Frederick L. Salzman v. United States of America, James E. Lowery v. United States

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The setting in which we must examine Salzman’s appeal is a relatively short and uncomplicated sequence of litigative events. At his trial, on an indictment for robbery,1 the Government introduced evidence, which, if believed by the jury, proved that he had participated in the crime. Salzman, on the other hand, related that he had been drinking extensively before the robbery took place, and that he could recall little about the day on which it occurred. He brought out, too, that he had been arrested for drunkenness on many occasions previously, and had also been adjudged a chronic alcoholic.2 Other testimony, however, added little to the significance of the latter event.3

The trial judge, with the approbation4 of Salzman’s trial counsel,5 instructed the jury in substance that chronic alcoholism is not per se a defense to robbery, but that the accused’s capacity to form a specific intent to steal was a prerequisite to conviction for that offense.6 Having been found guilty as charged, Salzman now contends that the judge, in his instructions, should have distinguished between voluntary and involuntary intoxication, and should have told the jury to acquit if his acts were a product of his chronic alcoholism.

*375In Easter v. District of Columbia,7 we held that the Rehabilitation of Alcoholics Act8 “preclude[s] attaching criminality-in this jurisdiction to intoxication in public of a chronic alcoholic.”9 Since the role of alcoholism in the criminal process is undeniably a problem to be reckoned with in more than a single context, Salzman not unnaturally frames for our consideration broad and difficult issues concerning the potentialities of chronic alcoholism in the defense of crime other than public inebriation.10 Is chronic alcoholism, in its relation to criminality generally, to be dealt with as a form of involuntary intoxication,11 mental illness12 or exculpating sickness13 on the theory that he who is inflicted with it had an irresistible compulsion to drink and after drinking loses his power of self-restraint? Can he, any more than one whose behavioral controls are substantially impaired by mental disease or defect,14 be justly assessed with criminal responsibility?15 These are among the questions Salzman would have us decide.

Clarification of the law in these areas would, of course, be highly desirable, and acceptance of Salzman’s invitation would shed some much needed light on these vexing problems. But principles basic in our jurisprudence, fortified by the lessons of history, caution against judicial conclusions—including those on chronic alcoholism16—that are not firmly supported by concrete evidence. Here we have virtually no evidence on the subject integral to the overall inquiry. A clinical specialist in alcoholism for the District of Columbia Department of Health, defining a chronic alcoholic as a person who cannot master his drinking, testified that Salzman is an habitual imbiber who loses control over his drinking once he starts, but this is just about all that we are told.17 Among the glaring evidentiary deficiencies are informational voids as to Salzman’s ability to forego the first drink, and as to the *376effect of his drinking on his power to govern his behavior. Thus we are left in the dark as to just how compulsive Salzman’s drinking really is, and as to any causal relationship it bore to the otherwise criminal conduct for which he was convicted.

Moreover, the record discloses that Salzman asserted his alcoholism at trial only in an effort to negate the specific intent to steal which is an essential element of the crime of robbery.18 That was the defense — and the sole defense— which his counsel advanced to the jury in opening statement19 and in summation,20 and to the trial court in connection with its instructions to the jury.21 The court’s charge, plainly and concisely, covered that theory of the case, and trial counsel voiced satisfaction with the charge.22

In my view, any broader consideration of the interweave of chronic alcoholism in the fabric of the criminal law is doomed here by the almost complete lack of medical evidence,23 and by the trial of the case on a claim too narrow to justify even a “plain error”24 approach on Salzman’s appeal.25 In sum, we are not called upon, in order to dispose of his appeal, to render nearly so far-reaching a decision as Salzman seeks. I join in affirmance of his conviction, but would postpone performance of our duty to probe deeper into the mysteries of chronic alcoholism to the day when we are afforded an adequate record developed through adversary treatment of all vital issues at the trial level.

. D.C.Code § 22-2901 (1967).

. This adjudication occurred in August, 1966, the same month in which the robbery was committed.

. See note 17, infra, and accompanying text.

. See note 22, infra, and accompanying text.

. Not his counsel on this appeal.

. Voluntary drunkenness, see note 11, infra, is not of itself an excuse for crime. King v. United States, 125 U.S.App.D.C. 318, 323, 372 F.2d 383, 388 (1966); Bishop v. United States, 71 App.D.C. 132, 136, 107 F.2d 297, 301-302 (1939). It is, however, relevant to and may negate specific intent. Heideman v. United States, 104 U.S.App.D.C. 128, 131, 259 F.2d 943, 946 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959); Proctor v. United States, 85 U.S.App.D.C. 341, 177 F.2d 656 (1949); Sabens v. United States, 40 App.D.C. 440, 443 (1913). Compare Parker v. United States, 123 U.S.App.D.C. 343, 346-347, 359 F.2d 1009, 1012-1013 (1966).

