCants at 1108 4th
Street, N.E., stabbed McCants in the neck, and drove away in McCants’ vehicle, leaving
McCants to bleed to death.
Relying on a court-ordered competency screening completed in November 2002, the
court found appellant competent to stand trial for the murder of McCants. The court also ordered
a criminal responsibility study, the results of which were summarized in a June 2003 report that
concluded that “on or about October 10, 2002, . . . [appellant] was not suffering from a mental
disease or defect that substantially impaired his ability to appreciate the wrongfulness of his
3
conduct or his ability to conform his conduct to the requirements of the law.” Notwithstanding,
on August 12, 2003, appellant filed a motion asking the court to find him incompetent to stand
trial and a notice of intent to rely on the insanity defense. In response, the court ordered the
Legal Services Division of the Forensic Services Administration1 to render an opinion as to the
“present mental competency of [appellant] to stand trial.”
Dr. Oliver performed the competency examination. In a letter dated September 29, 2003,
he reported that although appellant “claimed to have no knowledge whatsoever of the judicial
process and the roles of various court officials,” his “presentation today appeared to be
completely volitional.” Dr. Oliver concluded that appellant was malingering.2 After receiving
his report, the court scheduled a competency hearing, which was conducted over a five-day
period between October 28 and November 4, 2003. Having heard the testimony of five expert
witnesses and reviewed numerous written reports about appellant’s mental status, the court ruled
on November 10, 2003 that appellant was competent to stand trial.
When the parties were before the court again on January 5, 2004 -- the date set for
1
As explained by Dr. Lawrence Oliver, a clinical psychologist employed by the Legal
Services Division, the Division is “an agency that was established by an order of Congress to assist
the court in issues of competency [and] criminal responsibility.”
2
Malingering is “the willful, deliberate, and fraudulent feigning or exaggeration of the
symptoms of illness or injury, done for the purpose of a consciously desired end.” DORLAND ’S
ILLUSTRATED MEDICAL DICTIONARY 771-72 (26th ed. 1981). The desired end can be “avoiding
military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or
obtaining drugs.” DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 739 (4th ed.
2000).
4
commencement of trial -- defense counsel informed the court that appellant “indicated again last
night that he would like to accept the Government’s plea offer.” After a colloquy that resulted
in the court’s finding that appellant “understands the proceedings and is competent to proceed,”
the court accepted appellant’s unconditional plea of guilty to one count of Second Degree
Murder While Armed. At a Frendak3 hearing on January 15, 2004, the court also found that
appellant “understands the consequences of the choice to waive the [insanity] defense” and that
his “waiver is voluntary and intelligent.” The court sentenced appellant on February 27, 2004,
and appellant filed his notice of appeal on March 26, 2004. On August 19, 2004, he also moved
to withdraw his guilty plea, and his appeal was stayed pending resolution of that motion. By
order dated October 27, 2005, the trial court denied the motion to withdraw and appellant noted
an appeal from the denial order. We consolidated the two appeals.
Analysis
I.
The government urges that we must dismiss appellant’s direct appeal. We agree that our
case law requires this result. We have said that “as a practical matter virtually every possible
avenue of appeal is waived by a guilty plea,” Bettis v. United States, 325 A.2d 190, 194 (D.C.
1974), and that “the only issues that are appropriately raised in an appeal from a conviction
3
See Frendak v. United States, 408 A.2d 364 (D.C. 1979). Through a Frendak inquiry, the
trial court must assure itself that the defendant understands the consequences of failing to assert the
insanity defense, is fully informed of the alternatives available, and freely chooses to waive the
insanity defense. See id. at 380.
5
entered after a guilty plea are the exercise of jurisdiction by the trial court and the legality of the
sentence imposed.” Carmichael v. United States, 479 A.2d 325, 326 n.1 (D.C. 1984) (citing
Lorimer v. United States, 425 A.2d 1306, 1308 (D.C. 1981) (per curiam)). We have recognized
that “a defendant who is sentenced after pleading guilty may later attack the voluntary and
intelligent character of the plea,” McClurkin v. United States, 472 A.2d 1348, 1352 (D.C. 1984),
but have held that “the appropriate method for challenging the voluntary and intelligent character
of a guilty plea is by a Rule 32 (e) motion to withdraw.”4 Lorimer, 425 A.2d at 1309.5
As appellant points out, some jurisdictions have determined to “treat appeals of
4
Super. Ct. Crim. R. 32 (e) provides that:
A motion to withdraw a plea of guilty or of nolo contendere may
be made only before sentence is imposed or imposition of sentence
is suspended; but to correct manifest injustice, the Court after
sentence may set aside the judgment of conviction and permit the
defendant to withdraw the plea.
Id.
5
Appellant argues that the preclusion of his direct appeal amounts to a holding that he
waived the issue of competence, a result that he contends conflicts with the Supreme Court’s
admonition, in Pate v. Robinson, 383 U.S. 375 (1966), that “it is contradictory to argue that a
defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court
determine his [competence].” Id. at 384. In Pate, however, the Supreme Court was concerned with
“the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted
while incompetent to stand trial,” a deprivation of due process. In re W.A.F., 573 A.2d 1264, 1266
(D.C. 1990). In other words, Pate established that a defendant is entitled to procedural due process
to determine whether he is competent. Here, appellant does not assert that procedural protections
were lacking; we think he could not legitimately do so, as the court ordered two competency
assessments and conducted an extended competency hearing, at which the trial judge repeatedly gave
counsel latitude to pursue questioning and took pains not to “squeeze anybody out.” Appellant’s
challenge is rather to the outcome of the competency determination. Nothing in Pate compels a
holding that a defendant who has received the benefit of such proceedings must be allowed to
challenge his competency again on direct appeal following a guilty plea.
6
competency determinations as an exception to the . . . rule” that “a voluntary guilty plea waives
all nonjurisdictional defects in the proceedings leading up to the plea.” State v. Cleary, 824 A.2d
509, 512 (Vt. 2003).6 This court, by contrast, has “refus[ed] to exercise our jurisdiction to hear
a challenge to a guilty plea” outside the context of an appeal from denial of a motion to withdraw
a guilty plea, Lorimer, 425 A.2d at 1309 n.6, with the objective of “reduc[ing] the great waste
of judicial resources required to process frivolous attacks on guilty plea convictions.” Id.
(internal quotation and citation omitted).7 Even were we free to depart from that practice in this
case, we would have no reason to do so, because, as noted, appellant did in fact move in the trial
court for leave to withdraw his plea, and we have before us his appeal from the trial court’s
6
Other courts have reasoned that because a defendant’s mental incompetence undercuts a
state’s authority to proceed to trial, a claim that the defendant was incompetent is a claimed
jurisdictional defect that is not waived by a guilty plea. See, e.g., People v. Parney, 253 N.W.2d 698,
699-700 (Mich. Ct. App. 1977) (“[D]efendant’s later guilty plea did not waive the alleged error
arising from the prior competency determination.”).
7
Appellant suggests that this court’s approach is inconsistent with Menna v. New York, 423
U.S. 61 (1975). Menna was indicted for and pled guilty to refusing to answer questions before a
grand jury after he had already been sentenced to a jail term for civil contempt for the same refusal
to testify. The Supreme Court reversed his conviction, reasoning that where “the claim is that the
State may not convict petitioner no matter how validly his factual guilt is established,” a “guilty plea
. . . does not bar the claim,” id. at 63, and admonishing that “[w]here the State is precluded by the
[double jeopardy clause of the] United States Constitution from haling a defendant into court on a
charge, federal law requires that a conviction on that charge be set aside even if the conviction was
entered pursuant to a counseled plea of guilty.” Id. at 62. However, Menna involved the very power
of the state to “hal[e] a defendant into court on a charge.” Menna, 423 U.S. at 62; see also
Blackledge v. Perry, 417 U.S. 21 (1974), a case where “the constitutional infirmity in the
proceedings lay in the State’s power to bring any indictment at all” and the “very initiation of
proceedings against [the defendant] . . . operated to deny him due process of law.” Id. at 30-31. By
contrast, when a defendant’s competency is in issue, the issue is not the government’s power to
indict but the defendant’s ability to assist in his defense at trial or to enter a knowing and voluntary
plea. Menna and Blackledge do not dictate that in this circumstance the defendant must be able to
bring a freestanding appeal of the competency determination as though he had never pled guilty.
7
decision denying that motion.
