408 A.2d 364 (1979)

Paula J. FRENDAK, Appellant,
v.
UNITED STATES, Appellee.
UNITED STATES
v.
Paula J. FRENDAK.

Nos. 11043, 11046.

District of Columbia Court of Appeals.

Argued November 16, 1978. Decided October 24, 1979.

*366 Thomas W. Farquhar, Washington, D. C., for appellant.

John W. Polk, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time brief was filed and John A. Terry and John T. Kotelly, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

John D. Aldock, Washington, D. C., appointed by the court as amicus curiae, with whom William R. Galeota, Washington, D. C., was on brief.^[*]

Before KERN, GALLAGHER and FERREN, Associate Judges.

FERREN, Associate Judge:

A jury found appellant Paula Frendak guilty of first-degree murder, D.C.Code 1973, § 22-2401, and carrying a pistol without a license, D.C.Code 1973, § 22-3204. Troubled by evidence introduced at Frendak's competency hearings and at trial, the court conducted hearings on her sanity at the time of the crime. As a result, the court decided — over Frendak's objection — to interpose the insanity defense at a *367 second, "insanity" phase of the trial. The jury then found Frendak not guilty by reason of insanity on both counts.

On appeal, Frendak challenges the verdict on alternate grounds. She asserts, first, that there was insufficient evidence of premeditation and deliberation to support the jury's initial determination that she committed first-degree murder. Second, Frendak — joined by the government and amicus curiae — attacks the present validity of Whalem v. United States, 120 U.S. App.D.C 331, 346 F.2d 812 (en banc), cert. denied, 382 U.S. 862, 86 S.Ct. 124, 15 L.Ed.2d 100 (1965), in which the United States Court of Appeals for the District of Columbia Circuit held that the trial judge has discretion to raise an insanity defense over the objection of a defendant found competent to stand trial. The government urges this court, in addition, to hold that a finding of competency to stand trial is, in itself, sufficient to demonstrate that a defendant is capable of rejecting the defense.

We conclude that the government produced sufficient evidence to support a conviction for first-degree murder. As to the second issue, however, we reinterpret Whalem, supra. We hold that the trial judge may not force an insanity defense on a defendant found competent to stand trial if the individual intelligently and voluntarily decides to forego that defense. In reaching this result, however, we further hold that the court's finding of competency to stand trial is not, in itself, sufficient to show that the defendant is capable of rejecting an insanity defense; the trial judge must make further inquiry into whether the defendant has made an intelligent and voluntary decision. Because it is unclear whether Frendak made such a decision, we remand for further proceedings.

I. Facts; Proceedings to Date

At approximately 2:15 on the afternoon of January 15, 1974, Willard Titlow left his office on the seventh floor of 1735 K Street, N.W. Appellant Paula Frendak, a co-worker, departed immediately afterwards, explaining to a secretary that she had an appointment with her attorney. Within minutes, Titlow was discovered fatally shot in the first floor hallway of the building.

Following the shooting, Frendak left Washington, traveling through Atlanta, Miami, Mexico City, Spain, and Turkey before she was arrested on February 11, 1974 in Abu Dhabi, United Arab Emirates, after refusing to surrender her passport at the airport. A later search of her baggage revealed that she was carrying a .38 caliber pistol, 45 rounds of ammunition, two empty cartridges, and a pocket knife. On March 13, 1974, authorities in Abu Dhabi surrendered Frendak to the United States Marshal, who brought her back to the District of Columbia to face charges relating to the murder of Willard Titlow. On May 29, 1974, Frendak was indicted for first-degree murder and carrying a pistol without a license.

In the months preceding her trial, Frendak underwent a series of psychiatric examinations to determine her competency. There were four competency hearings at which psychiatrists gave varying testimony about Frendak's mental condition and her ability to consult with counsel concerning the proceedings against her. Ultimately, after the fourth hearing, the court determined that appellant was suffering from a personality disorder, was able to cooperate with her counsel, possessed a rational as well as factual understanding of the proceedings against her, and was fully cognizant of the charges.^[1] Accordingly, the court concluded that she was competent to stand trial, although it reserved the right to raise the competency issue sua sponte at any point in the proceedings.

*368 At trial, the government introduced evidence demonstrating that Titlow had been killed by two shots fired at close range, and that the last shot probably had been fired by someone standing over Titlow as he lay on the floor. A police expert in firearms identification testified that the ballistics tests showed positively that the bullets recovered from Titlow's body had been fired by the weapon seized from Paula Frendak in Abu Dhabi.

