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02/23/90 GEORGE C. LEGRAND v. UNITED STATES

February 23, 1990

GEORGE C. LEGRAND, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Tim Murphy, Judge at Original Trial, Hon. Luke C. Moore, Trial Judge in Collateral Proceeding

Before Rogers, Chief Judge, and Belson and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

SCHWELB, Associate Judge: The troubling question presented by this case is whether Appellant George C. Legrand was sufficiently apprised of the consequences of his 1976 plea of not guilty by reason of insanity (NGI) where, as a result of that plea and the subsequent adjudication based on it, he has been deprived of his liberty for a period substantially in excess of the maximum term of incarceration for the underlying offense. The case is further complicated by the unavailability of a transcript of the original proceeding and the obvious difficulties in reconstructing what occurred on the basis of the recollections of the participants a decade after the fact. We hold that although the original trial Judge's explanation of the consequences of the plea, as reconstructed, was not sufficiently thorough, Legrand has not sustained his burden of demonstrating manifest inJustice, because his attorney had fully consulted with him with respect to the alternatives available to him and the considerations and risks incident to each. Accordingly, we affirm the denial of Legrand's motions to withdraw his plea and to vacate the NGI adjudication.

I

On June 30, 1976, Legrand was indicted on a charge of assault with a dangerous weapon. *fn1 On October 14, 1976, in a non-jury trial before Judge Tim Murphy on stipulated facts, Legrand entered a plea of not guilty by reason of insanity and was so adjudicated in accordance with his plea. Legrand was committed to the custody of St. Elizabeths Hospital (the Hospital) for an indeterminate period of confinement pursuant to § 24-301 (d) (1). On December 3, 1976, at a "Bolton" *fn2 hearing convened pursuant to § 24-301 (d) (2), Legrand failed to establish that, if released, he would not pose a danger to himself or others, and the court ordered that he remain committed. Although the maximum penalty which could have been imposed for the underlying offense was imprisonment for no less than forty months and no more than ten years, §§ 22-502, 24-203 (a), Legrand remains under commitment thirteen years after his trial.

On June 11, 1985, after a number of unsuccessful earlier attempts to secure his conditional release from the Hospital, Legrand filed a motion requesting the court to allow him to withdraw his plea of NGI, to vacate his commitment pursuant to that plea, and to order his unconditional release pursuant to § 24-301 (k). The gravamen of his submission was that the proceedings before Judge Murphy had been fatally flawed because

neither his former counsel, nor the prosecutor, nor the court advised him, nor did he learn from other sources before or at the hearing held on October 14, 1976, that one of the consequences of his insanity acquittal is that he legally could then be made to remain committed to Saint Elizabeths Hospital, on its criminal side, for the rest of his life, or certainly for a period of years in excess of the maximum term of incarceration allowed by statute for the criminal offense for which he had been indicted.

Some seven years before Legrand filed this motion, the court reporter who had apparently been assigned to the bench trial had left the Superior Court. Her notes were nowhere to be found, and the proceedings had not been tape-recorded. In July 1986, a hearing was held before Judge Luke C. Moore *fn3 for the purpose of reconstructing the 1976 proceedings before Judge Murphy and resolving the issues raised by Legrand's motion. Judge Moore heard testimony from all of the principal participants at the 1976 bench trial, including Legrand, Judge Murphy, Judge Herbert Dixon (who had been Legrand's court-appointed counsel at the time of the bench trial, which took place before Judge Dixon was named to the bench), the prosecutor, the psychiatric expert and the courtroom clerk. Judge Moore thereafter made comprehensive findings as to what had occurred in the stipulated bench trial before Judge Murphy, settled and approved a Statement of Proceedings and Evidence with respect thereto, and denied all of Legrand's motions on the merits. *fn4

With respect to the feasibility of reconstructing what had occurred at the bench trial, Judge Moore noted that

since the Court was not the presiding Judge at the trial in October 1976, and further, since the memories of the principal participating actors were diminished by the passage of time, the Court's task in reconstructing the statement was rendered somewhat more challenging but not insurmountable.

He concluded that, notwithstanding the principal actors' "paucity of recollection of specific details," their testimony concerning their general practices and procedures in stipulated NGI cases enabled him (Judge Moore) to accomplish his task in accordance with the requisite standards, as prescribed in Cole v. United States, 478 A.2d 277 (D.C. 1984) and Cobb v. Standard Drug Co., 453 A.2d 110 (D.C. 1982). The Judge also found that Legrand's "understandable lack of recall" of some significant details of the proceedings, together with contradictions in some of his testimony and his bias, reflected negatively on Legrand's credibility.

With respect to the issue of what Judge Murphy had told Legrand during the 1976 hearing as to his potential loss of liberty, Judge Moore found that

Judge Murphy explained to the defendant/acquittee, if the doctor's testimony "was right" as to Mr. Legrand's mental illness, that, as a practical matter, Mr. Legrand would be found not guilty by reason of insanity. Further, the Court found that Judge Murphy explained that defendant/acquittee would be sent to St. Elizabeths Hospital for 50 days, and that it would be up to the doctors at the hospital to decide whether Mr. Legrand stayed, after that, for a long or short time.

In making this finding, the Court rejected the defendant/acquittee's selective memory concerning matters, given his understandable inability, after so long a time, to recall other significant events [ *fn5] that transpired at the proceeding.

In contrast to defendant/acquittee's sometimes equivocal and contradicted testimony at the hearing, Judge Murphy's testimony was firm as to his unvaried pattern and practice in a large volume of NGI proceedings and his adherence to that practice with the defendant/acquittee at the trial concerning this matter.

(Emphasis added).

With respect to Legrand's allegations that Judge Dixon had failed to advise him properly of his rights, *fn6 Judge Moore agreed with a finding by Judge Murphy that Judge Dixon was a "first rate lawyer" and "very meticulous." Noting that Judge Dixon, although unable to recollect all that transpired at the trial, "had a vivid recall of his representation of Mr. Legrand," Judge Moore found that "counsel was studiously alert in defending Mr. Legrand's rights," and that Legrand had ...


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