Appeal from the Superior Court of the District of Columbia (F-3750-00) (Hon. Thomas J. Motley, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ and GLICKMAN, Associate Judges, and SCHWELB, *fn1 Senior Judge.
Opinion Associate Judge RUIZ. Concurring opinion by Associate Judge GLICKMAN, and Senior Judge SCHWELB, at page 54.
Jamar Phenis*fn2 was convicted of arson (D.C. Code § 22-401),*fn3 malicious destruction of property (D.C. Code § 22-403),*fn4 and second degree cruelty to children (D.C. Code § 22-901).*fn5 He claims on appeal that the trial court should have sua sponte ordered a competency evaluation during trial; that the trial court erred in failing to conduct a Frendak*fn6 inquiry; that the trial court improperly precluded him from defending against the specific intent element of arson; that there was error in the arson jury instruction; that the trial court erred when it corrected appellant's illegal sentence; that appellant's convictions for malicious destruction of property and arson merge; and that there was insufficient evidence to support his convictions. We conclude there is no merit to these contentions except for the claim that the trial court should have conducted a Frendak hearing into the potential availability of an insanity defense. We therefore remand the case to the trial court to conduct such a hearing.
On June 27, 2000, appellant and his mother, Ardis Phenis, lived in the Randle Hill apartment complex located at 3364 Sixth St. S.E. At around 5:00 p.m. that day, the property manager, Coral Satcher, directed the maintenance supervisor, Andre Spinner, and his maintenance assistance, Joseph Sharon, to go to appellant's apartment because a patio window had been broken. When the maintenance crew arrived, Ms. Phenis opened the door. Appellant and appellant's six year old niece, Nigeri Cooper, were in the apartment as well. The sliding glass patio window, which measured about three by seven feet, was broken, and had left shattered glass on the outside patio and inside the apartment. Appellant was sitting on the couch and he "was very upset, arguing with his mother" about "some money she spent of his." The maintenance crew overheard Ms. Phenis say that the real reason for his anger was because she would not let his girlfriend stay in the apartment.
As Spinner stood on the balcony, appellant approached the stationary balcony window and started shaking it, saying "this one is going next." Appellant then went back inside the apartment and continued arguing with his mother. As the argument between them continued and escalated, appellant "got mad and kicked the living room table . . . across the room." Spinner and Sharon decided to leave the apartment because they were both "nervous" about the situation.
Spinner and Sharon reported the altercation to Coral Satcher in the management office. About three to five minutes later, Ms. Phenis arrived at the management office. She was "hysterical" and asked Satcher to call the police because her son was "going off." Satcher called the police and then gave Ms. Phenis the telephone so that she could describe what was going on.
As Spinner and Sharon began walking back toward the apartment, they saw appellant "holding a chair in the air that was on fire" and watched him throw the large chair, a recliner, "off the balcony." The recliner landed on the sidewalk. Appellant did not say anything at the time or call out for assistance.
Shortly thereafter, appellant's 6-year old niece, Nigeri, ran out of the building. She was acting "nervously and scared" and was crying. The little girl said that "her uncle was going crazy, he was going off . . . acting strange." She went to Satcher's office, where she again reported that her uncle had "gone crazy" and had "set the place on fire" with her doll inside.
Fire began shooting out from the balcony. Spinner and Sharon banged on residents' doors telling them to exit and pulled the fire alarms. While Spinner and Sharon stood outside waiting for the police and fire departments to arrive, they saw appellant walk out of the building and head toward the exit of the complex. Appellant "wasn't in [a] hurry. He was walking at a slow pace." Appellant had not called for help nor had he reported the fire to the apartment manager's office.
Spinner and Sharon flagged down a passing police car, informed the police that appellant had started the fire, and pointed the officers in appellant's direction. The police stopped appellant at the entrance to the property.
Appellant was transported to the Seventh District police station and, after being read his Miranda rights, appellant gave a statement to an investigator for the fire department. In response to questioning about how the fire started, appellant stated "Well, I guess I did it. . . . I struck a couple of matches. . . . About maybe four, maybe two. . . . Yes, there was two matches. . . . I threw the first match on a pile of newspaper. . . . I threw [the second match] on the couch." When the investigator asked if that was how the fire started, appellant responded "Yes, but I feel it was an accident. But when I get the power I am going to do it right. The thing will -- and I am not tripping."
