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10/04/68 Frederick L. Salzman, v. United States of America

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


October 4, 1968

FREDERICK L. SALZMAN, APPELLANT

v.

UNITED STATES OF AMERICA, APPELLEE. JAMES E. LOWERY, APPELLANT,

v.

UNITED STATES OF AMERICA, APPELLEE 1968.CDC.202 DATE DECIDED: OCTOBER 4, 1968; AS AMENDED NOVEMBER 4, 1968.

Burger, Wright and Robinson, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURGER; WRIGHT; ROBINSON

These are consolidated appeals from convictions for robbery, 22 D.C.CODE § 2901 (1967). *fn1

The complainant, one James Walker, while awaiting a bus decided to take a walk; he became confused as to directions and entered Franklin Park at 14th and K Streets. He testified that there he was approached by a man whom he subsequently identified as Appellant Salzman, and engaged in conversation. Another man, identified at trial as Appellant Lowery, joined the conversation and offered Walker a drink which he refused. Appellant Lowery then broke the bottle over a park bench, pressed the jagged edge to Walker's throat, and demanded his money and valuables. Appellant Salzman removed $37.00 from the billfold and confiscated Walker's high school ring and gold watch. Walker promptly notified police and estimated that the time of the robbery was approximately 1:00 a.m., August 16, 1966, and further described both assailants.

After an unsuccessful search of the park in the company of the two police officers, Walker joined Detective Muns of the Park Police for a search by patrol car at about 2:00 a.m. Shortly after 4:30 a.m. they responded to a call from another Park Police officer, Officer McAllister, who testified that he had first encountered Appellant Salzman and another at approximately 2:00 a.m. in a nearby park and warned them against public drinking. He did not arrest them at that time since they were not sufficiently intoxicated. At about 4:00 a.m. the officer again encountered the same two men and arrested them for public drunkenness. When he placed Appellant Salzman in the squad car he saw Appellant "ease something under the rear seat." The officer seized the object which matched the description of Walker's ring as set forth in an earlier police radio broadcast. Subsequent search revealed Walker's gold watch. The officer then called Detective Muns and Walker to the scene.

Walker identified Salzman as one of the robbers although he could not be sure of his identification since he observed him in the back seat of the police car. The following morning Walker made a positive identification and thereafter identified Appellant Salzman at trial. After the initial confrontation Walker and Detective Muns retrieved the broken bottle from the trashcan at the park. Latent fingerprints taken from the bottle were subsequently identified as matching the fingerprints of Appellant Salzman.

During the corresponding period of time on August 16, Detectives Butler and Henningar had responded to an emergency call from George Washington Hospital at approximately 2:00 a.m., where they spoke with Appellant Lowery who was awaiting treatment for knife wounds which he claimed he received in a robbery. Because of his condition, the officers decided to contact him later. They did, however, examine the scene of the alleged robbery of Appellant Lowery and concluded that it could not have occurred in the fashion described by him. Having also observed Appellant Lowery's bloodsoaked shirt at the hospital, the two detectives realized it matched the description -- a white "T-shirt" with a blue neck band -- given by Walker.

These officers then met Walker and accompanied him to Appellant Lowery's hotel address. The detectives spoke with Appellant Lowery about his shirt and were informed that he had left it at the hospital. As the three men were leaving, Walker, who had been standing in the hall outside the room, identified Appellant Lowery as one of his robbers. Walker also identified him at trial. Further search for the shirt proved fruitless. I. LOWERY'S APPEAL

Appellant Lowery raises two issues on appeal: first that the prosecutor was erroneously permitted to argue to the jury that the shirt described by Walker and the shirt described by police officers who visited Appellant Lowery in the hospital was the same shirt, and that the subsequent disappearance of the shirt evidenced a consciousness of guilt. Appellant Lowery characterizes the argument as one of misstatement of fact and points to alleged discrepancies in the descriptions of the shirt. This contention is without basis. The record afforded a substantial evidentiary basis from which the prosecutor could predicate the argument as a matter of reasonable inference; obviously this is why trial counsel made no objection.

