Appeals from the Superior Court of the District of Columbia; Hon. Evelyn E. C. Queen, Motions Judge
Steadman and Wagner, Associate Judges, and Kern, Senior Judge.
The opinion of the court was delivered by: Steadman
William Horton is a defendant under indictment for second-degree murder who is free on personal recognizance. He intends to enter a defense of not guilty by reason of insanity. Before us are two interlocutory appeals and a petition for a writ of mandamus. They arise as a result of a trial court grant of a government motion to require Horton to submit himself to St. Elizabeths Hospital for an in-patient productivity examination, not to exceed sixty days. *fn1
We dismiss appeal No. 91-397 for lack of jurisdiction and No. 91-388 as moot, and deny the writ of mandamus. In addition, because the course of events in these appeals may reflect some uncertainty concerning stays pending appeal as well as trial court power to act with respect to matters under appeal, we take the occasion to address briefly these two matters of appellate-trial court interaction.
William Horton, a sixty-eight-year-old man with no previous criminal record, was arrested on April 13, 1990, for the alleged murder earlier that day of his former supervisor at Woodward & Lothrop. The following day he was released on personal recognizance, a status he continues to hold to this day.
An extensive examination of Horton has been conducted on the defense's behalf by Drs. Neil Blumberg and Jonathan H. Pincus, and the government has been allowed to review their reports. At a status hearing on Wednesday, April 10, 1991, without prior notice to the defense, the government orally moved to commit Horton for an in-patient study at St. Elizabeths Hospital. After a brief oral argument, the trial court orally ruled that Horton should be committed for a productivity examination, stating: "I will allow him to turn himself in at Saint Elizabeths rather than go through the cellblock. He must be there by close of business tomorrow with his medical records under his arm."
On the morning of Thursday, April 11, Horton filed a written motion to stay the order with the trial court. Such a request is ordinarily required under our rules before a stay may be sought from this court. D.C. App. R. 8(a). The trial court indicated that it would not hear the motion before 9:30 a.m., Friday, April 12. Thereupon, Horton filed an Emergency Application for Immediate Stay with our court. *fn2 The government informally indicated that it did not oppose a stay of the trial court order for a period of up to three weeks. To maintain the status quo until the trial court could act upon the request for a stay and in the absence of any temporary stay by the trial court, we issued a temporary stay until 2 p.m., Friday, April 12.
On Friday, the trial court notified counsel that an evidentiary hearing on the motion to commit Horton would be held at 4:30 p.m. that afternoon. Since again no stay had been issued by the trial court and our stay expired at 2 p.m., Horton filed another Emergency Application for Extension of Stay with this court. To allow, we thought, ample time for consideration of the matter, we continued the stay until noon on Tuesday, April 16, "to allow the trial court to complete its consideration of the matter."
The hearing commenced late Friday afternoon. At the outset the trial court indicated that it was vacating the order of April 10 and would proceed to consider afresh the issue of commitment. Over the defense's protest that it had had insufficient time to prepare for the hearing, evidence was received consisting principally of the testimony of Dr. Raymond F. Patterson, a psychiatrist who is the medical director of the Forensic Services Administration responsible for both in-patient and out-patient examination in criminal cases. Dr. Patterson testified that, in his opinion, in-patient examination of Horton was necessary in order to do a proper evaluation on behalf of the government.
At the Conclusion of the hearing, shortly before 7 p.m., the trial court ordered Horton to report to St. Elizabeths Hospital "before this day is complete, that is by midnight April the 12th, 1991" for a productivity evaluation; the commitment to be "as long as the doctors determine it necessary for a complete evaluation in their medical opinion," but no longer than June 10, 1991 (the date of the next hearing in the case). *fn3 Defense counsel's request for a stay of the order until noon on Tuesday, April 16, or even "just till Monday" was opposed by the government and denied by the trial court. Horton thereupon filed yet another Emergency Motion for a Stay with this court, *fn4 which was granted by a three-Judge panel of this court about 9 p.m. that evening "without prejudice to the submission by appellee of any opposition thereto." We further ordered that both parties submit briefs on the issue of whether the appeal should be dismissed for lack of jurisdiction as having been taken from a non-final order, citing our decision in United States v. Harrod, 428 A.2d 30 (D.C. 1981) (en banc). We turn to that issue.
We conclude that in the precise present posture of this case as we understand it, the en banc decision in Harrod is controlling and requires our dismissal of the appeal for lack of jurisdiction. That case involved the appeal from a trial court order requiring a complaining witness in a criminal case to undergo a psychiatric examination. The issue was whether that order was a "final order" within D.C. Code § 11-721(a)(1) or reviewable as a collateral order. We held that it was neither, citing a line of Supreme Court cases establishing the doctrine that "a witness may obtain review of a subpoena or a discovery order only after he persists in his refusal to comply and is sentenced for contempt of court." 428 A.2d at 31. We further noted that "the policy behind finality, i.e., of eliminating piecemeal litigation and the delays caused by interlocutory appeals applies with particular force in the criminal Justice system." 428 A.2d at 34 (citation omitted). If such is the case with respect to appeals by non-parties, a fortiori the doctrine applies to parties, where sanctions in addition to contempt are available and where effective relief may usually be granted following final Disposition of the entire proceeding. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377, 101 S. Ct. 669, 66 L. Ed. 2d 571 (1981).
We construe the order on appeal here as the functional equivalent of a discovery order and on that basis deem it non-appealable at this point. It is true that in format, it contains language of command: "this Court this 12th day of April 1990 orders Mr. Horton committed to St. Elizabeths Hospital. . . . We order that the commitment shall be for as long as the doctors determine it necessary . . . ." However, language of command is not unusual in discovery situations; in ...