U.S. v. Burgess

• Decision Date: 22 October 1982
• Docket Number: No. 81-5314,81-5314
• Parties: 11 Fed. R. Evid. Serv. 1243 UNITED STATES of America, Appellee, v. Thomas BURGESS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1146

691 F.2d 1146

11 Fed. R. Evid. Serv. 1243

UNITED STATES of America, Appellee, v. Thomas BURGESS, Appellant.

No. 81-5314.

United States Court of Appeals Fourth Circuit.

Argued Sept. 1, 1982.

Decided Oct. 22, 1982.

Michael S. Lieberman, Alexandria, Va. (John Kenneth Zwerling, John Kenneth Zwerling & Associates, P.C., Alexandria, Va., on brief), for appellant.

William G. Otis, Sp. Asst. U. S. Atty., Alexandria, Va. (Elsie L. Munsell, U. S. Atty., Clarence H. Albright, Jr., Asst. U. S. Atty., Alexandria, Va., on brief), for appellee.

Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and MURNAGHAN, Circuit Judge.

MURNAGHAN, Circuit Judge:

Burgess is a Vietnam war veteran who suffered stressful experiences during his stay in that country, among them direct participation in the battle of the Plain of Reeds. Following his return to the United States and discharge from the Army, he was engaged, in May of 1981, in activities which led to a prosecution in the United States District Court for the Eastern District of Virginia on charges of (a) conspiracy to distribute cocaine, ¹ (b) distribution of cocaine, ² and (c) using a telephone to facilitate the distribution of cocaine. ³

As the case evolved, performance by Burgess of the proscribed acts was not disputed. ⁴ His brief on appeal candidly concedes that the facts establishing the offenses were uncontested by the defense, that a prima facie showing was made by the Government, and that: "The entire defense rested upon whether or not Burgess was legally insane at the time of the offense."

The defense asserted a Post Traumatic Stress Disorder (PTSD) allegedly activated by Burgess' Vietnam experiences. Medical experts appeared for both parties. There was testimony which, if believed, established beyond a reasonable doubt that Burgess was not insane. The jury returned a verdict of guilty as to all three counts, and normally that should have concluded the matter.

Burgess contends, however, that, as the case was presented to the jury, he was mouse-trapped by the Government with the consequence that valuable testimony which would have materially strengthened his case was not introduced. As courts have had frequent occasion to observe, the question before us on appeal frequently boils down not to whether sufficient evidence of the commission of the crime charged was alleged and proven, but rather whether the accused's constitutional rights to due process and especially to a fair trial were scrupulously protected. ⁵ We address that issue here.

The claim of Burgess centers on a colloquy between counsel and Judge Williams which occurred immediately prior to the presentation of the defense's case in chief. The colloquy commenced with a statement by one of the prosecutors questioning the relevance of certain evidence to which, in opening statement, defense counsel had alluded, specifically the experiencing by Burgess of the breaking up of his home. The position taken by the Government was that the evidence, while manifestly designed to evoke sympathy, was simply not probative as to the existence vel non of mental disease or defect.

There then evolved a brief exchange concerning the proper point in the trial at which other defense evidence should be offered. ⁶ Defense counsel indicated that the Government was expected in its rebuttal case to adduce evidence that the insanity defense was contrived, i.e., faked. Defense counsel pressed, in general terms and necessarily on an anticipatory basis, for rulings permitting, as part of the defense-in-chief, evidence described as going to show the genuineness of the PTSD insanity defense. The Government (also speaking, of necessity, in the abstract since the colloquy preceded the actual submission of any item of evidence on the insanity issue) objected to the introduction of such evidence as part of the defense's case in chief, contending that an orderly and proper development would dictate the deferral of such testimony to surrebuttal.

The trial then resumed. Following completion of the Government's rebuttal case, testimony proffered by the defense as surrebuttal was objected to by the Government and was in large measure, though not completely, excluded.