At trial the government presented an expert in the field of fire and arson investigation. He concluded that the fire was "incendiary," meaning that it was deliberately set by a person who knows that a fire should not be set in a particular case. His opinion rested on several facts, including that there were two separate areas of origin to the fire (the recliner that appellant threw out of the apartment, which only had localized damage to the seat cushion, and the couch); there was a short time period before the fire spread (ruling out a smoldering event such as a cigarette); the witnesses' statements about what they saw before the fire started and the throwing of the recliner off the balcony; appellant's statement that he had used matches; and District of Columbia Fire Department Investigator Ruth Cade's finding that there were no other sources of fire in the living room or dining room. The expert ruled out gas leakage, an electrical problem, or any other accidental causes as the source of the fire. He also opined that the monetary amount of damage to the apartment and its contents "was well in excess of $25,000," and that the structural damage to the apartment alone was at least $10,000.
Appellant did not testify or present any witnesses. In closing argument, defense counsel argued that the fire was an accident that the defendant had unsuccessfully tried to put out.
II. Appellant's Competence and Possible Insanity
Because the obligation to order a competency examination and conduct a Frendak inquiry is triggered by the specific circumstances of the individual case, see Frendak, 408 A.2d at 380, we set out the pre-trial, trial and sentencing proceedings in detail as they pertain to appellant's mental condition.
At presentment on July 7, 2000 -- nine days after the offense -- Judge Harold Cushenberry granted the government's request that appellant be held without bond and referred for a forensic screening due to his unusual behavior at the time of arrest. That same day Dr. Lawrence Oliver, a clinical psychologist, conducted a thirty-minute competency examination of appellant in the District of Columbia Superior Court cellblock. Dr. Oliver's report indicated that appellant had in the last year received inpatient treatment at St. Elizabeths Hospital, from August 23-September 1, 1999, when, according to appellant's recollection, he was there to detoxify from illicit drugs and alcohol, but he received no medications. The report noted that on June 28, 2000, the day after the charged offense occurred, appellant tested negative for cocaine, PCP, and opiates, but was not tested for cannabis or alcohol. Dr. Oliver observed that appellant's "judgment and insight were distorted by unrealistic thinking." For example, he "could not be dissuaded from the notion that his legal difficulties were minor because [he stated:] 'they'll let me go. They always do.'" In addition, "[d]espite past experience with the criminal justice system, Mr. Phenis was unable or unwilling to demonstrate even the most basic knowledge of the judicial process and the roles of various court officials." He was also unable to "demonstrate any knowledge of his plea options, rights and the concept of plea bargaining. He was unable or unwilling to retain simple explanations of these issues." Dr. Oliver concluded that "[i]n his current state, Mr. Phenis would be unlikely to work effectively with his defense attorney or to maintain proper decorum in a courtroom." Dr. Oliver was not able to determine if appellant's behavior during the interview was "the result of volitional characterological traits, mental illness, substance abuse, or some combination of these factors."
A court order, issued on July 12, 2000, instructed Dr. Oliver to conduct a complete competency examination of appellant at the mental health unit of the District of Columbia Jail. The examination was conducted on August 15, 2000, but lasted only five minutes because appellant refused to participate in the evaluation. Dr. Oliver's report stated:
In fact, he refused to leave his cell and when asked the reason for his refusal to participate said only "I'm ready to return to society. They should give me bond. I don't want to talk to you about anything." Mr. Phenis spoke in a rapid and disjointed manner as he said this and then fell silent. Because he has refused to bathe for several weeks, his hair was matted and he had a strong and disagreeable smell. According to staff on the mental health unit, Mr. Phenis has refused to take any medications and has consistently refused to come to clinic, engage in any of the therapeutic activities on the unit, and refuses to speak to staff. . . . His condition has deteriorated from what it was when he was seen at court for a competency screening.
The report noted that appellant had been on the mental health unit of the District of Columbia Jail in connection with previous charges, when he was more cooperative and responded to medication. However, "since being placed on the unit again in early July of this year, he has refused all treatment." Consequently, Dr. Oliver concluded that "it is my opinion that Mr. Phenis is incompetent to stand trial because mental health factors impair his capacity to have a factual and rational understanding of the proceedings against him, render him unable to work in any effective manner with his attorney, and diminish his ability to behave with decorum in a courtroom."
On August 22, 2000, a probable cause hearing was held before Judge Noël Anketell Kramer, during which Metropolitan Police Officer Brandon Shafer,*fn7 who was one of the first officers to arrive on the scene, testified about his observation of the events of June 27, 2000, including appellant's behavior. Officer Shafer stated that appellant was acting "distant, uncooperative," "pretty erratic," and did not exhibit "normal behavior" as one would expect from a person whose apartment just burned down. He was rambling in his speech and moving his hands in the air. In the back of the car on the way to the station, appellant was singing show tunes. Once at the station, he had "calmed down somewhat from the scene," and was answering the questions "pretty straightforward," although he was rambling "somewhat." Officer Shafer also testified that appellant's niece told him that appellant was "acting crazy" before the fire started.