The second error claimed relates to the jury's request, some three hours after they began deliberations, that they be advised as to:

(1) the time of the robbery of Appellant Lowery in the park;

(2) the time that Appellant Lowery was admitted to the hospital; and

(3) the time of the robbery of Walker.

Prosecution and defense counsel agreed that Walker testified that the robbery occurred about 1:00 a.m. but neither was able to remember the other two times. Both counsel then agreed to a suggestion of the trial judge that if the times were available in the transcript, the court reporter would read them to the jury. The jury was then recalled and informed that the court reporter would examine her notes to see if the information was available, and if it showed the exact times the jury would receive it.

The following morning, out of the presence of the jury and in response to the jury's first question, the court reporter read a portion of the testimony of the officer who interviewed Appellant Lowery at the hospital:

We went back to Franklin Park and looked it over and we responded to Headquarters, our Headquarters, and we discussed this matter with Detective Harold R. Muns, and he had a similar type case that occurred in the park at the same time, approximately 1:00 a.m., and in talking to him he gave us a description of the two in his particular case.

Counsel made a hearsay objection, conceding that he should have made it during trial. After consideration, the trial judge permitted the jury to receive this testimony and the court reporter read it to the jury and stated that there was no testimony concerning the time Appellant Lowery was admitted to the hospital, and the time of the robbery of Walker was approximately 1:00 a.m.

Appellant Lowery now claims that the testimony given in response to the first question was hearsay; that the testimony concerning the last question was given in response to a leading question; that the reading of both portions to the jury prejudiced him, particularly since the trial judge did not offer any additional cautionary instructions. The hearsay challenge comes too late.

Many occasions arise in trial when a valid objection could be made to testimony on hearsay or other grounds and is passed because, for example, counsel knows the fact in question can be established by other admissible evidence; or he may waive the point because to prove it otherwise may emphasize it unduly. Or he may simply desire to save time and consider it unimportant.

When a jury submits questions during its deliberation, it is within the discretion of the trial judge to deny or permit the request. United States v. Jackson, 257 F.2d 41, 43 (3d Cir. 1958); Henry v. United States, 204 F.2d 817, 820 (6th Cir. 1953). *fn2 The trial judge did not abuse his discretion in permitting the jury to receive the testimony. Indeed, the procedure was a commendable and genuine effort to avoid any prejudice to Appellant Lowery. II. SALZMAN'S APPEAL

Appellant Salzman makes two claims on appeal both of which relate to his defense at trial. He presented a defense that he had been adjudged a "chronic alcoholic" upon his arrest for drunkenness the same morning as the alleged crime, and, as such, lacked the specific intent necessary for the crime of robbery. In support of this defense he introduced his prior record of some twenty convictions for drunkenness and the testimony of a Health Department clinical specialist that he was a "chronic alcoholic."

Appellant Salzman first claims that the trial judge erred in failing to distinguish between voluntary and involuntary alcoholism in his charge to the jury. He relies on Easter v. District of Columbia, 124 U.S.App.D.C. 33, 36, 361 F.2d 50, 53 (1966), in which we said:

It should be clear . . . that chronic alcoholism resulting in public intoxication cannot be held to be criminal on the theory that before the sickness became chronic there was at some earlier period a voluntary act or series of acts which led to the chronic condition. A sick person is a sick person though he exposed himself to contagion and a person who at one time may have been voluntarily intoxicated but has become a chronic alcoholic and therefore is unable to control his use of alcoholic beverages is not to be considered voluntarily intoxicated.

While not objecting to an instruction on the effect of Appellant Salzman's ability to form the necessary specific intent, the government at the close of the trial requested an instruction to the effect that chronic alcoholism was itself not a defense to a crime except public drunkenness and could be considered only as to the issue of specific intent.

Defense counsel requested an "intoxication" instruction without further elaboration other than a request that the jury be permitted to consider the fact of chronic alcoholism. He filed no written requests for an instruction and agreed to the instruction as given. The essence of the instruction was that intoxication was not a defense to crime, but the degree of intoxication was relevant in the determination of the element of specific intent. The instruction concluded:

Now, chronic alcoholism is not a defense to the crime of robbery charged in this indictment, but the defendant Salzman's condition of sobriety may be taken into consideration by you in determining whether he was so intoxicated as to be incapable of forming the required specific intent.

