Petition — Shreeves v. United States

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- Supreme Court, U,

} FEB 13 1979

IN THE

Supreme Court of the Vuited States». sR, CLERK

OCTOBER TERM, 1978

No® 821259

BRUCE H. SHREEVES,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

JOHN H. PICKERING

ARTHUR F. MATHEWS

ROBERT B. McCaw

ARTHUR B. SPITZER

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

Bruce H. Shreeves

February 13, 1979

———

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

» LF gy ss Een

I I thes th ceestinicarieentinicainetcncettinnncccscoceves

et iahihes ctenctitecaciadaehpenitnrsisniesinsgnccezccnzeccscsoooese

QUESTIONS PRESENTED ......W.....0..2..0...022....00..ceesecee

CONSTITUTIONAL PROVISIONS AND RULE IN-

SE SE ee

STATEMENT OF THE CASE ...................2....2....20--00000:

Facts Relating to Government Interference

SR SSE

Facts Relating to Right to Counsel ....................

Facts Relating to Substitution of Jurors ........

REASONS FOR GRANTING THE WRIT ..................

The Government’s Interference With Shreeves’

Insanity Defense Deprived Him of a Fair

Nr cecsteceweocs

Shreeves’ Custodial Interrogation, Conducted

Without Notice to His Counsel at a Time When

His Mental Competence Was Known to be in

Question, Deprived Him of His Right to

Cn cdasberbsensrees

The Substitution of Jurors in the Second Phase

of Shreeves’ Trial, After the Jury Had Already

Deliberated to a Verdict in the First Phase, Vio-

lated the Applicable Rule and the Constitution..

SE RS

Page

TABLE OF AUTHORITIES

CASES: Page

Arrington Vv. Maxwell, 409 F.2d 849 (6th Cir.),

cert. denied, 396 U.S. 944 (1969) 11

Beatty v. United States, 389 U.S. 45 (1967),

rev’g per curiam 377 F.2d 181 (5th Cir.) ........... 11

Black v. United States, 8385 U.S. 26 (1966) _........... 10

Boykins v. United States, 366 A.2d 133 (D.C.

| GRRE RTS RE RIES Rta OO Ear Oe OT 11

Brewer V. Williams, 480 U.S. 887 (1977) ................ 11,13

Cannady v. United States, 351 F.2d 817 (D.C.

CC a a 9

Capital Traction Co. v. Hof, 174 U.S. 1 (1899) .... 20

Commonwealth v. Bellino, 320 Mass. 635, 71 N.E.

2d 411, cert. denied, 330 U.S. 882 (1947) ........ 21

Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d

NT WE ih velit aneinteleh tar re 13

Commonwealth v. McCarthy, 348 Mass. 7, 200

SGI, I «ai 12

Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d

I UP Sa 13

Coughlan v. United States, 391 F.2d 371 (9th

Cir.), cert. denied, 398 U.S. 870 (1968) ............ 12, 13

Dusky v. United States, 362 U.S. 402 (1960) ..... 9

Escobedo v. Illinois, 378 U.S. 478 (1964) ........... 14

Faretta v. California, 422 U.S. 806 (1975) _.......... 12

Giglio v. United States, 405 U.S. 150 (1972) ........ 10

Greenwell v. United States, 386 F.2d 962 (D.C.

Cir. 1964), cert. denied, 380 U.S. 923 (1965) .... 11

Gregg V. Georgia, 428 U.S. 153 (1976) _........... 16

Hancock v. White, 378 F.2d 479 (1st Cir. 1967)... 11

Holmes v. United States, 363 F.2d 281 (D.C. Cir.

TUPIED ; jsscteinsteaciasecninscsesliaccbeaseah Catch tac STR 16

Johnson V. Louisiana, 406 U.S. 8356 (1972) ............ 20

Lee v. United States, 322 F.2d 770 (5th Cir.

BIO Scacinchuchcnocanecusi aalieaiabaiii 18

Leland v. Oregon, 348 U.S. 790 (1952) ................. 18

Mathies v. United States, 374 F.2d 312 (D.C.

ey Gee ERED NES Se gS OE ol 11,18

iil

TABLE OF AUTHORITIES—Continued

Michigan Vv. Mosly, 423 U.S. 96 (1975) .................

Moore v. Wolff, 495 F.2d 35 (8th Cir. 1974) ........

Napue V. Illinois, 360 U.S. 264 (1959) ....................

O’Brien v. United States, 386 U.S. 345 (1967) ....

Pate v. Robinson, 383 U.S. 375 (1966) -...............

People v. Beamer, 59 Ill. App. 3d 855, 376 N.E.2d

Ss ak ARES EE

People v. Collins, 17 Cal.8d 687, 131 Cal. Rptr.

782, 552 P.2d 742 (1976), cert. denied, 429 U.S.

I es deeiebinetin

People v. Hobson, 39 N.Y.2d 479, 348 N.E.2d 894,

FE | REESE IS elven

People v. Isby, 267 Cal. App. 2d 484, 73 Cal. Rptr.

OS en

People v. Patterson, 89 Mich. App. 467, 198 N.W.

2d 175 (Ct. App. 1971) -..... SELLY LIE CRELILD LO

People v. Ryan, 19 N.Y.2d 100, 224 N.E.2d 710,

& ae) BR Ss RR

Pernell v. Southall Realty, 416 U.S. 363 (1974) .....

Reinke v. United States, 405 F.2d 228 (9th Cir.

teeta k Sit tnnsibivado’

Ricks v. United States, 334 F.2d 964 (D.C. Cir.

pS REI es RR ER I th be AR NO

Robinson v. United States, 144 F.2d 392 (6th Cir.

1944), aff'd, 324 U.S. 282 (1945) .....................

Rochin v. California, 342 U.S. 165 (1952) ............

Santobello v. New York, 404 U.S. 257 (1971) ......

Spano v. New York, 360 U.S. 315 (1959) -............

United States v. Agurs, 427 U.S. 97 (1976) ..... ...

United States v. Allison, 481 F.2d 468 (5th Cir.),

supplemental opinion, 487 F.2d 339, cert. denied,

a I II ici nls, cinicthintensnemintbicanusen

United States v. Anderson, 523 F.2d 1192 (5th

a a taille

United States v. Beasley, 464 F.2d 468 (10th Cir.

pRB r REIN TAG LR Do A RRR ROR

United States v. Bennett, 460 F.2d 872 (D.C. Cir.

a RSS ORS RC Pie aces eS, SN eee

15, 20

TABLE OF AUTHORITIES—Continued

Page

United States v. Brown, 569 F.2d 236 (5th Cir.

) RE hae enn ee 12, 13

United States v. Carlson, 423 F.2d 431 (9th Cir.),

cert. denied, 400 U.S. 847 (1970) ...................... 11

United States v. Cobbs, 481 F.2d 196 (8rd Cir.),

cert. denied, 414 U.S. 980 (1978) —.......0000000....... 12, 13

United States v. Crook, 502 F.2d 1878 (8rd Cir.

1974), cert. denied, 419 U.S. 1123 (1975) ....... 13

United States v. Dority, 487 F.2d 846 (6th Cir.

WUD... ccineninnsnuinsihiaciniensneaiiislisiaaeasnaennenia nen 11

United States v. Durham, 475 F.2d 208 (7th Cir.

) | ENE Dre SUE EP NTS On Nike 12,13

United States v. Four Star, 428 F.2d 1406 (9th

Cir.), cert. denied, 400 U.S. 947 (1970) ............ 12, 13

United States v. Greene, 489 F.2d 1145 (D.C. Cir.

1973), cert. denied, 419 U.S. 977 (1974) ............ 9

United States v. Hayutin, 398 F.2d 944 (2d Cir.),

cert. denied, 3938 U.S. 961 (1968) 0.0... 15

United States v. Johnson, 529 F.2d 581 (8th Cir.),

cert. denied, 426 U.S. 909 (1976) —.................... 11

United States v. Lamb, 529 F.2d 1153 (9th Cir.

WD wccnieeninseensestnitacinteeegie 15

United States ex rel. Lopez v. Zelker, 465 F.2d

1405 (2d Cir.), aff’g 344 F. Supp. 1050 (S.D.

N.Y.), cert. denied, 409 U.S. 1049 (1972) ....... 12

United States v. Lovasco, 431 U.S. 783 (1977) ..... 10

United States v. Massimo, 482 F.2d 324 (2d Cir.

1970), cert. denied, 400 U.S. 1022 (1971) .... 11,18

United States v. Monti, 557 F.2d 899 (1st Cir.

|, | REEDED Emenee PEE I 11,12

United States v. Reynolds, 496 F.2d 158 (6th Cir.

TRE eects cncinacdiia miata tht gta das 12

United States v. Rodriguez-Gastelum, 569 F.2d 482

(9th Cir.), cert. denied, 486 U.S. 919 (1978) .... 12

United States v. Satterfield, 558 F.2d 655 (2d Cir.

1976), aff’g 417 F. Supp. 298 (S.D.N.Y.) ........ 12

United States v. Smith, 379 F.2d 628 (7th Cir.),

cert. denied, 389 U.S. 993 (1967) 13

TABLE OF AUTHORITIES—Continued

Page

United States v. Springer, 460 F.2d 1344 (7th

Cir.), cert. denied, 409 U.S. 873 (1972) ........ 11, 12,18

United States v. Thomas, 474 F.2d 110 (10th Cir.),

cert. denied, 412 U.S. 982 (1978) ......00................ 11, 13

United States v. Virginia Erection Corp., 335 F.2d

De a So tee 15

United States v. Wedra, 348 F. Supp. 1183 (S.D.

4 OER IESE TEENS Oe Ana 13

United States v. Woods, 544 F.2d 242 (6th Cir.

1976), cert. denied, 480 U.S. 969 (1977) ......... 13

Weatherford v. Bursey, 429 U.S. 545 (1977) ...... 8

Williams v. Brewer, 509 F.2d 227 (8th Cir. 1974),

oe ger eh .y ) Sean 12

Wilson v. United States, 398 F.2d 331 (5th Cir.

1968), cert. denied, 393 U.S. 1069 (1969) ........ 13

Withrow v. Larkin, 421 U.S. 35 (1975) .......000....... 21

CONSTITUTION, STATUTES AND RULES:

Tn sesiniemeninenienarandi 2, 20

SS EEE ET OT 2

TI ci icceccccscncceccesentercnscteiccce 2, 20

Nee a. sceausansbosnsawseuns 9

DL. Baper. Ct. B. Crim. P. 23(b) .......................... 20

D.C. Super. Ct. R. Crim. P. 24(c) ............02..00........ 15, 16

FR Oe a 15, 16

MISCELLANEOUS:

An erican Bar Association, Code of Professional

Kesponsibility, Disciplinary Rule 7-104 ........... 11

American Bar Association, Standards Relating to

Trial by Jury 79, 80, 82 (1968) 2.000000... 17, 20, 21

S. Asch, Effects of Group Pressure on the Modifica-

tion and Distortion of Judgments, in Groups,

Leadership, and Men (H. Geutzkow ed. 1951).... 19

S. Asch, Studies of Independence and Conformity:

A Minority of One Against a Unanimous Ma-

jority, 70 Psychological Monographs No. 9

(1957) eee 19

TABLE OF AUTHORITIES—Continued

H. Gurnee, A Comparison of Collective and In-

dividual Judgments of Fact, 21 J. Of Experi-

mental Psych. 106 (1937) ..............2....-ccceccceeeeeee

F. Merei, Group Leadership and Institutionaliza-

tion, 2 Human Relations 23 (1949) 200.0000...

E. J. Phares, Perceptual Threshold Decrements as

a Function of Skill and Chance Expectancies, 58

J. Of Psych. 399 (1962) ....... signichniedion

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-

BRUCE H. SHREEVES,

i Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

Bruce H. Shreeves petitions for a writ of certiorari

to review the judgment of the District of Columbia Court

of Appeals in this case.

OPINIONS BELOW

The opinion and judgment of the court of appeals,

reproduced in Appendix A, has not yet been reported.

The memoranda of the Superior Court of the District of

Columbia on Government interference with the insanity

defense and on the substitution of jurors (two issues

presented for review here) are reproduced in Appendices

B and C, respectively.

JURISDICTION

The judgment of the court of appeals was entered on

November 15, 1978. This Court has jurisdiction under

28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether Government misstatements that cause an

eight-month delay in securing a court-ordered indepen-

dent psychiatric examination for an indigent accused of

murder, in a jurisdiction where the accused bears the

burden of proof on the insanity issue, deny the accused

due process of law? ©

2. Whether a felony defendant who has been formally

charged and who is represented by counsel may be sub-

jected to custodial interrogation by Government officials

without notice to his counsel, particularly when the Gov-

ernment is on notice that there is a serious question of

the defendant’s mental competeace?

38. Whether, in a bifurcated felony trial, alternate

jurors may be substituted for regular jurors after the

regular jurors have begun deliberations?

