Otney v. United States

• Decision Date: 26 January 1965
• Docket Number: No. 7773.,7773.
• Citation: 340 F.2d 696
• Parties: James L. OTNEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

340 F.2d 696 (1965)

James L. OTNEY, Appellant, v. UNITED STATES of America, Appellee.

No. 7773.

United States Court of Appeals Tenth Circuit.

January 26, 1965.

Gene D. Reneau, Denver, Colo., for appellant.

Benjamin E. Franklin, Asst. U. S. Atty. (Newell A. George, U. S. Atty., with him on brief), for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

MURRAH, Chief Judge.

Appellant-Otney was convicted by a jury and sentenced for violation of the National Motor Vehicles Theft Act, 18 U.S.C. § 2312. From the trial Court's order overruling a motion for new trial, he brings this appeal asserting prejudicial error in the admission of (1) certain documentary diagnostic evidence of his mental competency under the Federal Shop Book Act; (2) his admittedly voluntary confession, made while in custody and without the advice of counsel; and (3) testimony of the psychiatrist who examined him pursuant to 18 U.S.C. § 4244. He also complains of the instructions on the issue of insanity, contending that the Court failed to clearly tell the jury that, as a matter of law, the presumption of sanity had been dissipated by the evidence; and, that the burden was upon the Government to prove him sane, as an essential element of the offense charged. Finally, he complains of the Court's definitive instruction on criminal responsibility.

The issue of criminal responsibility for the offense charged was raised early in this proceedings. On appellant's motion alleging "a long history of mental illness," the trial Court ordered a psychiatric examination at the Springfield Medical Center, pursuant to 18 U.S.C. § 4244, to determine his mental competency to stand trial. Again on appellant's motion, certain medical records of the Central State Hospital at Norman, Oklahoma were ordered produced and placed in custody of the Clerk to be "available for inspection by both parties to this action." Following a hearing and determination of Otney's competency to stand trial, the Court again granted his motion for examination by a psychiatrist of his choice to testify in his defense at Government expense. Being thus aware of appellant's claim of mental incompetency, the Government initially undertook the burden of proving his criminal responsibility as an essential element of the offense charged. See: Phillips v. United States (10 CA), 311 F.2d 204; Fitts v. United States (10 CA), 284 F.2d 108; and Fitts v. United States (10 CA), 335 F.2d 1021.

The trial Court instructed the jury that, "Under his plea of `not guilty' the defendant has raised the issue of his sanity at the time of the alleged offense. The law does not hold a person criminally accountable for his conduct while insane. Unless and until reasonable doubt of his sanity appears, the law presumes the defendant sane. But whenever, from all the evidence in the case, the jury has a reasonable doubt of his sanity, the defendant should be found insane." When at the conclusion of the instructions, the Court inquired of Government counsel if he had "any further requests or objections to the Court's instructions other than previously submitted," counsel replied, "There was one Your Honor, that crossed my mind. And that is, I think it is set out in the Fitts case, when a person has a previous record of mental disorder that that gives rise — that knocks down the presumption of sanity and puts the burden on the Government in the beginning to prove sanity." The Court then observed that the instructions given "have placed the burden upon the Government." Counsel for the defendant then stated, "I had the same impression that Mr. Franklin Government's counsel had with respect to the presumption. We would renew our request to the instruction, particularly the one on presumption * * *." The Court's attention was called to Phillips v. United States, supra; and Fitts v. United States, supra.

The effect of the challenged instruction, when considered in its context, was to tell the jury that the law presumes the defendant sane until sufficient evidence is introduced to raise a reasonable doubt of his sanity, and the jury was left to decide the sufficiency of the evidence to generate the requisite reasonable doubt. This instruction is contrary to the established rule in this Circuit and elsewhere to the effect that "the sufficiency of the evidence to dissipate the presumption of sanity and raise the issue of insanity is one of law for the court to decide in the first instance." Fitts v. United States, supra, 284 F.2d p. 112. And, "any relevant evidence of mental illness before or after the offense is sufficient to dissipate the legal presumption * * *." Phillips v. United States, supra, 311 F.2d p. 205. The sufficiency of the evidence to overcome the legal presumption of sanity was not within the province of the jury or of concern to it. It was, therefore, prejudicial error for the Court to submit this issue to the jury. Instead, the Court should have determined, as a matter of law, that the presumption of sanity no longer existed and accordingly instructed the jury that the defendant's mental competency to commit the offense was an essential element of the offense charged and the burden was upon the Government to prove the defendant's criminal responsibility beyond a reasonable doubt.

