Heard v. United States

• Decision Date: 17 December 1964
• Docket Number: No. 18290.,18290.
• Citation: 121 US App. DC 37,348 F.2d 43
• Parties: Chrisp HEARD, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

121 US App. DC 37, 348 F.2d 43 (1965)

Chrisp HEARD, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 18290.

United States Court of Appeals District of Columbia Circuit.

Argued May 15, 1964.

Decided December 17, 1964.

Petition for Rehearing Denied May 12, 1965.

Statement June 14, 1965.

Mr. Terry Nevel, Washington, D. C., with whom Mr. Walter A. Slowinski, Washington, D. C., (both appointed by this court), was on the brief, for appellant.

Mr. John A. Terry, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee.

Before DANAHER, BURGER and WRIGHT, Circuit Judges.

Petition for Rehearing en Banc Denied May 12, 1965.

PER CURIAM:

Appellant was convicted on nine counts of an indictment charging violations of 68A STAT. 551 (1954), as amended, 26 U.S.C. § 4705(a) (1958), 68A STAT. 550 (1954), as amended, 26 U.S.C. § 4704(a) (1958), and 70 STAT. 570 (1956), 21 U.S.C. § 174 (1958), for participation in narcotics transactions on three separate occasions. The principal issue on appeal is whether the evidence required the District Court to instruct the jury on criminal responsibility as requested.¹ The mental condition relied upon by appellant as the basis for the instruction arises out of his addiction to narcotic drugs.

To raise the issue of criminal responsibility, it must appear from the evidence that the accused, at the time of the alleged criminal act, suffered from some mental disease or defect, which we have defined as meaning an abnormal condition of the mind which substantially impairs capacity to control behavior. McDonald v. United States, 114 U.S.App. D.C. 120, 124, 312 F.2d 847, 851 (1962). This mental condition may be shown by observation and opinions of lay witnesses or experts; it does not depend upon psychiatric labels, or medical classifications and terms, although testimony of an expert giving a diagnosis of a mental disease or defect, in those terms, would raise the issue for jury determination. Lay testimony describing significantly bizarre, abnormal conduct also could be sufficient to raise the issue. We have said this must be "more than a scintilla," of evidence. McDonald v. United States, supra. In the first instance the question whether the evidence in a particular case constitutes "some evidence" of insanity, like other evidentiary rulings, is a question of law for the court. Of necessity, it is based on the trial judge's evaluation of the facts before him.²

We hold only that a mere showing of narcotics addiction, without more, does not constitute "some evidence" of mental disease or "insanity" so as to raise the issue of criminal responsibility. This is not to say that evidence that an accused is an addict is without probative value along with other evidence on the issue of responsibility but only that alone it is not sufficient to require giving the Durham-McDonald instruction. Cf. Hightower v. United States, 117 U.S.App.D.C. 43, 325 F.2d 616 (1963). Some mentally ill persons are addicts and some addicts are mentally ill; the two conditions can coincide but we give no more credence to the notion that all addicts are mentally ill than to the converse that all mentally ill persons are addicts. To so hold would make every addict's case an "insanity" case.³

We have gone to great effort in our McDonald holding to restore the issue of criminal responsibility as one of fact for the jury and to make it clear that the expert's label is relatively unimportant but that his description and explanation of capacity to control behavior are critical. We have frequently urged that trial counsel and their expert witnesses should seek to avoid being content with mere expert conclusions and should emphasize the reasons, the factors, the symptoms, and the medical reasoning which led to the conclusions so that from the experts the jury will have a psychological profile of the accused and not simply a collection of psychiatric labels and technical jargon. See, e. g., Carter v. United States, 102 U.S.App.D.C. 227, at 236-237, 252 F.2d 608, at 617-618; Blocker v. United States, concurring opinion 110 U.S.App. D.C. 41, at 51-52, 288 F.2d 853, at 863-864.