CONSTITUTIONAL PROVISIONS AND

RULE INVOLVED

Article III, Section 2 of the United States Constitu-

tion provides, in pertinent part:

“The Trial of all Crimes . . . shall be by Jury.”

The Fifth Amendment to the United States Constitu-

tion provides, in pertinent part:

“No person shall be . . . deprived of life, liberty,

or property, without due process of law.”

The Sixth Amendment to the United States Constitu-

tion provides, in pertinent part:

“In all criminal prosecutions, the accused shall en-

joy the right to... an impartial jury ... and to

have the Assistance of Counsel for his defense.”

Rule 24(c) of the District of Columbia Superior Court

Rules of Criminal Procedure provides, in pertinent part:

“An alternate juror who does not replace a regu-

lar juror shall be discharged at the time that the jury

retires to consider its verdict.” *

STATEMENT OF THE CASE

In January, 1973, petitioner Bruce H. Shreeves was

a 22 year-old petty officer in the United States Navy.

He was married and had two children. He had no crimi-

nal record except for one minor juvenile arrest. In the

five days between January 26 and January 30, 1973, he

allegedly killed five persons and seriously wounded a

sixth. Four of these killings occurred in Maryland, where

Shreeves was convicted and is now incarcerated on multi-

ple life sentences.

This petition arises out of Shreeves’ conviction for the

fifth killing, which occurred in the District of Columbia.

Shreeves pled not guilty and not guilty by reason of

insanity, and in a bifurcated trial was found guilty and

not insane. Shreeves was sentenced to concurrent terms

of twenty years to life (felony murder), fifteen years

to life (second degree murder) and fifteen years to life

(armed robbery), all to be served consecutively to his

Maryland life sentences.

1. Facts Relating to Government Interference With In-

sanity Defense

Shreeves was arrested in the District of Columbia

as a fugitive from the Maryland homicide charges. Robert

Golten, of the District of Columbia Public Defenders

Office, was appointed to represent Shreeves at his ex-

tradition hearing. Counsel perceived that there was a

serious question concerning Shreeves’ mental status and

arranged for a mental examination by Dr. Eugene Stam-

1 Rule 24(c) of the Federal Rules of Criminal Procedure provides,

in part: “An alternate juror who does not replace a regular juror

shall be discharged after the jury retires to consider its verdict.”

meyer, a clinical psychologist, at the District of Columbia

jail. When Dr. Stammeyer supported counsel’s observa-

tions, counsel moved before the District of Columbia court

presiding over Shreeves’ extradition proceedings for an

independent psychiatric examination of Shreeves, noting

that “[t]he longer the delay in performing a psychiatric

examination the less relevant and probative is the ex-

amination.” *

The Government opposed the motion, stating that

“laluthority to order an examination exists only when a

person will stand trial or Las stood trial in the District

of Columbia,” and that “[s]ince any trial of this fugitive

will be in Maryland any psychiatric examination relating

to a defense of insanity has no purpose in the District

of Columbia.” *

At the time it made those representations, the Govern-

ment was in possession of substantial evidence implicat-

ing Shreeves in the District of Columbia homicide. The

Government had a confession of Shreeves’ co-defendant

implicating Shreeves in this homicide and Shreeves’ own

admission that he had been at the scene and had seen

the decedent “fall.”” The Government has admitted that

Shreeves was then in “the investigative ‘focus’” for this

homicide and has never denied Shreeves’ counsel’s as-

sertion that an affidavit in support of an arrest warrant

for Shreeves for the District of Columbia homicide had

already been prepared at the time of his extradition

hearing.*

* Motion for Psychiatric Examination, dated March 1, 1973.

’ Opposition to Defendant’s Motion for Psychiatric Examination,

at pp. 2,5 (emphasis added).

*Tr. Col. 9, p. 516; Vol. 11, p. 821; brief for Appellee, at

59 n. 40; compare Motion to Dismiss Indictment, dated November

19, 1974, with Opposition to Motion to Dismiss, filed December 23,

1974, and see Brief for Appellant Bruce H. Shreeves, at 4-5; Reply

Brief for Appellant Bruce H. Shreeves, at 1.

Relying on the Government’s representations, the court

denied Shreeves’ motion. Shreeves was indicted in the

District of Columbia less than three weeks later. His

first court-ordered independent psychiatric examination

in the District of Columbia did not take place until Oc-

tober, 1973—eight months after the crime, and seven

months after his request.

At trial, the Government took advantage of this delay

in its attack on the testimony of Dr. Stammeyer—the

only expert that examined Shreeves immediately after

his arrest. The Government effectively discredited Dr.

Stammeyer’s opinion that the crime was a product of

Shreeves’ mental illness by arguing that Dr. Stammeyer

was only a psychologist, not a psychiatrist, that his tes-

timony was biased because he was hired by the defense

and was not an independent expert appointed by the

court, and that his observations were unreliable since

they were made in jail rather than in a hospital.°

The court of appeals acknowledged that the Govern-

ment had made “misstatements” in opposing Shreeves’

motion for an independent psychiatric examination, and

did not dispute Shreeves’ argument that he would have

received a prompt, independent psychiatric examination

but for these misstatements. But it upheld Shreeves’

conviction on the ground that he had the burden of prov-

ing both that the Government’s misstatements were an

“intentional device to gain tactical advantage” and that

the delay had caused him “substantial prejudice,” and

that it “[could] not say the trial court erred” in finding

that Shreeves had not met this dual burden.’

5’ Tr. Vol. 17, pp. 152-66, 229-31; Vol. 18, pp. 29, 40-44, 129-30,

152-53; Vol. 23, pp. 1595-97 (summation).

6 Slip opinion at 16-18, infra pp. 16a-17a.

2. Facts Relating to Right to Counsel

After Shreeves’ arrest, Deputy Sheriff Purdy of Saint

Mary’s County, Maryland, contacted Shreeves’ counsel,

Robert Golten, several times seeking permission to talk

to Shreeves. Golten informed Purdy that he would ad-

vise Shreeves not to talk with Purdy. Nevertheless, on

March 7, 1973, Deputy Purdy went to the District of

Columbia jail to interrogate Shreeves without informing

Golten. Although Purdy had to wait for a time at the

jail before seeing Shreeves, he did not attempt to contact

Golten. Golten had no knowledge of the interrogation

until after it had taken place.’

At the jail, Purdy read Shreeves his’ Miranda rights,

but did not tell Shreeves that Golten was unaware of

the interrogation, or that Golten had stated that he

would advise Shreeves not to submit to questioning.’

At the time of this interrogation, the question of Shreeves’

mental competence had already been raised in court, and

Shreeves’ statements during the interrogation lent sup-

port to his counsel’s and a psychologist’s doubts on that

score. In the course of the interrogation Shreeves made

damaging admissions. The trial judge denied Shreeves’

motion to suppress these statements, and portions of them

were admitted over objection during the insanity phase

of Shreeves’ trial.”

* Tr. Vol. 3, pp. 496-511.

® Tr. Vol. 3, pp. 510-11, 519-24, 567-72, 580-81.

® See Motion for Psychiatric Examination, dated March 1, 1973.

Dr. Stammeyer, who had examined Shreeves several times, supported

counsel’s observations that there was “a strong suggestion of a

serious psychotic process afflicting the defendant.” Motion at 2.

During the interrogation, Purdy asked: “Do you believe in Jesus

Christ?” Shreeves answered: “I believe I am Jesus Christ and

that I wrote the Ten Commandments.” Tr. Vol. 3, p. 535.

” Tr. Vol. 6b, pp. 1171-72; Vol. 19, pp. 461-70; Vol. 23, pp. 1469-

73. Shreeves’ statement to Purdy—that after the killing he “fig-

ured, well, .. . there was no stopping now” (Tr. Vol. 19, pp. 467-69)

The court of appeals held that Purdy’s conduct did not

require suppression of Shreeves’ statements and that

Shreeves had waived his right to the presence of counsel."

3. Facts Relating to Substitution of Jurors

Shreeves gave timely notice of his intention to assert

an insanity defense and requested a bifurcated trial with

two separate juries. The court granted a bifurcated trial

but determined that both phases would be tried to a single

jury. A jury of twelve members and six alternates was

selected. These eighteen jurors heard the evidence at the

first or “merits” phase of Shreeves’ trial, and the twelve

regular jurors retired to deliberate and ultimately re-

turned a guilty verdict. The six alternate jurors were no%

discharged, but were instructed to report back to court

at a later time.”

Fifteen weeks later the same panel of twelve regular

and six alternate jurors heard the insanity evidence.

Immediately before closing arguments, the judge called

counsel to the bench and suggested that Juror Number

9 be discharged because she had been inattentive. (When

the jury was polled at the close of the first phase, Juror

Number 9 had expressed uncertainty about the verdict

and the jury had been sent back for further delibera-

tion.) Defense counsel opposed the discharge of Juror

Number 9 and requested, at a minimum, that she be

interrogated on the question of inattentiveness before be-

ing discharged. Without voir dire, the judge discharged

Juror Number 9 and Juror Number 8, whom the judge

also found to have been inattentive, and replaced them

with alternate jurors."

tended to show that Shreeves understood that his conduct was wrong

and that he had the capacity to stop. It was thus exceedingly

damaging to his insanity defense.

11 Slip opinion at 15; infra p. 14a.

2 Tr. Vol. 16, pp. 787-88, 792-93.

18 Tr. Vol. 17, pp. 68-72; Vol. 23, pp. 1518-27, 1633.

On appeal, Shreeves challenged this procedure as vio-

lative of the Sixth Amendment. The court of appeals

rejected Shreeves’ argument in a footnote, giving no

reasons. “*

REASONS FOR GRANTING THE WRIT

This petition raises three issues worthy of this Court’s

attention. The first involves serious prejudice to an

accused caused by Government misstatements of fact.

The second is an issue on which both the courts of appeals

and the state courts are in conflict. The third is a sub-

stantial issue of first impression.

1. The Government’s Interference With Shreeves’ In-

sanity Defense Deprived Him of a Fair Trial

The Government’s conduct here—first delaying Shreeves’

psychiatric examination and then taking advantage of

that delay at trial—was inconsistent with its duty un-

der the decisions of this Court “to insure that criminal

trials are fair.” Weatherford v. Bursey, 429 U.S. 545,

559 (1977). The facts reveal that the Government’s af-

firmative misrepresentations caused the court to deny

Shreeves’ motion, thereby delaying Shreeves’ first inde-

pendent psychiatric examination in the District of Colum-

bia by more than seven months, and substantially inter-

fering with Shreeves’ ability to present an effective in-

sanity defense.** Such interference should not be tolerated

14 Slip opinion at 29 n. 17; infra p. 27a. The court of appeals

also rejected Shreeves’ argument that the procedure violated D.C.

Superior Court Criminal Rule 24(c) (similar to Rule 24(c) of the

Federal Rules of Criminal Procedure). Slip opinion at 28-29; infra

pp. 26a-27a.

18 It is of course irrelevant that the Assistant United States At-

torney at the hearing on Shreeves’ motion may not have been aware

that his statements were materially misleading. “The staff lawyers

in a prosecutor’s office have the burden of ‘letting the left hand

know what the right hand is doing’ or has done.” Santobello v.

oD OE

SE me

where, as in the District of Columbia, the burden of prov-

ing an insanity defense rests on the defendant. See D.C.

Code § 24-301(j) ; United States v. Greene, 489 F.2d 1145

(D.C. Cir. 1973), cert. denied, 419 U.S. 977 (1974).

There is no question that if Shreeves had been formally

charged with the District of Columbia homicide at the

time of his first motion for a psychiatric examination,

it would have been reversible error to deny the motion.

See Cannady v. United States, 351 F.2d 817 (D.C. Cir.

1965). The same principle should apply here, where

Shreeves had not yet been formally charged but was

in the custody of the District of Columbia and was in

“focus” as the anticipated defendant in the prosecution

then being formulated for the District of Columbia homi-

cide.

This Court has recognized that as the time lengthens

between the commission of a crime and a psychiatric

examination of the accused, the examination becomes less

probative of the accused’s mental state at the time of the

crime. See Pate v. Robinson, 383 U.S. 375, 387 (1966) ;

Dusky v. United States, 362 U.S. 402 (1960). The

prejudicial effects of delay are especially evident in this

case: as a psychiatrist who later examined Shreeves

testified, Shreeves was “in a state of gradual resolution

of his acute psychotic episode” in the period following

his arrest, and by the time he received his first examina-

tion by a psychiatrist he was “out of the acute phase.”

Tr. Vol. 19, pp. 251-52 (emphasis added).

By discrediting Dr. Stammeyer’s testimony at trial, the

Government took advantage of the delay it had caused.

Testimony to the same effect as Dr. Stammeyer’s, but

coming from a neutral, court-appointed psychiatrist who

New York, 404 U.S. 257, 262 (1971). The individual prosecutor’s

good faith or bad faith is irrelevant. United States v. Agurs, 427

U.S. 97, 110 (1976).

had examined Shreeves in a hospital setting could not

have been discredited the same way. Such testimony, un-

available here only because of the Government’s misstate-

ments, might well have created a reasonable doubt as to

Shreeves’ sanity at the time of the crime. Cf. United

States v. Agurs, 427 U.S. 97, 112-13 (1976). More than

a “reasonable likelihood” of prejudice has thus been

demonstrated. See Giglio v. United States, 405 U.S. 150,

154 (1972).

