UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, Danaher, Circuit Judge, Bastian,* Senior Circuit Judge, and Burger, Wright, McGowan, Tamm, Leventhal and Robinson, Circuit Judges, sitting en banc. J. Skelly Wright, Circuit Judge, with whom Bazelon, Chief Judge, concurs, dissenting and concurring in part.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BASTIAN
This is an appeal from the District Court after a hearing on remand for an explicit determination by the trial judge as to the voluntariness of the oral confession introduced at defendant's (appellant's) trial as required by Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). After determining that the defendant was competent to participate in the hearing, the trial judge found that beyond a reasonable doubt the confession was voluntarily given. It is from this determination that defendant appeals, (1) challenging the determination of voluntariness, (2) asserting an unnecessary delay before preliminary hearing, during which delay the oral confession was obtained, and (3) contending that this court's en banc determination on the first appeal that the facts did not obligate the trial judge sua sponte to conduct a competency hearing is now invalidated by the Supreme Court's decision in Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). As we cannot accept these contentions, we affirm.
The factual background of this case is to be found in the prior opinions of this court dealing with the current indictment, Green v. United States, 122 U.S.App.D.C. 33, 351 F.2d 198 (1965), and with a previous indictment, Green v. United States, 121 U.S.App.D.C. 226, 349 F.2d 203 (1965). The case now before us began with Green's arrest on August 9, 1962, and indictment on three counts of robbery, committed after he had "eloped" from St. Elizabeths Hospital. Green had been committed to the hospital in 1961 pursuant to D.C. CODE § 24-301(d) after being found not guilty by reason of insanity on a four-count robbery charge. This earlier finding and commitment had followed a mental examination and determination, pursuant to D.C. CODE § 24-301(a), that, although he was competent to stand trial, his alleged criminal acts could have been a product of the mental disease from which he was suffering at the time of such acts.
After his indictment in the present case, appellant again was granted a ninety-day psychiatric examination at St. Elizabeths under § 24-301(a). The determination of the examination was that appellant was competent to stand trial and that, although mentally ill at the time of the alleged offenses, such acts were not the product of that illness. Appellant was tried and convicted by a jury on two counts of robbery. He was then returned to St. Elizabeths pending vacation of the commitment resulting from his 1961 trial. Upon Green's appeal from this conviction, we sua sponte ordered an en banc hearing. On that appeal, Green attacked his conviction on the ground that no sua sponte hearing was conducted by the trial judge to determine competency. We rejected this contention, based on the specific facts of this case and our earlier opinion in Whalem v. United States, 120 U.S.App.D.C. 331, 346 F.2d 812 (1965), cert. denied, 382 U.S. 862, 86 S. Ct. 124, 15 L. Ed. 2d 100. The trial judge had conducted a voluntariness hearing upon appellant's motion to suppress the confession, but he dismissed the motion without making a specific finding of voluntariness. We remanded on a confession of error by the Government in light of the requirement of Jackson v. Denno (supra) decided subsequent to the trial in this case, that a specific finding regarding voluntariness must be made by the trial judge in all such voluntariness hearings. Our remand was specifically for the purpose of such a determination, with directions for affirmance of the conviction if the confession was found to have been voluntary.
On remand, an extensive seven-day voluntariness hearing was conducted, covering in detail the events preceding and subsequent to appellant's arrest and confession and the circumstances surrounding the confession, with testimony from one of the victims and two of the arresting officers, and with lengthy testimony from five psychiatrists regarding appellant's mental condition at that time. With this record as well as that of the original trial before him, the trial judge made determinations that appellant was competent to participate in the remand hearing and that the confession used against him at the trial was voluntary beyond a reasonable doubt. Regarding the circumstances of the robbery, the trial judge made findings of fact that appellant was arrested within three and one-half blocks of the scene of the crime about five minutes after its commission, and in possession of incriminating evidence. He further found that appellant was taken immediately into the police station (directly in front of which he had been arrested), then transported to the scene of the crime and identified by the victims, and returned to the police station, all within thirty to forty-five minutes. Regarding the confession, he further found as a fact that, while at the realty office and while en route back to the police station, appellant made the incriminating statements constituting the oral confession, before all of which he had been warned that he need not make any statement and that any statement made by him could be used against him. Regarding voluntariness, the trial judge found from the record that appellant's statements were calm and rational, and his answers responsive; that his demeanor was normal in every respect; and that no promises, threats, assault, brutality, artifice or trickery were used to induce any statement or admission. From the extensive psychiatric testimony, the trial judge made findings that there was no credible psychiatric testimony that the statements were involuntary, *fn1 and that appellant had the mental capacity to make the statements voluntarily. Whereupon, an order was entered dated June 6, 1966, finding that the confession was voluntary, and affirming the judgment of conviction pursuant to the directive of our en banc opinion.
At the trial, appellant's counsel objected to the oral confession as being involuntary due to appellant's mental condition, which contention was rejected by the trial judge. This was not challenged on appeal. Rather, as we have noted, the Government cited the lack of an explicit finding regarding voluntariness by the trial court, giving rise to the remand hearing. Appellant now contends, regarding the voluntariness of his incriminating oral statements, not only that under "traditional tests" was the trial judge's finding erroneous, but, again, that appellant's mental illness had made him incapable of "understanding the meaning and effect of his confession," drawing this language from People v. Tipton, 48 Cal.2d 389, 309 P.2d 813 (1957), cert. denied, 355 U.S. 846, 78 S. Ct. 71, 2 L. Ed. 2d 55 (1958). Here, however, the record on remand fully supports the finding of voluntariness beyond a reasonable doubt made by the trial judge, such finding being completely consistent with the following tests: Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961) (product of an essentially free and unconstrained choice); Lynumn v. State of Illinois, 372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963) (whether the defendant's will was overborne); Haynes v. State of Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963) (that the confession was made freely, voluntarily, and without compulsion or inducement of any sort).