In addition, Robert Hur, who had worked with both Frendak and Titlow, testified that on three occasions prior to January 15, 1974, Frendak had followed him and Titlow. Another co-worker, Thomas Voit, recalled a similar incident which occurred on the day of the murder. Frendak had followed Voit and Titlow as they left the office and took the elevator down. When the elevator reached the lobby, Frendak got off, turned to Titlow and said, "Willard, this is it," meaning this is your floor. Titlow then explained that he and Voit were going to eat in the basement snack bar, although in fact they intended to slip out the basement door to avoid her. Because the basement door was locked, the men returned to the lobby and noticed Frendak standing nearby. She followed them out of the building to a cafeteria, but did not enter. When they returned from lunch, they found Frendak waiting in the lobby again, and she took the elevator up with them.

A secretary in the office recalled the incidents immediately preceding the shooting. She testified that as soon as Titlow had taken his coat from the closet and left the office for his regular sales call, Paula Frendak, who had been sitting at her desk, followed him out. As she left, she told the secretary that she had made arrangements with her supervisor to take time off to see her lawyer. A few minutes later, Titlow was found fatally wounded.

Ms. Frendak, the only defense witness, admitted owning the murder weapon and taking it with her to the scene of the murder. She explained, however, that she had brought it with her to sell to Titlow and had left the office with him shortly before his murder in order to complete the transaction. She stated that, after giving the pistol to Titlow in the first floor hallway of the building where they worked, an unknown woman had appeared, grabbed the gun, shot Titlow twice, and then fled. Frendak also testified that she had panicked and left the city, fearing that she had been framed. The jury found Frendak guilty of first-degree murder and carrying a pistol without a license.

Although evidence of insanity had been introduced in the competency proceedings, Frendak refused to raise the insanity defense at trial. The court, therefore, appointed John Aldock, Esquire, as amicus curiae to aid it in deciding whether to raise the defense on its own motion, under authority of Whalem v. United States, supra. The court also ordered a mental examination of Frendak on the question of her criminal responsibility.

In a subsequent hearing, the court received reports by Dr. Edward C. Kirby of the staff of the Forensic Pyschiatry Office and Dr. Leon Yochelson of the Psychiatric Institute stating that, at the time of Titlow's murder, Frendak had been suffering from a mental illness which impaired her behavioral controls to such an extent that she could not appreciate the wrongfulness of her conduct and could not conform her conduct to the requirements of the law.^[2] Dr. Franklin J. Pepper, a psychiatrist from St. Elizabeths Hospital, testified at the hearing, explaining that appellant had a "paranoid personality" with "some tendency to lap over into some psychotic thinking." When asked whether Titlow's murder had been a product of this condition, Dr. Pepper responded that "at some level in the workings of Miss Frendak's mind, at some level of psychodynamics . . . there is a causal connection between her mental illness and the event." He testified, however, that he was "unable to discover the cause and effect relationship." Although neither *369 Dr. Kirby nor Dr. Yochelson discussed appellant's present capability of considering the consequences of rejecting an insanity defense, Dr. Pepper specifically stated that appellant understood the consequences of her decision not to raise the insanity defense.^[3]

In oral argument at the hearing, amicus expressed reservations about the current status of Whalem, supra, in light of the later Supreme Court decisions in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He argued, however, that the trial court should apply the Whalem rule, as traditionally interpreted, raise the insanity defense, and leave the question of its current validity for appeal. Both Frendak and the prosecution opposed the trial court's imposition of the insanity defense. After hearing the evidence and argument on both sides, the trial judge reaffirmed his prior ruling that appellant was competent to stand trial. He stated, however:

Assuming, as the Court does, that no higher level or degree of competency is required of the defendant with respect to her ability to raise or not raise the issue — the defense of insanity — I find that she is able to appreciate the decision; but I would be less than candid if I did not also point out that the Court would have reservations about her ability to appreciate all facets of such a decision on her own mental health if a higher degree of competency is required with respect to the ability to make that decision.

He then found that the psychiatric evidence adduced throughout the proceedings raised a sufficient question about appellant's mental responsibility at the time of the crime to require that the court raise the insanity defense under the Whalem rule, although he expressed reservations about the current validity of that rule.

