2 F.3d 999 (10th Cir. 1993), 92-2144, United States v. Denny-Shaffer

Docket Nº:92-2144.
Citation:2 F.3d 999
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bridget M. DENNY-SHAFFER, Defendant-Appellant.
Case Date:August 09, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 999

2 F.3d 999 (10th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bridget M. DENNY-SHAFFER, Defendant-Appellant.

No. 92-2144.

United States Court of Appeals, Tenth Circuit

August 9, 1993

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Rhonda P. Backinoff, Asst. U.S. Atty., Albuquerque, NM (Don J. Svet, U.S. Atty., with her on the brief), for plaintiff-appellee.

Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellant.

Before LOGAN, HOLLOWAY and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Bridget Denny-Shaffer appeals her conviction and sentence under 18 U.S.C. Sec. 1201(a)(1). The indictment charged that the defendant "wilfully and knowingly did transport in interstate commerce" from New Mexico to Texas and Minnesota a child "Kevin Daniel Chavez, who has been unlawfully seized, kidnapped, carried away and held by the defendant ... for the purpose of keeping the child ... as her own." The defense of Ms. Denny-Shaffer--a victim of multiple personality disorder (MPD)--was insanity within the meaning of 18 U.S.C. Sec. 17(a). The trial judge rejected the insanity defense and instructions requested on it at the conclusion of the trial for insufficiency of proof by defendant under Sec. 17(a). Defendant was then found guilty by the judge after a jury determination was waived.

The central issue on appeal is whether the trial judge erred in rejecting the insanity defense for insufficiency of the evidence thereon, and in refusing to submit jury instructions on the defense. Being convinced that the evidence required the submission of the defense, we reverse.

I

THE KIDNAPPING

The record reveals the following facts concerning the taking of the child, which were basically not in dispute at the trial.

In 1990 and 1991, Denny-Shaffer was employed as a labor and delivery nurse at Rehoboth Hospital in Gallup, New Mexico. On May 10, 1991, at about 5:40 a.m., defendant entered the Memorial General Hospital in Las Cruces, New Mexico, wearing a lab jacket and identifying herself as a University of New Mexico (UNM) medical student named Linda. See III R. at 42-44. She went to the nursery where she inspected several babies, including Kevin, claiming to be doing a pediatrics rotation for the UNM medical school. See id. at 48-51. While unobserved by other hospital personnel, Denny-Shaffer picked up the infant, hid him under her arm and left the hospital. She then got into her car and headed for Texas with the baby. See VIII R. at 1007-08, 1014-15. The same evening, she

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arrived at the Bryan, Texas, home of her former boyfriend, Jesse Palomares. According to him, defendant appeared to be pregnant. See III R. at 145-48.

About noon the next day, defendant telephoned Palomares at work and asked him to return home. When Palomares arrived at his house, he saw defendant in bed with an infant in her arms. Defendant told Palomares: "This is your little one." Id. at 150. There was blood on the sheets and carpet. Palomares also noticed a bag containing a human placenta. See id. at 151, 153. Defendant asked him to bury the placenta in the front yard next to where his son's placenta was buried. Defendant refused any medical attention. Palomares had doubts as to the paternity of the baby. He made it clear to defendant that whether or not he was the baby's father, he did not want to maintain a romantic relationship with her. See id. at 161-62.

After a few days in Bryan, defendant left to join her family, including her mother and teenage daughter, Genesis, in Minnesota. While in Minnesota, defendant presented and treated the stolen baby as her own. See IV R. at 378-79; VI R. at 634.

On May 20, 1991, defendant had a telephone conversation with her supervisor at Rehoboth Hospital, Beatrice Cowdry. Before leaving New Mexico, defendant had told Cowdry that she had a baby with her Texas boyfriend, Palomares. See IV R. at 252-53. During the call, defendant told Cowdry that she was going to return to New Mexico with the baby, but that it had not grown. See id. at 269-70. Cowdry could hear an infant crying in the background. See id. at 270. Cowdry knew about the Las Cruces kidnapping and became suspicious that defendant might be involved; she thus contacted the police. See id. at 271-72.

On May 21, 1991, defendant and her daughter Genesis left Minnesota and headed back to New Mexico by car. On May 23 the New Mexico police and the FBI stopped defendant's car in Albuquerque. See id. at 415. As the car was being pulled over, defendant instructed Genesis to hide the baby under a pillow. See VI R. at 638-39. However, the baby was discovered and defendant was placed under arrest for kidnapping. Defendant told an FBI agent: "I took the baby from the Las Cruces Hospital." See V R. at 485.