Since defense counsel affirmatively agreed with the form of the instruction as given and made no objection on the ground now urged, we are precluded from considering the issue unless it is plain error. FED.R.CRIM.P. 52.

The facts of this case -- the events preceding the robbery, the robbery, the testimony of the police officer who warned Appellant Salzman and later arrested him, and the act of concealing stolen property -- show that the jury found no probative significance in Appellant Salzman's condition of chronic alcoholism. Under these circumstances we find no error.

Appellant Salzman's second claim of error is the alleged failure of the trial judge to instruct the jury that chronic alcoholism may be a defense to a crime of specific intent where the crime arose out of, or was a product of the chronic alcoholism. First, no request for such an instruction was made. FED.R.CRIM.P. 30. *fn3 Second, the entire thrust of the defense was directed at the lack of specific intent because of Appellant's intoxication. There was no proffer of testimony suggesting a relationship between chronic alcoholism and the alleged offense. Thus, there was no factual foundation upon which the trial judge might have predicated the instruction which Appellant now says the court should have given. III. *fn4

Our effort in cases over the past dozen years or more to establish a broad scope for the jury's inquiry into the mental and emotional processes of the accused has not led us to treat either narcotics addiction or alcoholism as a per se basis for the application of the Durham-McDonald rule. McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en banc); Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430 (1954). The experience under Durham had tended to become a trial-by-label and in McDonald we sought to direct the inquiry into broad factual areas which would compel expert witnesses to testify in terms of the impact of disease on volition and capacity to control behavior. This deemphasized the importance of the psychiatric classifications of disease and directed more emphasis on the nature and the consequences of any mental abnormality as it related to criminal responsibility. Despite our continued admonitions against excessive reliance on labels and medical classifications *fn5 the tendency to rely on classifications and labels continued and as a result we found it necessary to adopt what is, in effect, a legal definition of mental disease and defect as they relate to the legal problems of defining and discerning the presence or absence of criminal responsibility. McDonald (supra). Even after McDonald, some of the problems continued to appear. *fn6

Appellant Salzman would apparently have us take a step backward. He would have the words "chronic alcoholic" elevated to a label of mental disease or defect. *fn7 But criminal responsibility does not turn exclusively on the label attached to the accused's condition. Here the label derives from a treatment statute, 24 D.C.CODE § 501 et seq. (1967), a classification which is precisely what this court said in McDonald, Harried, and Washington "may be inappropriate" for determinations of criminal responsibility.

Nor do I find anything in Easter which supports Appellant Salzman's position. In fact, we made it quite clear there that

the defense of chronic alcoholism to a charge of public intoxication is not rested upon mental disease as relieving of mental responsibility, but upon the absence of responsibility incident to the nature of this particular sickness as set forth by Congress.

Easter (supra) 124 U.S.App.D.C. at 36 n. 8, 361 F.2d at 53 n. 8.

Paralleling our effort to withdraw from trial-by-label was the corresponding desirability of having expert testimony explain the dynamics of the alleged illness, its developments, manifestations, and effect on capacity to control behavior and on the mental and emotional processes of the accused, and, of course, whether the illness had impaired or destroyed those controls so that the accused was no longer a "free agent."

The sole testimony here on cognition and volition was that of a Health Department social worker who described a chronic alcoholic as one who lacks the capacity to control his drinking. Such testimony, of course, is not enough, except where the charge is public drunkenness; it does not give the jury a satisfactory basis for determining criminal responsibility.

Finally, I see no basis which warrants a treatment of the relationship between chronic alcoholism and criminal responsibility different from that which this court has imposed on the relationship between narcotics addiction and criminal responsibility. First in Heard v. United States, 121 U.S.App.D.C. 37, 348 F.2d 43 (1964), and most recently in Gaskins v. United States, supra note 3, we summed this up:

Our decisions also define boundaries within which the interplay of drug addiction is confined. The fact of addiction, standing alone, does not permit a finding of mental disease or defect. Evidence of that fact, however, has probative value in conjunction with evidence of mental illness, and the effect of a deprivation of narcotics on behavioral controls is a relevant circumstance. We have recognized, too, that extensive and protracted addiction may so deteriorate such controls as to produce irresponsibility within our insanity test.

