Appeals from the Superior Court of the District of Columbia CF2-1552-08 (Hon. Gregory Jackson, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and PRYOR, Senior Judge.
On January 18, 2008, at about 1:00 p.m., a woman approached a United States Capitol Police ("USCP") Officer near the intersection of Delaware and D Streets, N.E., and told the officer that a man with a gun had asked her for directions to the United States Supreme Court. From the USCP command center, an officer watched the video feed from surveillance cameras in the area around the U.S. Capitol and saw images of a man walking with a shotgun. As shown on a recording from those cameras, USCP officers stopped and arrested the man - appellant Michael Gorbey - at the intersection of First and D Streets, N.E. At the time he was stopped, appellant had a shotgun in his hand and a sword on his back. Twenty-seven shotgun shells were stored in the bulletproof vest he was wearing, and he also was in possession of hunting knives and a .45-caliber round, which officers found in the backpack he was carrying. Appellant claimed that he was en route to a meeting with Chief Justice John Roberts of the United States Supreme Court.
Minutes after appellant was stopped, USCP officers found a truck illegally parked nearby and could see in it "heavy gauge wire coming out of [the] radio . . . to the glove compartment . . . [a]nd then . . . coming out of the back of the vehicle," as well as"the stock of a rifle and a homemade bow and arrow." After canine-unit dogs responded to the truck in a manner that suggested that it contained explosives, officers secured the truck and called for the bomb squad to investigate. Bomb squad officers used a remote-control robot to punch through one of the windows of the truck and a tool to "disrupt" and neutralize any explosive device that might have been inside the passenger compartment. They then conducted a search of the inside of the truck (which was "in some disarray" from the disruptive tool). They found ammunition on the floorboard of the passenger compartment but, during this initial search, they did not find an explosive device. USCP officers found the keys to the truck in appellant's pocket and the certificate of title to the truck in the backpack appellant had been carrying at the time of his arrest.
The USCP officers moved appellant's truck to a secure storage area at 800 North Capitol Street, N.W., and, on February 8, 2008, conducted another search of the passenger compartment, pursuant to a search warrant. After moving the passenger seat forward, officers found an object that one of the officers described as a "home-made bomb." The object (hereafter referred to as the "device") consisted of "a metal can spray painted red" and "a clear bottle filled with what looked like lead pellets," and "everything was duct taped." After the bomb squad used a tool to "disrupt" the device, officers completed a search of the passenger compartment and cab of the truck. They recovered a "large amount" of black powder; firecrackers; lighters; primer or percussion caps; shotgun shells and shotgun cartridges; 550 rounds of long rifle ammunition; 200 rounds of other ammunition of various calibers; a rifle scope; and the (disrupted) components of the device (i.e., the metal can, duct tape, black powder, metal pellets, and glass fragments).
Appellant was charged and subsequently convicted, on May 16, 2008, of fourteen separate offenses in connection with the events described above: unlawful possession of a firearm by a convicted felon; two counts of carrying a dangerous weapon outside the home or business (shotgun and sword) ("CDW"); possession of an unregistered firearm ("UF"); eight counts of unlawful possession of ammunition ("UA"); manufacture, transfer, use, possession, or transportation of explosives for an unlawful purpose;*fn1 and attempted manufacture or possession of a weapon of mass destruction ("WMD").*fn2 As described more fully below, appellant insisted on representing himself at trial and did so, assisted by counsel from the Public Defender Service (PDS) who served as his standby counsel or attorney-advisor.*fn3 After sentencing, appellant made filings in support of a pro se motion to vacate or set aside his conviction pursuant to D.C. Code § 23-110 (2001), and appellate counsel appointed by this court supplemented that motion, which the trial court denied without a hearing on August 18, 2010.
Before us now are consolidated appeals: appellant's direct appeal from each of his convictions and his appeal from the trial court's denial of his § 23-110 motion. The issues on appeal have been presented in opening and reply briefs filed by counsel, and in opening and reply briefs filed by appellant pro se.*fn4 The briefs raise a battery of claims. Through counsel, appellant principally argues that his convictions should be overturned because the trial court "failed to order an evaluation of his competency to stand trial, his competency to proceed pro se, and his competency to waive his right to present the insanity defense despite warnings of incompetence." The briefs also argue that the evidence was not sufficient to support the convictions for CDW, possession of an explosive device, and attempted manufacture or possession of a WMD; that the WMD statute is unconstitutionally vague; that appellant was deprived of an impartial jury; that PDS counsel deprived appellant of effective assistance of counsel by failing "to pursue mental health-related issues" and by failing to "secure a rebuttal [expert] witness" for the defense to address the WMD and explosive device charges; and that several of appellant's convictions merge. Appellant's pro se briefs also present several additional claims, which we identify and address summarily at the end of this opinion.