The Government’s conduct here violated its duty not to

mislead the court with untrue factual representations,

cf. Napue v. Illinois, 360 U.S. 264 (1959); Giglio v.

United States, supra, at 153, and its duty not to inter-

fere with the defendant’s preparation of his case, cf.

Black v. United States, 385 U.S. 26 (1966); O’Brien v.

United States, 386 U.S. 345 (1967). Indeed, the Govern-

ment’s misstatements in this case led directly to a serious

“corruption of the truth-seeking function of the trial

process,” United States v. Agurs, supra, at 104, and are

offensive to “the community’s sense of fair play and de-

cency,” Rochin v. California, 342 U.S. 165, 173 (1952),

thus depriving Shreeves of due process of law. See

United States v. Lovasco, 431 U.S. 783, 790 (1977).

2. Shreeves’ Custodial Interrogation, Conducted With-

out Notice to His Counsel at a Time When His Mental

Competence Was Known to be in Question, Deprived

Him of His Right to Counsel

The question whether a represented felony defendant

may be interrogafd without notice to his counsel arises

daily in jails and police stations throughout the Nation.

It is an important question, one that this Court has recog-

nized and reserved, and one that should now be decided to

resolve the conflict of decisions among the federal courts

of appeals and among the states.

The court of appeals below acknowledged that “[i]t

is a matter of fundamental legal ethics” that the Govern-

<A a ee ee

ment “should not communicate with a represented de-

fendant without notice to, and permission of, the coun-

sel.” *° Yet the court permitted the Government to use

highly damaging evidence, obtained against a defendant

whose mental competence was known by the Government

to be in question, through an admitted violation of this

“fundamental” precept.

In Brewer v. Williams, 4830 U.S. 387 (1977), the

Court did not reach this question, but recognized and

reserved it, noting that the courts of appeals have split

on the issue. 4380 U.S. at 405-06 and n.11."" Both the

federal and state courts have been unable to reach a

consensus. The First, Tenth and District of Columbia

Circuits hold that statements obtained through the in-

terrogation of a represented defendant conducted without

notice to counsel must be suppressed.’* The Third, Fifth,

16 Slip opinion at 16; infra p. 15a, quoting Boykins v. United

States, 366 A.2d 133, 135 (D.C. 1976). See American Bar Associa-

tion, Code of Professional Responsibility, Disciplinary Rule 7-104.

17Tt is not necessary here to consider the case where a repre-

sented defendant himself initiates the contact with the authorities

and volunteers a statement. See, e.g., United States v. Carlson, 423

F.2d 431, 442 (9th Cir.), cert. denied, 400 U.S. 847 (1970) ; United

States v. Monti, 557 F.2d 899 (1st Cir. 1977); United States v.

Massimo, 432 F.2d 324, 327 (2d Cir. 1970) (Friendly, J., dissent-

ing), cert. denied, 400 U.S. 1022 (1971); Arrington v. Maxwell,

409 F.2d 849, 853 (6th Cir.), cert. denied, 396 U.S. 944 (1969);

Reinke v. United States, 405 F.2d 228, 229 (9th Cir. 1969); But ef.

Beatty v. United States, 389 U.S. 45 (1967), rev’g per curiam 377

F.2d 181, 188-91 (5th Cir.). Nor is it necessary here to reach the

case where the interrogators do not know that the defendant is

represented by counsel. See, e.g., United States v. Johnson, 529

F.2d 581, 584 (8th Cir.), cert. denied, 426 U.S. 909 (1976) ; United

States v. Dority, 487 F.2d 846 (6th Cir. 1973). But see United

States v. Springer, 460 F.2d 1344, 1354 n.1 (7th Cir. 1972) (Stevens,

J., dissenting), cert. denied, 409 U.S. 873 (1972).

18 See Hancock v. White, 378 F.2d 479, 482 (1st Cir. 1967);

United States v. Thomas, 474 F.2d 110, 112 (10th Cir.), cert. de-

nied, 412 U.S. 932 (1973); Mathies v. United States, 374 F.2d 312,

816 (D.C. Cir. 1967) (Burger, J.); Greenwell v. United States, 336

Sixth, Seventh, Eighth and Ninth Circuits hold, like the

court below, that a represented defendant may be in-

terrogated by the police with the same freedom as an

uncharged, unrepresented detainee.” The Second Circuit

holds that, while a represented defendant may waive his

right to the presence of counsel at an interrogation, his

waiver can be considered knowing and intelligent only

after such warnings and explanations as would justify

a court in permitting a defendant to proceed pro se at

trial.” The state courts are likewise split on this issue.*'

F.2d 962, 966 (D.C. Cir. 1964), cert. denied, 380 U.S. 928 (1965).

But cf. United States v. Monti, 557 F.2d 899 (1st Cir. 1977).

1° See United States v. Cobbs, 481 F.2d 196, 199-200 (3rd Cir.),

cert. denied, 414 U.S. 980 (1973); United States v. Anderson, 523

F.2d 1192, 1195 (5th Cir. 1975) ; United States v. Brown, 569 F.2d

236, 239, 241-42, 245, 250 (5th Cir. 1978) (dicta); United States

v. Reynolds, 496 F.2d 158, 162 (6th Cir. 1974); United States v.

Durham, 475 F.2d 208 (7th Cir. 1973); United States v. Springer,

460 F.2d 1344, 1350 (7th Cir.), cert. denied, 409 U.S. 873 (1972);

Williams v. Brewer, 509 F.2d 227, 233 (8th Cir. 1974), aff’d 430

U.S. 387 (1977) ; Moore v. Wolff, 495 F.2d 35, 37 (8th Cir. 1974) ;

United States v. Four Star, 428 F.2d 1406 (9th Cir.), cert. denied,

400 U.S. 947 (1970) ; Coughlan v. United States, 391 F.2d 371, 372

(9th Cir.), cert. denied, 393 U.S. 870 (1968) ; cf. United States v.

Rodriguez-Gastelum, 569 F.2d 482, 485, 490 (9th Cir.), cert. denied,

436 U.S. 919 (1978).

20 See United States v. Satterfield, 558 F.2d 655, 657 (2d Cir.

1976), aff’'g 417 F. Supp. 298, 296 (S.D.N.Y.); United States ex

rel. Lopez V. Zelker, 465 F.2d 1405 (2d Cir.), aff’g 344 F. Supp.

1050, 1054 (S.D.N.Y.) (Frankel, J.), cert. denied, 409 U.S. 1049

(1972); Faretta v. California, 422 U.S. 806, 835 (1975). Accord,

United States v. Brown, 569 F.2d 236, 241-48 (5th Cir. 1978) (Simp-

son, Goldberg, Godbold, and Morgan, JJ., dissenting) .

1 See, e.g., People v. Isby, 267 Cal. App. 2d 484, 73 Cal. Rptr.

294 (Ct. App. 1968) (suppressing) ; People v. Beamer, 59 Ill. App.

3d 855, 376 N.E.2d 368 (App. Ct. 1978) (admitting); Common-

wealth v. McCarthy, 348 Mass. 7, 200 N.E.2d 264 (1964) (suppres-

sing); People v. Patterson, 39 Mich. App. 467, 198 N.W.2d 175

(Ct. App. 1971) (admitting). The highest courts of two states

have recently overruled their previous decisions and now hold that

a statement taken from a represented defendant in the absence of

his counsel must be suppressed. See People v. Hobson, 39 N.Y.2d

a a re a

Adoption of the rule followed below has provoked fre-

quent and strong dissents.** Indeed, virtually every Cir-

cuit has condemned the practice of interrogating a rep-

resented defendant without notice to his counsel as un-

ethical,?* and several have announced or intimated that

they will exercise their supervisory power over the ad-

ministration of justice to curtail such conduct.**

This Court’s opinion in Brewer v. Williams, supra,

appears to support the Second Circuit rule, stating that

the same “strict standard” for waiver applies at critical

pretrial stages as at trial. 430 U.S. at 404. In Brewer,

the Court focused on the crucial distinction, ignored by

479, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976); Commonwealth v.

Hilliard, 471 Pa. 318, 370 A.24 322 (1977) ; Commonwealth v. Spar-

row, 471 Pa. 490, 370 A.2d 712, 725 n. 6 (1977).

22 In United States v. Springer, 460 F.2d 1344, 1354-55 (7th Cir.),

cert. denied, 409 U.S. 873 (1972), Justice (then Judge) Stevens

expressed his view that interrogation without notice to counsel is

a denial of due process. See also United States v. Brown, 569 F.2d

236, 241-48 (5th Cir. 1978) (Simpson, Goldberg, Godbold and Mor-

gan, J.J., dissenting) ; United States v. Durham, 475 F.2d 208, 211

(7th Cir. 1973) (opinion of Swygert, J.) ; United States v. Massimo,

432 F.2d 324, 327 (2d Cir. 1970); (Friendly, J., dissenting), cert.

denied, 400 U.S. 1022 (1971); Coughlan v. United States, 391 F.2d

871, 372 (9th Cir.) (Hamley, J., dissenting), cert. denied, 393 U.S.

870 (1968).

23 See, e.g., United States v. Woods, 544 F.2d 242, 255 (6th Cir.

1976), cert. denied, 430 U.S. 969 (1977); United States v. Crook,

502 F.2d 1378, 1380 (3rd Cir. 1974), cert. denied, 419 U.S. 1123

(1975); Moore v. Wolff, supra; United States v. Cobbs, supra;

United States v. Durham, supra; United States v. Thomas, supra;

United States v. Springer, supra; United States v. Four Star, su-

pra; Wilson v. United States, 398 F.2d 331, 333 (5th Cir. 1968),

cert. denied, 393 U.S. 1069 (1969); Lee v. United States, 322 F.2d

770, 777 (5th Cir. 1963) (Wisdom, J.); Mathies v. United States,

874 F.2d 312 (D.C. Cir. 1967) (Burger, J.).

24 See United States v. Thomas, supra; Ricks v. United States,

334 F.2d 964, 971 (D.C. Cir. 1964); United States v. Springer,

supra; United States v. Smith, 379 F.2d 628, 633 (7th Cir.), cert.

denied, 389 U.S. 993 (1967); United States v. Wedra, 343 F. Supp.

11838, 1188 (S.D.N.Y. 1972) (Weinfeld, J.).

most of the courts of appeals, between an unrepresented

and a represented accused: a defendant who has obtained

counsel has, by that very action, “expressed his own

view that he is not competent to deal with the authorities

without legal advice.” 430 U.S. at 405 n. 10 (quoting

Michigan v. Mosly, 423 U.S. 96, 110 n. 2 (1975) (Opin-

ion of White, J.)). And that view is doubly applicable

where there is a serious question regarding the mental

capacity of the defendant. Here the Government, aware

of the defendant’s expressed view that he required the

assistance of counsel, and also aware that his mental

competence was in question, initiated a custodial inter-

rogation—not for the purpose of investigating a crime,

but for the sole purpose of obtaining evidence to use

against him at trial *—without notice to his counsel.

Such conduct cannot be reconciled with the constitutional

protections of the Sixth Amendment or the integrity

of our adversary system of justice.

This case provides a suitable vehicle for the resolu-

tion of this important and much-disputed issue in the

administration of criminal law.

3. The Substitution of Jurors in the Second Phase of

Shreeves’ Trial, After the Jury Had Already Delib-

erated to a Verdict in the First Phase, Violated the

Applicable Rule and the Constitution

The judgment below represents, to the best of counsel’s

knowledge, the first opinion by any federal court ap-

proving the replacement of a juror with an alternate

25 See Escobedo V. Illinois, 378 U.S. 478, 484 (1964); Spano v.

New York, 360 U.S. 315, 325 (Douglas, J., concurring), 327 (Stew-

art, J., concurring) (1959). Deputy Purdy’s questions, such as

“Do you believe in God?” and “Do you believe in Jesus Christ?”

were hardly designed to aid in the investigation of unsolved crimes,

and could only have been intended to illicit either a confession or

to produce evidence relevant to Shreeves’ insanity defense—-as

they did.

prnareney enema —

after the jury had begun its deliberations. The question

whether such substitution is permissible under the Rules

of Criminal Procedure and the Constitution presents an

important issue of federal law and procedure not pre-

viously determined by this Court.”

a. Rule 24(c). The judgment below is contrary to the

decision of every federal court of appeals that has con-

sidered the matter under the less stringent federal rule.”

While those cases did not involve bifurcated trials, no

meaningful distinction can be made on that ground. Nor

did the court of appeals below attempt to draw such

a distinction. It agreed with petitioner that in a bifur-

cated trial, “the verdict is the jury’s ultimate and

definitive response to all of the issues which have been

presented to it.... [T]here is only one verdict in the

case.” ** Thus, the decision below stands as a precedent

applicable to all jury trials.