Id. (slip op. p. 3) (footnotes omitted). *fn8

The logic of the Heard and Gaskins holdings -- that narcotic addiction, standing alone, is not "some evidence" of mental disease or defect to raise the criminal responsibility issue -- is equally applicable to the case of chronic alcoholism. Except in a charge of drunkenness, it is not per se sufficient to raise the issue. The accused must show some evidence that he has lost the capacity to control his behavior not simply with respect to drinking, but in other contexts as well. *fn9

Affirmed.

J. SKELLY WRIGHT, Circuit Judge:

Appellant Salzman raises questions regarding the relationship of chronic alcoholism to criminal responsibility. Specifically, he argues that the jury should have been allowed to consider, and to acquit if it so found, whether the act with which he is charged -- robbery -- was the product of a disease from which he claims to be suffering -- chronic alcoholism. Because the record is inadequate to present this claim, his conviction is affirmed. However, because one of the opinions in this case proceeds to discuss this question, and because the problems are important, I set forth my own views. I

The question is whether a person claiming to be a chronic alcoholic should be acquitted of any crime if the jury finds that he was suffering from a disease and that his actions were a product of that disease; whether, therefore, the proper disposition of such a person is to a treatment facility rather than to a penal institution. I think the question should be answered in the affirmative.

In the long-standing debate over criminal responsibility there has always been a strong conviction in our jurisprudence that to hold a man criminally responsible his actions must have been voluntary, the product of a "free will."1a Accordingly, when there has been a consensus that in a certain type of case free will is lacking, the defendant in such a case may raise involuntariness as a defense to criminal prosecution. This has been true where various forms of automatism have been claimed,2a where a person has acted under external threat of compulsion,3a and where a person has been involuntarily made intoxicated by the actions of others.4a And, of course, there has been the long tradition in the area of mental illness that:

". . . person may commit a criminal act, and yet not be responsible. If some controlling disease was, in truth, the acting power within him which he could not resist, then he will not be responsible. . . ."5a

In deciding responsibility for crime, therefore, the law postulates a "free will" and then recognizes known deviations. Thus the postulates can be undermined in certain areas where there is a broad consensus that free will does not exist. Once there is such a consensus, as in the mental illness area today, the jury is allowed to inquire whether the particular person claiming to be within that class lacked the free will necessary for criminal responsibility. No reason appears why this concept should not be applied to any disease.6a The question is whether society recognizes that the behavior pattern in question is caused by the diseased determinants and not free will.7a If so, there should be no criminal responsibility. In determining societal recognition, four areas should be explored: (1) medical opinion, (2) the existence of treatment methods and facilities, (3) legal opinion, and (4) governmental recognition (legislative, executive and judicial). On exploration, I find sufficient consensus to hold, as a matter of law, that chronic alcoholism is a disease which in some instances may control behavior and that in those instances where it does, criminal sanctions may not be imposed.8a II Medical Opinion

There are various definitions of alcoholism used in the medical profession. One group focuses on the physically debilitating and antisocial effects of chronic heavy drinking. For example, Keller states:

"Alcoholism is a chronic disease, or disorder of behavior, characterized by the repeated drinking of alcoholic beverages to an extent that exceeds customary dietary use or ordinary compliance with the social drinking customs of the community, and which interferes with the drinker's health, inter-personal relations or economic functioning."9a

Another group focuses on the addictive nature of the alcoholic. Plaut describes it as:

"a condition in which an individual has lost control over his alcohol intake in the sense that he is consistently unable to refrain from drinking or to stop drinking before getting intoxicated." *fn10