After the imposition of sentence, as in this case, a court will allow the withdrawal of a
guilty plea only “to correct manifest injustice . . . .” Super Ct. Crim. R. 32 (e).8 To meet this
burden, appellant must establish either that “there was a fatal defect in the Rule 11 [plea]
proceeding when the guilty plea was taken,” or that “justice demands withdrawal under the
circumstances of the case.” Pierce v. United States, 705 A.2d 1086, 1089 (D.C. 1997).9 We
review a trial court order denying a Rule 32 (e) motion to withdraw a guilty plea for abuse of
discretion. See Carmichael, 479 A.2d at 327. In light of the procedural history of this case, our
review here will largely entail application of a “clear error” standard, as we now explain.10
8
See Edwards v. United States, 766 A.2d 981, 988 n.10 (D.C. 2001) (noting that a postsentencing motion to withdraw a guilty plea is reviewed under the stringent “manifest injustice”
standard rather than under the more liberal “if for any reason the granting of the privilege seems fair
and just”standard applicable to a pre-sentencing motion to withdraw a plea); Binion v. United States,
658 A.2d 187, 191 (D.C. 1995) (same). We have held that “[i]f it appears that a defendant [who has
filed a Rule 32 (e) motion] . . . did not knowingly plead, then ‘manifest injustice’ warranting
withdrawal of the plea will generally be found.” Carmichael, 479 A.2d at 327. We have also
recognized that “[a] defendant’s mental competency,” one of the issues that appellant raises here,
is “closely related to his ability knowingly to enter a plea.” Id.
9
Elsewhere we have said that both prongs of this test must be met: “In order to withdraw
a plea, the movant must not only demonstrate that the plea was manifestly unjust, but must also show
that ‘the plea proceeding was fundamentally flawed such that there was a complete miscarriage of
justice.’” Edwards, 766 A.2d at 987 (emphasis added) (quoting Williams v. United States, 656 A.2d
288, 293 (D.C. 1995). We need not resolve which articulation is the more accurate statement of the
law because, as explained infra, we conclude (with some difficulty) that appellant has not met either
prong of the test.
10
See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (noting that a court
“would necessarily abuse its discretion if it based its ruling on . . . a clearly erroneous assessment
of the evidence”).
8
Appellant first attempts to meet the burden of establishing that “justice demands
withdrawal” of his guilty plea by showing that he was mentally incompetent at the time of the
plea. See Willis v. United States, 468 A.2d 1320, 1323 (D.C. 1983) (“Having failed to show that
he was mentally incompetent, [appellant] has also failed to meet his burden of proving manifest
injustice.”). He attempts to make that showing by challenging the validity of the trial court’s
determination that he was competent to stand trial. See Godinez v. Moran, 509 U.S. 389, 400-01
(1993) (holding that the competency required to plead guilty is the same as the competency
required for standing trial). Accordingly, we are compelled to consider whether the trial court’s
November 10, 2003 competency determination is “supported by the record,” Bennett v. United
States, 400 A.2d 322, 325 (D.C. 1979), or whether the trial court clearly erred when it
determined on November 10, 2003 that appellant was competent to stand trial11 (or when it relied
on that conclusion in accepting Wallace’s guilty plea on January 5, 2004, without any further
hearing on competency).
Appellant next argues that the Rule 11 plea proceeding was defective because, regardless
of his mental competency, he did not actually understand the significance of the proceeding and
the rights he was waiving. We therefore have the task of determining whether the trial court
11
“A finding of competency will not be set aside upon review unless it is clearly arbitrary
or erroneous.” Bennett, 400 A.2d at 325 (internal quotation marks and citation omitted). The
“clearly erroneous” standard applies because a trial court’s competency determination is largely a
factual determination, see United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006) (“A
[trial] court’s competency determination is primarily factual in nature.”) and United States v.
Villegas, 899 F.2d 1324, 1341 (2d Cir. 1990) (“A defendant’s competence to stand trial is a question
of fact . . . .”), which must be accorded “great deference.” Bennett, 400 A.2d at 325.
9
clearly erred in finding that appellant made his guilty plea knowingly.12 See Johnson v. United
States, 631 A.2d 871, 878-79 (D.C. 1993) (Farrell, J., concurring) (noting that the clear error
standard prescribed by D.C. Code § 17-305 (a) applies to review of the trial judge’s findings
based on a defendant’s statements during a plea inquiry).
II.
As already noted, appellant contends that “justice demands withdrawal” of his guilty plea
because of his lack of mental competency. He argues that the evidence presented at his
competency hearing -- his diagnoses of cognitive impairment and “dementia due to seizure
disorder and insulin-dependent diabetes,” and the fact that “six different doctors independently
determined that [he] was not competent to stand trial” -- either taken alone or viewed in
conjunction with post-competency-hearing evidence presented with his motion to withdraw,
compels a conclusion that he was incompetent to stand trial and to plead. We consider these
arguments in section II.A. infra.
Appellant also asserts that he “was obviously confused throughout the plea proceedings”
12
As appellant notes, “[t]he focus of a competency inquiry is the defendant’s mental capacity
[i.e.,] whether he has the ability to understand the proceedings.” Godinez, 509 U.S. at 401 n.12
(emphasis removed). The focus of a Rule 11 “‘knowing and voluntary’ inquiry, by contrast, is to
determine whether the defendant actually does understand . . . .” Id. (emphasis in original); see also
id. at 400-01 (“In addition to determining that a defendant who seeks to plead guilty . . . is
competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and
voluntary. . . . In this sense there is a ‘heightened’ standard for pleading guilty . . . , but it is not a
heightened standard of competence.” (internal citations and emphasis omitted)).
10
and that the trial judge abused her discretion, both in accepting his guilty plea and in denying his
motion to withdraw the plea, in the face of his repeated assertions about self-defense, lack of
excessive force, and the insanity defense. We address these arguments in section II.B. infra.
A. Appellant’s Competence to Stand Trial or Plead Guilty
“Constitutional due process requires that a criminal defendant be mentally competent for
a trial to proceed.” Higgenbottom v. United States, 923 A.2d 891, 897 (D.C. 2007) (citation
omitted). In a competency proceeding, the relevant inquiry is whether a defendant has a rational
and factual understanding of the proceedings against him and whether he can consult with his
lawyer and assist in preparing his defense. See id.; see also Dusky v. United States, 362 U.S. 402
(1960) (per curiam) (establishing the requirements of rational and factual understanding and
competent consultation with a lawyer) and Drope v. Missouri, 420 U.S. 162, 171 (1975)
(requiring a defendant to be able to “assist in preparing his defense”).
1.
Evidence Presented at the Competency Hearing
At the competency hearing in this case, appellant presented evidence that he had long
suffered from Type I diabetes, causing him to experience erratic and abnormal swings in his
blood sugar, and that he also had a long history of epileptic seizures. Dr. Thomas Hyde, a boardcertified neurologist who examined and tested appellant on April 23, 2002, and October 6, 2003,
testified that “due to poorly controlled seizures and repeated hypoglycemic insults to the brain
over the years,” appellant was in a “cognitively impaired state” and had “significant impairment
in neurological function, especially in domains of attention and memory” that “would impair his
ability to understand the proceedings that he would be involved with, and to participate and work
with his counsel in an effective manner” and that “render him incompetent from the
medical/legal standpoint.” Dr. Hyde also testified that appellant’s “Full Scale IQ was found to
11
be 55” and that “people who are below 60 are really quite significantly impaired.”
Dr. David Pickar, a psychiatrist,13 met with appellant on three different occasions -January, April, and September of 2003. He testified that appellant demonstrated perseveration,
a symptom of frontal lobe dysfunction. Dr. Pickar also testified that during his September 2003
evaluation of appellant, he explored at some length appellant’s understanding of the legal
process. He found appellant “unable to understand the fundamental nature of the defenseprosecution, defendant relationship” and “[u]nable to understand relationship with defense
attorney.” Dr. Pickar did not think that appellant “got [i.e., comprehended] the idea of pleading
guilty.” Dr. Pickar concluded that appellant “does not have sufficient understanding of the legal
process, or the ability to work appropriately with counsel in the context of a central nervous
system disorder that involves dementia, probably secondary to epilepsy; and that he is not
competent to stand trial, and that the deficits that are germane to this conclusion are not related
to malingering.”14
The government’s experts did not dispute that appellant had some degree of cognitive
13
Dr. Pickar also spoke with appellant’s family, interviewed doctors that treated appellant
at St. Elizabeths, and reviewed appellant’s medical records.