. 124 U.S.App.D.C. 33, 361 F.2d 50 (en banc 1966).

. 61 Stat. 744 (1947), D.C.Code §§ 24-501 to 24-514 (1967). But see District of Columbia Alcoholic Rehabilitation Act of 1967, 82 Stat. 618 (1968).

. 124 U.S.App.D.C. at 35, 361 F.2d at 52. Compare Powell v. State of Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).

. Our Easter decision, supra note 7, did not touch issues of that character. See 124 U.S.App.D.C. at 35-36, 44, 361 F.2d at 52-53, 61.

. Even the common law recognizes the distinction between voluntary and involuntary intoxication — the former as a defense only if it precludes a specific intent which is an essential element of the crime, and the latter as a defense if present in a degree sufficient to destroy cognition. See generally W. Burdick, The Law of Crime 213, 216-21 (1946); R. Perkins, Criminal Law 777, 781-95 (1957); 1 Wharton, Criminal Law & Procedure 102-04 (R. Anderson ed.1957). See also People v. Koch, 250 App.Div. 623, 294 N.Y.S. 987 (1937) (conviction for operating motor vehicle while intoxicated reversed because intoxicating substance was taken for medicinal purposes); State v. Brown, 38 Kan. 390, 16 P. 259 (1888) (public drunkenness excused by ignorance of intoxicating potentiality of beverage).

. See, e.g., Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954); McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (en banc 1962).

. See Easter v. District of Columbia, supra note 7, 124 U.S.App.D.C. at 35, 36, 361 F.2d at 52, 53.

. See the cases cited supra note 12.

. See Easter v. District of Columbia, supra note 7, 124 U.S.App.D.C. at 35, 361 F.2d at 52.

. See Powell v. State of Texas, supra note 9, 392 U.S. at 517-531, 88 S.Ct. 2145.

. Government witnesses expressed only their opinions on Salzman’s state of sobriety at the time of the offense. Salzman himself, after testifying to his drinking prior to the robbery and his many arrests for intoxication, said only that “[s]ometimes you are high and sometimes you are higher and sometimes you just don’t know what you are doing.”

. See the cases cited supra note 6.

. Defense counsel’s opening statement to the jury alluded to specific intent to steal as an essential element of the robbery with which Salzman was charged, and stated that Salzman would show that at the time of the offense he was under the influence of alcohol and that he had previously been adjudged a chronic alcoholic.

. Salzman’s counsel in closing argument called the jury’s attention to the necessity of proof of specific intent in robbery cases, and urged the jury “to find the defendant not guilty of the crime of robbery by reason of the fact that he did not have the specific mental intent to do these acts on the day in question.” Continuing, he said that Salzman had been “adjudicated a chronic alcoholic * * * who does drink without control and gets to a stage where his mind gets numb with alcohol;” hence, it was urged, “he had no specific intent to do these acts.”

. The Government requested, and the trial court informed counsel that it would give, an instruction to the effect that chronic alcoholism, standing alone, is not a defense to robbery, but that Salzman’s condition should be taken into consideration on the question whether he was too intoxicated to form the necessary specific intent. Salzman’s counsel requested only “the intoxication instruction” and that the jury be told that Salzman’s adjudication as a chronic alcoholic should be considered in the determination as to whether there was specific intent.

. No objection was registered to the court’s proposed instruction on this point. See note 21, supra. In response to the court’s inquiry, after the court had instructed the jury precisely as it had stated that it would, Salzman’s counsel said that he was “[s]atisfied.”

. Compare Powell v. Texas, supra note 9, 392 U.S. at 517-531, 88 S.Ct. 2145. Powell dealt with chronic alcoholism in the context of a constitutional claim, but its rationale, perhaps in somewhat smaller degree, is applicable to judicial resolution of nonconstitutional questions as well.

. F.R.Crim.P. 52(b).

. See Osborn v. United States, 385 U.S. 323, 332 n. 11, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); Gaskins v. United States, U.S.App.D.C. (No. 20,252, Dec. 20, 1967) at 9 n. 30; Robertson v. United States, 124 U.S.App.D.C. 309, 310, 364 F.2d 702, 703 (1960); Kelly v. United States, 124 U.S.App.D.C. 44, 361 F.2d 61 (1966) ; Smith v. United States, 122 U.S.App.D.C. 300, 305, 353 F.2d 838, 843 (1965). See also F.R.Crim.P. 30.