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

October 4, 1968






Burger, Wright and Robinson, Circuit Judges.




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 ...

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