14
The court also had before it the opinions of doctors who had performed the criminal
responsibility examination during the spring of 2003 and doctors who had examined appellant during
the time that he was evaluated at St. Elizabeths Hospital for the purpose of determining whether he
was competent to stand trial in his misdemeanor cases. On May 5, 2003, Dr. Sidney Binks, a
neuropsychologist, reported that appellant’s test scores “suggested significantly impaired cognitive
functioning comparable to those of a group of elderly individuals with dementia” and concluded that
appellant “did not malinger.” On January 2, 2002, psychologist Dr. Anita Boss stated that appellant
was “unable to participate in court proceedings at this time” and that “it is unclear if his condition
will significantly improve and a minimum of 30 to 45 days is recommended before re-evaluation.”
On January 30, 2002, Dr. Michele Piquet stated that appellant was “not competent to stand trial
because cognitive factors substantially impair his capacity to have a factual and rational
understanding of the proceedings against him, and to properly assist counsel with preparation of his
defense.” In a letter dated March 27, 2002, the Forensic Inpatient Services Division (“FISD”) of the
District of Columbia Department of Mental Health reported that it was “too early in treatment
program to determine the likelihood of Mr. Wallace attaining competency in the foreseeable future.”
On May 24, 2002, FISD reported that it was “unlikely that Mr. Wallace will attain competency in
the foreseeable future.” On June 26, 2002, psychologist Dr. Mitchell Hugonnet stated that
appellant’s “judgment was severely impaired,” that he was diagnosed with dementia due to diabetes
and epilepsy, and that he was “unable to manage the basic concepts associated with competency to
stand trial.”
12
impairment. Dr. Raymond Patterson,15 a forensic psychiatrist who had completed several
hundred competency examinations, testified that he “had no conflict” with tests showing that
appellant had some degree of neurological damage and acknowledged that “there might be some
mild dementia,” but stated that this “does not mean that [appellant] does not have the ability . . .
to exaggerate as much as he might think he should to convince people that he doesn’t know
what’s going on.” Dr. Patterson opined that appellant “certainly was malingering” and “certainly
was . . . exaggerating symptoms . . . when they said he had an IQ of 55, because I simply don’t
believe he has an IQ of 55.” Dr. Patterson cited specific examples of appellant’s malingering:
“choosing how [he] respond[s] based on who [he’s] talking to”; appellant’s “ridiculous” response
to a question about the colors of the American flag, a question that even mentally retarded
individuals and people with serious mental illness “don’t miss”; appellant’s claim to hear voices
but his ability to concentrate and his lack of distraction, which are inconsistent with that
affliction; and his exhibiting “high-level” planned behavior, such as injecting himself with
insulin to get medical attention in the emergency room faster than other people.
Dr. Patterson further testified that appellant’s behaviors inconsistent with an IQ level of
55 included acting as a “predator” while at St. Elizabeths but not while in jail, where appellant
appeared to be “normal,” like “any other inmate who is not receiving mental health services.”
Dr. Patterson agreed with a statement in a discharge summary, attributed to Dr. William Richie,
one of appellant’s treating psychiatrists at St. Elizabeths, that appellant was “capable of
dissimulating, fabricating, prevaricating and malingering cognitive disabilities in excess of his
documented deficits.” Noting that the issue was “whether or not [appellant] understands,
rationally and factually these proceedings, the charges against him, the consequences; and can
he, does he have the ability to assist his attorney,” Dr. Patterson stated that “In my view, he has
both of those.” Dr. Patterson thought that appellant’s case was “not a close call at all,”
explaining that “when [appellant] adheres to his treatment regime, seems to do pretty well.
When he doesn’t, he runs into problems. The latter, in my view, are very much and directly
related to his attempts to not have this matter go forward, and in part because he has been in a
position where precisely that has happened before.”
Dr. Steven Lally, a clinical and forensic psychologist who had previously conducted
between 200 and 250 competency evaluations,16 spent 7 ½ to 8 hours with appellant at the D.C.
15
Dr. Patterson examined appellant only once. He also spoke with two of appellant’s
treating physicians and several individuals that supervised appellant at both the mental hospital and
the jail, and reviewed “quite a lot of records” from “every expert [that] has testified . . . .” In
addition, he observed that “being here in the courtroom and hearing [appellant’s] capacity to render
information when he chooses to [was] also quite helpful” to him in evaluating appellant’s
competence.
16
Dr. Lally also spoke with Dr. Hugonnet of St. Elizabeths and with appellant’s long-time
(continued...)
13
Jail on October 24, 2003. Dr. Lally administered a neuropsychological screening test that
showed that appellant was “performing in the moderate to severely impaired range.” Dr. Lally
also administered a test for memory malingering that “did not disclose malingering.” Dr. Lally
explained that the tests showed that appellant was “answering in a . . . sort of careless random
fashion,” the reason for which the test cannot explain. Dr. Lally concluded that one “should not
put a lot of credibility [sic] in terms of [appellant’s] performance in psychological tests.” With
respect to one of the tests, Dr. Lally also explained that “if [the] test does not indicate
malingering, it does not mean that the individual is not malingering. In other words, it’s a test
that’s very effective when it does indicate malingering. But studies have shown that a number
of malingerers . . . don’t necessarily get caught with the [test].”
On the basis of an interview with appellant, Dr. Lally concluded that appellant’s behavior
was inconsistent with the degree of impairment that appellant claimed, but was consistent with
malingering. Dr. Lally noted that when he would stop taking notes during a meeting with
appellant, appellant’s speech became more spontaneous and his answers more accurate. Further,
appellant mixed symptoms of various disorders and failed to remember details of the crime
unless the detail was exculpatory. Dr. Lally testified that although appellant reported “hearing
voices,” his symptoms were inconsistent with that condition. The symptoms that appellant
reported were also inconsistent from one doctor’s visit to the next, which Dr. Lally explained
was a sign of malingering because malingerers “don’t always know how to respond.” Dr. Lally
concluded that appellant was malingering “both psychotic symptoms and also some degree of
cognitive impairment.”
Dr. Oliver testified that he found “inexplicable inconsistencies” between the November
2002 and September 2003 interviews he conducted with appellant.17 During both interviews,
appellant exhibited a good memory, was able to recite telephone and social security numbers,
and could give background details. During the September 2003 interview, however, in contrast
with the November 2002 interview, appellant had no knowledge about the charges and legal
issues discussed. Unable to explain the differences in appellant’s behavior, Dr. Oliver concluded
that appellant was intentionally producing symptoms.
2.
The Trial Court’s Competency Ruling
Upon this evidence the trial court found that there was “no doubt that Mr. Wallace suffers
16
(...continued)
girlfriend, and reviewed records from a number of sources.
17
Dr. Oliver had performed “somewhere around 4000” competency evaluations, and had
found in more than half the cases that the person evaluated was incompetent. By contrast, Dr. Hyde
testified that he had previously been retained on only five or six occasions to examine the issue of
competency, always by the defense, and had testified on competency on two or three occasions.
14
some cognitive deficits,” but that it was “evident from the record” that these impairments do not
“preclude him from the rational understanding of the charges and proceedings against him,” “nor
do they preclude him from consulting with his lawyers.” The court concluded that appellant is
“malingering and remains competent to stand trial in this case.”
Appellant accuses the trial court of “look[ing] past the mountain of scientific evidence
showing the [appellant’s] incompetence” and “seiz[ing] upon a red herring: the prosecution’s
charges of ‘malingering’ . . . .” We are satisfied, however, that the trial judge did not ignore or
overlook appellant’s evidence of impairment.
First, acknowledging the conflicting evidence, the court told the parties that “this is a
difficult difficult case.” Second, explaining its finding that appellant was malingering, the trial
court specifically relied on the testimony that, on one of the tests for malingering, appellant gave
“careless responses which invalidated the test results,” and that even when an individual “passes”
a malingering test “it does not mean you do not have malingering. It just means they didn’t
choose to do it in a way that is detected in [the] test.” Appellant emphasizes the evidence that
he “passed” two tests designed to detect malingering and asserts that the court’s finding that he
was malingering cannot be squared with the evidence, but the trial judge’s explanation identified
evidence that, we agree, supports her conclusion.
Third, the trial court’s finding that appellant was competent to stand trial is not plainly
contrary to the neurological evidence of appellant’s impairment. The defense and prosecution
experts agreed that cognitive impairment does not necessarily mean incompetence: Dr. Hyde
acknowledged that an individual with organic brain damage can be competent, and Dr. Patterson
testified that cognitive impairment and brain damage do not necessarily render someone
incompetent to stand trial and that a person’s having dementia does not mean that he is
incompetent. Further, there was no consensus, even among defense experts, that appellant
suffered from psychosis or any other mental illness.18
18
Appellant exhibited “psychotic symptomatology” during Dr. Hyde’s visit with him during
October 2003, but Dr. Hyde had “not formed a final opinion about” whether appellant had a mental
illness. Dr. Pickar believed that appellant experienced auditory hallucinations, but was uncertain as
to whether appellant was suffering from psychosis. Dr. Oliver opined that appellant was not
mentally ill.