For the reasons set out below, we reject the claim - advanced by counsel, but not by appellant in his pro se briefs - that the trial court abused its discretion by not ordering an evaluation of appellant's competence to stand trial and by permitting appellant to represent himself at trial. Our close review of the record persuades us that nothing presented to the trial court - neither the "aggregate of [relevant] indicia" nor any factor "stand[ing] alone," Drope v. Missouri, 420 U.S. 162, 180 (1975) (internal quotation marks and citations omitted) - raised a substantial question about appellant's competence. We also conclude, however, that by the time the matter proceeded to sentencing, sufficient "red flags" had been raised that the trial court was required to conduct an inquiry (a so-called Frendak inquiry*fn5 to determine whether appellant intelligently, knowingly and voluntarily waived a (possible) insanity defense. Accordingly, we remand for that inquiry.
We reject appellant's other challenges; however, we conclude that several of appellant's convictions merge, and we direct the trial court to vacate the affected convictions, including the conviction for possession of the .45 caliber round. Accordingly, if the trial court determines upon remand that appellant has validly waived an insanity defense, his convictions (other than those that merge) will stand.*fn6 In its discretion, the trial court may re-sentence appellant if it determines that to be the appropriate course in light of information adduced upon remand.
I. Whether the Trial Court Abused Its Discretion in Failing to Order an Evaluation of Appellant's Competence to Stand Trial, His Capacity to Represent Himself, and His Capacity to Waive An Insanity Defense
1. Appellant's Competence to Stand Trial
Due process "prohibits the criminal prosecution of a defendant who is not competent to stand trial." Medina v. California, 505 U.S. 437, 439 (1992); see also Drope, 420 U.S. at 171 ("It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial."). The test for determining competency to stand trial is whether a defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as a factual understanding of the proceedings against him." Higgenbottom v. United States, 923 A.2d 891, 897 (D.C. 2007) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (internal quotation marks omitted). "Where there is evidence raising a substantial doubt as to a defendant's competency to stand trial, the trial judge is under a constitutional duty to order a hearing sua sponte." Phenis, 909 A.2d at 152 (quoting Holmes v. United States, 407 A.2d 705, 706 (D.C. 1979)) (internal quotation marks omitted); see also Clyburn v. United States, 381 A.2d 260, 263 (D.C. 1977) (A trial court is "obligated to make or compel inquiry if it is in receipt of information which raises a bona fide doubt of defendant's competence."). In determining whether a competency hearing is warranted, factors such as a defendant's irrational behavior, demeanor at trial, prior medical opinions, evidence of mental illness, and representations by defense counsel are all relevant; courts must "examine the totality of the circumstances: all evidence should be considered together, no single factor stands alone." Gilbert v. Mullin, 302 F.3d 1166, 1179 (10th Cir. 2002) (internal quotation marks omitted).
"There are . . . no fixed or immutable signs which invariably indicate the need for [the trial court to make] further inquiry to determine [the defendant's] fitness to proceed[.]" Drope, 420 U.S. at 180. Further, "'[n]ot every manifestation of mental illness demonstrates incompetence to stand trial[.]'" Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996) (quoting United States ex. rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)). For example, even where it appears that a defendant has a "delusional belief of government persecution," an evaluation of whether he was competent to stand trial must turn on a review of "the substance of [his]pro se filing[s]" and statements in court, whether he was "following the testimony," and whether he "was able to make relevant suggestions to his attorney." United States v. Ghane, 593 F.3d 775, 781, 782-83 (8th Cir. 2010).*fn7
Where a claim is made that the trial court erred by failing sua sponte to raise the issue of a defendant's competence to stand trial, "[o]ur review . . . is limited to an examination of whether the trial court abused its discretion, the exercise of which we will not lightly disturb." Clyburn, 381 A.2d at 261, 262-63; see also Phenis, 909 A.2d at 152. We accord great deference to the trial court's inferences from its personal observations of, and conversations with, the defendant. Howard v. United States, 954 A.2d 415, 422 (D.C. 2008).
