431 F.2d 7 (9th Cir. 1970), 23446, United States v. Porter

Docket Nº:23446.
Citation:431 F.2d 7
Party Name:UNITED STATES of America, Appellee, v. Aubrey Kenneth PORTER, Appellant.
Case Date:August 12, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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431 F.2d 7 (9th Cir. 1970)

UNITED STATES of America, Appellee,


Aubrey Kenneth PORTER, Appellant.

No. 23446.

United States Court of Appeals, Ninth Circuit.

Aug. 12, 1970

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Samuel H. Vaught (argued), San Jose, Cal., for appellant.

Donald Curnon (argued), Asst. U.S. Atty., John W. Hornbeck, Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Chief, Criminal Division, Los Angeles, Cal., for appellee.

Before HAMLEY, HAMLIN and WRIGHT, Circuit Judges.

HAMLEY, Circuit Judge:

Following a jury trial, Aubrey Kenneth Porter was found guilty of robbing a federally-insured bank in violation of 18 U.S.C. § 2113(a). On this appeal from the conviction, defendant's principal argument brings into question the instruction the trial court gave with regard to defendant's insanity defense.

Defendant's trial took place prior to our in banc decision in Wade v. United States, 426 F.2d 64 (9th Cir. 1970), where we adopted, in part, the American Law Institute insanity test as set forth in Model Penal Code § 4.01 (Final Draft 1962). Consequently, the trial court instructed the jury in terms generally analogous to the modified M'Naghten standard that controlled in this circuit prior to Wade. See, e.g., Ramer v. United States, 390 F.2d 564 (9th Cir. 1968); Sauer v. United States, 241 F.2d 640 (9th Cir. 1957). Now, since Porter's appeal falls within the scope of Wade's limited retroactivity, he asserts that the trial court's instructions require a reversal. 1

Our study of the record convinces us that, even under the Wade standard, defendant would not have made out a viable insanity defense. The four Government psychiatrists who testified all expressed the opinion that defendant's substantial mental difficulties developed after the commission of the crime. According to these witnesses, defendant's mental deterioration began to develop with his arrest the next morning when defendant came under the threat of a return to prison.

The Government experts stressed defendant's rational capabilities at the time of the crime, as evidenced by his use of a disguise, his awareness of possible alarm systems, and other factors suggesting mental alertness. These witnesses expressed, most emphatically, the opinion that defendant was sane at the time the crime was committed (e.g., 'no reasonable doubt' of his sanity; defendant had 'full control over what he was doing'). Thus the Government's evidence established, almost conclusively, that defendant would not have been able to prove

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that he lacked 'substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.' See Model Penal Code § 4.01 (Final Draft 1962).

Defendant offered no significant evidence to contradict the opinions of the Government psychiatrists as to when his mental illness developed or as to his mental balance at the time of the crime. Accordingly, we believe that the jury could not properly have acquitted him under our new insanity test, or under any other standard for that matter. It follows that the failure to instruct in terms of the new Ninth Circuit insanity test was harmless error. See Maxwell v. United States, 368 F.2d 735 (9th Cir. 1966).

Defendant asserts that an informal observation of the trial court made to the jury at the close of the insanity instruction, quoted in the margin, left the jury free to define insanity 'according to their subjective belief.' 2

While the quoted observation was neither necessary...

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