The court of appeals reached its conclusion that Rule

24(c) had not been offended by reasoning that only when

26 Federal Rule 24(c) provides that alternate jurors “shall be dis-

charged after the jury retires.” The D.C. rule is even more specific,

providing that alternates “shall be discharged at the time that the

jury retires.” (Emphasis supplied.) While this Court’s general prac-

tice is not to review decisions of the local courts of the District

of Columbia involving matters of “peculiarly local concern,” such

decisions may be reviewed where “a constitutional claim or a

problem of general federal law of nationwide application” is pre-

sented or where “egregious error has been committed.” Pernell v.

Southall Realty, 416 U.S. 368, 366, 369 (1974). All three of these

exceptional circumstances are present here. This Court should exer-

cise its jurisdiction to construe the D.C. rule in the same manner

as it would construe the essentially parallel federal rule.

27 See United States v. Lamb, 529 F.2d 1153 (9th Cir. 1975)

(en banc) ; United States v. Allison, 481 F.2d 468, 372 (5th Cir.),

supplemental opinion, 487 F.2d 339, cert. denied, 416 U.S. 982

(1973); United States v. Beasley, 464 F.2d 468 (10th Cir. 1972);

United States v. Hayutin, 398 F.2d 944, 950 (2d Cir.), cert. denied,

393 U.S. 961 (1968) ; United States v. Virginia Erection Corp., 335

F.2d 868, 871 (4th Cir. 1964).

28 Slip opinion at 28; infra p. 26a (emphasis supplied).

the jury retired to deliberate after the second phase of the

trial did it “retire to consider its verdict’? within the

meaning of Rule 24(c). But that interpretation is un-

tenable, for the jury’s determination on the merits at

the end of the first phase is not subject to reconsideration

during its deliberations after the second phase.*® Thus,

both of the jury’s determinations are necessary to consti-

tute “the verdict ... [on] all of the issues” and it follows

that during both periods of deliberation, the jury had

“retire[d] to consider its verdict” within the meaning of

Rule 24(c).*° The rule was therefore violated when the

alternate jurors were not discharged at the time the jury

retired after the first phase.”

b. The Constitution. The decision below holds, in effect,

that a jury composed of ten jurors who have participated

in the jury’s deliberations from the beginning plus two

new jurors who have been injected into the jury room

midway through the deliberations constitutes an accept-

2° The trial judge instructed the jury at the end of the second

phase that Shreeves “has been convicted of second degree murder,

first degree felony murder and armed robbery.” Tr. Vol. 23, p. 1628

(emphasis supplied). He instructed the jury only on the law re-

lating to the insanity defense, and gave the jury a verdict form

that provided space only to find that the defendant was “not guilty

by reason of insanity,” or that “the defense of insanity has not

been established.” Jd. at 1623-29, 1631.

80 Tf in fact the jury’s deliberation after the second phase was the

only time it “retire[d] to consider verdict,” then Shreeves’ con-

viction would have to be reversed because of the trial judge’s in-

structions to the jury that it was not to reconsider whether or

not he was guilty of the crimes charged. See fn. 29, supra.

51 Even if this Court views the facts here as raising a question

of the application of Rule 24(c) only to bifurcated trials, the issue

remains one of importance in light of the courts’ encouragement

of bifurcated trials and their growing use. See, e.g., Gregg Vv.

Georgia, 428 U.S. 158, 190-92 (1972) (Opinion of Stewart, Powell

and Stevens, JJ.) ; Holmes v. United States, 363 F.2d 281, 283 (D.C.

Cir. 1966); United States v. Bennett, 460 F.2d 872, 878-82 (D.C.

Cir. 1972).

able jury in a federal courtroom. Counsel are unaware

of any other case accepting such a proposition. This novel

interpretation of the Sixth Amendment, adopted below

without discussion,*? deserves to be rejected by this Court

before it can spread and infect other federal and state

jurisdictions.

At common law, if a juror died or for other reasons

had to be discharged during trial, the entire case was

retried de novo. See American Bar Association, Standards

Relating to Trial by Jury 79 (1968). The substitution of

an alternate during trial does no violence to this pro-

cedure, since the alternate has heard all the evidence as

if he had been on the jury from the beginning.”

The substitution of a replacement juror after delibera-

tions have begun is an altogether different matter. Dur-

ing the trial an alternate is on an equal footing with the

other jurors, but an alternate who is made a juror after

deliberations have begun has missed the earlier delibera-

tions and is no longer the other jurors’ equal. As the

Court of Appeals of New York has held:

“We believe that the Constitution . . . prohibits

the substitution of an alternate juror—in effect a

13th juror—after the jury has begun its delibera-

tion. . . . [W]e believe that, once the deliberative

process has begun, it should not be disturbed by the

substitution of one or more jurors who had not taken

part in the previous deliberation and who had

‘cease[d] to function as’ jurors.” People v. Ryan,

19 N.Y.2d 100, 104-05, 224 N.E.2d 710, 713, 278

N.Y.S.2d 199, 203 (1966) (citation omitted).

82 Slip opinion at 29 n. 17; infra p. 27a.

38 This Court has never considered the coistitutionality of the

alternate juror procedure codified in federal and local rules 24(c),

but it has been upheld in a court of appeals. Robinson v. United

States, 144 F.2d 392, 397-98 (6th Cir. 1944), aff’d (cert. limited to

other grounds) , 324 U.S. 282 (1945).

The facts in this case provide an excellent illustration

of the dangers inherent in permitting juror substitution

after deliberations have begun. Because the Government

must prove all elements of the crime, including the intent

required for first degree murder, beyond a reasonable

doubt even though the defendant has the burden of proof

on the insanity issue, see Leland v. Oregon, 343 U.S. 790

(1952), the facts found by the jurors in their delibera-

tions during the first phase of Shreeves’ trial undoubtedly

affected their views of his insanity defense. But during

the deliberations on his insanity defense, Shreeves got a

mixture of some jurors who had participated in the earlier

deliberations and soine who had not. It is very doubtful

that the new jurors, having had no opportunity to test

their own views of the evidence on Shreeves’ “guilt”

against those of the other jurors during the first phase

deliberations, and lacking knowledge of the basis of the

jury’s earlier determinations, could have participated as

equals in the second phase deliberations, or would have

been accepted as equals by the other jurors.** Nor could

the original jurors be expected to reopen their thinking on

issues of fact they determined in the first phase, even

when those issues bore directly on the insanity determi-

nation, in response to doubts expressed by persons who

84 When opposing Shreeves’ pretrial motion for two separate

juries, the Government argued:

“The facts in the case are extremely important . . . and, there-

fore the issue of responsibility must be decided upon those

facts as the jurors on the basis of their deliberations in as-

sessing credibility and weighing the evidence determine where

the truth actually lies. The only people that could do that are

the twelve jurors who participate in the deliberation on that

one area, and that’s a problem the Government sees with the

Court’s plan in allowing the substitution of jurors, whether

it be for cause or otherwise, after the jury has begun its de-

liberations and determined where the truth lies as to the dis-

puted facts.

* * * * *

“(The jury has] to decide the insanity defense based upon the

facts as they find them as this crime occurred and how it

were not present at the first phase deliberations.** The

California Supreme Court has explained the jury dynamics

that underlie this belief:

“Deliberations provide the jury with the opportunity

to review the evidence in light of the perceptions and

memory of each member. Equally important in shap-

ing a member’s viewpoint are the personal reactions

and interactions as any individual juror attempts to

persuade others to accept his or her viewpoint. The

result is a balance easily upset if a new juror enters

the decision-making process after the 11 others have

commenced deliberations.” People v. Collins, 17 Cal.

3d 687, 693, 131 Cal. Rptr. 782, 786, 552 P.2d 742,

746 (1976), cert. denied, 429 U.S. 1077 (1977).*

occurred, and for that reason it’s impossible to have, say, even

ten jurors with a complete knowledge of the facts and two

jurors that just have to say well, yes, since you say that’s

what the facts are, we have to agree with you, because they

are not the fact-finding persons—the twelve jurors are—not

anyone that was substituted at a later time . . . [substitute]

jurors are going to be crippled, they’re half jurors.”

Tr. Vol. 1, pp. 54, 57 (emphasis added). In its second phase closing

argument, the Government urged the jurors to consider and apply

their findings from the first phase to the question of Shreeves’

sanity. The two new jurors had no choice but to go along with the

previous decision of the other ten on the question of, for example,

whether Shreeves was convicted of murder for pulling the trigger

or only for aiding and abetting his co-defendant. As the Govern-

ment argued before trial, the two new jurors were “crippled . . .

half jurors” in the deliberation on Shreeves’ insanity defense.

85 The well-know experiments of S. E. Asch illustrate the great

degree to which individuals will be unable to express or maintain

their own opinions in the face of a contrary opinion unanimously

held by a pre-existing majority. See S. Asch, Effects of Group

Pressure on the Modification and Distortion of Judgments, in

Groups, Leadership, and Men (H. Geutzkow ed. 1951); S. Asch,

Studies of Independence and Conformity: A Minority of One

Against a Unanimous Majority, 70 Psychological Monographs No.

9 (1957). Cf. F. Merei, Group Leadership and Institutionalization,

2 Human Relations 23 (1949).

36 As in California, a criminal jury in the District of Columbia

must consist of twelve members (unless the parties stipulate

The American Bar Association rejected a proposal to per-

mit juror substitution during deliberations on the ground

“that it is not desirable to allow a juror who is un-

familiar with the prior deliberations to suddenly

join the group and participate in the voting without

the benefit of the prior group discussion.” American

Bar Association, Standards Relating to Trial by

Jury 82 (1968).

Indeed, a juror’s participation vel non in the first phase

of deliberations may well have affected even his or her

ability to recall the evidence presented. Personal experi-

ence has taught each of us that we will remember a given

set of facts better if we have discussed and deliberated

upon it and reviewed our recollection of it when our

memory was fresh.*’ The regular jurors did this in their

first deliberation, but the alternates did not; they went

home. It is unlikely that they remembered the evidence

as well as the ten regular jurors by the time of the second

deliberations, four months later. Similarly, the alternate

jurors’ ignorance of the jury’s findings on “guilt” meant

that they could not know what evidence the other jurors

might regard as crucial in the insanity phase and thus

could not focus their attention or their memory on that

evidence during the second phase of the trial. Indeed,

their attentiveness in general during the second phase

was not likely to be as great as the regular jurors’, be-

cause of their expectation that at the end of the evidence

they would be sent home again, and not involved in the

otherwise). D. C. Superior Court Criminal Rule 23(b). And the

constitutional guarantees of jury trial, Art. II § 2 and the Sixth

Amendment, which apply directly and of their own force to the

District of Columbia, Pernell v. Southall Realty, 416 U.S. 363, 370

(1974) ; Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899), require

that its verdict be unanimous, See Johnson v. Louisiana, 406 U.S.

356, 369-71 (1972) (prevailing opinion of Powell, J.).

**Cf. H. Gurnee, A Comparison of Collective and Individual

Judgments of Fact, 21 J. of Experimental Psych. 106 (1937).

deliberations.** Thus, a “realistic appraisal of psychologi-

eal tendencies and human weakness,” Withrow v. Larkin,

421 U.S. 35, 47 (1975), supports the view that the his-

torical requirement that jurors not be replaced after

deliberations have commenced is an essential attribute of

the jury system. The court of appeals’ departure from

this practice deserves this Court’s examination.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

JOHN H. PICKERING

ARTHUR F. MATHEWS

ROBERT B. McCAw

ARTHUR B. SPITZER

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

Bruce H. Shreeves

February 13, 1979

38 See American Bar Association, Standards Relating to Trial by

Jury 80 (1968); ef. Commonwealth vy. Bellino, 320 Mass. 635, 71

N.E.2d 411, 415, cert. denied, 330 U.S. 832 (1947); E. J. Phares,

Perceptual Threshold Decrements as a Function of Skill and Chance

Expectancies, 53 J. of Psych. 399 (1962).

Appendices

APPENDIX A

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 9233

BRUCE H. SHREEVES,

APPELLANT,

UNITED STATES,

APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(Hon. Harold H. Greene, Extradition Hearing Judge)

(Hon. John Garrett Penn, Trial Judge)

(Argued June 13, 1978 Decided November 15, 1978)

Robert B. McCaw, with whom John H. Pickering,

Arthur F. Matthews, Timothy N. Black, and Arthur

B. Spitzer, appointed by the court, were on the brief, for

appellant.

Cheryl M. Long, Assistant United States Attorney,

with whom Earl J. Silbert, United States Attorney, and

John A. Terry, Assistant United States Attorney, were

on the brief, for appellee.