We note that in a December 16, 2003 report, the District of Columbia Commission on Mental
Health referred to appellant’s “mental illness” but appears to have utilized that term synonymously
with the term “dementia.” At one point in its report, prepared after the Commission heard testimony
from St. Elizabeths staff psychiatrist Dr. William Richie, the Commission stated that appellant “has
difficulty attending to daily needs without supervision due to his [mild to moderate] dementia.” At
another point in its report, the Commission summarized Dr. Richie’s views that “one factor that
(continued...)
15
Appellant suggests that the trial court should have given more weight to the competency
determinations by doctors who saw appellant over the course of his several-month-long inpatient
stays at St. Elizabeths than to the views of the doctors who saw appellant on fewer, more
abbreviated occasions. However, in exercising her discretion, the trial judge was entitled to
credit the view of the government’s experts that those doctors simply “got it wrong.”19 Cf.
18
(...continued)
would cause [appellant] to injury [sic] himself or others is his mental illness,” which “impairs his
ability to care for himself, including his medical care. The cognitive deficits caused by dementia will
more likely cause respondent to engage in activities that will injure others.” Elsewhere, dementia
has been distinguished from mental illness. See, e.g., 70 Fed. Reg. 4194, 4216 (2005) (Department
of Health and Human Services Medicare program rulemaking notice distinguishing “mental illness”
from “cognitive impairments such as Alzheimer’s disease or other dementias”); 62 Fed. Reg. 67174,
67201 (1997) (Department of Health and Human Services rulemaking notice stating that “a person
with a primary diagnosis of dementia would not be considered to have mental illness”).
19
It is clear from the record that the trial judge considered whether to give special weight
to the views of St. Elizabeths doctors who saw appellant regularly while he was housed there.
During the competency hearing, the following exchange took place between the court and Dr.
Patterson:
The Court:
In reviewing what records I have been able to see,
there’s a big hole here in the background. I’ve got a
year where [appellant] is at the hospital where their -a sophisticated staff is working with him, and they are
concluding that not only is he incompetent, but he’s
not likely to regain competence.
The Witness: Yes.
The Court:
And then bingo, he comes in, in October, like one day
after he’s released under that finding, and he’s
suddenly competent.
The Witness: Yes.
The Court:
How do you evaluate that?
(continued...)
16
United States v. Chischilly, 30 F.3d 1144, 1150 (9th Cir. 1994) (“[t]o the extent that [the trial
judge], from his courtroom observations, assigned more weight to the Government’s expert than
to the contrary, . . . he was acting within his discretion to do so as a part of his fact-finding and
credibility-weighing functions.”). In some instances, this court accords greater weight to the
opinions and diagnoses of a treating physician than to the opinions of non-treating physicians
who have been engaged to provide medical evaluations. See, e.g., Washington Metro. Area
Transit Auth. v. District of Columbia Dep’t of Employment Servs., 926 A.2d 140, 146 (D.C.
2007) (noting that the law affords the diagnosis of a treating physician more weight than the
conflicting opinion of a non-treating physician in a worker’s compensation determination);
Kralick v. District of Columbia Dep’t of Employment Servs., 842 A.2d 705, 711 (D.C. 2004)
19
(...continued)
The Witness: I think, frankly, that they got it wrong; that the
presentation for Mr. Wallace and the blurring of the
lines and that’s, in part, what makes it difficult,
because Mr. Wallace does have diabetes, and Mr.
Wallace does, it appears, to have had a seizure
disorder for some time.
So you take those, and if you are not real careful, you
can make a jump, a leap, in my view, that he’s got
such significant brain damage or impairment that he’s
not competent, and won’t be competent. I frankly
don’t understand it.
I think it was a mistake. And I think that that mistake
is borne out by his level of functioning that’s seen not
just in October and November, but also seen when
he’s interviewed by some of the experts in this matter,
and the information that he provides.
17
(same, citing case authority). However, with respect to competency determinations in criminal
cases, neither this court nor others have required deference to treating physicians or to doctors
who saw a defendant on multiple occasions as an inpatient.20
Moreover, even if the trial court had given special weight to the views of appellant’s
treating physicians, no different result would have been required. None of the experts who
testified at the competency hearing were appellant’s “treating physicians.” But Dr. William
Richie was one of appellant’s treating psychiatrists at St. Elizabeths, and the St. Elizabeths
discharge summary discussed at the competency hearing attributed to Dr. Richie the statement
that appellant “has [a] selective memory and is capable of dissimulating, fabricating,
prevaricating and malingering cognitive disabilities in excess of his documented deficits.”21 And
although other doctors who saw appellant on an inpatient basis at St. Elizabeths in 2002 and
20
As the United States Court of Appeals for the Fourth Circuit has explained:
[A] district judge’s discretion in these matters properly includes the
power to discount [the testimony of the defendant’s personal
physician]. He might find a treating physician’s testimony
unpersuasive because he lacks confidence in the physician’s
qualifications or abilities. The trial judge must also weigh, implicitly
or explicitly, a treating physician’s candor and objectivity. . . . [R]ules
developed by appellate courts in limiting the discretion of
administrative law judges and administrative agencies -- rules
motivated in part by concerns about agency independence and bias -have little or no relevance to the exercise of discretion by a district
court.
United States v. Brown, 821 F.2d 986, 990 (4th Cir. 1987) (internal citation omitted).
21
In addition, Dr. Lally drew his conclusion that appellant was malingering, in part, from
his conversations with Dr. Richie.
18
2003 opined that he was unable to participate in court proceedings or to assist counsel with his
defense, see supra note 14, experts appear to agree that an individual who is mentally
incompetent to stand trial at one point in time may be competent to stand trial at a later time. For
example, while Dr. Boss found appellant incompetent to participate in court proceedings in
January 2002, she also commented that it “may be useful for Mr. Wallace if defense counsel can
spend even more time with him to go over the details of his cases and legal strategy. Multiple
repetitions, in addition to frequent discussion, may help [him] recall what he needs to know in
order to better inform his choices and ability to participate.” See also Carmichael, 479 A.2d at
327 (noting that a doctor at St. Elizabeths had confirmed that Carmichael was incompetent to
stand trial, “but three months later this same doctor reported that the subject’s mental condition
had improved enough so that he was fit to stand trial”). Notably, the record indicates that
appellant did receive “competency training” while at St. Elizabeths. All of this is to say that
even if the court had been required to accord special significance to the views of the St.
Elizabeths doctors that appellant was incompetent to stand trial at the time the doctors expressed
those views, deference to those doctors’ views did not require the court to find that appellant was
incompetent to stand trial in November 2003 or to enter a plea in January 2004.
The trial court weighed the evidence and found that “while . . . there is dementia and
impairment,” the “evidence of malingering is far more powerful than the evidence of significant
progressive deterioration.” In essence, appellant’s disagreement is with the weight the trial judge
accorded to the conflicting expert opinions about competency.
19
To disturb the trial court’s findings, however, this court would have to re-weigh the
evidence. That we may not do.
Our case law is clear that when there is a plausible explanation presented by two
competing groups of experts, the decision is one for the fact finder. See Jackson v. Condor
Mgmt. Group, Inc., 587 A.2d 222, 225 (D.C. 1991) (“When a case turns on controverted facts
and the credibility of witnesses, as this one does, it is peculiarly one for the [finder of fact]. The
fact that some of the witnesses may be experts does not alter this rule.” (internal citation
omitted)). This principle applies with respect to expert medical testimony just as it does to other
expert evidence. See Washington Metro. Area Transit Auth. v. District of Columbia Dep’t of
Employment Servs., 770 A.2d 965, 970 (D.C. 2001) (“In evaluating conflicting medical
testimony, as in weighing evidence generally, the hearing examiner has wide latitude. The
examiner is entitled to draw reasonable inferences from the evidence presented, and her
decisions are especially weighty when they involve credibility determinations.” (internal
quotation marks and citation omitted)). And it applies with respect to competency hearings just
as it does to other proceedings. See, e.g., Ray v. Duckworth, 881 F.2d 512, 516 (7th Cir. 1989)
(holding that “[b]ecause of the potential for divergent and often conflicting opinions on the issue
of the defendant’s competency, we must be careful to give due regard to the trial court’s superior
ability to draw the appropriate inferences from its observation of the defendant and expert
witnesses, as well as the examination reports before it,” and noting that the trial court was
making a “credibility determination” when it chose to believe the expert opining that appellant
20
was malingering).