Similarly, a variety of etiological factors has been found, with disagreement as to which specific set of factors is a necessary or sufficient condition for the disease. In general, psychological factors, sometimes characterized in groups as "personality disorders," are said to be a causative factor, along with cultural and physiological determinants. *fn11 Different types of alcoholics are found; Jellinek's noted division of alcoholics into five types is a major work in the area. *fn12

That there is no clear definition of alcoholism and no complete agreement as to its causes is not a ground for denying it disease status. The same might be said of cancer or epilepsy; certainly the same can be said for mental illness. There is a profusion of definitions of various mental disorders, and strong debate over whether or not they are illnesses and what their causes are. For example, in one instance psychiatrists from St. Elizabeths Hospital testified that a sociopathic personality disturbance was not to be considered a mental disease or defect; one month later psychiatrists from the same staff testified to the opposite effect. *fn13

The point is not whether the medical profession has come up with an exact label. Rather, the approach is functional -- does the medical profession, or a substantial part of it, view alcoholism as a disease, properly the subject of medical treatment? It seems clear that, measured by this test, alcoholism does qualify as a disease.

Plaut, recommending such a broad functional view, states:

"Alcoholism then is considered an 'illness' in the light of a comprehensive health view which includes an awareness of: (1) the multiplicity of causal factors; (2) the probable existence of many different courses of development (rather than a single course of development); and (3) the need to utilize a variety of treatment and preventive approaches, non-medical as well as medical." *fn14

In 1968 Dr. J. H. Mendelson, head of the National Center for Prevention and Control of Alcoholism at the National Institute of Mental Health, noted:

"During the past two decades, significant advances have been made in both public and professional acceptance that alcoholism is a disease rather than a form of moral transgression. The health professions have assumed leadership in developing a contemporary approach to the study and treatment of alcoholism which incorporates scientific and humanistic goals. Most recently the courts have adopted legislative precedents which view the alcoholic as an ill individual and the process of litigation and confinement of alcoholic patients hopefully will soon disappear." *fn15

Finally, in 1956 the Committee on Alcoholism of the Council of Mental Health of the American Medical Association passed a formal resolution that ". . . the profession in general recognizes this syndrome of alcoholism as illness which justifiably should have the attention of physicians." *fn16

Treatment Methods and Facilities

Since alcoholism has only recently received the medical attention the medical profession now feels it deserves, it is not surprising that the availability of treatment methods, and especially treatment facilities, lags behind the need. *fn17 However, in recent years there has been a burgeoning of methods and a rapid increase in facilities for alcoholics. While recognizing how much farther we have to go, I feel that we have now progressed sufficiently to route alcoholics out of the criminal process and into a treatment process.

Various methods have been, and are being, used with alcoholics. Psychotherapy, *fn18 group therapy, *fn19 drug therapy, *fn20 and a host of special programs such as aversive conditioning, hypnotherapy and group psychodrama *fn21 have received discussion in the literature. And every authority recognizes that a very important aid to any treatment program exists -- Alcoholics Anonymous. *fn22

These treatment methods will undoubtedly be altered, new ones added, and old methods revived as the profession seeks surer ways to return the alcoholic to a normally functioning life. This is true in almost all aspects of medicine, and especially true of the treatment of mental illness. What is important is that methods are being used, apparently with some success, *fn23 to treat alcoholics. Also encouraging is the work of Chafetz and others *fn24 showing that "unmotivated" patients can be worked with. As Plaut notes:

". . . Evidence is accumulating that changes in the organization, operation, and treatment philosophy of an agency can have a substantial effect on its ability to work with the supposedly unmotivated patient. . . ." *fn25

Although much needs to be done in creating treatment facilities, a great deal has already been accomplished. Alcoholics can receive in-patient care in some state hospitals, *fn26 and emergency care in a variety of emergency services. *fn27 Further, alcoholism clinics are being established at a rapid pace, with more than 130 in existence as of 1966. *fn28 The community mental health centers being developed throughout the country have a great potential for treatment of alcoholics. *fn29

Finally, as discussed below, there is a massive movement in the states and at the federal level toward establishing research and treatment facilities for alcoholics. This movement is resulting in a tremendous increase in the number of facilities and methods employed to treat alcoholism.