Before NEWMAN, Chief Judge, FERREN, Associate

Judge and MurRPHY, Associate Judge, Superior Court of

the District of Columbia.*

NEWMAN, Chief Judge: Appellant was tried by a

jury in a bifurcated trial and found guilty of felony

* Sitting by designation pursuant to D.C. Code 1973, § 11-707(a).

murder, second-degree murder, and armed robbery. In

the second phase of the trial, the jury rejected his de-

fense of insanity. Appellant raises the following issues

on appeal: (1) denial of his Sixth Amendment right

to counsel when appellant was interrogated in the D.C.

Jail by a Maryland police official without the consent

of his attorney; (2) denial of due process by the trial

court’s failure to order an independent psychiatric ex-

amination at a pretrial extradition proceeding; (3) de-

nial of his Sixth Amendment right to a speedy trial; (4)

the trial court’s failure to suppress (a) evidence seized

from appellant’s car by Maryland police officials during

the course of their investigation into crimes committed

by appellant in that state, and (b) an admission made

by appellant during a post-arrest interrogation; (5)

the trial court’s failure to give appellant’s requested

jury instruction on felony murder; and (6) denial of his

Sixth Amendment right to trial by jury as a result of

substituting two alternate jurors at the close of the in-

sanity phase of the trial. In Part I we set forth the facts.

In Part II we address the issue of whether appellant’s

right to counsel was violated by the Maryland police

official when he interrogated appellant without the pres-

ence of or permission of appellant’s counsel. In Part III

we discuss the issues concerning governmental delay;

i.e., failure to order an immediate psychiatric examina-

tion at the time of the extradition proceedings and the

speedy trial claim. The suppression questions are ad-

dressed in Part IV, and the claims of trial court error

concerning jury instruction requests and juror substitu-

tion are analyzed in Part V. Finding no reversible error

we affirm. '

I. Facts

At about 7:30 a.m. on January 26, 1978, appellant

and Caroll Milburn robbed and killed Charles R. Myles

in front of Myles’ home in the District of Columbia.

Milburn, who pled guilty to a charge of second-degree

murder before appellant’s trial, was the principal gov-

ernment witness. He testified. that appellant and he

robbed Myles and that appellant shot and killed him

with a .38 caliber revolver.

According to Milburn, appellant and he drove to the

District of Columbia from St. Mary’s County, Maryland

in appellant’s 1966 maroon Pontiac during the late after-

noon of January 24, 1973. The next day they spent some

time shooting target practice with three firearms at

appellant’s cousin’s house in Montgomery County, Mary-

land. On their way back to the District, appellant and

Milburn stopped for dinner at a restaurant. Appellant

suggested that they rob Myles, who was known to carry

large amounts of cash on his person.

Appellant and Milburn trailed Myles from his liquor

store to a restaurant, and at about 1:00 or 2:00 a.m.

they drove to Myles’ house to await his return. Appellant

told Milburn to go into an apartment building directly

across the street from Myles’ house and to come out

when appellant pulled the gun.

Myles arrived at home between 7:00 and 7:30 a.m.

Appellant and Milburn left the car, walked up the street

to Myles’ house, and started to carry out their plan.

In the midst of the robbery, Milburn heard several

shots and began to run away. Appellant caught up with

him and the two fled the scene in appellant’s car.

Appellant returned to Maryland and, the following day,

January 27, engaged in several additional acts of vio-

lence, including killing a building contractor in White

Oak, Maryland.’ That evening appellant shot a St.

1It is clear from the briefs and record in this case that govern-

ment counsel and defense counsel carefully avoided introducing

evidence of the contemporaneous Maryland offenses into the merit

phase of appellant’s trial. We recite the Maryland events in the

statement of facts solely in order to clarify factual details which

might otherwise not be fully comprehensible.

Mary’s County police officer who stopped his car to in-

vestigate the Maryland crimes. Following that incident,

the St. Mary’s County police posted lookouts for appellant

and his maroon Pontiac.

On Sunday, January 28, Deputy Sheriff Donald W.

Purdy of the St. Mary’s County Police Department was

notified that a car registered to appellant and believed

to have been involved in two shooting incidents in Mary-

land had been parked on private land behind a farmers’

market in Mechanicsville, Maryland, for approximately

seven hours. The farmers’ market was approximately

three miles from where appellant had last been seen on

the previous evening. When Purdy arrived at the loca-

tion of the car, it began to rain. This impeded taking

fingerprints from the exterior of the car. Purdy ordered

the car towed to a private garage in Mechanicsville

where prints were taken from the exterior and the inside

of the car was examined. Rifle ammunition was found

on the seat of the car and seized; a revolver holster, a

rifle sheath, a pair of binoculars, and a stocking cap found

under the front seat were seized. Inside the glove com-

partment, Purdy found a District of Columbia personal

appearance bond and a traffic ticket receipt naming ap-

pellant. In addition, the police found a slip of paper

on which was written the name “Miles Anderson” and

the license number of a vehicle registered to Charles

P. Myles, the decedent. No warrant had been sought

before the search of the car.

Appellant was arrested by agents of the Federal Bu-

reau of Investigation (FBI) in the District on February

2, 1973, at about 9:40 p.m. He was charged with un-

lawful flight to avoid prosecution on homicide charges

in Maryland. He was advised of his Miranda? rights at

the scene of his arrest and again at the FBI District

2 Miranda V. Arizona, 384 U.S. 36 (1966).

of Columbia field office. He signed a form indicating

that he understood and waived his rights.* Although

he signed the waiver form and willingly gave the agents

routine descriptive data about himself, he refused to an-

swer questions concerning the Maryland homicides.

A few minutes later, Detective Hugh Triggs of the

Metropolitan Police Department (MPD) arrived at the

field office and introduced himself as an MPD detective.

Triggs inquired whether appellant understood his rights

as already read to him, and whether he would consent

to talk to him. Appellant replied that he understood

his rights and would consent to speak to Triggs. With-

out stating that he was investigating the Myles homicide,

Triggs asked appellant whether he had been in the Dis-

trict of Columbia on January 26, 1973. After denying

his presence in the District of Columbia on that date,

he admitted that he had driven into the city on that

day to pay a traffic ticket. When Triggs asked whether

he had driven along Warder Street that day, appellant

answered, “I know what you’re trying to get at. You’re

trying to get me involved in the shooting of the gambler.”

When Triggs again asked if appellant had been on War-

der Street that day, he replied, “Well, I was driving

down Warder Street on that day, and I saw the gambler

falling. I must be a fool. I’ve said too much.”

On the day after appellant’s arrest, counsel was ap-

pointed to represent him in the extradition proceeding.

On February 5, 1973, Deputy Sheriff Purdy came to the

District to attempt to persuade appellant to return volun-

3 The waiver form read:

Waiver of rights. I have read this statement of my rights and

I understand what my rights are. I am willing to make a state-

ment and answer questions. I do not want a lawyer present at

this time. I understand and know what I am doing. No prom-

ises or threats have been made to me, and no pressure or

coercion of any kind has been used against me.

tarily to St. Mary’s County. On that day, when contacted

by Purdy seeking to interview appellant, appellant's

counsel informed Purdy that he would advise appellant

not to talk to Purdy, but that appellant could make his

own decision. When Purdy attempted to interview him,

appellant said that he would not discuss the Maryland

offenses at that time, but that he would do so at a

later date. Between February 5 and March 7, Purdy did

not see or speak to appellant, although Purdy drove into

the District two or three times during that period in

connection with the extradition proceedings. At those

times, Purdy contacted appellant’s counsel about inter-

viewing appellant, but no interview occurred.

On March 7, however, Purdy, accompanied by a news

reporter, went to the D.C. Jail to interview appellant

without notifying his counsel about the intended inter-

view.‘ Purdy read appellant his Miranda rights, which

he agreed to waive. Purdy did not tell appellant of his

discussions with his trial counsel concerning the inter-

view or that he had not informed counsel of this inter-

view. Purdy did state that if appellant desired the pres-

ence of his attorney, he would be summoned. Shreeves

stated that he understood his Miranda rights and that he

did not want to call his attorney. He agreed to speak

with Purdy, but before appellant would talk about the

Maryland crimes he demanded that the news reporter

leave the room. After the reporter had left, Purdy again

read Shreeves his Miranda rights. Appellant then made

admissions to Purdy about the crimes.

+ During pretrial proceedings, Purdy testified that he and appel-

lant’s counsel several times discussed his desire to interview

Shreeves and that he was under the impression that it was counsel’s

view that, ultimately, the decision whether to talk to Purdy was

Shreeves’. Purdy stated that he did not recall whether appellant’s

counsel had ever indicated that it was important for him to be pres-

ent if Shreeves decided to speak to Purdy.

During this same time period, appellant’s counsel, be-

lieving that there could be a serious question concerning

appellant’s mental status, arranged for a clinical psy-

chologist, Dr. Eugene Stammeyer, to examine appellant

at the D.C. Jail on February 10, 1973. When Dr. Stam-

meyer supported counsel’s concerns about appellant’s

mental status, counsel moved, on March 1, for an in-

dependent psychiatric examination by the Forensic Psy-

chiatry Division. In the motion, counsel argued ° she

right to a psychiatric examination as close in time to the

offenses charged is an important component of his right

to a fair trial and to due process.” In its opposition,

the government claimed the court had no power to order

the requested examinations. Citing D.C. Code 1973, § 24-

801(a), the government argued that authority to order

a mental examination exists only when a person will

stand trial in the District, and it represented that an

examination relating to an insanity defense would have

no purpose in the District since “any trial of this fugitive

will be in Maryland.” The court declined to order an

independent psychiatric examination and on March 14,

ordered that appellant be surrendered to Maryland to

stand trial for murder.®

On April 4, 1978, following his rendition to Maryland,

appellant was indicted in the District of Columbia for

the Myles’ murder. The same counsel who had repre-

sented him in the extradition case was appointed to

represent him on the murder charge. He was arraigned

on April 16, 1973.

In June, after appellant filed notice of intent to raise

an insanity defense, the government moved for his com-

* Upon his return to Maryland, appellant was subjected to mental

examinations at Clifton T. Perkins Hospital. The results of these

examinations were available to both the government and defense

experts who testified at appellant’s trial here in the District of

Columbia.

mitment to St. Elizabeths Hospital pursuant to D.C.

Code 1978, § 24-301(a) for mental examination. Ap-

pellant opposed the motion, arguing that there was an

inherent conflict of interest in permitting the same doc-

tors who provide treatment to those found incompetent

or not guilty by reason of insanity to perform pretrial

competency examinations. Instead, in July the appellant

requested that the court order an examination by the

Forensic Psychiatry Division. The court denied appel-

lant’s request and on August 1, 1973, ordered him to St.

Elizabeths for a mental examination. On September 11,

1978, the court ordered that appellant also be examined

by the Forensic Psychiatry Division. However, because

he was in Maryland defending against other charges,

appellant was not admitted to St. Elizabeths until Oc-

tober 8, and the examination by the Forensic Psychiatry

Division did not take place until March 1974.

On June 5, 1974, appellant moved to dismiss the in-

dictment for lack of a speedy trial. The motion was

denied. On June 17, the trial court began hearings on

pretrial motions. Counsel moved to suppress, inter alia,

(a) all evidence seized from appellant’s car by the St.

Mary’s County police; (b) appellant’s admissions con-

cerning his presence in the District of Columbia on the

day of the Myles murder given to MPD Detective Triggs;

and (c) any evidence arising from Deputy Purdy’s in-

terrogation of appellant on March 7, 1973, without the

knowledge or consent of Shreeves’ counsel. The trial

court denied the motions on June 25, 1974, ruling: (a)

- that the car had been abandoned and thus appellant had

no standing to contest the search; (b) that appellant

was properly advised of his Miranda rights and that his

statements to Detective Triggs were admissible; and

Purdy interviewed him at the D.C. Jail, and that he

waived his right to the presence and advice of counsel.

Sateen ot aa

ee eee

The first phase of the bifurcated trial began June 26,

1974.° After the issue of instructions had been settled

and closing arguments completed, defense counsel re-

quested that the court give a supplemental instruction

on the felony murder charge.” The government objected

that the instruction was untimely and factually and

legally unsupportable. The trial court denied the request.*

During the deliberations, the jury requested further

instruction on a simplified statement of felony murder.

The court then reread the original felony murder in-

struction without objection from defense counsel. After

the jury had left the courtroom, counsel again requested

the supplemental instruction. The court denied the

request.

On July 19, 1974, the jury returned a verdict of guilty

on all counts. When the jury was polled, however, Juror

9 stated that she was undecided. The defense moved for

6 Appellant’s counsel requested a bifurcated trial with two sepa-

rate juries. The trial court denied this motion for separate juries

and ruled that one jury should hear both the merits and the insanity

phases of the case. This ruling is not challenged on this appeal.