In this case, the trial court was presented with “two permissible views of the evidence as
to competency . . . .” Villegas, 899 F.2d at 1341. “[T]he court’s choice between them cannot be
deemed clearly erroneous.” Id.; see also Izquierdo, 448 F.3d at 1278 (same). We can find no
clear error in the court’s November 2003 determination that appellant was competent to stand
trial. Accordingly, appellant has not met the “substantial” burden he must meet to show that
withdrawal of his plea was necessary to correct a manifest injustice. Williams v. United States,
595 A.2d 1003, 1006 (D.C. 1991); see also Higgenbottom, 923 A.2d at 897 (“We review a
court’s competency determination . . . for abuse of discretion, the exercise of which we will not
lightly disturb.” (internal quotation marks and citation omitted)).
3.
The Court’s Denial of the Motion to Withdraw in the Face of PostCompetency Hearing Evidence
Just before the plea proceedings commenced on January 5, 2004, the court was advised
that appellant had been hospitalized for twelve days during December 2003. The court inquired
of defense counsel whether he had “seen any significant difference in [appellant’s] functioning
since this latest episode in the hospital.” Although defense counsel responded that he had not,22
22
Specifically, defense counsel responded, “No, Your Honor. My only visit with him after
this episode was last night. As the Court knows, my view is that there are significant problems here.
I can’t say that I think they’re more significant now than they have been. I’m not an expert on those
things.”
(continued...)
21
the information about appellant’s post-competency-hearing hospitalization arguably raised anew
the issue of appellant’s competency. This court has held that “where the issue of a defendant’s
mental competence [has] been raised on the record, the trial court must conduct a specialized
hearing to determine the competence of a defendant who seeks to plead guilty.” Edwards, 766
A.2d at 988 (quoting Hunter v. United States, 548 A.2d 806 (D.C. 1988)). The trial judge did not
conduct a second competency hearing, and so we must address the issue of how this bears on
appellant’s motion to withdraw his guilty plea. The issue is an important one because the record
reveals that appellant suffered a major seizure on December 18, 2003, and while hospitalized
underwent an EEG that showed what Dr. Hyde, in a letter dated January 8, 2004, called
“markedly abnormal brain activity.”23 And, in her November 10, 2003 competency ruling, the
trial judge had specifically noted Dr. Hyde’s testimony that “seizures can result in loss of
consciousness and confusion in post seizure, as well as an impairment of cognitive function.”
We addressed a similar situation in Edwards, where the court conducted a plea
22
(...continued)
Similarly, during the proceedings on January 15, 2004, appellant’s counsel informed the court
that there was “no change in [appellant’s] condition since we were here on the competency
decision.” The trial court referred to this information in denying the motion to withdraw.
23
Dr. Hyde’s January 8, 2004 letter, which was initially presented to the court to support
appellant’s sentencing recommendation, was resubmitted as an exhibit to the motion to withdraw
the guilty plea. In the letter, Dr. Hyde noted that appellant “was emergently transported from jail to
Greater Southeast Community Hospital on December 18, 2003. He was admitted with diabetic
ketoacidosis, a severe metabolic condition produced by out of control diabetes. In addition, he
suffered a major seizure in the emergency room (due in part to a subtherapeutic blood level of
Dilantin, his anticonvulsant medication). He was admitted to the hospital, where he remained for
twelve days while his multiple metabolic problems were corrected.”
22
proceeding and accepted Edwards’ guilty plea while “unaware of his diminished mental
capacity,” which was later documented in an evaluation by a clinical psychologist, Dr. Levin.
Dr. Levin’s evaluation described the substantial brain damage and marked changes in cognitive
functioning that Edwards had sustained after a beating by police years earlier. See 766 A.2d at
984, 987. We noted that even though the trial court had been unaware of this history during the
plea proceeding, the trial judge’s denial of Edwards’ post-sentencing motion to withdraw his plea
“was informed by Dr. Levin’s evaluation.” Id. at 988. We rejected Edwards’ claim that the
court had erred in denying his motion to withdraw, noting that the denial was “based primarily
on [the trial judge’s] personal observations of and conversations with Edwards, factors to which
we accord great deference.” Id. We also noted that Dr. Levin “never opined that Edwards was
incompetent to enter a plea,” id., and that the trial judge had clearly considered Dr. Levin’s
report but rejected it as “unpersuasive on the issue of Edwards’ competence at the time of the
plea.” Id. at 988 n.10.
We reason similarly here. It appears that Judge Broderick was not aware of the details
of appellant’s December 2003 hospitalization and EEG at the time of the plea proceeding, but
information about both did inform her denial of Wallace’s motion to withdraw his guilty plea.
Judge Broderick noted that appellant’s EEG taken on December 24, 2003 “evidenced permanent
and irreversible brain damage,” that appellant had “a major seizure on December 18, 2003,
eighteen days before his plea hearing,” and that Dr. Hyde “found that [appellant] became
confused for several days after ‘a bout of severe seizures.’” However, like the trial judge in
23
Edwards, Judge Broderick found the evidence relating to the December 2003 episode
unpersuasive on the issue of competence, stating that “[n]o evidence was presented that there
was a change in the Defendant’s [competency] since the time of the competency findings.” We
find no clear error in the court’s assessment. Even if we discount the lay opinions of defense
counsel that there was no change in Wallace’s functioning between the time of the competency
hearing in November 2003 and January 2004, the record does not compel a conclusion that
appellant’s competency had diminished from November 2003 to January 2004.
As noted, Dr. Hyde’s letter of January 8, 2004, interpreting appellant’s December 24,
2003 EEG stated that the EEG showed “markedly abnormal brain wave activity, with slowing
over the frontal lobes,” consistent with “permanent and irreversible frontal lobe damage.” But
Dr. Hyde did not suggest in his letter that the new EEG showed that appellant was incompetent
at the time of his plea.24 Indeed, Dr. Hyde had earlier testified that an abnormal EEG does not
mean that an individual is incompetent to stand trial, agreed that an EEG “look[ed] at . . . in
isolation” does not tell much about competency, and explained that “it is possible [for an
individual] to have both normal and abnormal studies.” Also of particular note, Dr. Hyde had
explained during the competency hearing that “you will see a lot of abnormalities in the postseizure period.” Taken together, Dr. Hyde’s statements suggest that it was to be expected that
appellant’s EEG taken six days after his December 2003 seizure would show abnormal brain
24
Rather, Dr. Hyde’s letter outlined appellant’s need for medical supervision while in
custody and suggested that appellant’s brain damage qualified as “statutory mitigation in the
sentencing proceedings.”
24
activity, and that no conclusion can be drawn from that EEG that appellant was less competent
to enter a plea on January 5, 2004 (seventeen days post-seizure) than he had been at the time of
the competency hearing.
Moreover, the December 2003 EEG appears to be cumulative of evidence already on the
record. In his January 8, 2004 letter, Dr. Hyde referred to the 2003 EEG as providing
“additional evidence of abnormal slowing over the frontal lobes” (emphasis added). This had
already been shown “by other abnormalities on neurological examination reflecting his
underlying brain damage,” including “clumsy fine motor movements with the left hand, bilaterial
grasp reflexes, and poor complex motor sequencing in the hands bilaterally.” Dr. Hyde testified
about these same abnormalities at the competency hearing, stating that in April 2003, appellant
had “clumsiness on a number of fine motor movements,” and “primitive reflexes,” often seen in
individuals with frontal lobe dysfunction,” and noting that “there ha[d] been some progressive
brain damage” since appellant’s 2000 EEG (which had also shown “bilateral slowing over the
cerebella hemispheres”).25 Cf. Williams, 595 A.2d at 1005 & n.2 (psychological report
introduced at post-plea hearing had no bearing on defendant’s competency because it added
nothing to what was already known at the time of the plea).
25
With his motion to withdraw, appellant also presented a letter from St. Elizabeths
neuropsychologist Dr. Sidney Binks, who stated that appellant suffers from dementia and severely
impaired judgment, “suggesting a severely diminished ability to act within the confines of the law;”
and a letter from Dr. William Richie, who treated appellant during December 2003 and who also
stated that appellant showed symptoms of dementia. This evidence, too, was cumulative.