The insanity phase of the case was tried before the same jury which had heard the trial on the merits.^[4]Amicus presented evidence supporting the insanity defense. He first called Mark Freedricks, a former neighbor of Ms. Frendak, who recounted several incidents demonstrating appellant's hostile conduct toward him, including spitting at him, avoiding him, and accusing him of being a CIA agent. Doctors Kirby, Yochelson, and Pepper again testified. Dr. Kirby and Dr. Yochelson stated that, in their view, Frendak had been suffering from a major psychotic illness, characterized by delusions, hallucinations and looseness of associations. In particular, she feared that there were plots against her, especially by persons associated with the CIA. Dr. Kirby did not find any specific, logical connection between the crime and Frendak's mental disease but expressed his belief that if she had committed the crime, it was because of "her reduced behavioral control on account of her mental illness." Dr. Yochelson did see a causal link between appellant's illness and the murder, explaining that she had great difficulty forming close attachments with other people, and that this caused great anxiety. She was, the doctor speculated, beginning to develop positive feelings about Titlow and was afraid of those feelings. Titlow's murder would have provided a means of eliminating a serious external source of her anxiety.

Dr. Pepper, on the other hand, believed that Frendak had only a personality disorder with at most a borderline tendency toward psychosis, a condition characterized by hyper-sensitivity, unwarranted suspicion, jealousy, excessive self-importance, and a tendency to blame others and ascribe evil motives to them. He found no connecting link between appellant's mental disease and *370 the crime, explaining that he did not believe she was delusional at the time of the murder, since her actions before and after the crime indicated that she had known what she was doing throughout the entire period.

Ms. Frendak testified in her own behalf, stating that she had had little contact with her former neighbor, Mr. Freedricks, and did not bear him any grudge; that she did not kill Titlow; and that the murder was all part of what she described as a "Rand Corporation game plan." On April 29, 1976, the jury returned a verdict of not guilty by reason of insanity.

Because the judge had imposed the insanity defense over appellant's opposition, he concluded that he could not commit appellant to a mental hospital pursuant to D.C.Code 1973, § 24-301(d).^[5] The court, accordingly, directed that appellant be released unless the government initiated civil commitment proceedings within 30 days pursuant to D.C.Code 1973, § 21-541.^[6]

II. Sufficiency of the Evidence

Appellant's first argument is directed at the sufficiency of the evidence supporting the charge of first-degree murder. She concedes that the prosecution produced sufficient evidence of second-degree murder in its case-in-chief to warrant submission of the case to the jury, but she asserts that the trial court erred in denying her motion for judgment of acquittal on the first-degree murder count at the close of the government's case because the government failed to introduce evidence sufficient to demonstrate that she had acted with premeditation and deliberation rather than on impulse.^[7]

In evaluating a claim of insufficient evidence, an appellate court must review the evidence in the light most favorable to the government, recognizing the jury's right to determine the credibility of the witnesses and draw justifiable inferences from their testimony. See Franey v. United States, D.C.App., 382 A.2d 1019, 1022 (1978); Williams v. United States, D.C. App., 357 A.2d 865, 867 (1976); United States v. Fench, 152 U.S.App.D.C. 325, 333, 470 F.2d 1234, 1242 (1972), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). *371 It is only where the government has produced no evidence from which a reasonable mind might fairly infer guilt beyond a reasonable doubt that this court can reverse a conviction. See Wooten v. United States, D.C.App., 343 A.2d 281, 282 (1975); United States v. Fench, supra 152 U.S.App.D.C. at 333, 470 F.2d at 1242; Austin v. United States, 127 U.S.App.D.C. 180, 189 n.20, 382 F.2d 129, 138 n.20 (1967). In applying this standard, the reviewing court makes no legal distinction between circumstantial and direct evidence. Franey, supra 382 A.2d 1023; Calhoun v. United States, D.C.App., 369 A.2d 605, 607 (1977).

Under the District of Columbia first-degree murder statute, D.C.Code 1973, § 22-2401, the prosecution bears the burden of proving not only that a crime was committed intentionally but that it was done with premeditation and deliberation. See Harris v. United States, D.C.App., 375 A.2d 505, 507 (1977) (quoting Austin, supra 127 U.S.App.D.C. at 188, 382 F.2d at 137); United States v. Peterson, 166 U.S.App.D.C. 75, 78-79, 509 F.2d 408, 411-12 (1974). To prove premeditation, the government must show that a defendant gave "thought, before acting, to the idea of taking a human life and [reached] a definite decision to kill." United States v. Sutton, 138 U.S. App.D.C. 208, 216-17, 426 F.2d 1202, 1210-11 (1969) (footnote omitted) (quoting Austin, supra at 127 U.S.App.D.C. at 186 n.12, 382 F.2d at 135 n.12). Deliberation is proved by demonstrating that the accused acted with "consideration and reflection upon the preconceived design to kill; turning it over in the mind, giving it second thought." Id. (footnote omitted). Although no specific amount of time is necessary to demonstrate premeditation and deliberation, the evidence must demonstrate that the accused did not kill impulsively, in the heat of passion, or in an orgy of frenzied activity. See Harris, supra 375 A.2d at 508; Peterson supra 166 U.S.App.D.C. at 79, 509 F.2d at 412; Austin, supra 127 U.S.App. D.C. at 187, 190, 382 F.2d at 136, 139.

