Appeal from the Superior Court of the District of Columbia (F-1518-00) (Hon. Wendell P. Gardner, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before RUIZ and THOMPSON, Associate Judges, and FARRELL, Associate Judge, Retired.*fn1
Appellant was convicted of carjacking while armed, D.C. Code § 22-2803 (b); possession of a firearm during a crime of violence or dangerous offense, D.C. Code § 22-4504 (b); carrying a pistol without a license, D.C. Code § 22-4504 (a); possession of an unregistered firearm, D.C. Code § 7-2502.01; unlawful possession of ammunition, D.C. Code § 7-2506.01(3); and unlawful use of a vehicle, D.C. Code § 22-3215. On appeal, he argues that the trial court erred in deeming him competent to stand trial, in failing to obtain a waiver of the insanity defense or to explore the option of imposing one upon him, and in failing to grant his motion to suppress two show-up identifications. We affirm.
On August 30, 2003, appellant, posing as a window washer at a gas station, sprayed Susan Saffer in the face with window cleaner and forced her to give him the keys to her car after displaying a gun in his waistband. As appellant drove away in Ms. Saffer's car, her friend, Patricia Elliot, flagged down a nearby police officer, who immediately gave chase and broadcasted a lookout description. Appellant crashed the car during the chase, and the officer saw appellant exit the vehicle and run past the police car, at which point the officer chased him on foot. After briefly losing sight of appellant, the officer eventually found him hiding behind a trash can. When appellant was apprehended and placed in handcuffs, Ms. Saffer and Ms. Elliot were brought in separate police cars for show-up identifications, conducted fourteen minutes after the carjacking, during which there was no communication between the two witnesses. Both witnesses immediately identified appellant as the perpetrator.
Upon arrest, appellant turned mute and non-responsive, even with his own counsel and investigator; defense counsel so reported to the trial court. The trial court ordered a mental health evaluation of appellant. The evaluation was conducted in November 2003, during which appellant did not respond to any of the examiner's inquiries. The trial court subsequently ordered a competency examination, but the examining psychiatrist was unable to assess appellant's competency due to his continued non-responsiveness to verbal and written communication and his refusal to cooperate with the examiner. The trial court then ordered a full competency evaluation at St. Elizabeths Hospital, where appellant was admitted in April 2004. Dr. Michael Sweda, a clinical psychologist at the hospital, examined appellant upon admission and diagnosed him with schizophrenia, catatonic type, and personality disorder NOS (Not Otherwise Specified) with antisocial features, and deemed him incompetent to stand trial. During several subsequent competency evaluations, appellant was deemed equally incompetent to stand trial. However, as of February 2005, after having received medication for his condition, appellant had suddenly begun speaking, and the hospital informed the court that appellant had become competent to stand trial. In April 2005, the hospital issued a detailed report stating that Dr. Sweda had re-examined appellant, deeming him competent to stand trial, competent to waive the insanity defense, and criminally responsible for the offense. In subsequent examinations dating up until trial, the hospital continued to deem appellant competent to stand trial.
Although appellant was mute and non-responsive in the presence of his counsel and the court throughout the preliminary hearings and the trial, St. Elizabeths Hospital reported that appellant had been communicating freely with doctors and staff at the hospital during that time. Dr. Sweda and Dr. Richard Ratner, a psychiatrist at St. Elizabeths, both concluded after examining appellant that his muteness was volitional, and the government presented other evidence demonstrating the volitional nature of appellant's selective silence.*fn2 In July 2005, when appellant once again ceased communicating with defense counsel, he challenged the government's assertion of appellant's competency to stand trial. The trial judge conducted a competency hearing in August 2005, during which Dr. Sweda testified as the sole witness. The judge ruled that appellant was competent to stand trial.
The judge conducted a hearing on appellant's motion to suppress the identification testimony from the two show-up procedures. The judge found that the procedures were not unduly suggestive and denied the motion to suppress. After trial, a jury convicted appellant of all charges.
A. Competency to Stand Trial
Appellant claims that the trial court's competency findings were erroneous. Competency determinations are within the trial judge's discretion and are afforded deference. See Bennett v. United States, 400 A.2d 322, 325 (D.C. 1979). "A finding of competency will not be set aside upon review unless it is 'clearly arbitrary or erroneous.'" Id. (quoting United States v. Caldwell, 178 U.S. App. D.C. 20, 36, 543 F.2d 1333, 1349 (1974)). The test for determining competency to stand trial is whether the defendant has "sufficient present ability to rationally consult with his attorney and to factually understand the nature of the proceedings against him." Phenis v. United States, 909 A.2d 138, 152 (D.C. 2006) (citation omitted). In this case, the trial judge's competency findings were not clearly erroneous.
The trial judge's ruling is supported by four successive reports issued by St. Elizabeths Hospital, dating from February 2005 to the commencement of trial in August of the same year, deeming appellant competent to stand trial and by Dr. Sweda's testimony at the competency hearing that appellant was competent to stand trial, and that his refusal to communicate with defense counsel and silence in the courtroom were volitional.*fn3 Appellant presented no evidence at the competency hearing to contradict the four hospital reports or Dr. Sweda's testimony. In addition, the trial judge relied on his personal observations of and conversations with appellant, to which we accord deference. See Wallace v. United States, 936 A.2d 757, 774 (D.C. 2007) (citing Edwards v. United States, 766 A.2d 981, 988 (D.C. 2001)). Concededly, due to appellant's decision not to communicate, he may not have "rationally consult[ed] with his attorney" and thus may have been less likely to "factually understand the nature of the proceedings against him," Phenis, 909 A.2d at 152, but the test for competency hinges solely upon whether there was a "sufficient present ability" to do so. Id. at 152 (emphasis added); see also Godinez v. Moran, 509 U.S. 389, 404 (1993) (Kennedy, J., concurring) ("The possibility that consultation will occur is not required for the standard to serve its purpose."). Therefore, the trial judge did not clearly err in ruling, based on ample, uncontested evidence, that appellant had such sufficient present ability and was thus competent.
Appellant now contends that the trial judge should have further examined the question of whether appellant's silence was actually volitional, or rather, the result of his underlying mental illness. He specifically asserts that because his silence persisted throughout trial to the detriment of his defense, the trial court should have explored sua sponte the possibility that his behavior was the result of mental illness. However, it is not the trial judge's role to play "armchair psychiatrist" and further probe the issue of competency sua sponte where there are no red flags indicating to the judge that there exists a need to do so. See Bennett, 400 A.2d at 325. Here, where appellant presented nothing to contest the government's evidence at the competency hearing, and where the trial judge relied on his personal observations, four consecutive ...