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05/19/92 JOSE MITCHELL v. UNITED STATES

May 19, 1992

JOSE MITCHELL, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Peter H. Wolf, Trial Judge).

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

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : Appellant Jose Mitchell appeals his conviction by a jury of first degree murder while armed, D.C. Code §§ 22-2401, -3202 (1989 Repl.), and carrying a pistol without a license, id. § 22-3202, on the ground of four claims of error. He contends that the trial Judge erred by (1) denying a motion to order a psychiatric examination of a key government witness; (2) denying a motion to suppress the murder weapon; (3) admitting other crimes evidence of four handguns in and around the car in which appellant was arrested eight days after the murder; and (4) denying defense requests to instruct the jury on the use of prior consistent statements, perjurer's testimony, and accomplice testimony. Except for the third and fourth claims, we find his contentions unpersuasive, and as to the third and fourth claim, we hold that any errors were harmless. Accordingly, we affirm.

I

The murder of William Johnson arose as a result of a fight over drug turf. On November 11, 1988, Arnez Olden was selling drugs for appellant in the 1300 block of S Street, N.W., when the decedent protested that this was his area. As their verbal exchange continued, Olden saw appellant put on gloves and shoot three times at the decedent. Curtis Edwards also saw a man with Olden shoot the decedent, and subsequently identified appellant as the shooter from a photo array. After hearing gun shots, another man, Cornelius Scott, saw Olden and appellant run from the scene. Yvonne Young also saw appellant and Olden run, and she saw appellant put a gun in his holster immediately after the shots were fired. *fn1 Deborah Morse saw the decedent talking with Olden and appellant immediately before the shooting. Among other government witnesses, Vincent Easley claimed that appellant had admitted the next day that he had killed the decedent and had showed him the murder weapon, and that appellant had put the murder weapon under the rear seat of his (Easley's) car. *fn2

Appellant presented no evidence in his defense but attempted through cross-examination and closing argument to suggest that Easley had shot the decedent. The jury found appellant guilty of first degree murder and carrying a pistol without a license.

II

In a pre-trial motion to compel a psychiatric examination of Arnez Olden, appellant alleged that Olden had been hospitalized at Saint Elizabeths Hospital on eleven occasions since 1982 and suffers from paranoid schizophrenia. The motion stated that because Olden had released his medical records to the defense, his privacy interest was minimal. Before trial, defense counsel proffered to the trial Judge that, based on the medical records, Olden had a history of auditory and visual hallucinations and paranoid delusions, was receiving medication for this condition, and that appellant had retained an expert to examine Olden. Thereafter, the trial Judge explored Olden's competency to testify by hearing testimony from Olden on two occasions and by examining his medical records.

The first time Olden testified at the competency hearing he claimed that he was not able to testify at appellant's trial. He explained that he had not received his monthly shot of prolixin to prevent him from hallucinating, and that he had smoked PCP and had been hallucinating "a little" on the day of the shooting. To the government's surprise, Olden claimed that he had not seen appellant on the date of the shooting. He also claimed that "voices" had told him to implicate appellant when he had appeared before the grand jury. Stating that he had a record of "hallucinating schizophrenia," and that his doctor had told him that he was not capable of testifying, Olden informed the Judge that all he remembered was that he was selling cocaine with a man named Mike. *fn3

At this point, the trial Judge suggested that Olden was experiencing the reality of testifying against appellant, who was sitting in front of him, and did not want to be a snitch. Defense counsel objected that the Judge's Conclusion was without support in the record, and suggested that "clearly, the most likely alternative explanation is that he's incompetent." When the Judge confronted Olden with the possibility of being prosecuted for perjury and the suggestion that his hearing voices was "nonsense," Olden denied that it was nonsense, saying it was in his records that he had "been hearing voices ever since 1982 up to 1989." *fn4

The second time Olden testified at the competency hearing he recounted a very different story. This occurred when the prosecutor advised the Judge the following day that Olden wanted to testify. Olden's counsel repeated his concerns about his client's competency, and the Judge recalled Olden to testify. This time Olden claimed that he wanted to change his testimony because he had heard that there was a contract out on him, and that upon seeing other witnesses going to the lawyer's office he thought that they were going to change their testimony, thereby putting him "under the gun." He proceeded to deny having heard voices when he was before the grand jury, or that he had heard them the previous day or was currently hearing them, or had heard them on the date of the shooting (although he admitted that he had tested one of appellant's cocaine rocks about an hour before the shooting, while otherwise claiming that he had not had any PCP since before July 21, 1988, months earlier). He then described how appellant had shot the decedent. On cross-examination Olden said that he had been using PCP and some crack since 1982, and that he had used PCP laced with crack the previous day in order to relax. He maintained that he had been telling the truth to the grand jury and lying the previous day, and that upon hearing the trial Judge's reference to a ten year punishment for perjury, he had decided not to take the rap for anyone. He denied that taking medication and PCP affected his memory or perception, and he explained that the only reason he had acted as he had the previous day was because there was a contract out on him. *fn5 Olden and the trial Judge then engaged in an extended colloquy. *fn6

When the trial Judge inquired whether defense counsel would agree to an immediate forensic screening of Olden by an expert, defense counsel objected, maintaining that an expert's independent examination was necessary. *fn7 The trial Judge disagreed, noting that he had five inches of medical records on Olden and he was not going to order anything more than a forensic screening. Defense counsel then proffered that the defense expert was of the view that a lay person asking a series of narrative questions would not adequately determine Olden's competency as a witness. The Judge concluded, however, that "based on what I have heard and what I have seen," he was "completely confident of [Olden's] competency. . . ." The trial Judge decided that a forensic screening was unnecessary because the witness was nothing more than a "run-of-the-mill drug abuser." Observing that trial Judges become, to some degree, lay experts in the field of competency as a result of taking guilty pleas, the Judge stated that he had experienced no problems in communicating with Olden, that he had examined the medical records, and that he "basically a fellow who has been a long-time PCP abuser." *fn8

It is well settled in this jurisdiction that the decision whether or not to order a psychiatric examination of a witness to determine his or her competency is a matter within the trial Judge's sound discretion. Collins v. United States , 491 A.2d 480, 484 (D.C. 1985), cert. denied , 475 U.S. 1124 (1986); Hilton v. United States , 435 A.2d 383, 387 (D.C. 1981); Rogers v. United States , 419 A.2d 977, 980 (D.C. 1980); Ledbetter v. United States , 350 A.2d 379, 380 (D.C. 1976). Because such an examination has the potential to impinge upon a witness' right to privacy, there is a presumption against ordering one. See, e.g. Hilton, supra , 435 A.2d at 387. The trial Judge "must weigh the potential evidentiary advantage of the examination against the dangers of unwarranted invasion of privacy posed by such examination," in order to determine whether or not a psychiatric examination should be ordered. Id. The trial Judge's ruling on a witness' competency will not be disturbed unless the record provides "unmistakable evidence that the trial court's impressions are defective." Id. at 388; see also Vereen v. United States , 587 A.2d 456, 457 (D.C. 1991); Collins, supra , 491 A.2d at 484.

Consistent with our standard of review, we note first, that the record shows, contrary to appellant's contention, that the trial Judge understood the standard that was to be applied in determining whether or not Olden was competent to testify. At the close of the competency hearing, the trial Judge recapped the proceedings and found that "we continued with the examination of Mr. Olden on August 22, whereupon he testified and showed no problems whatsoever with respect to memory about his illness and memory about this incident, his perceptions and so on." *fn9 See Hilton, (supra) , 435 ...


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