Through counsel, appellant argues that the trial court "ignored a series of red flags" that went up during the pre-trial and trial proceedings and that "signal[ed] a need to examine appellant's competency." We address each of these "red flags" in detail, explaining why we conclude that, whether considered separately or all together, they did not "inescapably call into question appellant's competence to stand trial[.]" Clyburn, 381 A.2d at 263.*fn8
a. Appellant's Conduct and Appearance at the Time of His Arrest
The first claimed "red flag" is appellant's "conduct and appearance at the time of his arrest," including "his possession of an array of weaponry" and his claim that he had an appointment with the Chief Justice. We do not agree that these facts raised a substantial doubt about appellant's competency, because they did not signal that appellant might have lacked a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" or that he lacked a "rational or factual understanding of the proceedings against him."*fn9 Higgenbottom, 923 A.2d at 897 (quoting Dusky,362 U.S. at 402 (internal quotation marks omitted). Courts have held repeatedly that bizarre and irrational behavior cannot be "equated with mental incompetence to stand trial." Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995).*fn10 Competency "is not the same as whether the defendant has an insanity or diminished capacity defense on the merits or whether his ideas about how to live or what to believe are common in the community or seem sensible to others. Rather the competency insisted on by the courts is a functional concept focusing on the defendant's part in the trial." Robidoux v. O'Brien, 643 F.3d 334, 339 (1st Cir. 2011). As we go on to discuss, we are satisfied that "defendant's part in the trial[,]" id.,did not raise substantial doubtabout hiscompetency.
b. Appellant's Conspiracy Theory
The second "red flag" cited in the briefs consists of appellant's "insistence that his defense depended on presenting evidence that the FBI, CIA and Capitol Police (and later the trial court and the U.S. Attorney's Office) conspired against him" and his "attempts to introduce evidence of various civil lawsuits [he had] filed against these entities as proof of these conspiracies." The record - including numerous statements by appellant in open court and in some of his pro se filings- certainly demonstrates that appellant operated under the belief that there was a widespread government conspiracy directed at him. Appellant told the court repeatedly that while he had no knowledge of most of the items he was charged with possessing, "[t]he police conspired in saying that [he] did." He told the court that "this very prosecution office was involved, [and] this very FBI was involved" in the conspiracy, that the alleged WMD was "planted upon me 21 days after [the truck] was held in police storage," and that officers had "every reason to lie and say" that a bomb was found in the truck.*fn11 Appellant also filed a motion for recusal in which he asserted that the court "is an officer of the U.S. government which is involved in a vast legal conspiracy against the defendant[.]" In addition, he asserted that he was carrying shotgun shells on the day of his arrest for the purpose of showing the court evidence of what had been "used in attempts of murder against me." He told the jury in his opening statement that he intended to show how "they conspire and lie to cover up other lies" and "their motive." He told the court that even the pedestrian who first reported having seen a man with a shotgun in search of the Supreme Court was a part of the conspiracy against him. Finally, in his closing argument, appellant told the jury that "they" had "created evidence against me" and "planted evidence against me."
Nevertheless, in light of the entire record, we are not persuaded that appellant's obvious conspiracy beliefs should have given the trial court "substantial doubt"*fn12 about whether appellant had "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a rational and factual understanding of the proceedings against him. To the contrary, the trial court could see that appellant's communications with his standby counsel enabled counsel to explain cogently why appellant should be able to elicit some of the conspiracy-theory-related evidence appellant sought to present. For example, standby counsel Eugene Ohm*fn13 told the court that:
Mr. Gorbey's assertion is that his defense isn't the conspiracy. His defense is, essentially, plant and fabrication. It's the motive to fabricate that comes through his prior legal battles with members of the federal government. . . . [W]e understand the Court's ruling that conspiracy is not a legal defense, but it certainly gives motive, or it provides the background and the context for Mr. Gorbey's allegation . . . that the officers are fabricating, and there are allegations of planting evidence.
Earlier in the proceedings, standby counsel Jason Tulley had told the court ex parte that appellant had filed "lawsuits against certain of the organizations that are involved in investigating the case" and that appellant might proceed on a bias theory, i.e., that "there was a bias for half of the folks who were involved." Tulley further explained to the court that when USCP bomb squad officers conducted a search of the truck before it was impounded, they found no destructive device, but that the truck did contain documents pertaining to appellant's pending lawsuit against the FBI; and that three weeks later, when investigators did an additional search, they found a destructive device, which, counsel told the court, "really does provide a solid legal foundation for some line" of bias inquiry.*fn14
Standby counsel Ohm likewise argued that appellant "should be provided the opportunity to present a defense where he explains why he believes the Capitol Police officers knew who he is."*fn15 Even for their part, the prosecutors treated appellant's bias theory as coherent enough that they inquired of each government law enforcement witness whether the witness had ever met appellant or heard his name before January 18, 2008.