7 The requested instruction read:

If you find that Carroll Milburn shot and killed the decedent

Miles [sic] and that the defendant Bruce Shreeves was there

at the time, but if you find that the shooting was outside the

plans of the robbery and not in furtherance of the purpose, that

is, that Milburn in shooting Miles [sic] was acting on behalf

of himself and not on behalf of both he and Shreeves, then you

may acquit Shreeves of first degree murder, but convict him of

armed robbery. [Tr. Vol. V, 02969]

8 The trial court gave the jury Standard Jury Instruction 4.22

that reads:

If two or more persons, acting together, are perpetrating or

attempting to perpetrate robbery and one of them, in the course

of the felony and in furtherance of the common purpose to com-

mit the felony, kills a human being, both the person who com-

mitted the killing and the person or persons who aided and

abetted in the felony are guilty of murder in the first degree.

10a

a mistrial on the ground that the “undecided” juror could

thereafter be intimidated by the other jurors. The mo-

tion was denied and the judge sent the jury back to

resume deliberations with appropriate instructions on

further deliberations. An hour later, the jury returned

with a verdict of guilty on all counts.

The insanity phase of the trial commenced on Novem-

ber 6, 1974.° Shreeves presented testimony from four

lay witnesses, one clinical psychologist, and one psy-

chiatrist, all intended to satisfy his burden of proving

insanity at the time of the offense. The government

countered the insanity defense by presenting evidence of

Shreeves’ other violent crimes committed in Maryland

contemporaneous to the Myles murder, as well as expert

psychiatric testimony.

Near the end of the insanity phase of the trial, the

court called counsel to the bench and suggested that

Juror 9 be discharged because she had repeatedly been

inattentive during the trial. Defense counsel objected.

When the trial court ruled that he would excuse Juror

9, defense counsel moved for the removal of Juror 8, who

also had been inattentive. The judge replaced Jurors

8 and 9 with two alternate jurors who had heard all the

evidence presented during both phases of the trial.

On November 21, 1974, the jury found that appellant

had failed to establish the defense of insanity on any of

the counts.

II. APPELLANT’S RIGHT TO COUNSEL

Appellant claims that his Sixth Amendment right to

counsel was violated by the use of statements obtained

during the March 7 interview conducted without the

presence or consent of his attorney. When appellant

® The delay between the first and second phases of the bifurcated

trial was for reasons not germane to this appeal.

Det at com RR ea See on a ane

SOA cee A et Rn wie Cl eat aD

ate anechitntoinatinned- «Ag Ac0e

lla

moved to suppress statements from that interview before

trial, the trial court conducted an evidentiary hearing, at

which both Deputy Purdy and appellant’s counsel testified.

The trial court found that Purdy twice advised appellant

of his Miranda rights. In addition, the court found that

although Purdy advised appellant that he had counsel and

asked whether or not he wanted to have his counsel pres-

ent during the interview, appellant indicated that he did

not wish to confer with his attorney and consented to

be interrogated without counsel being vresent. Finding

that appellant understood his rights, the trial court ruled

that appellant validly waived his right to counsel.

Appellant now argues that a defendant who has been

charged formally and who is represented by counsel has

a right to have his attorney notified before he is interro-

gated by government officials. He contends that the right

to notification of his attorney is a corollary to his Sixth

Amendment right to counsel, and any statement made

during an interview conducted without notice to his at-

torney should be suppressed.

At the outset, we must address the question whether a

defendant may ever waive his right to the presence of

counsel, after it has attached, without notice to or con-

sultation with his attorney. Various federal circuit courts

of appeal and state courts have answered this question

differently. See, e.g., United States v. Thomas, 474 F.2d

110 (10th Cir.), cert. denied, 412 U.S. 932 (1978);

United States v. Springer, 460 F.2d 1344, 13850 (7th

Cir.), cert. denied, 409 U.S. 873 (1972); United States

ex rel. O'Connor v. New Jersey, 405 F.2d 632 (3d Cir.),

cert. denied, 395 U.S. 923 (1969); State v. Witt, 422

S.W.2d 304 (Mo. 1967) ; and State v. Green, 46 N.J. 192,

215 A.2d 546 (1965), cert. denied, 384 U.S. 946 (1966).

Although the Supreme Court has not specifically resolved

the issue, we believe that the holding in Brewer v. Wil-

liams, 430 U.S. 387 (1977), supports the view that a

12a

defendant may waive his right to counsel without con-

sulting his attorney.

In Brewer, supra, the defendant was convicted of

murder in the abduction of a 10-year-old girl which

occurred in Des Moines, Iowa. After turning himself in

to authorities in Davenport, Iowa, two days after the

child’s disappearance, the defendant Williams was form-

ally charged with abduction. Williams, an escaped mental

patient, conferred in person with an attorney in Daven-

port and by telephone with his attorney in Des Moines.

Both attorneys told Williams to make no statement during

the ride from Davenport back to Des Moines and that the

police had agreed not to question him. During the ride,

Williams indicated that he would give the police a state-

ment after he spoke with his attorney upon arrival in

Des Moines.. Nonetheless, during the ride one of the

officers coaxed Williams into revealing the site of the

child’s grave.

The Supreme Court ruled that at that time, Williams

was entitled to the assistance of counsel. Although Wil-

liams apparently understood his right to counsel, “waiver

requires not merely comprehension but relinquishment,

and Williams’ consistent reliance upon the advice of coun-

sel in dealing with the authorities refutes any suggestion

that he waived that right.” 430 U.S. at 404. (Emphasis

added.) The Court stated further:

The Court of Appeals did not hold, nor do we, that

under the circumstances of this case Williams could

not, without notice to counsel, have waived his rights

under the Sixth and Fourteenth Amendments. It

only held, as do we, that he did not. [Jd. at 405-06

(footnote omitted) (emphasis in original).]

In his concurrence, Justice Powell states explicitly

what we, too, infer from the majority’s holding:

13a

The dissenting opinion of THE CHIEF JUSTICE

states that the Court’s holding today “conclusively

presumes a suspect is legally incompetent to change

his mind and tell the truth until an attorney is

present.” I find no justification for this view. On

the contrary, the opinion of the Court is explicitly

clear that the right to assistance of counsel may be

waived, after it has attached, without notice to or

consultation with counsel. We would have such a

case here if the State had proved that the police

officers refrained from coercion and interrogation,

as they have agreed, and that Williams freely on his

own initiative had confessed the crime. [Jd. at 413

(citations omitted) (emphasis added).]

Cases since Brewer also reject a per se prohibition against

communications between police and defendants without

prior notice to counsel. F.g., United States v. Brown,

569 F.2d 236 (5th Cir. 1972) (en banc) ; United States

Vv. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. 1978)

(en banc); Watson v. State, 282 Md. 78, 382 A.2d 574

(1978). We agree with the courts’ holding that a de-

fendant may waive his right to counsel without prior

notice to or. consultation with his attorney.

Although the right to counsel thus may be waived, the

government bears a heavy burden to show: (a) that the

defendant understood that in fact he had a right to the

presence of counsel during an interrogation, see Brewer

v. Williams, supra at 404; and (b) that the defendant

intentionally relinquished or ~bandoned that “known

right.” Johnson v. Zerbst, 304 U.S. 458, 465 (19388) ;

Brewer v. Williams, supra at 404. See United States v.

Rodriguez-Gastelum, supra at 485 (citing Brewer for the

proposition that “the burden is greater when the govern-

ment attempts to show a waiver after the right to counsel

has been asserted than when the government attempts

to show a waiver of the right to remain silent’) ; United

States v. Cobbs, 481 F.2d 196, 199 (8d Cir.), cert.

14a

denied, 414 U.S. 980 (1973) ; United States v. Springer,

supra at 1352.

In deciding whether the government has satisfied its

greater burden, the trial court may look to the particular

facts and circumstances surrounding the case, including

the experience, background, and conduct of the defendant.

Johnson v. Zerbst, supra at 464; United States v. Rodri-

guez-Gastelum, supra at 488. The trial court should con-

duct an on-the-record inquiry of the police official, defense

counsel, and other appropriate witnesses. The court must

make findings of fact to ensure that the record clearly

reflects that the waiver of the presence of counsel was a

knowing, voluntary, and intelligent relinquishment of a

known right. United States v. Cobbs, supra at 200.

The record in this case reflects thorough examination

of both Deputy Purdy and trial counsel. There was evi-

dence to support the trial court’s finding that appellant

was advised twice of his right to the presence of counsel

and that appellant refused Deputy Purdy’s offer to call

counsel. We find no error in the trial court’s ruling that

Shreeves validly waived his right to the presence of

counsel during the interrogation by Deputy Sheriff

Purdy.”

1 This case is distinguishable from Brewer v. Williams, supra,

in several significant respects. First, unlike Williams, appellant

Shreeves never asserted that he wanted to speak to his attorney

before making statements to Detective Purdy. Second, in contrast

with Brewer, although Detective Purdy lad contacted Shreeves’

counsel about the possibility of questioning appellant, there is no

proof that Shreeves’ attorney requested Purdy to refrain from in-

terrogating Shreeves unless his counsel was present. In fact, Purdy

was left with the impression that the decision whether to talk to

him was entirely Shreeves’. Finally, while the only evidence indicat-

ing a knowing and voluntary waiver in Brewer was the fact that

Williams had actually confessed, the validity of Shreeves’ waiver is

supported by the fact that Purdy twice read appellant his Miranda

rights and offered to call his attorney before questioning him, and

that appellant indicated he understood his rights, declined the offer

to call his attorney, and agreed to waive his rights before confessing

to Purdy.

15a

Despite our holding that under the appropriate cir-

cumstances the right to the presence of counsel may be

waived, we reiterate what we said in Boykins v. United

States, D.C. App., 366 A.2d 138, 185 (1976):

[T]he government ordinarily should not communi-

cate with a represented defendant without notice to,

and permission of, the counsel. . . . [Communications

without prior notice to counsel] is a highly ques-

tionable governmental practice. Undoubtedly, too,

the Bar would make itself heard if counsel, or their

agents, were to make it a practice to interview, with-

out advance notice to counsel, clients of opposing

lawyers in civil or criminal cases... . It is a matter

of fundamental legal ethics that this not be done

(American Bar Association, Code of Professional

Responsibility DR 7-104).

III. GOVERNMENTAL MISSTATEMENTS AND DELAY

Appellant asserts that his Fifth Amendment due proc-

ess rights were violated by the court’s denial of his

request at the extradition hearing for an immediate

psychiatric examination. He argues that the denial was

based on the government’s erroneous assertions that be-

cause appellant would not be tried in the District of

Columbia, the court had no authority to order the re-

quested mental examination. He claims that these govern-

ment misstatements severely hampered his ability to

present an effective insanity defense since the only person

who examined him at the time of his arrest was a

psychologist whose opinions were assailed by the govern-

ment at trial for bias as a defense-retained expert and

léa

whose opinions were denigrated as those of a psychologist

rather than a psychiatrist.”

Appellant also raises the issue of preindictment delay.

According to appellant, the government deliberately de-

layed indicting him for the Myles murder until after the

extradition proceedings to prevent an immediate psychi-

atric examination. Thus, says appellant, the government’s

misstatements at the extradition proceedings were con-

sistent with the government’s plan to delay his indict-

ment.

To prevail on his claim that his due process rights were

violated by delay, a defendant must show that the delay

“caused substantial prejudice to [his] right to a fair

trial and that the delay was an intentional device to gain

tactical advantage over the accused.” United States v.

Marion, 404 U.S. 307, 324 (1971). If a defendant can

satisfy this two-pronged burden, due process mandates

dismissal of the indictment. Id.

We conclude that appellant failed to prove either of

the Marion requirements, and that the court correctly

denied his motion to dismiss the indictment. First, it is

not clear that the government’s misstatement was “an

intentional device to gain tactical advantage over the

accused.” The government did have within its possession

the admissions appellant made to Detective Triggs at

the time of his arrest as well as some initial testimony

given by Milburn to the grand jury investigating the

Myles homicide. However, Milburn appeared a second —

time before the grand jury on March 29, 1973, two weeks

after appellant had been ordered returned to Maryland.

This latter appearance by Milburn is consistent with a

good faith effort by the government to present an ap-

11J—n the context of this case, we have no occasion to decide

whether one alleged to be a fugitive, upon an appropriate showing,

has a right to a competency hearing and determination prior to an

extradition hearing.

17a

propriate case to the grand jury in order to secure an

indictment. On this record, we cannot say the trial court

erred in finding that the government was not attempting

to gain a tactical advantage by delaying appellant’s in-

dictment to prevent an immediate mental examination.

Even if appellant had satisfied the first prong of the

Marion test, he still must show that the delay caused

him “substantial prejudice.” The trial court found to the

contrary. Shortly after appellant was transferred to the

Maryland authorities pursuant to the extradition order

of March 14, 1973, he received a psychiatric examination

at Clifton T. Perkins State Hospital. The results of this

examination were available to appellant in his District

of Columbia trial and could have been utilized by him.

While it is true that a mental examination at a state

hospital is not the type of independent psychiatric exami-

nation which appellant sought, its availability coupled

with the lack of any further showing of “substantial

prejudice” lead us to conclude that the trial court prop-

erly denied the motion to dismiss the indictment.

