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September 24, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Robert A. Shuker, Trial Judge

Steadman, Associate Judge, and Mack and Belson,* Senior Judges. Opinion for the court by Senior Judge Belson. Dissenting opinion by Senior Judge Mack.

The opinion of the court was delivered by: Belson

When this case was before us previously, we remanded so that the trial court could conduct a so-called Frendak *fn2 hearing to determine whether James I. Briggs had been competent to waive an insanity defense at his 1983 trial on charges of armed robbery, D.C. Code §§ 22-2901, -3202 (1989), and carrying a pistol without a license, D.C. Code § 22-3204 (1989). Briggs v. United States, 525 A.2d 583, 594-95 (D.C. 1987). Upon remand, the trial court determined that Briggs had not been competent to waive an insanity defense at his previous trial, but determined further that there was insufficient evidence to raise a fact issue as to whether his alleged crimes were the product of mental illness. Accordingly, the trial Judge, in accordance with our opinion, id. at 595, ordered that Briggs's convictions should stand. Briggs did not appeal that order, either personally or through his counsel, a Public Defender Service attorney. The amicus curiae, appointed by the trial court to illuminate certain aspects of the Frendak issue, however, did file a notice of appeal. Addressing the threshold question whether amicus had the standing to appeal the trial court's ruling, we decide that amicus lacked standing to do so, and order dismissal of this appeal.


On his original appeal, Briggs contended (1) that the trial court erred in denying his request to be present at bench conferences during voir dire of the jury panel, (2) that the trial court abused its discretion when it denied defense counsel's request for recross-examination of a government witness, and (3) that the trial court erred in failing to conduct an inquiry to determine whether he voluntarily and intelligently waived an insanity defense as required by Frendak, supra note 2, 408 A.2d 364. Briggs, supra, 525 A.2d at 584.

This court rejected Briggs's first two contentions, id. at 584, 590-91, but found that the trial court erred in disposing of the productivity issue without making the appropriate Frendak inquiry, i.e., whether Briggs was competent to enter a voluntary and intelligent waiver of an insanity defense. Id. at 591-95. Accordingly, we remanded the case to the trial court with the specific instruction that it conduct a Frendak inquiry. We left within the trial court's discretion the decision whether to order psychiatric evaluations addressing Briggs's capacity to waive an insanity defense. We instructed that if as the result of the Frendak inquiry the trial court should conclude that Briggs had made a voluntary and intelligent decision at trial to waive an insanity defense, that would end the matter. But if the court should conclude he had not, then the court was to determine whether he presently wished to waive that defense. If not, or if he was incapable of waiver at that time, "the trial court shall order a productivity examination." Id. at 594-95.

Upon remand, the trial court appointed an attorney with the Public Defender Service to represent Briggs. That counsel submitted a motion for appointment of counsel amicus curiae to present evidence and argue "(1) that the defendant (a) was incompetent to waive an insanity defense at the time of his trial and (b) remains incompetent to do so and (2) that the defendant is not guilty by reason of insanity of the charged offenses." Defense counsel, apparently concerned because Briggs still wished to claim that he was competent to waive the insanity defense, stated that

the issues presented on remand are difficult ones requiring factual investigation, expert testimony, and argument. Counsel for the defendant cannot now ethically argue his client's incompetency and productivity. Without an advocate of those conditions, the Court will be deprived of full presentation of the issues remanded by the Court of Appeals.

The trial court granted this motion and appointed counsel amicus curiae for the specific purposes outlined above. Those purposes did not embrace the issue of competence to stand trial.

During the remand proceedings, *fn3 amicus argued that the trial court was to determine, under this court's remand order, whether Briggs had been competent to stand trial in 1983. The trial court, correctly rejecting such an inquiry as beyond the scope of the remand order, reminded amicus that the Court of Appeals "didn't remand it for a determination as to whether the defendant was competent to stand trial. They remanded it to determine whether the defendant was competent to eschew, and whether he did in fact eschew [,] an insanity defense, if he had one." In any event, this issue had been decided prior to trial and it was determined that Briggs was competent to stand trial in accordance with the standards enunciated in Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896 , 43 L. Ed. 2d 103 (1975), and Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836 , 15 L. Ed. 2d 815 (1966).

Amicus called as expert witnesses a clinical psychologist and a psychiatrist. Both agreed essentially with the ultimate Conclusion that Briggs had lacked the requisite mental capacity to waive the insanity defense at the time of his trial in 1983. Defense counsel, to the contrary, argued that Briggs had been competent to waive the defense. Briggs himself testified at the hearing, and denied that he suffered from mental illness. He stated that his rejection of the insanity defense was based upon his religious beliefs. The government argued in opposition, agreeing with amicus that Briggs had been incompetent to waive the insanity defense.

At the Conclusion of the hearing on competency, the trial court found that because Briggs was "incapable of accepting the fact that he has an insanity defense himself," he was "unable to rationally decide whether to give up an insanity defense." Following further proceedings exploring the issue of productivity, the trial court, with all counsel in agreement, held that no evidence existed of a productivity relationship between any mental illness Briggs may have had and the commission of the crimes for which he was convicted. *fn4 The court, therefore, terminated the proceedings on remand, leaving Briggs's convictions in place.

Amicus filed a notice of appeal with this court. The only issue he raised in his subsequently filed brief related to Briggs's competency to stand trial. We then ordered amicus to show cause why this appeal should not be dismissed, citing Givens v. Goldstein, 52 A.2d 725, 726 (D.C. 1947) (the role of amicus curiae is to advise or make suggestions to the court rather than to function as a party to the action). On February 1, 1990, we vacated the September order and allowed amicus to file his brief. That ...

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