The narrow question presented is whether there was sufficient evidence to require the Durham-McDonald instruction. Three experts were called as witnesses in this case. Two testified categorically that appellant was without any mental disease or defect and had no abnormal condition of the mind at the time of the alleged acts. All three psychiatrists testified that deprivation of heroin could to varying degrees impair a heroin addict's capacity to control his conduct.⁴ The psychiatric testimony upon which appellant chiefly relies concerning capacity for control was premised on hypothetical facts not supported by evidence in this record,⁵i. e., evidence of deprivation of heroin at the time of the offense. Had there been evidence that, at the time of the alleged unlawful acts appellant "needed a fix," as one expert put it, and that narcotics were then unavailable to him, the hypothetical conditions postulated would find support in the record. But the record contains no suggestion that at the time of the alleged criminal acts appellant did in fact "need a fix"; to the contrary undisputed affirmative evidence shows that at that very time he possessed large quantities of heroin available for sale. No rational thesis can demonstrate that an addict "in need of a fix" would be in a state of deprivation at the precise time he had an abundant supply of heroin in his possession.⁶ In short, the most favorable interpretation of the medical testimony is that with no heroin available and the need urgent, appellant's behavior controls might have been affected; but the evidence on this record negates those interdependent factors.

The conclusion is inescapable, therefore, that with no claim or showing of need for and deprivation of narcotics — the hypothesis on which the most favorable medical testimony was premised — there was no evidence that appellant's capacity to control his behavior was impaired. There being an absence of the requisite evidence that at the time of the act charged appellant had an abnormal condition of the mind which substantially impaired his behavior controls, the McDonald standard for submission of the criminal responsibility issue was not met, and the judgment therefore is

Affirmed.⁷

J. SKELLY WRIGHT, Circuit Judge (dissenting):

As the court's opinion indicates, the trial judge was specifically requested to allow the jury to decide the issue of criminal responsibility in this case. Instead, the trial judge decided this issue against the defendant. In my opinion, this action, and the opinion of the majority here, are based on a misconception of the question of responsibility raised by a defense grounded in drug addiction.

The majority here holds that there is no evidence to support the suggestion that at the time of the offense charged appellant was either so under the influence of narcotics or under such compulsion to obtain narcotics that his ability to control his behavior was substantially impaired. But this is not the issue which appellant presents. Appellant argues that his drug addiction reflects an underlying mental illness which has been exacerbated by the long continued use of drugs. It was in speaking of this condition — this cause and this effect, not the momentary effects of narcotics or the need of them — that we said in Brown v. United States, 118 U.S.App.D.C. 76, 77, 331 F.2d 822, 823 (1964):

"* * * `Narcotic addiction is an illness. * * * "Of course it is generally conceded that a narcotic addict, particularly one addicted to the use of heroin, is in a state of mental and physical illness."\' Robinson v. California, 370 U.S. 660, 667 and n. 8, 82 S.Ct. 1417, 1420, 8 L.Ed. 2d 758 (1962). `They are diseased and proper subjects for such medical treatment * * *.\' Linder v. United States, 268 U.S. 5, 18, 45 S.Ct. 446, 449, 69 L.Ed. 819 (1925). The defense of insanity based on drug addiction generally presents a jury issue as to criminal responsibility. Horton v. United States, 115 U.S.App.D.C. 184, 317 F.2d 595 (1963); Rivers v. United States, 117 U.S.App.D.C. 375, 330 F.2d 841 1964). The trier of fact must decide whether the defendant had a mental disability and, if so, whether his act was the product thereof. Hightower v. United States, 117 U.S. App.D.C. 43, 45-46, 325 F.2d 616, 618-619 (1963)."

It is true the Government psychiatrists in this case testified that in their opinion Heard, though addicted, was not suffering from a "mental disease or defect." But, in explaining the cause and effect of narcotics addiction¹ in general and in Heard's case in particular, each of them also testified that Heard's long addiction would affect his mental and emotional processes as well as his behavior controls. Thus each of them indicated that by our legal definition,² as distinguished from their medical opinion, Heard may be suffering from a mental disease. Under the circumstances, it is difficult for me to understand why this is not the "some evidence" required to take the mental issue to the jury. Davis v. United States, 160 U.S. 469, 486-487, 16 S.Ct. 353, 40 L.Ed. 499 (1895).

With respect to "some evidence," in McDonald v. United States, supra Note 2, we said:

"* * * The subject matter being what it is, there can be no sharp quantitative or qualitative definition of `some evidence' Certainly it means more than a scintilla, yet, of course, the amount need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal. The judgment of the trial judge as to the sufficiency of the evidence is entitled to great weight on appeal, but, since the defendant's burden is merely to raise the issue, any real doubt should be resolved in his favor." 114 U.S.App.D.C. at 122, 312 F.2d at 849. (Footnotes omitted; ...