Legal Opinion

The legal literature on the problem is just developing. Most of it centers on the two recent Circuit decisions holding that alcoholics cannot be punished for public drunkenness. *fn30 Of 20 law review case notes on these decisions, 13 commented favorably on the courts' approach to alcoholism along medical-rehabilitative lines (the remaining seven simply noted the cases; none commented unfavorably). *fn31 A typical note states:

"By recognizing that alcoholism is a disease, the courts acknowledged a conclusion almost universally accepted by medical authorities. . . . It is generally accepted by medical and psychiatric authorities that 'jail is no place for the alcoholic,' for he needs rehabilitation rather than punishment." (Footnotes omitted.)32

Further, almost all of the law reviews pointed to the implications of those decisions, and of our medical appreciation of alcoholism, for alcoholics accused of any crime.

Several writers have discussed the problem of alcoholism, concluding that it is essentially a medical, not a criminal, one.33 It is instructive that the President's Commission on Law Enforcement and Administration of Justice, Task Force on Drunkenness, singled out an article by Hutt to include in its appendix. Hutt concluded:

"Judges and lawyers are trained in the law. We are not competent to decide exactly what type of non-criminal public health procedures are most likely to result in rehabilitation of chronic inebriates. But we are competent, and we do have the duty, to make certain that the present criminal procedures are not continued. The public cannot be expected to respect a system of criminal justice that condemns sick people to jail because they are sick. . . ."34

Governmental Recognition

In this area, perhaps more clearly than in any of the others, the recognition that alcoholism is a disease is overwhelming.

1. Legislative: Congress

As long ago as 1947 Congress recognized alcoholism as a disease when it enacted a law for the rehabilitation of alcoholics.35 The first section of that law stated:

"The purpose of this chapter is to establish a program for the rehabilitation of alcoholics, promote temperance, and provide for the medical, psychiatric, and other scientific treatment of chronic alcoholics; . . . and to substitute for jail sentences for drunkenness medical and other scientific methods of treatment which will benefit the individual involved and more fully protect the public. In order to accomplish this purpose and alleviate the problem of chronic alcoholism, the courts of the District of Columbia are hereby authorized to take judicial notice of the fact that a chronic alcoholic is a sick person and in need of proper medical, institutional, advisory, and rehabilitative treatment . . .."36

In 1968 Congress substituted for this Act another, Public Law 90-452, 90th Congress (August 3, 1968), which embodies the same policy. The new law goes even further. It not only provides for civil commitment of alcoholics, it also provides that any chronic alcoholic arrested for any misdemeanor can be civilly committed if he, "prior to trial for such misdemeanor, voluntarily requests such treatment in lieu of criminal prosecution for such misdemeanor." Section 7(b) (1) . The maximum term of commitment cannot exceed the maximum term of imprisonment for the misdemeanor charged. Responsibility is given the Commissioner of the District of Columbia to create detoxification centers and in- and out-patient treatment facilities.

2. Legislative: States

State recognition of alcoholism as a medical problem has been massive. Forty-two states have passed laws, the large majority within the past ten years, which recognize alcoholism as a medical problem, establish research facilities, and authorize treatment facilities.37 Typical is Maryland's, the first section of which states:

"Alcoholism is hereby recognized as an illness and a public health problem affecting the general welfare and economy of the State. Alcoholism is further recognized as an illness subject to treatment and recovery . . .."38

Of these states, 24 provide, in addition, for the civil commitment of a chronic alcoholic who is dangerous to himself or to others.39

3. Executive

In March 1966 President Johnson addressed Congress regarding the health and education problems in the United States. He stated:

"The alcoholic suffers from a disease which will yield eventually to scientific research and adequate treatment. Even with the present limited state of our knowledge, much can be done to reduce the untold suffering and uncounted waste caused by this affliction.