Just as important, although appellant sought to employ a defense related to his conspiracy theory, he did not forgo other lines of defense. He made numerous oral motions and filed several handwritten motions, including a pre-trial motion to suppress, many portions (if not the entirety) of which had at least a colorable legal foundation and had nothing to do with his belief about a government conspiracy. He also filed a handwritten motion for a change of venue and explained to the court his concern that certain television news channels had "stressed . . . me being guilty of the charges" rather than reporting the "allegations" against him.*fn16 In addition, he filed a motion for independent DNA testing, explaining to the court that the paperwork he had received in discovery indicated that recovered items had been sent to the FBI laboratory for testing for genetic materials.*fn17
Appellant also asked the court to suppress his statement about an appointment at the Supreme Court, and he moved for a mistrial after his statement was introduced, citing the prejudicial effect of evidence about where he was going at the time of his arrest and the lack of probative value, given that the government had declined to charge him with threatening the Chief Justice. In addition, appellant challenged the warrantless search of his backpack and the warrantless initial search of the truck. "The fact that [appellant] was able to file so many different pro se motions indicates . . . that he had a very rational understanding of the proceedings against him[,]" and it gave the trial court a strong basis for regarding him as competent, since "[o]ne incompetent to understand the nature of the criminal court process would likely be unable to file the type of legal pleadings that [he] filed pro se." Adams v. State, 509 N.E.2d 812, 814-15 (Ind. 1987).
Further, when appellant cross-examined Special Agent Mark Crawford during the pre-trial hearing on the motion to suppress items found in the truck, he asked questions focusing on whether the canines' display of "interest" in a location is always indicative of explosives - questions that were directed at whether the dogs' response gave officers reason to believe that there were exigent circumstances that justified searching the truck without a warrant. Appellant also challenged whether the alleged explosive device recovered from his truck qualified as a "device" for purposes of the WMD and explosive device statutes, and he questioned his expert witnesses on the same issue. He asked the court to permit "a report of our own [to be] done on the device . . . by an independent technician" and to permit testing to determine whether some of the black powder found in the truck came from shotgun shells which had been disrupted by the bomb squad's remote-control tool, rather than from the alleged explosive device. During trial, appellant objected to the government's submitting into evidence a final crime scene report that was different from the draft report that had been shared with the defense at an earlier point. He questioned an evidence technician about whether there were identifiable fingerprints on the shotgun. He argued to the court that he innocently possessed the .45 caliber ammunition found in his backpack, prompting the prosecutor to brief the elements of an innocent-possession defense.*fn18
Many more examples could be cited, but the point, in short, is that during every phase of the pre-trial and trial proceedings, and notwithstanding his focus on a government conspiracy, appellant was attentive to the evidence, showed that he understood the elements of the offenses with which he was charged, and pursued an array of defensive strategies. Upon this record, we are satisfied that appellant's belief that he was the victim of a massive conspiracy did not give the court a substantial reason to think that he lacked an understanding of the charges against him or an ability to assist in his defense.
c. Appellant's Relationship with His PDS Counsel
The briefs assert that the third "red flag" that should have caused the trial court to question appellant's competence was his "inability to consult with his attorneys, as demonstrated by his cycling through two court-appointed attorneys before demanding to represent himself." This assertion exaggerates and mischaracterizes the record.
The record does not support a conclusion that it was appellant's inability to work with counsel that led to his "cycling through" his trial attorneys. PDS lawyer Larry Coopers represented appellant at his initial (and very brief) court appearance on January 19, 2008. The record reveals nothing about why Coopers made no further appearances on appellant's behalf.*fn19 PDS lawyer Elizabeth Mullin appeared on appellant's behalf at a hearing on January 23, 2008. She told the court at the end of that hearing that appellant desired to represent himself. Appellant later told the court that he discharged Mullin because, after a month and a half of representing him, she "didn't even give me the first document to show me what I was locked up for." This was consistent with what Mullin told the court on February 4, 2008 - that appellant was "deeply dissatisfied" with her representation because he had requested that she send him some materials, and appellant "didn't think that [what she sent] were the things that he requested." Mullin also told the court that she and appellant "got off on the wrong foot" because, at the preliminary hearing, she had declined to ask some of the questions appellant wanted asked. Ohm told the court only post-trial that appellant's not getting along with Mullin resulted from her "identif[ying] this as a mental health case[.]"
Whatever the full explanation for Mullin's departure as counsel, by February 14, 2008, Mullin had been replaced by PDS lawyer and standby counsel Jason Tulley. Nothing in the record indicates that appellant had difficulty consulting with Tulley. To the contrary, during an April 15, 2008, hearing, appellant agreed that it was "fair to say" that he had a "good working relationship" with standby counsel Tulley. The court later noted that appellant had indicated that he and Tulley had "worked out" any "differences" they had. Tulley advised the court, however, that he would be in trial in other matters and thereafter would ...