U.S. v. Owens

• Decision Date: 06 September 1988
• Docket Number: No. 87-8556,87-8556
• Citation: 854 F.2d 432
• Parties: 26 Fed. R. Evid. Serv. 1151 UNITED STATES of America, Plaintiff-Appellee, v. Alvin Omega OWENS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 432

854 F.2d 432

26 Fed. R. Evid. Serv. 1151

UNITED STATES of America, Plaintiff-Appellee, v. Alvin Omega OWENS, Defendant-Appellant.

No. 87-8556.

United States Court of Appeals, Eleventh Circuit.

Sept. 6, 1988.

Sandra Popson, Macon, Ga., (Court-appointed), for defendant-appellant.

Miriam Wansley Duke, Asst. U.S. Atty., Macon, Ga., for plaintiff-appellee.

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

Before TJOFLAT and EDMONDSON, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

In this opinion we construe and apply the Insanity Defense Reform Act of 1984. ¹ Alvin Omega Owens was indicted and convicted for possession of a firearm in violation of 18 U.S.C.App. sec. 1202(a)(1) (as amended by the Armed Career Criminal Act of 1984 (ACCA)). ² At trial, he presented expert witness testimony on the issue of his insanity at the time of the alleged crime. The district court nonetheless declined to instruct the jury on insanity. Because there was sufficient evidence to require an instruction on insanity, Owens is entitled to a new trial.

BACKGROUND

In March 1986 Owens was arrested for possession of a pistol. He was later indicted for this offense: the indictment listed Owens' five previous state convictions for burglary; it charged Owens with "unlawfully possess[ing] a firearm ..., which firearm had been shipped and transported in interstate commerce; all in violation of Title 18, United States Code, Section 1202(a)(1) App." Pursuant to Fed.Rule Crim.Proc. 12.2, Owens' attorney then filed a "Notice of Intention" indicating that "the defendant intends to rely upon the defense of insanity as of the time of the crime alleged in the indictment."

At trial Owens attempted to describe the circumstances surrounding his arrest. ³ He testified that he was unaware that he possessed the gun in question until the police officer discovered it under Owens' shirt; he denied ownership of the gun. ⁴

Another defense witness was Dr. Cook, who holds a Ph.D. and practices psychology. Dr. Cook testified regarding her evaluation of Owens in December 1985: "I gave [Owens] two personality tests, an intelligence test, a test for organic brain damage and an achievement test.... [Then,] I gave him about a twenty-minute interview." Dr. Cook then stated that Owens "was severely emotionally disturbed and was experiencing a psychotic process and I gave him the diagnosis of simple schizophrenia." She explained her diagnosis as follows:

[Psychosis] means that basically you're out of touch with reality and in Mr. Owens' case, I felt that he fluctuated in and out of touch with reality, that his problem solving ability to deal with day-to- day tasks was so weak and so limited that he had a very, very weak grasp of reality and at times, would lose all contact with reality.

Dr. Cook further explained that Owens' "psychotic" state made him "unaware" of his "surroundings." Following the testimony of Dr. Cook, Dr. Bohn, the Government's expert, testified. Although Dr. Bohn concluded that Owens was not "psychotic", he admitted that Owens "shows some evidence of disturbance".

At the end of trial, the district court agreed to give an instruction on expert witness testimony. Nevertheless, the court declined to instruct the jury on insanity; instead, the court gave an instruction on the elements of "possession" and "consciousness." Owens was found guilty and was sentenced to a term of fifteen years imprisonment.

JURY INSTRUCTION ON INSANITY

In the Insanity Defense Reform Act of 1984, Congress defined the insanity defense as follows:

(a) Affirmative defense.--It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b) Burden of proof.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

18 U.S.C. sec. 17.

Owens attempted to present an insanity defense to the federal offense of gun possession; but the jury received no instruction on insanity. Although the district judge recognized that conscious possession of a gun was essential for guilt, ⁵ he seemingly doubted that insanity could constitute an affirmative defense to possession of a firearm. The district court also stated that the evidence would not "justif[y] a charge on the defense of insanity".

Section 17 of Title 18, states that insanity is a "defense to a prosecution under any Federal statute...." 18 U.S.C. sec. 17(a) (emphasis added). Nothing in 18 U.S.C.App. sec. 1202(a) says that insanity is no defense. Therefore, we conclude that insanity can be an affirmative defense to a prosecution for possession of a gun.