In this case, the evidence was sufficient to support the jury's determination that Frendak acted with premeditation and deliberation, not on impulse. From the evidence introduced by the government in its case-in-chief, the jury could have found that Frendak brought the gun with her to the scene of the murder.^[8] This, in itself, is highly probative of premeditation and deliberation. See O'Connor v. United States, D.C.App., 399 A.2d 21, 26 (1979); United States v. Peterson, supra 166 U.S.App.D.C. at 79, 509 F.2d at 412; United States v. Brooks, 146 U.S.App.D.C. 1, 9, 449 F.2d 1077, 1085 (1971); Hemphill v. United States, 131 U.S.App.D.C. 46, 49, 402 F.2d 187, 190 (1968). It permits "an inference that appellant arrived on the scene already possessed of a calmly planned and calculated intent to kill." Belton v. United States, 127 U.S.App.D.C. 201, 203, 382 F.2d 150, 152 (1967). Furthermore, the record indicates that on the day of the shooting, Frendak was carrying her passport and a large amount of money, evidence from which the jury could infer that Frendak had formulated an escape plan before the murder.

In addition, the evidence of Frendak's behavior before the crime also supports the inference that she acted with premeditation, not impulsively. On a few occasions in the weeks before the murder, Frendak had followed Titlow as he left for work. On the day of the shooting, in particular, she trailed Titlow and his friend on their way to lunch and apparently waited in the lobby of the building where they worked until they returned from their meal. Furthermore, on the day before the murder, she advised her supervisor that she had to see her attorney that afternoon, but when Titlow failed to leave the office for his regular sales call that day, Frendak also remained in the office. On the following day, she again told *372 her supervisor that she had to leave early for an appointment with her attorney. Then, when Titlow left the office to make a sales call, Frendak, who had been waiting in the office with her coat, followed him. Moments later Titlow was found mortally wounded.

This evidence was sufficient to support the inference that Frendak acted with premeditation and deliberation rather than on impulse when she shot Titlow.^[9] Frendak's claim to the contrary accordingly fails.

III. The Current Validity of the Whalem Rule

Evidence presented during the four competency hearings and at trial had suggested that Paula Frendak may have been insane at the time she shot Willard Titlow. Thus, after the jury had convicted Frendak of first-degree murder, the trial judge found himself squarely confronted with the question whether, apropos of Whalem, supra, he should raise an insanity defense over the opposition of a competent defendant. After conducting a thorough inquiry with the help of amicus,^[10] the judge concluded that Whalem required him, under the circumstances, to interpose the insanity defense, despite reservations in light of Alford, supra, and Faretta, supra.

The parties do not assert that the trial court abused its discretion in applying the Whalem rule. They argue, rather, that Whalem has been substantially undermined by the Supreme Court's decisions in Faretta and Alford, and that the rule accordingly must be reconstructed. We therefore begin our analysis by considering Whalem and succeeding cases.

A. Whalem and Later Cases

In Whalem, the United States Court of Appeals for the District of Columbia Circuit, sitting en banc, held that

when there is sufficient question as to a defendant's mental responsibility at the time of the crime, that issue must become part of the case. . . . [I]n the pursuit of justice, a trial judge must have the discretion to impose an unwanted defense on a defendant. . .. [Id. 120 U.S.App.D.C. at 337-38, 346 F.2d at 818-19.]^[11]

The court declined to establish specific standards to guide trial judges in exercising their discretion.^[12] The court stated, ambiguously, that it would conclude a judge had *373 abused his or her discretion if he or she failed to raise the defense despite the existence of "a combination of factors which required the trial judge to inject the insanity issue." Id. 120 U.S.App.D.C. at 338, 346 F.2d at 819. In the case before it, the court concluded that the trial judge had not erred in refusing to interpose the defense because both psychiatric reports negated an insanity defense. Id. 120 U.S.App.D.C. at 338, 346 F.2d at 819.^[13]