Appellant also claims that his Sixth Amendment right

to a speedy trial was violated as a result of the nearly

seventeen-month delay between his arrest on February 2,

1973, and the commencement of his trial on June 26,

1974. A delay of more than one year provides “prima

facie merit” to a claim of speedy trial deprivation, Branch

v. United States, D.C.App., 372 A.2d 998, 1000 (1977) ;

United States v. Mack, D.C.App., 298 A.2d 509, 511

(1972) ; United States v. Holt, 145 U.S.App.D.C. 185, 186,

448 F.2d 1108, 1109, cert. denied, 404 U.S. 942 (1971),

which raises its own presumption of prejudice. The gov-

ernment then has the burden of affirmatively showing the

absence of prejudice. Day v. United States, D.C.App.,

— A.2d —— (No. 11272, July 10, 1978, slip op. at

18a

25); United States v. Bolden, D.C.App., 381 A.2d 624,

627-28 (1977) ; Branch v. United States, supra at 1000.

In addition, in assessing a speedy trial claim we must

apply a balancing test, weighing not only the length of

the delay and prejudice to the defendant, but also the

reason for the delay and the timeliness of defendant’s

assertion of his right to a speedy trial. Barker v. Wingo,

407 U.S. 514, 523 (1972).

Here the delay totaled sixteen months and twenty-three

days from the time appellant was brought before the

Superior Court on the fugitive charge until jury selection

began for his trial. The delay was caused by three

factors: (1) pretrial motions and hearings; (2) appel-

lant’s own unavailability due to trial proceedings in Mary-

land; and (3) controversy concerning appellant’s mental

examination at St. Elizabeths Hospital.“ The time re-

quired to resolve pretrial motions is regarded as neutral.

United States v. Jones, 154 U.S.App.D.C. 211, 213, 475

F.2d 822, 324 (1972). The delays caused by over-

crowded dockets are chargeable to the government, but

the government bears a less heavy burden in the speedy

trial calculus for such than for delays resulting from

more purposeful governmental conduct. United States v.

Jones, supra at 218, 475 F.2d at 324; United States v.

Perkins, D.C.App., 374 A.2d 882, 883-84 (1977). The

time spent in the dispute over the procedures to be used

12 Although Shreeves was not formally indicted on the D.C.

charges until April 4, 1973, we believe that the appropriate time

frame for a speedy trial analysis, on the particular facts in this

case, should commence from the time of actual restraint imposed

by arrest and holding to answer a criminal charge. Thus, we deem

the starting point of the time calculation to be February 3, 1972.

United States v. Marion, supra at 320; Dillingham v. United States,

423 U.S. 64 (1975).

18 The controversy over the mental examinations concerned ap-

pellant’s request to be examined by Forensic Psychiatric rather than

St. Elizabeths, and his later request that his attorney be present

during the St. Elizabeths examination.

19a

during appellant’s mental examination at St. Elizabeths,

and the delay caused by the two mental examinations,

approximately five months, “are not normally taken into

account for purposes of determining the question of a

denial of speedy trial” since “ ‘a principal cause of post-

ponement [was] the deliberate pace of the system of safe-

guards designed to protect the accused... .’” United

States v. Canty, 152 U.S.App.D.C. 108, 107, 469 F.2d

114, 118 (1972), quoting Blunt v. United States, 131

U.S.App.D.C. 306, 310, 404 F.2d 1288, 1287 (1968), cert.

denied, 394 U.S. 909 (1969). Moreover, the delay of ap-

proximately four and one-half months spent in the Mary-

land proceedings is essentially “neutral” time, chargeable

to neither party unless the totality of the circumstances

indicate otherwise. United States v. Canty, supra at 107-

08, 469 F.2d at 118-19. Thus, of the nearly seventeen-

month delay, approximately nine and one-half months

were chargeable to neither side. The remaining seven and

one half months’ delay was chargeable to the government

but was essentially neutral time due to court congestion.

Appellant did not assert his right to a speedy trial until

June 5, 1974, sixteen months after arrest. Thus, most of

the delay complained of occurred before the speedy trial

demand and must be accorded less significance. See

United States v. Jones, 173 U.S.App.D.C. 280, 297, 524

F.2d 834, 851 (1975).

The assessment of whether the government has success-

fully rebutted the presumption of prejudice to the defend-

ant, given the delay of more than one year, requires an

evaluation of three factors: (1) prevention of oppressive

pretrial incarceration; (2) minimization of anxiety and

concern of the accused; and (3) possible impairment of the

defense. Barker v. Wingo, supra at 532. Examination

of the record shows that the government has satisfied its

burden to rebut the presumption of prejudice which arises

from a delay of greater than one year. See Branch v.

20a

United States, supra. Because appellant was incarcerated

on the Maryland charges as well as on the District of Co-

lumbia charges, the delay in the District of Columbia did

not cause oppressive pretrial incarceration nor significant

additional anxiety. The record establishes that the

seventeen-month delay in no way impaired Shreeves’

ability to present his defense. On this record, we cannot

say that the trial court erred in rejecting the appellant’s

claim of a deprivation of his right to a speedy trial.

IV. SUPPRESSION ISSUES

Appellant contends that the trial court erred in de-

clining to suppress evidence obtained as a result of the

warrantless search of his car. The trial court ruled that

the car had been abandoned and that appellant had no

standing to contest the search. While we reject the trial

court’s rationale, we agree that the search was consti-

tutionally permissible and thus the evidence seized there-

from was admissible.

In discussing abandonment, this court has stated:

The issue is not abandonment in the strict property-

right sense, but whether the person prejudiced by

the search had voluntarily discarded, left behind, or

otherwise relinquished his interest in the property in

question so that he could no longer retain a reason-

able expectation of privacy with regard to it at the

time of the search. . . . [United States v. Boswell,

D.C.App., 347 A.2d 270, 274 (1975) quoting United

States v. Colbert, 474 F.2d 174, 176 (5th Cir.

1973) .] °

It is apparent from the fact that Shreeves left a sub-

stantial number of his personal belongings in the car

14 For a discussion of the methodology of this court’s analysis of

the government’s rebuttal of defense arguments about pretrial

incarceration and “anxiety,” see Day v. United States, supra at 26,

28-29

2la

that, at the time he parked the car, he did not “volun-

tarily . . . relinquish his interest in the property.” Jd.

Rather, his actions evinced “an intent . . . to secrete [the

car] and not to abandon it.” Jd. Since the government

has failed to meet its burden of showing abandonment

“by clear, unequivocal and decisive evidence,” Peyton v.

United States, D.C.App., 275 A.2d 229, 230 (1971), we

hold that there was no abandonment, and thus that ap-

pellant did have standing to contest the search.

Fourth Amendment doctrines state that “a car may be

searched or seized without a warrant if there were both

exigent circumstances and probable cause to believe that

the car will yield contraband or evidence useful for prose-

cution of crime.” Note, Warrantless Searches and Seiz-

ures of Automobiles, 87 Harv. L. REv. 835 (1974) (foot-

note omitted). The probable cause element was clearly

present here. The facts (as more fully outlined in Part I,

supra) that several violent incidents in Maryland had

occurred in the days immediately preceding the discovery

of appellant’s car involving both appellant and his auto-

mobile, constituted a strong showing of probable cause to

conclude that evidence of the crimes likely would be found

in the car. See Carroll v. United States, 267 U.S. 132

(1925).

Because no warrant was obtained, we must determine

whether the government showed “that the exigencies of

the situation made [the warrantless search] imperative.”

Coolidge v. New Hampshire, 408 U.S. 448, 455 (1971),

quoting McDonald v. United States, 385 U.S. 451, 456

(1948).

We note at the outset that this case falls within the

so-called ‘automobile exception” to the warrant require-

ment that premises exigency on mobility. Carroll v.

United States, supra; Chambers v. Maroney, 399 U.S. 42

(1970). Although the car was immobile when found,

Deputy Purdy testified that he did not have sufficient

22a

personnel to post a guard around the car until he could

obtain a search warrant. Since the police could have no

assurance of continued immobilization without a guard,

the circumstances presented a sufficient exigency to search

the car without obtaining a warrant. See United States

v. Free, 141 U.S.App.D.C. 198, 202, 437 F.2d 631, 635

(1970). Cf. United States v. Robinson, 174 U.S.App.D.C.

351, 353-54, 583 F.2d 578, 580-81 (en banc) cert. denied,

424 U.S. 956 (1976) (record revealed “surfeit,” rather

than shortage of police officers to guard car.)

Moreover, we believe that the circumstances place this

case within the “getaway car exigency” created by the

United States Court of Appeals for the District of Colum-

bia in United States v. Robinson, supra. In Robinson,

shortly after a bank robbery, the police spotted what they

had probable cause to believe was the getaway car. The

police surrounded the car, then unlocked it, and a search

produced evidence of the crime. The court, sitting en

banc, ruled that the search fell “within the spirit, though

not the text, of the ‘hot pursuit’ exception established in

Warden v. Hayden, 387 U.S. 294 (1967).” United States

v. Robinson, supra at 356, 533 F.2d at 583.

What the court in Robinson said applies with equal

force to the exigency here:

[T]his getaway car case entails exigent circum-

stances that justify a warrantless search of the car

for clues as to identity or location of suspects. The

pertinent factors are much like those set out by this

court in Dorman v. United States, 140 U.S.App.D.C.

818, 319-21, 485 F.2d 385, 391-93 (en banc, 1970),

as showing “urgent need” justifying a warrantless

nighttime entry into a private home to effect an

arrest. As in Dorman, we have a grave offense; a

clear showing of probable cause; a reasonable belief

that suspects are armed; a likelihood that the sus-

pects will escape if not speedily apprehended, and

23a

peaceable entry. This case lacks the element of

“strong reason to believe the suspect is in the

premises being entered,” which was stressed in Dor-

man as justifying a warrantless entry into the

suspect’s home to make an arrest. But in the case

of a car on the street there is both lesser expectation

of privacy than in a home... , and the entry into a

car believed on strong probable cause to be the get-

away car is justified, even though the suspect is

plainly not now inside, in order to get clues that will

aid location and apprehension of the suspect. [Jd. at

356-57, 533 F.2d at 583-84 (footnotes omitted) .]

We hold therefore that because the circumstances sur-

rounding the search of appellant’s car provided probable

cause as well as an exigency, the search was justified,

and the trial court was correct in refusing to suppress

the evidence obtained as a result of the search.”

V. OTHER CLAIMS

A. Jury Instructions

Appellant argues that the trial court’s refusal on two

occasions to give his requested supplemental felony mur-

*8 Appellant also claims error in the trial court’s refusal to sup-

press incriminating statements made to Detective Triggs concern-

ing the Myles murder pursuant to Miranda v. Arizona, supra. The

record is clear that although Triggs did not repeat the Miranda

warnings, he entered the interview room only a few minutes after

appellant had been read the Miranda warning and that Triggs was

aware of this fact. He asked appellant if he understood his rights

and whether appellant would consent to talk to him. Moreover, he

specifically identified himself to appellant as a District of Columbia

detective who specialized in homicide cases. It was only thereafter

that he questioned appellant. We are satisfied that appellant’s

waiver of his rights to silence was valid. See United States v. Vas-

quez, 476 F.2d 730, 732 (5th Cir.), cert. denied, 414 U.S. 8386

(1978).

¢ 24a

der instruction constitutes reversible error.’® Because

neither of these requests was timely made, we find no

error.

Prior to the close of the evidence, each side submitted

proposed instructions. The trial court discussed the pro-

posed instructions with counsel and ruled on them prior

to closing arguments, After the completion of closing

arguments, and immediately before charging the jury,

the trial court conferred with counsel for both sides, and

indicated which instructions he planned to give the jury.

At that time, defense counsel submitted his supplemental

felony-murder instruction. After retiring, the jury re-

quested a clarifying instruction on felony-murder. The

judge conferred with both counsel and reread the original

instruction. Only after the jury retired again did de-

fense counsel suggest that the trial court give the previ-

ously-requested supplemental instruction.

Super. Ct. Cr. R. 30, which is identical to the federal

rule, sets forth the procedural requirements for jury

instruction requests:

At the close of the evidence or at such earlier time

during the trial as the court reasonably directs, any

party may file written requests that the court in-

struct the jury on the law as set forth in the re-

quests. At the same time copies of such requests

shall be furnished to adverse parties. The court shall

inform counsel of its proposed action upon the re-

quests prior to their arguments to the jury, but the

court shall instruct the jury after the arguments are

completed. No party may assign as error any por-

tion of the charge or omission therefrom unless he

objects thereto before the jury retires to consider

16 The requested instruction set forth one of the defense theories

that the murder was committed by Milburn and was outside the

scope of the robbery.

25a

its verdict, stating distinctly the matter to which he

objects and the grounds of his objection. Oppor-

tunity shall be given to make the objection out of the

hearing of the jury and, on request of any party, out

of the presence of the jury.

