U.S. v. Brown, 93-2476

• Decision Date: 03 August 1994
• Docket Number: No. 93-2476,93-2476
• Citation: 32 F.3d 236
• Parties: 40 Fed. R. Evid. Serv. 306 UNITED STATES of America, Plaintiff-Appellee, v. Edward BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 236

32 F.3d 236

40 Fed. R. Evid. Serv. 306

UNITED STATES of America, Plaintiff-Appellee, v. Edward BROWN, Defendant-Appellant.

No. 93-2476.

United States Court of Appeals Seventh Circuit.

Argued April 1, 1994.

Decided Aug. 3, 1994.

Barry R. Elden, Asst. U.S. Atty., Mark S. Hersh (argued), Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Jack P. Rimland, Michael J. Barton (argued), Law Offices of Jack P. Rimland, Chicago, IL, for defendant-appellant.

Before BAUER, FLAUM, and KANNE, Circuit Judges.

BAUER, Circuit Judge.

Following a three-day trial, a jury convicted Edward Brown of attempted bank robbery pursuant to 18 U.S.C. Sec. 2113(a). For this offense, the district court sentenced Brown to forty-one months in the penitentiary. Brown appeals his conviction and claims that the district court admitted certain expert testimony prohibited by the Federal Rules of Evidence. We affirm.

On Friday, March 6, 1992, Edward Brown entered the Steel City National Bank, in Chicago, Illinois, and handed a teller a note that said:

Put money in bag.

No red money.

Have gun.

No button or switch.

When the teller looked up at Brown, he told her "no red money." At the instant Brown turned his head, the teller dived to the floor, crawled to another teller two windows away, and told that teller to press the alarm button. After the first teller fell to the floor, Brown left the bank.

The bank's security guard and a retired police officer who happened to be in the bank saw what happened and followed Brown out of the bank. Despite walking quickly, Brown was apprehended approximately one block from the Steel City Bank. Brown was arrested at gunpoint and did not resist. While in the custody of the Federal Bureau of Investigation, Brown signed a waiver of rights form and admitted his attempted bank robbery, although he declined to provide any details without his lawyer present.

Prior to trial, Brown properly notified the government that he planned to invoke insanity as an affirmative defense. As a result, a battery of psychiatric evaluations was performed on Brown by the government's expert, Dr. William Scheftner, and by Brown's expert, Dr. Peter Fink. Each testified at trial as to Brown's mental state. The government's questioning of these experts provides the basis of Brown's appeal.

Dr. Scheftner testified that Brown suffered from a major depressive disorder, dysthymia, and drug and alcohol abuse disorders. He then described several symptoms of these disorders, many of which Brown exhibited. Specifically, Dr. Scheftner concluded that Brown suffered from unipolar major depression and may have suffered from major depressive episodes with psychotic features (hallucinations). Dr. Scheftner also testified that Brown's mental disorders were not severe. Following Dr. Scheftner's description of his diagnosis, the following colloquy transpired between the prosecutor and Dr. Scheftner:

Q: Dr. Scheftner, does a finding that a person suffers from unipolar major depression in and of itself indicate that a person is unable to understand the wrongfulness of his acts?

A: No.

. . . . .

Q: Dr. Scheftner, does a finding that a person suffers from a major depressive episode with psychotic features in and of itself indicate that a person is unable to understand the wrongfulness of his acts?

A: No.

. . . . .

Q: Dr. Scheftner, a slightly different question. Does a finding that a person suffers from a major depressive episode with psychotic features in and of itself indicate that a person is unable to understand the nature or quality of his acts?

A: No.

Brown's counsel objected to all three questions, and the district court overruled each objection. The prosecutor asked similar questions of Dr. Fink. While Dr. Fink testified that he believed Brown's mental disorder to be severe, he agreed with Dr. Scheftner's answers to questions similar to those set out above. Brown's counsel did not ask questions such as these of either expert.

Brown contends that the district court improperly admitted these questions by the prosecutor. He characterizes this expert testimony as addressing the "ultimate issue" of his legal insanity and argues that this testimony is prohibited by Rule 704(b) of the Federal Rules of Evidence. In Brown's view, the two doctors should have been permitted to testify as to their respective diagnoses of him and to describe the attributes of any diagnosed mental disorder, but no more. He claims that the questions as framed by the prosecutor essentially inquire whether Brown was legally sane at the time of the crime. Brown misperceives the experts' testimony in light of the evidentiary rules and our caselaw.

Brown objected to the prosecutor's questions at the time they were asked, prompting a lengthy side-bar during which he made the identical arguments he makes to this court. The government responded that our decision in United States v. West, 962 F.2d 1243 (7th Cir.1992), provides clear guidance with respect to this issue; in fact, the prosecutor posed his questions in the exact format suggested by Judge Manion in his concurring opinion in West, 962 F.2d at 1251. The district judge allowed the questions, but candidly admitted confusion as to precisely what testimony is admissible in insanity cases. The district judge specifically identified, on the record, Judge Manion's concurrence in West and an Eleventh Circuit case, United States v. Manley, 893 F.2d 1221, 1224 (11th Cir.1990), as the source of his confusion. We trust that this opinion will resolve the questions regarding this issue.

The source of this problem is Rule 704(b), which states:

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 rule acts to preclude psychiatrists from testifying as to whether a criminal defendant is legally insane. Courts have interpreted Rule 704(b) to prohibit both the prosecution and the defense from inquiring of expert psychiatrists whether the defendant, at the time of the crime, was able to appreciate the wrongfulness or the nature and quality of his acts. See West, 962 F.2d at 1246; United States v. Manley, 893 F.2d 1221, 1225 (11th Cir.1990); United States v. Hillsberg, 812 F.2d 328, 333 (7th Cir.1987). The reports supporting this amendment to the rules of evidence generated by both the House and Senate specifically state that this type of testimony is prohibited. As we stated in West, 962 F.2d at 1249, we have grave doubts regarding the utility of such a rule (upon which we will expound further), but that is the rule as it stands. The testimony in this case, however, is not of the type excluded by this rule.

In West, 962 F.2d at 1245, another bank robbery case, controversy developed over the admissibility of testimony by the defendant's psychiatrist, and the district judge resolved the problem by voir dire. The psychiatrist testified that the defendant had a severe mental disorder, but that the defendant understood that robbing the bank was wrong. Id. The district judge excluded the psychiatrist's entire testimony. Id. We reversed and held that the defendant's psychiatrist should have been allowed to testify as to the defendant's mental disorder. Id. at 1246. We stated that although the testimony regarding the specific defendant's mental state was inadmissible, there was no basis for excluding the other testimony. The remainder of the psychiatrist's testimony was admissible and could have been relied upon by the jury to support a finding that the defendant was insane. Id. at 1249. Our holding accurately applied Rule 704(b).

In his concurring opinion, however, Judge Manion observed that Rule 704(b) only excludes testimony addressing specifically the defendant's appreciation for his behavior. Id. at 1251. Judge Manion also noted that psychiatrists may present and explain their diagnoses, such as whether the defendant had a severe mental disease or defect and what the characteristics of such a disease or defect may have been. Id. (quoting S.Rep., No. 225, 98th Cong., 1st Sess. 230 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3411). Further, either side may fully comport with Rule 704(b) by asking the expert whether the ability to discern right from wrong is a characteristic of the defendant's disorder or defect, or even what particular characteristics of the disorder render a person able or unable to appreciate the...