Although the circuit court has reaffirmed Whalem on several occasions,^[14] the only additional guidance it has given to trial judges has been to mention several factors that would support a court's decision to interpose the defense. Among these are the bizarre nature of the crime, the desire of defense counsel to raise the defense, the differing views of experts as to insanity at the time of the offense, and the defendant's behavior at trial (as it indicates his or her mental condition). See United States v. Robertson, 165 U.S.App.D.C. 325, 335, 507 F.2d 1148, 1158 (1974). Although the court has recognized that the decision of a competent *374 defendant is highly relevant, Cross v. United States, 128 U.S.App.D.C. 416, 419, 389 F.2d 957, 960 (1968); accord, United States v. Robertson, 430 F.Supp. 444, 447 (D.D.C.1977), the court has emphasized that a defendant's reasons must be weighed as part of a full presentation of evidence relevant to the issue of criminal responsibility. Robertson, supra 165 U.S.App.D.C. at 337, 507 F.2d at 1160; accord, United States v. Snyder, 174 U.S.App.D.C. 117, 121-22, 529 F.2d 871, 875-76 (1976).^[15] The circuit court has stated explicitly, moreover, that the defendant's decision to reject the defense could not be controlling. Robertson, supra 165 U.S.App.D.C. at 337, 507 F.2d at 1160. It is fair to say, in summary, that in decisions following Whalem, the circuit court, in effect, has encouraged trial judges to focus their principal attention on those factors (especially expert testimony) related to the strength of the evidence supporting a potential insanity defense, rather than on the defendant's present desire not to raise the defense and on the current ability to make an intelligent choice.

The circuit court's deemphasis of the defendant's choice is generally consistent with the stated aim of the Whalem rule. In explaining its rationale, the court declared that the trial judge has a responsibility to prevent the conviction of one who was insane at the time of committing an offense, because such an individual lacks criminal responsibility and, accordingly, must not be punished.^[16]Whalem, supra 120 U.S.App. D.C. at 337, 346 F.2d at 818; see Overholser v. Lynch, 109 U.S.App.D.C. 404, 409, 288 F.2d 388, 393 (1961) (en banc), rev'd on other grounds, 369 U.S. 705, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962). Were this the only purpose of the rule,^[17] however, it would be difficult to justify giving the trial court any discretion to refuse the defense once the judge became aware of evidence that could support a jury finding of not guilty by reason of insanity. The fact that Whalem granted trial courts discretion, therefore, suggests that the court may have been acknowledging other interests. At least one member of the circuit court has suggested that the flexibility of the Whalem rule permits trial judges to recognize the decision of the defendant who chooses not to raise the defense. See Robertson, supra 165 U.S. App.D.C. at 338, 507 F.2d at 1161 (separate *375 statement of Bazelon, C. J.); accord, People v. Redmond, 16 Cal.App.3d 931, 936, 94 Cal. Rptr. 543, 547 (1971).

All the parties to this appeal assert, nonetheless, that the Whalem rule does not accord sufficient respect to the intelligent choice of a competent defendant. They argue that the rule leaves the trial judge too much discretion to force an unwanted insanity defense on a competent defendant if the evidence supporting such a defense is sufficiently compelling. Such a result, they maintain, is inconsistent with the Supreme Court's recent decisions in Faretta, supra, and Alford, supra, which emphasize that defendants must have the right to make decisions central to their defense, since they must bear the consequences of these decisions. We turn, therefore, to these Supreme Court cases, in order to assess their impact on Whalem.

B. The Impact of North Carolina v. Alford and Faretta v. California on the Whalem Rule

In Alford, supra, the Supreme Court held that it was not unconstitutional for a trial judge to accept a guilty plea from a defendant who protested his innocence. 400 U.S. at 38, 91 S.Ct. 160 (citing Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962)). The Court emphasized that a defendant claiming innocence of a crime may nevertheless have important reasons for pleading guilty; for example, by pleading guilty to the charge or to a lesser offense, the defendant may be able to receive a shorter sentence than he or she would by risking conviction. Id. 400 U.S. at 37, 91 S.Ct. 160; see McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966). The Court explained its rationale, stating:

The prohibitions against involuntary or unintelligent pleas should not be relaxed, but neither should an exercise in arid logic render those constitutional guarantees counterproductive and put in jeopardy the very human values they were meant to preserve. [Id. 400 U.S. at 39, 91 S.Ct. at 168.]

A few years later in Faretta, supra, the Court expressed a similar concern for the right of a defendant to control the defense; it recognized that the Sixth Amendment guarantees "the right to self-representation — to make one's own defense personally." Id. 422 U.S. at 819, 95 S.Ct. at 2533. Accordingly, the Court prohibited a state from requiring a defendant to accept an attorney when he wished instead to appear pro se. While recognizing that a pro se defendant ultimately may conduct the defense to his or her own detriment, the Court declared that "his choice must be honored out of `that respect for the individual which is the lifeblood of the law.'" Id.