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United States v. Alvarez

as amended july 16 1975: June 11, 1975.

UNITED STATES OF AMERICA
v.
WILFREDO ALVAREZ, NORBERTO FERNANDEZ, JOSE ANTONIO HERNANDEZ, JOHN MARTINEZ, ROBERTO E. MARTINEZ, MARIA M. MERIDA, RICHARDO R. TUERO, JOHN A/K/A JORGE MARTINEZ, APPELLANT IN NO. 74-1933



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Criminal No. 74-81)

Author: Gibbons

Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges

Opinion OF THE COURT

GIBBONS, Circuit Judge

John Martinez appeals from a judgment of sentence of 25 years imprisonment entered upon his conviction for kidnapping and conspiracy to kidnap. He is one of seven defendants named in an indictment returned on March 19, 1974 for kidnapping for ransom of John Calzadilla. Two of the seven were adjudged juvenile offenders before trial. At trial one defendant, Alvarez, was acquitted. The remaining four were convicted. The convictions of two, Fernandez (No. 74-1931) and Roberto E. Martinez (No. 74-1934) have been affirmed in separate judgment orders of this court filed simultaneously with this opinion. Also, a separate opinion in the case of Hernandez (No. 74-1932) is being filed on this date. Prior to the trial John Martinez raised the question of his competency to stand trial. In a preliminary hearing the district court found him to be competent, and he concedes that there were no errors affecting that finding. At the trial John Martinez relied upon the defense of insanity as defined for this circuit in United States v. Currens, 290 F.2d 751 (3d Cir. 1961). On appeal he urges, among other things, that the court erred in admitting the testimony of two psychiatrists. We agree, and thus we reverse his conviction and remand for a new trial.

The district court, with the consent of all the defendants except Hernandez, ruled that the issue of participation in the kidnapping would be tried separately. If the jury found that John Martinez had participated, then evidence would be received on the insanity issue. The jury did find that he participated. The trial then proceeded before the same jury for a determination of his sanity at the time of the kidnapping. By agreement of the parties John Martinez presented his case first. This consisted of live testimony by his sister, and by Dr. Chester L. Trent, a psychiatrist. There was also a stipulation as to what Margarete Jurick, Senior Psychologist at Kings County Hospital, Brooklyn, New York, would testify to concerning her examination of John Martinez reported on April 14, 1974. Dr. Trent's testimony established, prima facie, that John Martinez lacked substantial capacity at the time of the kidnapping, as a result of a disease or defect, to conform his conduct to the requirements of the law. The government called three psychiatrists. As to two of these, John Martinez contends that admission of their testimony over strenuous objection was error.

DR. FLICKER'S TESTIMONY

Thomas F. Campion, Esq. was appointed counsel for John Martinez pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A on March 26, 1974. Shortly thereafter he met with his client at the Federal House of Detention in New York City. As a result of that meeting he moved, pursuant to 18 U.S.C. § 3006A(e), for authorization to obtain the services of a psychiatrist, Dr. Chester Trent. Such authorization was granted. As a result of Dr. Trent's examination of John Martinez, Mr. Campion moved for a pretrial hearing to determine whether his client was so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense. That motion, filed on April 10, 1974, was returnable on April 29th. However, on April 11, 1974, the district court on its own motion entered an order providing inter alia:

"Upon the motion of the Court and with the consent of the United States Attorney... and the consent of counsel for the defendant Martinez...,

It is this 11th day of April, 1974 ORDERED that Dr. David J. Flicker be and hereby is appointed pursuant to Title 18 U.S.C., Section 4244, to conduct a psychiatric examination of defendant John Martinez on April 13, 1974,

Ordered that all reports regarding John Martinez by the psychiatric experts employed by the United States and by counsel for the defendant John Martinez be submitted to the Court with copies to opposing counsel on or before April 19, 1974...." (App. for John Martinez at 37a).

The order is unequivocally clear. The sole purpose of Dr. Flicker's appointment was to conduct the examination authorized by 18 U.S.C. § 4244.*fn1 That section permits the court to compel a defendant to submit to a psychiatric examination solely for the purpose of aiding in the determination of his present capacity to understand the proceedings against him or properly to assist in his own defense. Since a psychiatric examination inevitably involves verbal communicati ons the statute presents the possibility of compelled self-incrimination. But the fruits of the examination are expressly limited:

"No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding."

In view of this explicit language, the recital in the April 11, 1974 order that it was consented to by Mr. Campion adds nothing. Defense counsel are encouraged to consent to an examination which otherwise may be compelled on the assurance that nothing their client says to the psychiatrist may be used against him on the issue of guilt. The examination by Dr. Flicker was solely for a § 4244 inquiry into present competency and was consented to solely for that purpose.

The court's psychiatrist, Dr. Flicker, found John Martinez to be competent and so reported. A psychiatrist selected by the government, Dr. Schwartz,*fn2 reported that as a result of mental disease Martinez lacked capacity to assist in his own defense. Shortly thereafter, and on the government's motion, an order was entered sending John Martinez to the Medical Facility for Federal Prisoners at Springfield, Missouri for a determination of his competency to stand trial. The psychiatric staff at Springfield reported that he was competent. A § 4244 hearing was held by the court on May 30 and 31 at which hearing several psychiatrists who had examined Martinez testified with respect to his competency to stand trial. The court concluded that John Martinez was competent.

At the trial on the issue of John Martinez's sanity at the time of the kidnapping, and over objection, the court permitted Dr. Flicker to testify that the Currens test was met. He was quite clearly the most effective government witness on that issue, and he recounted statements made by John Martinez that, while he denied involvement in the crime, "he knows that it was wrong." (Tr. at 3400).

The government defends the use of Dr. Flicker's testimony on three grounds: (1) that the April 11, 1974 order should be deemed to have been made pursuant to the court's "inherent power" to order a psychiatric examination on the Currens issue as well as on the issue of present competence; (2) that the prohibition in § 4244 against use of statements elicited from the defendant applies only to admissions of participation in the ...


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