Appellant also complains of the Court's refusal to instruct in accordance with Currens (United States v. Currens, 3 Cir., 290 F.2d 751). The instructions were in accordance with Coffman v. United States (10 CA), 290 F.2d 212, and were given before our decision in Wion v. United States (10 CA), 325 F.2d 420. On re-trial of the case, the Court will, of course, follow the simplified definition of criminal responsibility in Wion, decided since the trial of the case. Since the case must be reversed, we will consider the other assignments of error only because the questions may recur upon re-trial.

As one of its first witnesses, the Government called the custodian of the records at the Oklahoma Central State Hospital. This witness testified to Otney's admittance in that institution pursuant to an Oklahoma State court order in 1952 and 1955, and identified the daily compilation of clinical data during his confinement. He was then permitted to read to the jury a diagnostic letter-report directed to the Oklahoma court, written in 1955 by the then hospital Superintendent. In this letter-report the Superintendent expressed the opinion that Otney was "entirely sane and legally responsible for the alleged offense" and "considered able to stand trial for any charges presently pending against him." Appellant's objection to the introduction of this evidence as hearsay was overruled on the ground that it went to its weight and not admissibility.

This evidence was apparently admitted under the Federal Shop Book Act (28 U.S.C. § 1732), as a "transaction, occurrence or event, if made in regular course" of the hospital business. There are sharply divided views concerning the admissibility of psychiatric opinion evidence made in the course of examination and treatment of a hospital patient. Those who would exclude the evidence as hearsay do so on the hypothesis that the admission of the naked record of the psychiatrist's opinion without an opportunity to cross examine is plainly not warranted by the language or history of the Shop Book Act. They draw a "distinction between the reasonable reliability of recorded facts on the one hand, and controversial technical opinions on the other" and they regard the "difference between a `fact' (such as an act, transaction, occurrence or event) and an `opinion'", as fundamental in the law of evidence. Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725, 731. See: Polisnik v. United States, 104 U.S. App.D.C. 136, 259 F.2d 951. Those who favor the admission of the opinion evidence do so on the theory that the diagnostic opinion made in the course of treatment is a recorded occurrence or event made in the course of the business of operating a hospital which requires records of the histories of patients, reports of unusual conduct and also diagnoses by physicians. They can see no basis for drawing a distinction between diagnoses of mental illness and diagnoses of physical illness or, for that matter, between "facts" and "opinion". See: Judge Bazelon dissenting in Lyles v. United States, supra, 254 F.2d p. 736. The minority view in Lyles was upheld in the Fourth Circuit. See: Thomas v. Hogan, 4 Cir., 308 F.2d 355. Chief Judge Sobeloff, speaking for the Court, thought there was good and sufficient reason "to treat a hospital record entry as trustworthy. Human life will often depend on the accuracy of the entry, and it is reasonable to presume that a hospital is staffed with personnel who competently perform their day-to-day tasks. To this extent at least, hospital records are deserving of a presumption of accuracy even more than other types of business entries." Supra, 308 F.2d p. 361. The learned treatises on the subject all seem to advocate a liberal construction of the Federal Shop Book Act to admit all such records as having been thoroughly tested for their accuracy and trustworthiness. See: 5 Wigmore, Evidence (3d ed. 1940), § 1422; 59 Harvard Law Rev. 559; 54 Yale Law Journal 868; and 48 Columbia Law Rev. 920.

All the criminal cases we have noticed involve the admissibility of the recorded expert opinion on behalf of the defendant, tending to show mental incompetency as a defense to the offense charged. None of the cases we have seen deal with the admissibility of the opinion to prove mental competency as an essential ingredient of the offense charged. Nor have we found any learned writings on this particular side of the question. Our research has not uncovered any decision or commentary on the question whether the admission of an opinion of mental competency, made in the course of treatment in a hospital, violates the constitutional right of an accused "* * * to be...