Perry Holloway, Appellant, v. United States of America, Appellee, 343 F.2d 265 (D.C. Cir. 1964)

The only allegation of error in this appeal from a forgery conviction is that the trial court erred in denying the defense's pre-trial motion for a mental examination to determine competence to stand trial. After appellant filed his brief in this court, the Government moved to remand for a judicial determination of appellant's competency at the time of his trial over a year ago, that determination to be made after a mental examination.¹  The Government argues that, if appellant is now found to have been competent when tried, he "was not prejudiced by denial of the motion for mental examination." The Government thus implicitly concedes, and we agree, that denial of the pre-trial motion for a mental examination was error. Mitchell v. United States, 114 U.S.App.D.C. 353, 316 F.2d 354 (1963); Lloyd v. United States, 101 U.S.App.D.C. 116, 247 F.2d 522 (1957).

We must decide whether correction of that error requires a nunc pro tunc hearing or a new trial. The Supreme Court rejected the Solicitor General's request²  for a similar nunc pro tunc determination in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). The Court held that because of the

difficulties of retrospectively determining the petitioner's competency as of more than a year ago, we reverse the judgment of the Court of Appeals affirming the judgment of conviction, and remand the case to the District Court for a new hearing to ascertain petitioner's present competency to stand trial, and for a new trial if petitioner is found competent. [362 U.S. at 403, 80 S. Ct. at 789.]³ 

We think that Dusky applies here. In the present case, the difficulties of retrospective determination in Dusky are compounded. Unlike Dusky, Holloway had no mental examination. Thus, there are no records and recollections contemporary with his trial to aid a nunc pro tunc hearing. Where the issue is raised on direct appeal, as here, this court has several times held that an erroneous failure to grant a motion for mental examination must be corrected by remanding for a new trial, with opportunity for determination of the accused's competency to stand trial. Kelley v. United States, 95 U.S.App.D.C. 267, 221 F.2d 822 (1954); Wear v. United States, 94 U.S.App.D.C. 325, 218 F.2d 24 (1954); Perry v. United States, 90 U.S.App.D.C. 186, 195 F.2d 37 (1952).

The judgment is reversed and the case remanded for a new trial if Holloway is judicially determined to be presently competent to stand trial. See Watson v. United States, 98 U.S.App.D.C. 221, 223, 234 F.2d 42, 44 (1956); Cooper v. United States, 119 U.S.App.D.C. ___, 337 F.2d 538 (decided April 9, 1964) (Judge Wright, concurring).

The judicial determination must, of course, be an informed one. It is not likely that the court could make an informed decision from a superintendent's letter that merely states without supporting information and reasons that an accused is considered competent to stand trial.⁴  See Gunther v. United States, 94 U.S.App.D.C. 243, 246, 215 F.2d 493, 496-497 (1954); Dusky v. United States, 271 F.2d 385, 397 (8th Cir. 1959), reversed on other grounds, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). Such a letter would not come within the meaning of the terms "report" or "certificate" as they appear in D.C.CODE § 24-301, since these terms must be construed compliably with the need for a judicial determination, cf. Gunther, supra.⁵  Thus, it would be necessary for the trial judge to inquire of the examining doctors the basis for their conclusions.⁶  He might do this by requiring a more detailed communication from the hospital or by holding a hearing on his own motion, as the circumstances suggest. In no case, however, could he decide the competency question without information.

The need for an informed judicial determination also arises from a fact which pervades the administration of criminal justice. That defendants lack the financial and intellectual capacity to pursue and vindicate their rights is the rule rather than the exception. Protection of the rights of defendants unable to assess, challenge or supplement the superintendent's letter requires that the court be fully informed of the information and reasons upon which the report rests.

Appellant was originally arrested on January 10, 1963, and was continuously in jail for nearly 17 months thereafter. We admitted him to bail pending appeal on January 17, 1964, but he was not released pursuant to our order. We discovered this when an appeal from his unsuccessful resort to habeas corpus came to this court, and we were then informed that his release on bond had been withheld because, subsequent to his arrest, probation on an earlier offense had been revoked and a one-year sentence imposed. The Government abandoned this justification, and we directed that the writ issue. Since appellant had been in jail almost 17 months, 12 of which occurred after his sentencing the same day on both the present conviction and the probation revocation, and five of which occurred after this court had ordered him released on bond, it seems clear that he will be entitled to credit, either against his present liabilities under the probation revocation or against the sentence, if any, ultimately imposed on retrial of the present case.⁷ 

Even with such credit, however, this period of incarceration has been substantial and presumably will be taken into account by the District Court in determining what disposition is to be made of appellant pending retrial. We note that D.C.CODE § 24-301(a) does not preclude mental examinations being conducted on an outpatient basis if deemed feasible by the hospital authorities. This record shows a refusal by appellant to cooperate in an examination by the Legal Psychiatric Services prior to the first trial, and any persistence in this course would clearly necessitate commitment. In any event, it is for the District Court to examine the situation in all its aspects as it exists upon remand, and to bring its discretion to bear on the facts as they then appear. Whatever the course taken, expedition on the part of all parties is desirable in the light of the history of this proceeding.

The Government's motion for remand is granted in part, in accordance with this opinion. Our disposition necessarily decides the appeal as well.

Reversed and remanded for further proceedings consistent with this opinion.

WRIGHT, Circuit Judge (concurring).

I concur in the court's opinion. While a nunc pro tunc hearing may be adequate under some circumstances to determine competency, in the circumstances of this case, in my judgment, a new trial is required.

McGOWAN, Circuit Judge (concurring).

I concur in the action taken by the court — although not in its opinion — for the reason that the result appears to me to be required by Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960).