This is not to deny that the accused's mental condition is one of the factors bearing on this admissibility question. McAffee v. United States, 72 App.D.C. 60, 111 F.2d 199 (1940). Although neither this court nor apparently any other federal court has purported to set out or describe a standard which must be specially and additionally enunciated and met in determining voluntariness whenever mental capacity is urged as a defense, the case of Blackburn v. State of Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960), where mental competence was at issue, does indicate that a defendant's confession will be deprived of its voluntary nature when his mental illness is such "that the confession most probably was not the product of any meaningful act of volition." In this case, however, findings of fact were made and supported by the record which clearly indicate that appellant's will was not overborne, and which fully satisfy the prerequisites of voluntariness, including the language cited by appellant and that noted above. *fn2
On remand appellant, for the first time, sought to introduce an issue of "unnecessary delay" prior to preliminary hearing, violative of FED.R.CRIM.P. 5(a), during which time the confession used at trial was obtained in violation of Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957). This contention is absent from the original trial and appeal, and clearly was not within the scope of the explicitly directive remand order of this court. Green v. United States, 122 U.S.App.D.C. at 36, 351 F.2d at 201. Furthermore, the en banc disposition of that prior appeal, which focused on the admissibility of the confession, would seem to have settled the question. Certainly, neither the majority opinion nor the dissent alludes to any such "unnecessary delay" which, had it been manifest, would have compelled immediate reversal. Consistent with the narrow scope of our remand, it would appear that the trial judge properly considered a possible violation of Rule 5(a) only as it indirectly related to voluntariness. *fn3
To the extent, however, that "unnecessary delay" contentions may be considered here in regard to the voluntariness of appellant's confession, which was, of course, the basis of a motion to suppress at trial and of the remand hearing, we note that the record manifestly precludes any finding of delay violative of Rule 5(a). The incriminating statements introduced in evidence were made during a continuing conversation between appellant and police officers which took place during a short ride from the precinct to the real estate office that was the scene of the crime, for the purpose of a prompt identification almost immediately after the crime. Mallory precludes statements made during an unnecessary delay in taking an accused before a judicial officer. On the facts surrounding the arrest and identification in this case, there is nothing to suggest that appellant's utterances were other than "spontaneous" or "threshold" declarations not to be preclude under Mallory. Ramey v. United States, 118 U.S.App.D.C. 355, 336 F.2d 743 (1964), cert. denied, 379 U.S. 840, 85 S. Ct. 79, 13 L. Ed. 2d 47. *fn4 See also Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (Decided July 27, 1967); Perry v. United States, 102 U.S.App.D.C. 315, 253 F.2d 337 (1957), cert. denied, 356 U.S. 941, 78 S. Ct. 785, 2 L. Ed. 2d 816 (1958).
Finally, appellant contests our earlier rejection, based on Whalem, of the contention that his committal to St. Elizabeths Hospital following his 1961 insanity acquittal made requisite a judicial hearing to determine his competency to stand trial in 1963. His present attack is based on the proposition that the subsequent decision in Pate v. Robinson (supra) emasculates our ruling in Whalem. We reject this contention.
The issue before us at our first en banc hearing in this case was the same as that in Whalem, which reasoning we need not restate here. We need only to determine that Pate, while giving constitutional proportion to the accused's right to a judicial competency hearing when it is either requested or compelled as a matter of judicial due process on the facts of a given case, clearly does not remove from judicial discretion determination regarding the sua sponte conduct of such a hearing, and that the question in all such cases remains whether the trial judge has abused his discretion in the particular case before him.
In Whalem we took great care to point out that hospital certification of competency, without objection, does not mean that the accused must proceed to trial, but that the trial judge may and in given cases should conclude that such a report alone is inadequate, and sua sponte request an elaboration or order a hearing. 120 U.S.App.D.C. at 335, 346 F.2d at 820. We noted that the question on appeal then becomes whether the failure to hold such a hearing constitutes, on the facts of a given case, an abuse of the trial judge's discretion. (Indeed, this determination, on the specific facts in Whalem, marked the sole point of departure by the dissent in that case.) Subsequent cases in this jurisdiction and elsewhere, including Pate, are entirely consistent with and reflective of this reasoning. Hence, in Wider v. United States, 121 U.S.App.D.C. 129, 348 F.2d 358 (1965), decided subsequent to Whalem but prior to Pate where counsel for the accused voiced at trial strong misgivings regarding competency, we noted that whether or not we could consider such expression as an "objection" to the competency report there in evidence so as to require a judicial hearing, the fact of such misgivings alone called for such a hearing and the trial judge abused his discretion by not further investigating the accused's competency sua sponte. *fn5 Pouncey v. United States, 121 U.S.App.D.C. 264, 349 F.2d 699 (1965), decided prior to Pate and Hansford v. United States, 124 U.S.App.D.C. 387, 365 F.2d 920 (1966), decided subsequently; both also show the consistency of the Whalem and Pate decisions. In Pouncey and Hansford, the fact of the accused's behavior subsequent to a report of competency, and indeed ...