Traditionally, in this Circuit, a defendant who requested an instruction on insanity was entitled to it "if there [was] some evidence supporting the claim of insanity.... This means only slight evidence." Blake v. United States, 407 F.2d 908, 911 (5th Cir.1969) (en banc). This quantum of evidence rule, however, predates 18 U.S.C. section 17. When Congress enacted section 17 as part of the Insanity Defense Reform Act of 1984, Congress changed the law: Congress redefined insanity and gave defendants the burden of proving insanity by "clear and convincing evidence." Id. sec. 17(b); see S.Rep. No. 98-225, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3407, 3411-12; United States v. Freeman, 804 F.2d 1574, 1575 (11th Cir.1986). ⁶

The change in the burden of proof necessarily altered our standard for determining whether there is sufficient evidence to require an instruction on insanity. Under Blake and its progeny, the "slight evidence" rule was inextricably intertwined with the Government's burden of proof. As long as there was "some evidence supporting the claim of insanity", the Government had to prove "sanity beyond a reasonable doubt", and the jury needed to be informed accordingly. Blake, 407 F.2d at 911-12. Now, under 18 U.S.C. sec 17, the existence of only "some" or "slight" evidence raises no ground for acquittal; the defendant must come forward with "clear and convincing evidence" of insanity. So, the Blake "slight evidence" standard no longer controls.

The Supreme Court has stressed that "a higher burden of proof should have a corresponding effect on the judge when deciding to send the case to the jury...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986) (stating this proposition in relation to the motion for summary judgment or directed verdict in civil trials, and the motion for a judgment of acquittal in criminal trials). The well-established rule in this Circuit is that "the question of the sufficiency of the evidence necessary to make an issue for the jury on the defense of insanity ... is for the court." Blake, 407 F.2d at 911 (emphasis added). Put differently, "[t]he trial court is not required to instruct the jury on a defense theory if the evidence is insufficient as a matter of law for the defendant to prevail on that theory." Sullivan v. Blackburn, 804 F.2d 885, 887 (5th Cir.1986). See also Strauss v. United States, 376 F.2d 416, 419 (5th Cir.1967) ("The judge is the law-giver. He decides whether the facts constituting the defense framed by the proposed charge, if believed by the jury, are legally sufficient to render the accused innocent."); United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir.1979) ("It has long been established in this Circuit that it is reversible error to refuse to charge on a defense theory for which there is an evidentiary foundation and which, if believed by the jury, would be legally sufficient to render the accused innocent.").

We hold that, where the issue of insanity has otherwise been properly raised, a federal criminal defendant is due a jury instruction on insanity when the evidence would allow a reasonable jury to find that insanity has been shown with convincing clarity. ⁷ Recalling the jury's right to determine credibility, to weigh the evidence, and to draw justifiable inferences of fact, the trial judge must construe the evidence most favorably to the defendant. The court also needs to remember that, although the "clear and convincing" standard is a fairly high one, "clear and convincing" does not call for the highest levels of proof. ⁸ If evidence would permit the jury to find to a high probability that defendant was insane, an insanity instruction is required.

In this case sufficient evidence supports the giving of an instruction on insanity. Particularly important, Dr. Cook, Owens' expert witness, testified that she diagnosed Owens as a "psychotic" who would lose touch with reality. Viewing the evidence in the light most favorable to the defendant, Owens presented enough evidence to require an instruction pursuant to 18 U.S.C. sec. 17.

Accordingly, we VACATE Owens' judgment of conviction; we REMAND this case for a new trial. ⁹

* Honorable John Minor Wisdom, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation.

1 Pub.L. No. 98-473, secs. 401-06, 98 Stat. 2057-70 (1984).

2 Pub.L. No. 98-473, sec. 1802, 98 Stat. 2185 (1984). Effective November 15, 1986, portions of sec. 1202(a) were amended and incorporated into 18 U.S.C. secs. 922(g) & 924(e)(1). Firearms Owners' Protection Act, Pub.L. No. 99-308, sec. 104(b), 100 Stat. 449, 459 (1986); see United States v. Jackson, 824 F.2d 21, 22 n. 2 (D.C.Cir.1987). The 1986 amendments do not govern this case, however, because Owens committed his possession offense and he was indicted prior to November 1986. See United States v. Springfield, 829 F.2d 860, 865 (9th Cir.1987); United States v. Snowden, 677 F.Supp. 1108 (D.Kan.1988).

3 Owens testified that he had been drinking the night that h...