The requirement that the court inform counsel of its

proposed action upon the requests before closing argu-

ments necessarily requires that requests for instructions

be submitted prior to closing argument. The time limi-

tation enables opposing counsel both to object to a pro-

posed instruction and to frame his closing argument to

address the potential effect on the jury of the requested

instruction. See United States v. Tourine, 428 F.2d 865,

868-69 (2d Cir. 1970), cert. denied, 400 U.S. 1020

(1971) ; Schuermann v. United States, 174 F.2d 397, 401

(8th Cir.), cert. denied, 338 U.S. 831 (1949).

Here, counsel did not propose his instruction until after

closing argument was completed. The record reflects no

extenuating circumstances that prevented defense counsel

from formulating his request e>rlier. Therefore, we hold

that because the defense failed to comply with the time

requirements of Super. Ct. Cr. R. 30, the trial court did

not err in denying the request.

We also hold as untimely the defense request for the

supplemental instruction following the rereading of the

instructions to the jury. Had defense counsel requested

the supplemental instruction before the jury retired

again, the trial judge then could have exercised his dis-

cretion in determining how to respond to the jury’s re-

quest for clarification. See United States v. Wharton,

139 U.S.App.D.C. 293, 296 n.9, 483 F.2d 451, 454 n.9

(1970). However, the record reflects the defense request

after the jury had retired. Such an untimely request

violates the clear purpose of Super. Ct. Cr. R. 30.

26a

B. Juror Substitution

Appellant claims error in the trial court’s substitution

of two inattentive jurors just prior to deliberation of the

insanity phase of the trial. He argues that Super. Ct. Cr.

R. 24(c) prevents the substitution of jurors with alter-

nates during the second phase of a bifurcated trial. This

rule provides in pertinent part:

Alternate jurors shall be drawn in the same manner,

shall have the same qualifications, shall be subject

to the same examination and challenges, shall take

the same oath and shall have the same functions,

powers, facilities and privileges as the regular jurors.

An alternate juror who does not replace a regular

juror shall be discharged at the time that the jury

retires to consider its verdict.

Appellant’s contention is based on the premise that

when the jury retires to consider the merits portion of a

bifurcated trial, the jury has “retired to consider its

verdict,” and thus the alternates should be dismissed.

However, this premise is incorrect. In a bifurcated trial,

as well as in a unitary trial, the verdict is the jury’s

ultimate and definitive response to all of the issues which

have been presented to it. Baldwin v. State, 185 Tenn.

205, 204 S.W.2d 1018 (1947); State v. Williams, 89

N.J.L. 234, 98 A. 416 (1916) ; State v. Blue, 184 La. 561,

64 So. 411 (1914). In a trial which has been bifurcated

into a merits phase and an insanity phase, but which is to

be heard by one jury, there is only one verdict in the

case. And that verdict is rendered at the close of the

insanity phase (assuming, of course, that the insanity

issue has been reached). See Burks v. United States, ——

U.S. ——, 98 S.Ct. 2141 (1978) ; Davis v. United States,

160 U.S. 469 (1895).

Thus, in a bifurcated trial where the same jury hears

both phases, Rule 24(c) dictates that the alternates

27a

should not be dismissed until the jury retires at the end

of the second phase. The trial court here acted within

its authority in substituting alternates for the two in-

attentive jurors at the conclusion of the second phase.”

Affirmed.

17 We find no merit in appellant’s alternate argument that the

juror substitution resulted in a denial of his Sixth Amendment

right to trial by jury.

28a

APPENDIX B

SUPERIOR COURT OF THE DISTRICT

OF COLUMBIA

CRIMINAL DIVISION

No. 19906-73

UNITED STATES OF AMERICA

BRUCE SHREEVES

MEMORANDUM ORDER

This case resulted in a bifurcated trial in two phases,

the first phase in July, 1974, and the second phase (in-

sanity) in November, 1974. During the second phase, the

defendant moved to dismiss the indictment on the grounds

that he had been denied due process of law. Specifically,

defendant argues that when he was originally arrested on

a fugitive warrant from Maryland, his attorney in the

District of Columbia requested a psychiatric examina-

tion. The Government objected to that examination on

the grounds that there was no case pending in the Dis-

trict of Columbia. Defendant was thereafter transferred

to Maryland and did receive an examination in that state.

Defendant also contends that at the very time the Gov-

ernment argued against an examination, the Government

knew that it was contemplating filing charges against

him as a result of the homicide involving Charles Ray-

mond Myles.

This motion was originally an oral motion made during

the second phase of the trial. It is this Court’s recollec-

tion that it indicated that it felt the motion was without

merit but invited counsel to submit memoranda on the

motion.

29a

After reviewing the memoranda submitted on both

sides, the Court concludes that the motion is totally with-

out merit and it is, accordingly, denied. Defendan. was

arraigned in this case in April, 1973, and has only now

raised this motion for dismissal of the indictment. More-

over, the defendant was the subject of extensive psychi-

atric and psychological examinations in both the District

of Columbia and the State of Maryland. During the

course of the second phase of his trial involving the issue

of insanity he was permitted to call lay witnesses who

testified concerning the state of his mind and his actions

at or around the time of the offense.

Obviously, it is best if possible to have a psychiatrist

or psychologist examine a defendant at or immediately

after the time of the commission of an offense. In this

case the Court finds that the delay in having a psychologi-

eal and psychiatric examination of the defendant was

not unreasonable and has in no way prejudiced his case.

The Court finds-no denial of due process and accordingly

defendant’s motion to dismiss the indictment on those

grounds is denied. It is hereby

ORDERED that defendant’s Motion to Dismiss Indict-

ment is denied

Dated: January 27, 1975.

/s/ John Garrett Penn

JOHN GARRETT PENN

Judge

30a

APPENDIX C

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

CRIMINAL DIVISION

Criminal No. 19906-73

UNITED STATES OF AMERICA

Vv.

BRUCE H. SHREEVES

MEMORANDUM

This case came back for the second phase of a bifur-

cated [trial] on November 6, 1974. At the first phase the

defendant had been found guilty of first degree felony

murder (D.C. Code 1973, .§ 22-2401); second degree

murder (D.C. Code 1973, '§ 22-2403); and armed rob-

bery (D.C. Code 1978, §§ 22-2901, 22-3202). At the

1 After the completion of the first phase of the bifurcated trial,

the case was continued over until August 19, 1974, at the request

of the defendant because his psychiatrists were not then available

to testify. When the case was called on August 19th, both the de-

fendant and the Government announced that they were not ready

to go forward since their respective psychiatrists were not available

to testify. The case was then set down for November 4, 1974

(counsel not being available for much of the time between August

and November, 1974), however it was not reached on that date be-

cause the Court was in trial in another matter.

The record should also reflect that the unavailability of counsel

during part of September and October was caused by the fact that

both counsel for the Government (John Clark) and the chief coun-

sel for the defendant (Robert Golten) left their respective positions

at the United States Attorney’s Office and Public Defender Service

subsequent to the first phase of this trial. Mr. Clark was thereafter

returned us a Special Assistant for the United States Attorney in

order to complete the second phase. Mr. Golten was appointed pur-

suant to the Criminal Justice Act in order to continue his repre-

sentation of the defendant.

8la

completion of the second phase of the trial the jury found

that with respect to all the above charges the defense of

insanity had not been established.

After the completion of the instructions at the conclu-

sion of the evidentiary period of the second phase of this

case, the Court, sua sponte, excused Juror No. 9 over the

objection of the defendant. The Court also excused Juror

No. 8 on the motion of the defendant without objection

by the Government.? The purpose of this memorandum is

to set forth for the benefit of counsel, should the defend-

ant appeal on this issue, and for the benefit of the Ap-

pellate Court, the reasons for excusing Juror No. 9.

First it should be noted that after the jury announced

that it had a verdict in the first phase, they were re-

turned to the courtroom and the Foreman announced a

* guilty verdict on the charges already referred to in this

memorandum. When defendant asked to have the jury

polled, the Court directed the clerk to poll the jury by

numbers. When the clerk reached Juror No. 9, she at

first did not respond, but when addressed by the Court

she stated words to the effect “I just don’t know”. The

Court, after conferring with counsel at the bench, gave

the standard instruction where the verdict does not ap-

pear to be unanimous, and sent the jury back to continue

their deliberations in the case. Thereafter, the jury re-

turned, announced the same verdict, and all jurors were

polled and all (including Juror No. 9) announced guilty

to the three charges.*

2 They were replaced by alternate Jurors Nos. 1 and 2.

’ The defendant has moved for a new trial and asserts as one

of the grounds for his motion the failure of the Court to declare a

mistrial after Juror No. 9 was polled and indicated that she was

not sure about the verdict. Defendaiut’s contentions are treated in a

Memorandum Order by the Court addressed to defendant’s motion

for new trial.

32a

The same jury was called and seated for the second

phase of this trial.‘ During the second phase the Court

noticed that Juror No. 9 on many occasions appeared to

be nodding and to be inattentive to the proceedings. The

same was noted with respect to No. 8 but to a much

lesser degree. Early in the case the Court called counsel

to the bench and brought this matter to their attention.

The Court at that time specifically referred to Jurors

Nos. 9 and 8. The Court requested counsel to pay special

attention to both jurors. Thereafter, when possible, the

Court attempted to note those times when the jurors (in

particular Jurors Nos. 9 and 8) appeared not only to be

nodding but to be inattentive as well.’ Based upon this

+ Although the Court agreed to bifurcate the trial, it ruled that

the case would be heard before the same jury. Twelve regular

jurors and six alternate jurors were selected to hear this case and

during the first phase of the case all jurors were sequestered due to

the possibility that the case would generate considerable publicity.

See Court’s Memorandum Order on the motion for a new trial. On

voir dire examination nc.ther counsel for the parties nor the Court

directly raised the issue of insanity for obvious reasons, but the

Court, with the agreement of counsel, did inquire of the prospective

members of the jury whether they would be able to give fair con-

sideration to such defenses as self-defense, insanity, entrapment,

ete. The purpose of the question was to hopéfully bring forth a

response from those who would be troubled by an insanity defense.

Two or three prospective jurors approached the bench and advised

the Court and counsel that they would have trouble accepting any

insanity defense. Those prospective jurors were excused on motion

by counsel for cause.

At the beginning of the second phase the Court again permitted

a voir dire examination of the eighteen jurors. Although the Court

had ruled that it would not allow peremptory challenges, it did

advise counsel that it would take a liberal view of any challenge for

cause on the issue of insanity. There were no challenges for cause

by either side, and all eighteen jurors were again seated in the

same order as in the first phase of the trial.

5’ The Court noted the juror, the time, the witness on the stand,

and the nature of the testimony being elicited at that time. It

should also be noted that the Court made such notations only when

some considerable time passed while the juror appeared to be inat-

tentive (from 15 to 30 minutes).

83a

Court’s observations, the Court felt that in the interest

of justice it had to remove Juror No. 9 even over the

strong objections of defense counsel. Needless to say,

both sides in the case are entitled to a fair and impartial

jury, and a jury which has heard all the evidence to be

considered during their deliberations. It should also be

noted that at the time the Court removed Juror No. 9 it

was well aware that the defendant and his counsel would

object and for that very reason the Court had immedi-

ately brought this matter to the attention of all counsel

during the early part of the second phase of this case so

that counsel would be able to respond if the Court chose

to take such action sua sponte.

For the record the Court notes a few of the occasions

below during which Juror No. 9 appeared to be nodding

and inattentive.

1. November 7, 1974—12:15 p.m.

Direct testimony of Dr. Stammeyer.

2. November 7, 1974—3:30 p.m.

Direct testimony of Dr. Stammeyer.

3. November 8, 1974—3:10 p.m.

Cross-examination of Dr. Stammeyer.

4. November 11, 1974—12:53 p.m.

Direct testimony of Diane Goff.

5. November 13, 1974—11:10 a.m.

Direct testimony of Dr, Whyte.

6. November 13, 1974—3:00 p.m.

Direct testimony of Dr. Whyte.

7. November 14, 1974—11:30 a.m.

Redirect testimony of Dr. Whyte.

8. November 14, 1974—3:03 p.m.

Direct testimony of Deputy Sheriff Purdy.

18.

84a

November 15, 1974—11:15 a.m.

Direct testimony of Dr. Adamo.

November 15, 1974—12:20 p.m.

Cross-examination of Dr. Adamo.

. November 15, 1974—4:35 p.m.

Cross-examination of Dr. Adamo.

November 18, 1974—12:05 p.m.

Cross-examination of Dr. Adamo.

. November 18, 1974—12:30 p.m.

Cross-examination of Dr. Adamo.

November 18, 1974—3:20 p.m.

Recross of Dr. Adamo,

November 19, 1974—10:50 a.m.

Cross-examination Officer Welborn.

November 19, 1974—11:47 a.m.

Direct examination of Dr. Strawinsky.

November 19, 1974—3:20 p.m.

Cross-examination of Dr. Strawinsky.

November 20, 1974—3:02 p.m.

Cross-examination of Dr. Strawinsky.

Dated: December 9, 1974.

/s/ John Garrett Penn

JOHN GARRETT PENN

Judge

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