U.S. v. Segna

• Decision Date: 06 April 1977
• Docket Number: No. 76-1418,76-1418
• Citation: 555 F.2d 226
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph John SEGNA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 226

555 F.2d 226

UNITED STATES of America, Plaintiff-Appellee, v. Joseph John SEGNA, Defendant-Appellant.

No. 76-1418.

United States Court of Appeals Ninth Circuit.

April 6, 1977.

As Amended on Denial of Rehearing and Rehearing En Banc June 7, 1977.

David M. Ochoa, Asst. Federal Public Defender, Phoenix, Ariz., argued for defendant-appellant.

William C. Smitherman, U. S. Atty., Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., argued, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before WALLACE and SNEED, Circuit Judges, and Gray, ^* District Judge.

WALLACE, Circuit Judge:

Segna, a non-Indian, shot and killed an Indian policeman on the Navajo Indian Reservation in Arizona. After a trial where the only contested issue was Segna's legal sanity at the time of the offense he was convicted of first degree murder. 18 U.S.C. §§ 1111, 1152. Segna argues to us that the evidence was insufficient to prove his sanity beyond a reasonable doubt; that the district court erred in refusing to instruct the jury both on the meaning of "wrongfulness" as that word is used in the test of criminal responsibility and on the defendant's post-acquittal status; that prosecutorial misconduct in trial tactics ¹ and closing arguments requires a new trial; and that certain of the district court's evidentiary rulings were erroneous. We find the government's evidence of sanity sufficient to sustain the conviction, but because part of the prosecutor's unobjected-to closing argument constitutes plain error, we reverse and remand for a new trial.

I

Segna introduced substantial evidence that he was not legally responsible for the killing because of a mental disease or defect. This evidence consisted of the testimony of three psychiatrists, one psychologist and several lay witnesses and various exhibits including letters written by Segna before the killing. All of these expert witnesses agreed that Segna was suffering from a fixed delusionary system, the central feature of which was Segna's belief that he was a persecuted Indian. Both the lay testimony and the nontestimonial evidence tended to substantiate this diagnosis. These experts also agreed that Segna, because of this mental disease, lacked substantial capacity at the time of the killing to conform his conduct to the requirements of the law or to appreciate the wrongfulness of his conduct. See Wade v. United States, 426 F.2d 64 (9th Cir. 1970) (en banc).

This evidence clearly destroyed the presumption of sanity and placed on the government the burden of establishing Segna's legal sanity beyond a reasonable doubt. United States v. Monroe, 552 F.2d 860, 863 (9th Cir. Feb. 22, 1977); United States v. Shackelford, 494 F.2d 67, 70 (9th Cir.), cert. denied, 417 U.S. 934, 94 S.Ct. 2647, 41 L.Ed.2d 237 (1974); United States v. Ingman, 426 F.2d 973, 976 (9th Cir. 1970). In an effort to meet its burden, the government called several lay witnesses and one psychiatrist, Dr. Gorman. The lay witnesses testified that on occasion prior to and after the killing, Segna did not refer to himself as an Indian but as an Italian, his true ethnic derivation. Dr. Gorman disagreed with the experts called by Segna and opined that Segna was not legally insane under the Wade test at the time of the killing. In Gorman's view, Segna had an anti-social, psychopathic personality which did not constitute a mental disease or defect within the meaning of Wade.

During cross-examination of Gorman, the doctor's opinion was attacked in three ways. First, Segna's counsel established that the doctor's diagnosis was based on an incorrect view of the facts of Segna's prior life. Second, the doctor was required to modify substantially his definition of "anti-social, psychopathic personality" when counsel pointed out that the actual facts of Segna's life did not coincide with the symptoms which Dr. Gorman had originally stated were characteristic. Finally, Gorman was required to engage in rather farfetched speculation to account for Segna's pre-killing assertions that he was a Indian.

The jury resolved the evidentiary conflict against Segna. On appeal, he asks us to conclude that Gorman's testimony was completely discredited as a matter of law and that accordingly it cannot sustain a guilty verdict. We decline so to hold.

