U.S. v. Alexander

• Decision Date: 15 December 1986
• Docket Number: No. 85-8635,85-8635
• Citation: 805 F.2d 1458
• Parties: 22 Fed. R. Evid. Serv. 185 UNITED STATES of America, Plaintiff-Appellee, v. Annette Cecelia ALEXANDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1458

805 F.2d 1458

22 Fed. R. Evid. Serv. 185

UNITED STATES of America, Plaintiff-Appellee, v. Annette Cecelia ALEXANDER, Defendant-Appellant.

No. 85-8635.

United States Court of Appeals Eleventh Circuit.

Dec. 15, 1986.

Paul S. Kish, Federal Defender Program, Inc., Atlanta, Ga., defendant-appellant.

William R. Toliver, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before CLARK, Circuit Judge, HENDERSON ^*, and WISDOM ^**, Senior Circuit Judges.

CLARK, Circuit Judge:

Annette Cecelia Alexander appeals from her conviction on two counts of possession of stolen mail matter in violation of 18 U.S.C. Sec. 1708. In this appeal she raises two issues: (1) whether the retrospective application of Rule 704(b) of the Federal Rules of Evidence violates the ex post facto clause of the Constitution; and (2) whether the 1984 amendment to Fed.R.Evid. 704 violates the equal protection clause of the Constitution. We affirm.

I. FACTS

Alexander was indicted on August 10, 1983. Count one of the indictment alleged that on or about the first of November, 1982, Alexander unlawfully had in her possession a public assistance check, issued by the Georgia Department of Human Resources, that had been stolen from the mails. Count two charged her with unlawfully possessing another stolen public assistance check on or about the first of January, 1983. After entering a plea of not guilty, Alexander filed a notice of intent to rely on the defense of insanity. Prior to trial, Alexander filed a motion in limine contending that the recent amendments to Fed.R.Evid. 704 should not apply in her case. Both parties agreed that the substantive changes in the defense of insanity contained in the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837 (1984), should not apply in Alexander's case because the crimes charged occurred prior to the effective date of the new law. The government, however, urged the court to apply that part of the law that amended Rule 704. ¹

On the morning of trial, the district court conducted a hearing to consider Alexander's motion in limine. After hearing arguments, the court ruled that amended Rule 704 would apply in Alexander's case.

At trial, the evidence indicated that on the dates alleged in the indictment Alexander had been given stolen public assistance checks by two men who asked her to cash them. Alexander obtained false identification cards by using the names and addresses of the payees as they appeared on the checks and inventing social security numbers for them. She then used the identification cards to cash the checks.

Alexander introduced evidence consisting of medical records and expert testimony showing that she suffered from a mental disorder. Dr. Dave Davis, an expert in psychiatry, testified that he had examined Alexander and her medical records and that she suffered from paranoid schizophrenia, with an accompanying variety of hallucinations and delusions. Alexander's medical records indicated that she had suffered from this illness for many years and had a history of medical admissions and hospitalizations as a result of her condition. In a repetitive cycle, Alexander would be admitted to a psychiatric facility when she manifested symptoms of her mental illness. Her treatment included medication, usually a shot of Prolixin, that would seemingly improve her condition for an approximate two-week period. After receiving an injection, Alexander's condition would stabilize and she would be discharged. After her release, Alexander would fail to maintain her out-patient treatment and her condition would slowly deteriorate. When her behavior became increasingly bizarre and psychotic, Alexander would once again come to the attention of the authorities and she would be readmitted. Alexander's medical records showed that she had been admitted to Georgia Regional Hospital on November 8, 1982, one week after the date of the crime alleged in count one of the indictment. She was allowed a trial visit home on November 19, and she was finally discharged on December 29, 1982. The crime alleged in count two of the indictment took place on or about January 1, 1983, three days later. By January 20, Alexander's condition had deteriorated so badly she was rehospitalized. Due to the court's ruling that applied Rule 704(b) in her trial, Alexander was not permitted to ask Dr. Davis whether he thought she was legally insane at the time of the commission of her crimes. The jury convicted Alexander on both counts and she was sentenced to a year and a day on each count. Execution of the sentence for one count was suspended by the court and she was placed on five years probation with the special condition that she receive psychiatric treatment.

II. THE EX POST FACTO ISSUE

The Comprehensive Crime Control Act of 1984, effective October 12, 1984, made several changes affecting the defense of insanity. The primary substantive change, contained in 18 U.S.C. Sec. 20, altered the test for insanity and shifted the burden of proof on the issue to the defendant. ² In addition, the Act also amended Rule 704 of the Federal Rules of Evidence. Prior to the passage of the Act, former Rule 704 provided:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

As amended, Rule 704 provides:

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

The crimes for which Alexander was indicted occurred on or about the first day of November, 1982, and on or about the first day of January, 1983. The provisions of the Comprehensive Crime Control Act of 1984 took effect on October 12, 1984. Alexander was convicted after a two day trial on June 3, 1985. Alexander's first assignment of error contends that the application of Rule 704(b) of the Federal Rules of Evidence violates the ex post facto clause of the Constitution. U.S.Const. art. I, Sec. 9, cl. 3.

In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the Supreme Court outlined the two elements necessary to establish an ex post facto law: (1) the law must be retrospective, and (2) it must disadvantage the offender affected by it. The Supreme Court, however, has also held that a change in the law which is merely procedural is not ex post facto even if it is applied retrospectively and to the disadvantage of the defendant so long as it does "not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt." Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262, 269 (1884). This principle has been demonstrated in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), where the Court held that the retrospective application of amendments to Florida's capital sentencing procedure permitting judicial review of a jury determination on sentencing was not in violation of the ex post facto clause. Also, in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), the Supreme Court ruled that allowing joint trials for codefendants instead of separate trials as provided by prior law was permissible and held that "statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage" are not ex post facto. Id. at 170, 46 S.Ct. at 69. In Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), the Court stated that "it is well settled that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offense charged against him." Id. at 351, 18 S.Ct. at 623.

In this case, Alexander is not deprived of the defense of insanity by the retrospective application of Rule 704(b). The ingredients of the defense were not changed by the use of Rule 704(b) in this case and Alexander was allowed to question her expert witness, Dr. Davis, extensively regarding her mental condition. Alexander was free to present any and all evidence tending to prove her claim of insanity. Rule 704(b) operated only to prevent her from asking her expert witness to express his opinion regarding the ultimate issue in this case. That is, Dr. Davis was not allowed to say whether he thought Alexander was insane at the time of the commission of the offenses.

Two circuits have recently dealt with this same issue and in both cases have found the application of Rule 704(b) not to be an ex post facto violation. In United States v. Mest, 789 F.2d 1069 (4th Cir.1986), the Fourth Circuit remarked that "the change in the rules of evidence effected by the enactment of Rule 704(b) does not receive less or different testimony in order to convict the offender but, rather changes the style of question and answer that can be used to establish both the offense and the defense thereto." Id. at 1071. The Sixth Circuit in United States v. Prickett, 790 F.2d 35 (6th Cir.1986), dismissed an ex post facto argument and stated:

New Rule 704(b) has no impact upon the crimes for which Prickett has been indicted nor on the punishment prescribed by Congress. Nor does Rule 704(b), as amended, change the quantity or degree of proof necessary to establish his guilt. While the new Rule 704(b)...