I have instructed the Secretary of Health, Education, and Welfare to:

-- appoint an Advisory Committee on Alcoholism;

-- establish in the Public Health Service a center for research on the cause, prevention, control and treatment of alcoholism;

-- develop an education program in order to foster public understanding based on scientific fact;

-- work with public and private agencies on the State and local level [to] include this disease in comprehensive health programs."40

4. Judicial

In two Circuit decisions, Driver v. Hinnant, 4 Cir., 356 F.2d 761 (1966), and Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966) (en banc), the courts held that an alcoholic could not be convicted of public drunkenness. Crucial to each holding was a recognition that alcoholism is a disease:

"This addiction -- chronic alcoholism -- is now almost universally accepted medically as a disease. The symptoms, as already noted, may appear as 'disorder of behavior'. Obviously, this includes appearances in public, as here, unwilled and ungovernable by the victim. When that is the conduct for which he is criminally accused, there can be no judgment of criminal conviction passed upon him. . . ."

Driver, 356 F.2d at 764. (Footnote omitted.)

". . . [Alcoholism is defined by the Congressional Act of 1947] as a 'sickness,' and Congress did not find it necessary to specify whether it is mental, physical or a combination of both. Whatever its etiological intricacies it is deemed a sickness which is accompanied with loss of power to control the use of alcoholic beverages. The congressional judgment is supported not only by the evidence in this case adduced in the Court of General Sessions but by the record of the hearings on the Act of 1947, the entire legislative history of the Act, and by an additional abundance of authorities . . .. As Congressman Miller of Nebraska stated on the floor of the House during the debate on the Act:

Jail is not the answer to their trouble. We think they are sick people and need scientific and technical attention of psychiatrists and medical personnel."

Easter, 124 U.S.App.D.C. at 35, 361 F.2d at 52. (Footnote omitted.)

Conclusion

From the examination of medical opinion, legal opinion, treatment methods and facilities, and governmental recognition, it seems clear that alcoholism is a disease, properly the subject of medical attention instead of criminal sanction. Therefore, this court should fashion a rule regarding alcoholism so that persons claiming to suffer from the disease can take to the jury the issue of whether, in each case, the criminal responsibility needed for conviction is lacking. III

The question of alcoholism as a defense to crime is being treated here as a question of criminal responsibility. "In the District of Columbia, the formulation of tests of criminal responsibility is entrusted to the courts * *."41 The issue is not one of constitutional mandate (the Eighth Amendment's proscription of cruel and unusual punishment) nor one of statutory interpretation (the 1947 Act of Congress).

It follows that we are not compelled to rely on the basis for the decision in Driver, supra (Eighth Amendment), or in Easter, supra (1947 Act and, in part, Eighth Amendment).42 And, therefore, the Supreme Court's opinions in Powell v. State of Texas, 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed. 2d 1254 (1968), are not a constraint. There a divided Court affirmed a Texas conviction for public drunkenness, holding that the Eighth Amendment did not prohibit such a conviction. The Court was dealing at a constitutional level; in fact, Mr. Justice Marshall's opinion explicitly applauded experimentation among the jurisdictions in dealing with criminal responsibility:

". . . Formulating a constitutional rule would reduce, if not eliminate, that fruitful experimentation, and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold. . ."

392 U.S. at 536-537, 88 S. Ct. at 2157.

In this spirit, I think that the dialogue over alcoholism among the medical profession, the government and the legal profession has reached a point where the disease should be recognized as a basis for denying criminal responsibility for any actions produced by the disease. The rule I would fashion for alcoholism parallels this court's rule in the area of insanity. The jury would be instructed that if it finds that the defendant was suffering from a disease, and that his actions were a product of that disease, it should find the defendant not guilty. Using civil commitment procedures, the defendant should then be committed to an appropriate treatment facility.43 As with insanity, labels should be avoided. In each case experts should not only identify the disease, but also the symptoms thereof and how the behavior of the defendant was affected by his illness.44 Thus evidence that his action was or was not a product would be particularized in each case. It would, of course, be hard to make a product showing45; however, in those case where such a showing is made, there is no reason to hold the defendant criminally responsible.