In United States v. Ortiz, 488 F.2d 175 (9th Cir. 1973), we were confronted with a similar question and decided that the evidence of sanity was sufficient to sustain the verdict. There we said:

The psychiatric testimony, presented by both sides, was in conflict. The jury could properly weigh the opinions of both psychiatrists and resolve that conflict. In reviewing their determination, we must view the evidence and all reasonable inferences in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This standard of review extends to the issue of sanity and the credibility of the experts. United States v. Handy, 454 F.2d 885, 888 (9th Cir.), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972). In addition to the experts, the jury also heard lay witnesses who, because they had observed (the defendant) during the execution of the crime, provided meaningful testimony that the jury could consider. . . . We hold that this evidence was sufficient to sustain the verdict.

Id. at 178.

The reasoning of Ortiz leads us to the conclusion that the evidence presented in this case could sustain the verdict. The jury may properly resolve conflicts in psychiatric testimony. Id. Dr. Gorman testified that Segna was not legally insane and there was some basis for his conclusion. He examined Segna for approximately one and one-half hours. Further, even after he came to a correct knowledge of Segna's prior life during cross-examination, the doctor adhered to his conclusion regarding Segna's sanity. Reviewing this evidence in a light most favorable to the government, as Ortiz directs, we find that the jury could have reasonably believed Dr. Gorman and disbelieved the other expert witnesses. Moreover, the testimony of lay witnesses provided some support for a conclusion of sanity. The jury is entitled to consider this evidence in its deliberations. See id. We therefore hold that, when viewed in the light most favorable to the government, the evidence was sufficient to permit reasonable jurors to conclude that Segna was legally sane beyond a reasonable doubt.

II

In his closing argument to the jury, the prosecutor made erroneous and misleading statements of the law. The effect of those statements was to shift the burden of proof from the government to Segna and to deprive Segna of the benefits of the reasonable doubt standard. ² Although no objection was interposed, the argument amounts to plain error and requires reversal.

While commenting on Segna's insanity defense in his argument, the prosecutor told the jury that in resolving the issue

there are two things you can rely on. Fortunately, the law is something that you can rely on. There are certain presumptions in the law. One of those presumptions is that a person realizes the consequences of his acts.

He then stated that this presumption continues until overcome by competent evidence. Thereafter he made both direct and oblique attacks on the competency of Segna's evidence of insanity.

Also, in an effort to defend Dr. Gorman's testimony, the prosecutor argued:

The only difference between his (Dr. Gorman's) opinion and the other shrinks' opinions is that his opinion has a presumption of law with it. That is, a man is presumed sane.

In concluding, the prosecutor asked the jury to return a guilty verdict "unless you are convinced by scientific evidence the man (Segna) is sick and doesn't appreciate the wrongfulness of his acts."

As noted earlier, at the outset of every criminal case there is a presumption that the accused was legally sane at the time he committed the alleged offense. If, however "a defendant raises the defense of insanity and offers evidence in its support, the presumption that every man is sane disappears. The prosecution then has the burden of proving the fact of sanity beyond a reasonable doubt." United States v. Ingman, supra, 426 F.2d at 976.

After Segna produced his expert and lay witnesses and nontestimonial evidence on the insanity issue, no presumption of sanity existed in the present case. ³ No presumption was available to aid the prosecution in meeting its burden of proof, and no legal presumption could have been considered properly by the jury. United States v. Bohle, 445 F.2d 54, 69-71 (7th Cir. 1971).

In light of these principles, it is clear that the prosecutor's argument was erroneous as a matter of law. In essence, he stated that it was still open to the jury to weigh the presumption of sanity against Segna in reaching its verdict. This error was compounded by his final request to the jury that it return a guilty verdict not if it found Segna sane beyond a reasonable doubt, but rather if Segna failed to convince the jury "by scientific evidence" that he was not sane. ⁴

Finding error, however, is only the first step. Because Segna's counsel failed to object, we may reverse only if the error amounts to "plain error" under Rule 52(b), Fed.R.Crim.P. Appropriately, this is a rigorous standard. We have stated on numerous occasions that we will reverse under Rule 52(b) only in those very exceptional circumstances where reversal is necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. E. g., United States v. Wysong, 528 F.2d 345, 348 (9th Cir. 1976); United States v. Larson, 507 F.2d 385, 387 (9th Cir. 1974); United States v. Trejo, 501 F.2d 138, 141 (9th Cir. 1974); United States v. Cozzetti, 441 F.2d 344, 352-53 (9th Cir. 1971). Nevertheless, if unobjected-to error is "seriously prejudicial" to the defendant, Reisman v. United...