25
Dr. Hyde’s January 8, 2004 letter discussed not only appellant’s December 24, 2003
EEG, but also the facts that appellant’s “mental status fluctuates in response to his seizure
disorder” and that appellant “often is confused for several days after a bout of severe seizures.”
It is not clear from the record whether appellant’s December 18, 2003 seizure was part of a “bout
of severe seizures,” or whether, if appellant was confused after the December 18 seizure, that
confusion (perhaps “several days” of confusion) had resolved or subsided by the end of his
twelve-day hospital stay. However, in denying appellant’s motion to withdraw, the trial judge
emphasized that “[a]ll the evidence was considered,” and one piece of important additional
record evidence was an evaluation by Dr. Lally, setting out his findings from a 2.75-hour
interview of appellant that Dr. Lally conducted at D.C. Jail on December 31, 2003, i.e., after
appellant had been discharged from Greater Southeast Community Hospital.26 During this visit
with appellant, Dr. Lally observed that appellant was “alert” and “oriented to person, place, and
time” and that appellant’s speech was clear and at a normal volume.” Although appellant’s
“speech tended to be slower with lengthy delays in his response to questions” about court-related
matters, there was “no evidence of a thought disorder in the form or content of his thinking.”
Appellant’s “expression of affect was somewhat constricted, but generally appropriate.” In
short, this evaluation by Dr. Lally -- the only expert evaluation in the record that is based on an
interview of appellant after his December 2003 seizure but before his January 5, 2004 guilty plea
-- contained nothing that required the trial judge to conclude that appellant’s competence to stand
26
Dr. Lally’s evaluation was submitted to the court under cover of the government’s January
5, 2004 “Notice of Expert Report Issued by Government’s Expert.”
26
trial or plead guilty had diminished between the November 2003 competency hearing and the
January 2004 plea proceedings.
We reach the same conclusion about the other new evidence that appellant presented with
his Rule 32 (e) motion. Appellant contends that his Bureau of Prison medical records generated
since his guilty plea -- one dated October 22, 2004, and the other dated January 7, 2005, -confirm that he is incompetent and not malingering.27 The trial judge refused to consider these
records, reasoning that they were not relevant to appellant’s competency during the plea. The
trial court applied the appropriate standard. As the Supreme Court instructed in Dusky, it is a
defendant’s “present ability” that should be evaluated during competency evaluations. 362 U.S.
at 402. The trial judge did not abuse her discretion in holding that appellant’s mental evaluations
on dates nine and twelve months after the guilty plea have little if any relevance on the issue of
whether appellant was competent when he entered his guilty plea. Cf. United States v. Collins,
430 F.3d 1260, 1267 (10th Cir. 2005) (noting that a defendant’s competency can change over
time) and Rogers v. Snyder, No. 00-007, 2001 U.S. Dist. LEXIS 8866, *16-17 (D. Del. 2001)
(disallowing new evidence suggesting that petitioner was not competent to stand trial in March
1996 as it was not relevant to whether petitioner was competent to enter a guilty plea in 1993).
Finally, as we did in Edwards, we accord great deference to Judge Broderick’s personal
27
These medical records indicate that appellant has “cognitive deficiencies,” “adult
antisocial behavior,” “chronic dementia,” and “episodic delirium,” and state that there was no
evidence of “intentional suppression of his performance (malingering).”
27
observations of and conversations with appellant, which informed her judgment that appellant
was competent to plead guilty on January 5, 2004. The trial judge noted in her order denying
the motion to withdraw that she “carefully assessed the Defendant at every question” during the
plea proceeding and that “the Defendant’s mental state was understood and considered by the
Court at the time of the plea.”
For all the foregoing reasons, we cannot conclude that the trial court abused its discretion
in denying the Rule 32 (e) motion to withdraw on the grounds of appellant’s (claimed) mental
incompetency to enter a plea.
B. The Rule 11 Proceeding
The Rule 11 plea proceeding in this case was conducted on January 5, 2004. During a
plea proceeding, the court must make inquiry and satisfy itself that “the defendant actually does
understand the significance and consequences of a particular decision and whether the decision
is uncoerced.” Godinez, 509 U.S. at 401 n.12 (emphasis omitted). Appellant focuses on a
number of exchanges that he argues evidence his “confusion” during the plea proceeding:
THE COURT:
[Following an explanation of the insanity
defense] All right. Now, do you intend to
use that defense, insanity defense?
DEFENDANT:
Yes.
28
THE COURT:
Okay. If you go to trial, you’re going to use
that?
DEFENDANT:
Yes.
THE COURT:
Do you want to go to trial and use that
defense?
DEFENDANT:
Do I want to go to trial?
THE COURT:
Yes.
DEFENDANT:
I believe, yes. I believe so.
*
*
*
*
THE COURT:
Okay. Now, you’ve indicated today that you
would like to enter a plea of guilty; is that
correct?
DEFENDANT:
Yes.
THE COURT:
Now, if you enter a plea of guilty, Mr.
Wallace, do you understand that you would
not actually go to trial?
DEFENDANT:
I understand.
THE COURT:
All right. And do you understand that you’d
actually be admitting that you did, in fact,
commit a murder?
DEFENDANT:
Yes.
THE COURT:
Okay. So, therefore, there wouldn’t be any
defense at that time?
DEFENDANT:
Right.
THE COURT:
So if you did that, if you entered a plea of
guilty, then you wouldn’t be using the
insanity defense. Do you understand that?
29
DEFENDANT:
Right.
THE COURT:
Do you want to use the insanity defense?
DEFENDANT:
Yes.
THE COURT:
All right. Well, do you want to go to trial,
then, or do you want to plead guilty?
DEFENDANT:
Well, I would like to go to trial.
THE COURT:
You would like to go to trial? All right. So
you don’t want to plead guilty to seconddegree murder today?
DEFENDANT:
No.
THE COURT:
You want to have a trial with a jury?
DEFENDANT:
Yes.
THE COURT:
And have them decide?
DEFENDANT:
Yes.
After a four- minute recess, defense counsel reported that appellant “again indicated he
would like to take the Government’s plea offer. The following exchange ensued:
THE COURT:
All right. Mr. Wallace here. All parties
who were previously present are present
again.
Mr. Handzo?
MR. HANDZO:
Your Honor, we explained to Mr. Wallace
again that he has the choice of taking the
government’s plea offer to Murder II or
30
going to trial on Murder I and that if he
accepts the Government’s plea offer of
Murder II, there will be no trial and no
insanity defense or alternatively he could
reject that and go to trial on the more serious
offense of Murder I. He has again indicated
that he would like to take the Government’s
plea offer.
THE COURT:
Okay. All right. Let’s proceed, then.
So, Mr. Wallace, you want to take the
Government’s plea offer; is that correct?
DEFENDANT:
That’s correct.
THE COURT:
So that means you don’t want to go and use
the insanity defense; is that correct?
DEFENDANT:
No.
THE COURT:
No, you don’t want to use it or, no, that’s
not correct?
DEFENDANT:
No, I don’t want to use it.
THE COURT:
Okay. Do you understand that if you did go
to trial, this is just if it did happen that you
went to trial, okay, and you used the insanity
defense, do you understand the Government
would still have to prove first beyond a
reasonable doubt that you committed the
crimes that you’ve been charged with?
DEFENDANT:
Yes.
THE COURT:
And do you understand that even if you raise
it, you could also raise other defenses, for
example, self-defense.
DEFENDANT:
Yes.
31
THE COURT:
Do you understand that if you went to trial
and used the insanity defense that that would
only be considered if the jury found first you
were guilty beyond a reasonable doubt?
DEFENDANT:
Yes.
*
*
*
*
(Pause)
THE COURT:
Now, after all we’ve talked about, do you
still not want to raise the insanity defense,
but instead wish to plead guilty?
DEFENDANT:
Yes, that’s correct.
THE COURT:
All right. Why don’t you tell me why you
want to do that.
DEFENDANT:
I guess just being able to see actually
evidence that was supposedly used in this
particular case.
THE COURT:
So you’re saying the evidence has convinced
you that it’s in your best interest to plead
guilty?
DEFENDANT:
I don’t – don’t say it that way. I haven’t
seen any evidence myself.
THE COURT:
I’m sorry then. I’m just trying to understand
your answer. Why do you want to plead
guilty in this case?
DEFENDANT:
It’s just – been in courts for quite a while
now, and I just like to – for anyone to
actually show any evidence proving that I
am guilty to just show that evidence.