II

PROCEDURAL HISTORY

Defendant was indicted in the District of New Mexico on the kidnapping charge on June 4, 1991. However, she moved for transfer of the case, which was granted. The case was tried by the New Mexico federal judge in Topeka, Kansas.

Before trial, defendant gave notice pursuant to Rule 12.2(a) of the Federal Rules of Criminal Procedure of her intention to invoke an insanity defense. 1 The government

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moved for a mental examination of defendant pursuant to Rule 12.2(c) and 18 U.S.C. Sec. 4242 to determine her sanity at the time of the kidnapping. The court granted the motion and ordered a mental examination at the Federal Correctional Institution at Lexington, Kentucky. There a forensic evaluation report was prepared for the court in accordance with 18 U.S.C. Sec. 4247(c) by Dr. Mary Alice Conroy, a psychiatric staff member at the institution. Defendant was also examined for the defense by Dr. Teresita McCarty, a private psychiatrist with experience in dissociative disorders such as MPD.

We detail the experts' views later. It is convenient now, however, to note these critical points about the experts' views. The government and defense experts were in agreement that one of the defendant's alter personalities, "Rina," perhaps with another alter personality, "Bridget," controlled defendant's conduct at the time of the kidnapping. The expert witnesses had varying views as to any conscious participation by defendant's host or dominant personality "Gidget" in preparations for or carrying out the kidnapping. See II R. at 20; VIII R. at 1008-20. However, the expert for the defense, Dr. McCarty, said she did not know whether the alters in control at the time of the abduction knew that taking a baby was wrong. See VIII R. at 1136-37. Solely because of the lack of evidence concerning the alters, the judge rejected the insanity defense and refused to submit instructions on it to the jury. See VIII R. at 1147-48, 1153.

After the judge rejected the defense and instructions on it, defense counsel stated that there was no need to attempt argument to the jury since her sole defense had been rejected. The trial judge said that argument on the defense would not be permitted. For this reason trial by jury was waived with the consent of the prosecution and defense counsel, and with the approval of the judge. The judge then made a finding that the defendant was guilty, see 18 U.S.C. Sec. 4242(b)(1), and sentenced her to 63 months' imprisonment to be followed by five years of supervised release, see IX R. at 1175. This timely appeal followed.

We turn first to the important evidence concerning the defendant's background, her mental condition, and the degree of its severity.

III

THE BACKGROUND OF DENNY-SHAFFER'S MENTAL CONDITION

The testimony of several percipient and expert witnesses at trial reveals the following facts concerning defendant's background and mental illness without significant dispute.

A

Defendant's Background

Defendant was born in 1954 in Richfield, Minnesota, as the third of 10 children. Her parents divorced when she was 12. During childhood defendant experienced an array of severe physical and sexual abuse. Her mother, described by defendant's sister as "very moody," kicked and hit defendant and her siblings with her hands, belts, and hangers on all parts of their bodies. See V R. at 500-01. The mother once beat defendant black and blue all over her legs and back, sent her to school, and warned her not to tell anyone what had happened or she would be beaten again. See VI R. at 630. Several times, defendant received bloody noses from her mother's blows; on one occasion, she suffered a broken arm as a result of abuse. See VII R. at 871-72, 888. At least once, her mother burned defendant's lower legs in the bathtub. See VIII R. at 1045-46.

In addition to physically abusing her, defendant's mother tormented defendant concerning her eating habits and told her, at age four, that she could not have food at the dinner table because she was too fat. Conversely, one time after defendant had been throwing up, her mother told her to eat more

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food. Defendant began binge eating at age seven, and in the eighth grade became anorexic. See VII R. at 884-85.

From about age four, defendant was subjected to sexual abuse by her older brother. See V R. at 513-14; VII R. at 866. According to defendant's sister Katy, who had herself been sexually abused by the brother, defendant was sexually abused by her brother as well. See id. The abuse continued until defendant was in junior high school. Beginning about that time, defendant also experienced several incidents of sexual abuse by one of her uncles. See VII R. at 566.

At age 14, while staying with her father in California, defendant was raped by one of her father's friends. Defendant told Dr. McCarty that as a result she became...

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