At the conclusion of the hearing, after finding probable cause, the court noted that appellant was "not competent" to stand trial, and therefore did not know whether a trial date should be set. Appellant's counsel said she anticipated that "eventually it is going to become a Frendak issue. I do think that is going to happen just from [what] I know about this case." The court responded, "[m]aybe a Frendak or Alford, or whatever. I don't know." The court ordered further evaluation of appellant on an inpatient basis at St. Elizabeths Hospital, with an updated competency report to be submitted by October 10, 2000.
On September 29, 2000, a report was issued stating that Dr. Mitchell Hugonnet, a staff psychologist at St. Elizabeths Hospital, had examined appellant and several determinations had been made at a "diagnostic staff conference." The report stated that appellant was competent to stand trial "by virtue of having a factual and rational understanding of the proceedings pending against him and being able to consult with counsel with a reasonable degree of rational understanding." Additionally, the report indicated that appellant had been diagnosed with "PCP [phencyclidine] dependence, PCP-Induced Psychotic Disorder, Alcohol Dependence and Personality Disorder NOS [not otherwise specified] with Antisocial Features." Significantly, the report stated that appellant was currently receiving the medications Haldol and Cogentin, and that "he should remain on medication pending trial 12 to assure continued competency." With such medication, according to the report, appellant did not need to remain hospitalized.
On October 10, 2000, at a preliminary hearing before Judge Kramer, the court noted that appellant had been found competent to stand trial and inquired whether appellant was going to challenge the competency finding. Defense counsel stated that it would not be challenged and that appellant was "fine and cooperative and a different person," and that he "wanted very much to take his meds and was grateful when he was on them and he's cooperative and fine and easy to deal with." When discussing whether appellant should be held without bond, defense counsel stated that "the psychiatric circumstances that existed at the time of this offense, this alleged offense, do not, they don't exist anymore. Mr. Phenis is on medication, he is certainly in control of himself. He seems to be fine. The medical workers at St. Elizabeths indicated that he was not at risk of danger to himself or to others . . . ." Continuing, defense counsel stated that she thought appellant had stopped taking his medication at the time of the incident, "and that may have led to all kinds of problems, and I don't think that exists now. . . . He was relieved he was on the medication again and I think this is a different person . . . ." Judge Kramer said she understood that, as a legal matter, defense counsel seemed to be arguing "kind of an NGI [not guilty by reason of insanity] defense . . . that he did this because of this mental illness." Although defense counsel responded she was not asserting insanity "at [this] point," the court noted that that was the "thrust of [defense counsel's] argument . . . ." At the request of defense counsel, the trial court allowed appellant to remain at St. Elizabeths, because "it's clear that he's benefitted from that," and that it was a good idea to "keep him competent."
On October 18, 2000, new counsel entered her appearance on behalf of appellant.
On January 3, 2001, a fourth competency report was issued by Dr. Mitchell Hugonnet at St. Elizabeths, which essentially repeated the findings of the report issued the previous September: that appellant "remain[ed] competent to stand trial by virtue of having a factual and rational understanding of the proceedings pending against him and being able to consult with counsel with a reasonable degree of rational understanding;" and that appellant had been diagnosed with "PCP Dependence, PCP-Induced Psychotic Disorder, Alcohol Dependence and Personality Disorder NOS with Antisocial Features." It stated that appellant was then taking the medication Mellaril, and that "he should remain on medication pending trial to assure continued competency." As before, the report concluded that, with medication, appellant did not need to remain hospitalized.
On January 5, 2001, a hearing was held before Judge Kramer at which Barbara McClinton, a representative of the Pretrial Services Intensive Supervision Program, was present. McClinton reported that she had evaluated appellant in October, when he was rejected from the intensive supervision program "due to the fact of comprehensive mental health issues that needed mental health, and extensive mental health supervision . . . ." McClinton stated that she had concerns about putting appellant in intensive supervision because of his "mental health issues and the medication and the treatment which he needs to be compliant with to remain competent to stand trial." After extensive discussions about which sort of program would best ensure that appellant would continue to receive his medication and necessary treatment, the court released appellant from St. Elizabeths and placed him in a pretrial services intensive supervision program pending return of an indictment. While in the program, the court ordered that appellant be monitored for drugs and alcohol and that he participate in mental health treatment and continue to take his medication.
Appellant was indicted on April 4, 2001. On April 23, 2001, the third judge in the case, Judge John Campbell, issued a work-release order instructing appellant, again, to participate in the court ordered-drug treatment and alcohol testing, as well as mental health treatment and "medical compliance." However, on May 21, 2001, appellant was re-admitted to St. Elizabeths Hospital for treatment,*fn8 where he remained throughout trial.
At a status hearing before Judge Campbell on June 25, 2001, defense counsel asked the court to order a special "Criminal Responsibility Test" to assess appellant's ...