THE COURT:
Okay. Now, do you understand that if you
plead guilty, the Government is going to tell
you what they would have proven, but
32
they’re not going to be bringing in witnesses
and things to testify.
Do you understand that?
DEFENDANT:
Correct.
After the government’s proffer of what the evidence would show, the court asked appellant to
state what happened on the day in question. The following exchange occurred:
THE COURT:
So what you’re telling me, Mr. Wallace, is
you were defending yourself? You’re
telling me you didn’t commit a murder, you
defended yourself? Is that what you’re
telling me?
DEFENDANT:
I know I used a knife in this particular case.
THE COURT:
Did you stab him in the neck?
DEFENDANT:
It was in his neck.
THE COURT:
And was it a sharp knife?
DEFENDANT:
It was a butter knife.
THE COURT:
Was it a sharp butter knife?
DEFENDANT:
No.
THE COURT:
Well, then how did it stab his neck?
DEFENDANT:
That’s what I wanted to know also, and I
was – while using the vehicle –
THE COURT:
Why did you feel you had to use a knife, Mr.
Wallace?
33
DEFENDANT:
You say why?
THE COURT:
Yes. Why didn’t you just punch him back?
DEFENDANT:
Well, I was on the ground myself, and I
know I was suffering from low blood sugars
myself. I was real just – just wanted to eat
the – my hamburgers that I had.
THE COURT:
Well, this is more than 15 minutes after you
saw him the first time and you still hadn’t
eaten your hamburgers?
DEFENDANT:
I didn’t get them all. I was just chewing on
them. I didn’t actually finish them.
THE COURT:
Mr. Wallace, are you telling me that this was
self-defense? Are you telling me that?
DEFENDANT:
The knife was used in this case.
THE COURT:
Are you telling me you used more force than
you had to use by using the knife.
DEFENDANT:
I guess that didn’t have to be used. I don’t
think – no, I’m not saying that.
THE COURT:
You’re not saying what?
DEFENDANT:
It could have been done, I guess, getting
right back up and catching the guy and
punching him back, I guess.
THE COURT:
All right. So you used more force than you
had to use? Is that what you’re saying?
DEFENDANT:
I guess so.
THE COURT:
Are you pleading guilty in this case because
you did, in fact, stab this gentleman with
...
34
t[o]o much force?
DEFENDANT:
I don’t think too much force was used.
THE COURT:
Let’s go back. You said you didn’t have to
do the stabbing, right?
DEFENDANT:
I didn’t have to use it.
THE COURT:
Right, that’s what I mean. Did you do that?
Did you stab him when you didn’t have to?
DEFENDANT:
I guess so.
THE COURT:
You guess so or are you sure?
DEFENDANT:
Yes. Yes.
THE COURT:
Are you sure about that?
DEFENDANT:
Yes.
THE COURT:
Is that why you pleaded guilty?
DEFENDANT:
Yes.
Finally, appellant focuses on the following portions of the transcript from the January 15,
2004 Frendak hearing:
THE COURT:
When you were here last time, Mr. Wallace,
we talked about whether or not you would
give up your right to an insanity defense.
Do you know what I mean by that?
DEFENDANT:
Yes.
THE COURT:
Do you still want to do that?
35
DEFENDANT:
No.
THE COURT:
You don’t want to give up your right?
DEFENDANT:
No.
...
THE COURT:
. . . Let me ask the question in a different
way okay, Mr. Wallace?
DEFENDANT:
Okay.
THE COURT:
What I mean by an insanity defense is that
you would go to trial and you would try to
convince the jury that you didn’t – you are
not guilty of this crime because you were
insane at the time. Do you want to go to
trial and try to convince the jury that you
were insane at the time?
DEFENDANT:
No.
To summarize, in the exchanges that appellant now highlights, appellant told the trial
court that he wanted both to plead guilty and to pursue an insanity defense, both to plead guilty
and to have a jury trial, and both to enter a guilty plea and to put the government to its proof.28
He both pled guilty and appeared to assert a claim of self-defense and lack of excessive force.
Although he eventually stated affirmatively that he stabbed McCants when he did not need to
do so, this answer was preceded by the equivocal response that he “guess[ed]” he had done so.
28
Cf. Gooding v. United States, 529 A.2d 301, 311 (D.C. 1987) (concluding that presentencing withdrawal of appellant’s guilty plea should have been permitted, in part because “the
inherent ambiguity in appellant’s responses at the time the guilty plea was entered implies the
possibility of some confusion”).
36
In addition, his answers to some of the court’s questions were non-sequiturs.29 In short, appellant
contends, the portions of the plea colloquy that he highlights belie the trial judge’s findings that
“defendant understands his rights and . . . understands the proceedings and is competent to
proceed.”
In reviewing a guilty plea, however, we must “examine[] the entire plea record and
analyze[] the totality of the circumstances surrounding the plea.” Edwards, 766 A.2d at 987.
Here, the entire plea record and the surrounding circumstances leave no room for doubt that “the
trial court engaged in a careful, probing, patient, and extensive colloquy” with appellant.30 Id.
29
Appellant also quotes the following portion of the January 15, 2004 transcript as evidence
of his “utter lack of understanding” of the plea proceedings:
THE COURT:
Do you want to have the [DNA] testing done or give up your
right to have the testing done?
DEFENDANT:
Yes, I want the testing done.
THE COURT:
You want the testing done. What do you want
to have tested?
DEFENDANT:
Well, not just the compact discs. Is that, is all I see here.
The foregoing exchange is further evidence of appellant’s having gone back and forth about whether
to plead guilty or instead to put the government to its proof, but, taken in context, the exchange is
not as incoherent as it may appear to be in isolation. The reference to “compact discs” appears to
be a reference to the compact discs that were found in McCants’ car, from which latent fingerprints
were lifted. Thus, they were among the physical evidence in the case that was available for DNA
testing.
30
The judge noted at the outset that she was “going to be asking [appellant] a lot of questions
. . . .” and that everyone should sit “because this might take a while.” At the beginning of the
(continued...)
37
at 988. The issue is whether the court “ensure[d] that [appellant] clearly understood what rights
he was giving up by entering the plea.” Id. Several aspects of the plea record and several
circumstances persuade us that the trial judge did not clearly err in finding that appellant did
have the requisite understanding. First, during most of the plea proceeding, which covers fully
30
(...continued)
proceedings, she also invited appellant to “talk to your lawyers at any time, and she repeatedly
insisted that appellant talk to his attorneys when she sensed that he might be confused. Before the
Rule 11 colloquy and twice during the Frendak inquiry, the judge reminded appellant he could speak
with his lawyers, and she called breaks so that appellant could do so. Several times, the trial judge
stated that she would not rush the Rule 11 proceeding, explaining at one point that she was “willing
to take as much time as we need . . . .”
Further, the trial judge asked appellant whether he understood the charges against him, and
required him to explain the charges to her when he said that he did. She verified that he was familiar
with the insanity defense and asked him to explain that to her as well. She also verified that
appellant had talked with his doctors about his insanity defense possibilities.
After appellant told the court that he wanted both to plead guilty and to proceed to trial where
he would use the insanity defense, the trial judge recessed so that appellant could speak with his
attorneys. Although appellant derides the recess as a “court-ordered break for a coaching session,”
we see no basis for that characterization. Immediately before the break, when appellant expressed
his desire to go to trial, the judge ended her comments by asking defense counsel “[d]o you want a
couple of minutes to talk to [appellant] and just make sure that I’ve gotten everything right?” The
judge made clear that she had no pre-disposed view as to what should be the outcome of the hearing.
She said that she was willing to take the time “to resolve it in either direction,” telling the defense
team that “whatever way you want to go, we’ll go.” In addition, before the proceedings began, the
judge warned the government’s attorney that he may want to escort a possible witness into the
hallway because “we don’t know if this plea will go down.”
Finally, the judge paid careful attention to appellant’s expressions and demeanor, noting that
“when [appellant] has a tough question, he does that little chew thing and he did that at the last
question. So I may have confused him.” Referring to this passage, the judge stated in her order
denying the motion to withdraw the guilty plea that she “knew [appellant] so well that [she] was able
to understand his facial expressions and determine whether or not [he] understood the proceedings.
She further asserted that she “carefully assessed [appellant] at each question” and “was alert to
[appellant’s] responsiveness.” It is precisely because the trial court is able to do this that we give
great deference to a trial judge’s observations and conversations with a defendant during a plea
hearing. See Edwards, 766 A.2d at 988.
38
thirty pages, appellant provided answers that responded logically to the court’s questions. Cf.