Obviously, if defense counsel was indeed led reasonably to rely on the Government's contention that testimony should be reserved for surrebuttal and was then foreclosed from introducing the evidence on the grounds that it properly was part of the defense-in-chief, an injustice has occurred which would mandate reversal and remand for a new trial. However, the Government replies that its remarks at the time of the colloquy were only intended and properly only could be read to go to evidence which indeed was proper surrebuttal. So long as the discussion was purely in generalities, it remained for defense counsel correctly to assess whether each item the defense wanted to put in evidence after the Government rested its rebuttal case properly met the criteria for surrebuttal. Evidence which should have been put in as part of the case in chief, or which, being merely repetitive of other evidence already before the jury, would not be proper surrebuttal testimony, could not have its status changed merely by application of the label "Surrebuttal." Defense counsel, the Government argues, had no reasonable basis for relying on the abstract statement of a prosecutor during the colloquy between court and counsel which indeed boils down simply to the truism: "Surrebuttal is surrebuttal." The statement did not authorize the holding back of testimony which went to the issue of insanity itself rather than to the issue of whether there had been an effort to fake insanity. ⁷

Since the discussion at the colloquy between court and counsel was couched in terms general in nature, without specifically identifying the testimony which the Government contended should not be offered by the defense until surrebuttal, it becomes our responsibility to look to the several items of proffered testimony to determine into which category each, in fact, fell. To the extent that an item was not proper surrebuttal but indeed belonged, if admissible at all, in the defense-in-chief, the Government's position would be well taken.

In the colloquy between court and counsel Judge Williams, properly cautious, stated with respect to the Government's premature claim of irrelevancy: "I can't rule on it in any advisory way." He went on to observe that testimony about the defendant in normal stress situations could be counterproductive to the establishment of the PTSD defense. ⁸ The court concluded: "I am sure that after the matter is looked at more maturely ... it will be tempered in such a way that nothing objectionable will come out."

The colloquy then moved on to the observation from the defense that the Government had stated its intention in rebuttal to present testimony that the whole PTSD defense was contrived. Defense counsel raised the question of whether it could introduce in its case-in-chief corroborative evidence that Burgess was not faking the defense. Without specifying what the testimony would be, defense counsel stated a wish to have the testimony in the case in chief so that the jury would know "this is not a game that is being played on them." ⁹ The Government noted that testimony to refute a claim of fakery would be more properly restricted to surrebuttal. ¹⁰ The district judge sensibly responded by stating: "I will rule on those things when they come up." ¹¹

The defense's case-in-chief consisted of the testimony of two medical experts. Dr. Sonnenberg testified to a wide range of circumstantial matters leading him to the conclusion that Burgess suffered from PTSD and opined that, as a result, Burgess was legally insane. Dr. Levin testified as to four objective psychological tests given by him to Burgess and expressed his conclusion that the results confirmed Dr. Sonnenberg's diagnosis. In the course of his testimony, Sonnenberg explained that the information on which he relied came not from Burgess alone but in addition was confirmed from other "independent" sources, i.e., was not faked.

After the defense rested its case-in-chief, the Government, as part of its rebuttal, called McCoy, a personal acquaintance of Burgess. McCoy testified that Burgess himself had expressed disbelief in his own "Vietnam syndrome" defense and had stated that he would feign insanity at the trial. Commarato, a DEA agent, was called and stated his observation that Burgess' behavior at the time of the offense was "very cool, calm, very cautious, typical of a dope dealer." Also, the Government, as part of its rebuttal, submitted testimony of a medical expert, Dr. Pepper, who expressed the conclusion that the PTSD defense in general was contrived, further concluding that Burgess was not suffering from PTSD.

Then the surrebuttal commenced. What happened reveals one of the difficulties flowing from the imprecise use of language. ¹² In the earlier colloquy, counsel for the defense may have sincerely believed that the evidence they now sought to introduce on surrebuttal was the testimony which the Government had argued should be reserved for surrebuttal and not introduced as part of the defense's case-in-chief. However, that belief must have derived simply from defense counsel's own estimate as to the surrebuttal character of the testimony. There is nothing to suggest that the Government took a surrebuttal stance with respect to any specific evidence, only to turn around and object successfully later on on the grounds that the evidence did not merit the description of surrebuttal but rather properly was material that should have been introduced as part of the defense-in-chief. We are unwilling to say that the Government must accept responsibility for a misunderstanding deriving from the imprecise use of legal terminology. It was not the fault of Government counsel that testimony not truly surrebuttal in...