# Petition — Shreeves v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 441 U.S. 943

## Text

- 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,
v.

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:

1.

2.
3.

Facts Relating to Government Interference
SR SSE

Facts Relating to Right to Counsel ....................
Facts Relating to Substitution of Jurors ........

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

1.

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

10

14
21

II

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

14

15, 20

IV

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

Vv

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

VI

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

20

oe

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).

2

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:

3

“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.”

4

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.

5

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.

6

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)

7

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.

8

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

9

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).

10

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-

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
V.

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.

se

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2480%3A1. Public record. Not legal advice.