State v. Shopteese, 153 P.3d 1208, 1215 (Kan. 2007) (holding that plea was knowing and
intelligent where “[t]he transcript of [the] plea hearing contains 45 pages [and o]n 30 of those
45 pages, the district judge directly addressed [the defendant], making painstaking inquiry, to
which [the defendant] made appropriate responses”). Appellant also asked the court a question
about the timing of sentencing that showed an apparent understanding of the significance of the
plea proceeding.
More than once appellant took exception to the court’s summary or characterization of
his statements, showing that he was mentally engaged in the proceedings. (e.g., “Court: Are you
telling me you used more force than you had to use by using the knife. Defendant: . . . [N]o, I’m
not saying that” and “Court: So you’re saying the evidence has convinced you that it’s in your
best interest to plead guilty? Defendant: I don’t – don’t say it that way.”) Further, the court did
not permit appellant merely to assent to the government’s proffered account of the crime, but
required him to provide his own factual account. Appellant did so, thereby “demonstrat[ing] that
he was actively and mentally engaged in the plea process and understood the nature of the
charges he was facing” when he “disput[ed] a specific portion of the factual proffer . . . .”
Edwards, 766 A.2d at 988.
In addition, appellant was able to provide detailed answers about matters not related to
the crime. For example, there was the following exchange:
39
THE COURT:
Now, Mr. Wallace, are you taking any medication at this
time?
DEFENDANT:
At this time I am receiving units of regular
insulin along with 22 units of MPH insulin
at the DC Jail.
THE COURT:
Okay. Are you taking any other medication,
perhaps, for you mental health?
DEFENDANT:
Along with 100 milligram
medications called Dilanta.
seizure
Finally, in considering the equivocal and illogical statements that appellant made during
the plea proceeding, we are constrained to bear in mind the testimony given by the mental health
experts whose opinions the trial judge credited, to the effect that appellant was “capable of
dissimulating, fabricating, prevaricating and malingering cognitive disabilities.” We are mindful
that, unlike this court, the trial court was in a position to assess whether appellant feigned
confusion or indecision during the Rule 11 hearing and deliberately gave evasive answers, or
instead was actually confused. Cf. People v. Marks, 72 P.3d 1222, 1237 (Cal. 2003) (deferring
to the trial court because “[a]n appellate court is in no position to appraise a defendant’s conduct
in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the
proceedings, or sheer temper,” and reasoning that “once a defendant has been found to be
competent, even bizarre statements and actions are not enough to require a further inquiry”
(internal citations and quotations omitted)). The trial court was in a position to assess whether
appellant knowingly entered his plea to second-degree murder, actually understanding and
acknowledging that he “didn’t have to use” a knife.
40
The trial judge, who noted that she “took special care to ensure that [appellant] fully
understood the proceeding”and “knew [appellant] so well that [she] was able to understand his
facial expressions and determine whether or not [appellant] understood the proceedings,” found
that appellant “has been very responsive to my questions, and I think he is fully with us.” We
have previously held that when denial of a motion to withdraw a plea is “based primarily on [the
judge’s] own personal observations of and conversations with [a defendant], . . . we accord great
deference.” Edwards, 766 A.2d at 988. Such deference is warranted here.
III.
Lastly, appellant argues that his sentence violated due process as it was based on the
prosecutor’s recitation (in the government’s sentencing memorandum and in argument before
the court) of unsworn evidence, unverified statements by biased witnesses, and incidents of
assault which appellant denied but had no opportunity to rebut.31 We are unpersuaded by this
argument.
A judge has wide latitude when conducting a sentencing hearing, Williams v.
United States, 427 A.2d 901, 904 (D.C. 1980), and may rely on evidence not admissible during
trial. Caldwell v. United States, 595 A.2d 961, 966-67 (D.C. 1991). However, due process
31
Specifically, appellant takes issue with the government’s statements that appellant was a
“serial car-jacker” and had a history of knife violence against innocent civilians, the prosecutor’s
references to appellant having chased his girlfriend with a knife, and the prosecutor’s allegation that
appellant kept a “duffel bag of license plates that he collected.” The first three items were based on
statements by appellant’s former girlfriend that were unsubstantiated by other witnesses. The last
allegation, concerning the license plates, was made in the context of the prosecutor’s assertion that
one of those license plates ended up on the decedent’s stolen car. Appellant asserts that the license
plate in question was stolen while he was institutionalized, negating any theory that he stole it.
41
dictates that a “trial judge may not rely on mistaken information or baseless assumptions” and
must instead rely only on “reliable evidence.” Harris v. United States, 612 A.2d 198, 208 (D.C.
1992) (emphasis in original) (internal quotations and citations omitted). Nevertheless, when
challenging the information recited during sentencing, appellant must prove that the sentencing
judge actually relied on the unreliable evidence. See Caldwell, 595 A.2d at 967 (“[T]he judge
heard appellant’s explanation of [the disputed facts alleged during sentencing] and did not
purport to rely on them.”). A defendant claiming that his sentence was based on improperly
considered evidence is not entitled to have his sentence set aside unless it is shown “(1) that the
challenged evidence is materially false or unreliable, and (2) that it actually served as the basis
for the sentence.” United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984); see also United
States v. Silverman, 976 F.2d 1502, 1512 (6th Cir. 1992) (en banc) (quoting United States v.
Robinson, 898 F.2d 1111, 1115-16 (6th Cir. 1990)); United States v. Blade, 811 F.2d 461, 469
(8th Cir. 1987); Jones v. United States, 783 F.2d 1477, 1480 (9th Cir. 1986); and Moore v.
United States, 571 F.2d 179, 183-84 n.7 (3d Cir. 1978).
Assuming, arguendo, that the government’s statements in question were “materially false
or unreliable,” appellant has failed to prove that this information did “actually serve[] as the basis
for the sentence.” Appellant points to the trial judge’s comments that appellant poses an
“extreme danger . . . to the community,” that “[t]he sense that I have of [appellant] is that he is
a very violent man,” and that she “agree[s] with a good portion of the government’s allocution
. . . .” These comments do not prove that the court relied on the government statements with
42
which appellant takes issue.
There was a substantial amount of uncontested information and uncontested evidence
presented during the sentencing hearing and during prior proceedings on which the trial court
could draw for the view that appellant “is a very violent man” and an “extreme danger . . . to the
community.” The government recites several examples: Appellant had to be brought to court
in shackles because he had scuffled with the United States Marshals. He assaulted four workers
in a halfway home. There were pictures taken of appellant’s girlfriend after she had been beaten
by appellant. Appellant’s sister had obtained a stay away order because of his attacks on her.
In addition, several doctors gave testimony during the competency hearing that indicated
that appellant was dangerous. Dr. Pickar testified that his staff at St. Elizabeths “felt [appellant]
was dangerous” and that his “violence wasn’t . . . predictable.” He went on to say that he himself
“think[s] that [appellant] is exceedingly dangerous.” Dr. Patterson reported that appellant was
a “predator” who would assault smaller men and women during his stays at St. Elizabeths. Dr.
Lally noted similar behavior, saying that appellant was violent, hostile, threatened those around
him, and “preyed on people.” For sentencing, Dr. Lally submitted an affidavit stating that
appellant’s “violence appears to be increasing in its severity and frequence” and that this
“indicate[s a] greater risk of future violence.”
Further, the crime to which appellant pleaded guilty was a violent crime. As the
43
government presents the case, appellant came up behind the decedent, stabbed him in the neck
with a knife, and stole his car. Appellant’s explanation at the plea proceedings was that the
decedent punched him and that he responded with excessive force. Either way, appellant’s act
was violent. Lastly, appellant’s own counsel noted that appellant had violent tendencies. His
sentencing memorandum to the court indicated that appellant’s behavior was “aggressive and
violent.” With all of this information and evidence which the court could properly consider, we
cannot hold that the court’s explanation at sentencing that appellant is a “very violent man” or
an “extreme danger . . . to the community” reflected an abuse of discretion or denied appellant
due process.32
Conclusion
For the foregoing reasons, appellant’s conviction and sentence and the trial court’s denial
of appellant’s motion to withdraw his guilty plea are
Affirmed.
32
Furthermore, appellant argued during the sentencing hearing that he disagreed with the
four statements of which he now complains again. The fact that the sentencing judge heard appellant
on these disputed allegations and did not purport to rely on them during sentencing gives us further
assurance that the judge did not abuse her discretion during sentencing. See Caldwell, 595 A.2d at
967 (finding no abuse of discretion when an appellant denied some uncharged conduct and the judge
did not “purport to rely” on that conduct during sentencing).