The test I am proposing is not novel. In our own jurisdiction Judge Tim Murphy of the District of Columbia Court of General Sessions formulated just such a test in the case of an alcoholic charged with disorderly conduct:

". . . If the defendant can show that he is a chronic alcoholic and was intoxicated at the time of the offense, he will still have to show that his conduct at the time of the offense was involuntary. The crux here is his degree of self-control, awareness. . . . If he was so drunk that he had lost control . . . of his actions, he should be found not guilty."46

I think that in future cases chronic alcoholics should be allowed to attempt such a showing.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The setting in which we must examine Salzman's appeal is a relatively short and uncomplicated sequence of litigative events. At his trial, on an indictment for robbery,1b the Government introduced evidence, which, if believed by the jury, proved that he had participated in the crime. Salzman, on the other hand, related that he had been drinking extensively before the robbery took place, and that he could recall little about the day on which it occurred. He brough out, too, that he had been arrested for drunkenness on many occasions previously, and had also been adjudged a chronic alcoholic.2b Other testimony, however, added little to the significance of the latter event.3b

The trial judge, with the approbation4b of Salzman's trial counsel,5b instructed the jury in substance that chronic alcoholism is not per se a defense to robbery, but that the accused's capacity to form a specific intent to steal was a prerequisite to conviction for that offense.6b Having been found guilty as charged, Salzman now contends that the judge, in his instructions, should have distinguished between voluntary and involuntary intoxication, and should have told the jury to acquit if his acts were a product of his chronic alcoholism.

In Easter v. District of Columbia,7b we held that the Rehabilitation of Alcoholics Act8b "[precludes] attaching criminality in this jurisdiction to intoxication in public of a chronic alcoholic."9b Since the role of alcoholism in the criminal process is undeniably a problem to be reckoned with in more than a single context, Salzman not unnaturally frames for our consideration broad and difficult issues concerning the potentialities of chronic alcoholism in the defense of crime other than public inebriation.10a Is chronic alcoholism, in its relation to criminality generally, to be dealt with as a form of involuntary intoxication,11a mental illness12a or exculpating sickness13a on the theory that he who is inflicted with it had an irresistible compulsion to drink and after drinking loses his power of self-restraint? Can he, any more than one whose behavioral controls are substantially impaired by mental disease or defect,14a be justly assessed with criminal responsibility?15a These are among the questions Salzman would have us decide.

Clarification of the law in these areas would, of course, be highly desirable, and acceptance of Salzman's invitation would shed some much needed light on these vexing problems. But principles basic in our jurisprudence, fortified by the lessons of history, caution against judicial conclusions -- including those on chronic alcoholism16a -- that are not firmly supported by concrete evidence. Here we have virtually no evidence on the subject integral to the overall inquiry. A clinical specialist in alcoholism for the District of Columbia Department of Health, defining a chronic alcoholic as a person who cannot master his drinking, testified that Salzman is an habitual imbiber who loses control over his drinking once he starts, but this is just about all that we are told.17a Among the glaring evidentiary deficiencies are informational voids as to Salzman's ability to forego the first drink, and as to the effect of his drinking on his power to govern his behavior. Thus we are left in the dark as to just how compulsive Salzman's drinking really is, and as to any causal relationship it bore to the otherwise criminal conduct for which he was convicted.

Moreover, the record discloses that Salzman asserted his alcoholism at trial only in an effort to negate the specific intent to steal which is an essential element of the crime of robbery.18a That was the defense -- and the sole defense -- which his counsel advanced to the jury in opening statement19a and in summation,20a and to the trial court in connection with its instructions to the jury.21a The court's charge, plainly and concisely, covered that theory of the case, and trial counsel voiced satisfaction with the charge.22a

In my view, any broader consideration of the interweave of chronic alcoholism in the fabric of the criminal law is doomed here by the almost complete lack of medical evidence,23a and by the trial of the case on a claim too narrow to justify even a "plain error"24a approach on Salzman's appeal.25a In sum, we are not called upon, in order to dispose of his appeal, to render nearly so far-reaching a decision as Salzman seeks. I join in affirmance of his conviction, but would postpone performance of our duty to probe deeper into the mysteries of chronic alcoholism to the day when we are afforded an adequate record developed through adversary treatment of all vital issues at the trial level.

CASE RESOLUTION

Affirmed.


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