U.S. v. Sennett, 74-1193

• Decision Date: 19 September 1974
• Docket Number: No. 74-1193,74-1193
• Citation: 505 F.2d 774
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee SENNETT, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 774

505 F.2d 774

UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee SENNETT, Defendant-Appellant.

No. 74-1193.

United States Court of Appeals, Seventh Circuit.

Heard Sept. 19, 1974.

Decided Nov. 14, 1974, As Modified Nov. 18, 1974, Rehearing

Denied Dec. 26, 1974.

James G. Walker, Bloomington, Ill., for defendant-appellant.

Donald B. Mackay, U.S. Atty., Max E. Goodwin, Asst. U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Before SPRECHER and TONE, Circuit Judges, and PERRY, Senior District Judge. ^*

TONE, Circuit Judge.

Defendant Donald Lee Sennett was convicted of bank robbery and sentenced under Section 5010(b) of the Youth Corrections Act, 18 U.S.C. 5010(b). At the trial, his only defense was insanity. He contends that the giving of an instruction referring to a presumption of sanity and argument based on that instruction created prejudicial error, that other trial errors occurred, and that refusal to disclose the presentence report was also error.

The defedant, while 18 years old and a freshman at Illinois State University, robbed the People's Bank of Lexington, Illinois, of about $7,964. He was arrested within an hour after the crime and made a complete confession.

At the trial before a jury, the defendant, admitting that he had committed the robbery, raised the defense of insanity and offered the testimony of a psychiatrist who had examined him four days ofter the robbery to the effect that at the time of the robbery the defendant suffered from a psycho-neurotic obsessive-compulsive neurosis, which, although it did not make him incapable of distinguishing right from wrong, did render him unable to conform his conduct to the requirements of the law. The Government, in rebuttal, offered expert testimony tending to refute the testimony of the defendant's expert.

References to the Presumption of Sanity

The District Court gave the jury, verbatim, the insanity instruction mandated by this court, sitting in banc, in United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967), which is as follows:

'The defendant has interposed insanity as a defense. The law presumes that a defendant is sane. This presumption is rebuttable. Where a defendant introduces some evidence that he had a mental disease or defect at the time of the commission of the crime charged, the prosecution must establish beyond a reasonable doubt that defendant did not have a mental disease or defect, or that despite the mental disease or defect he had substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law.'

In addition, the court, at the request of the defendant, gave the following additional instruction on the issue of insanity:

'Under the defendant's plea of not guilty, there is an issue as to his sanity at the time of the alleged offense. The law does not hold a person criminally accountable for his conduct while insane, since an insane person is not capable of forming the intent essential to the commission of a crime. 'The sanity of the defendant at the time of the commission of the alleged offense is an element of the crime charged and must be established by the Government beyond reasonable doubt, just as it must establish every other element of the offense charged. 'A defendant is insane within the meaning of these instructions if, at the time of the alleged criminal conduct, as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.'

In his closing argument the prosecutor paraphrased the Shapiro instruction, including its recital of the presumption of sanity, and argued that the defendant's evidence of insanity 'was so weak the jury could legitimately disregard it and stop right there, but you may, on the other hand, wish to weigh all of the evidence, both the Government's and the defense in this case.' Defendant did not object to this argument, but he ahd previously objected, at a conference on instructions held by the court, to the giving of the Shapiro instruction, on which the argument

The stated grounds for defendant's objection,

The stated fround for defendant's objection, reiterated in this court, were that the instruction referred to insanity as a defense and, even though some evidence of insanity had been introduced, recited the presumption of sanity. The defendant's position, as stated in oral argument, is that it is never appropriate to advise the jury of the presumption of sanity as the Shapiro instruction does; for if there is no evidence of insanity an instruction on the insanity defense is unnecessary, and if there is some evidence of insanity the presumption disappears as a matter of law and it should not be mentioned to the jury.

We are asked to hold that it was error for the District Court to give the insanity instruction which this court seven years ago, in its in banc decision in Shapiro, directed district courts to give in future cases. The defendant bases this request on the later decision of a panel of this court in United States v. Bohle, 445 F.2d 54 (7th Cir. 1971).

The issue before the court in the Shapiro case was whether the District Court had correctly defined insanity in its instructions to the jury. The majority opinion carefully analyzed the American Law Institute's definition (ALI, Model Penal Code, Proposed Official Draft, May 14, 1962, p. 66, 4.01), compared it with the definition in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), and decided that the so-called LaBuy instruction on insanity (Manual on Jury Instructions in Federal Criminal Cases, 5.03 (1965), 33 F.R.D. 560) should be modified 'in order to adapt it to the ALI definition.' The court then set forth instruction as it was to be given in the future, which is the instruction the District Court gave in the case at bar.

It was not argued in Shapiro that it was error to refer to insanity as a defense or to speak of a presumption of sanity. The court, therefore, did not consider those arguments when it left unchanged the recitals of the LaBuy instruction concerning the defense of insanity and the presumption, while modifying the portion of the instruction defining insanity.

In the Bohle case (445 F.2d 54), in the face of evidence that the defendant suffered from a mental disease or defect at the time of the commission of the offense, the prosecutor referred in his closing argument to 'a presumption of sanity' and said the jury had to determine whether the presumption was overcome. When the defendant's counsel objected, the court said, 'I think the statement is proper.' In this court, a majority of the panel, interpreting Davis v. United States, supra, 160 U.S. 469, 16 S.Ct. 353 (1895) and following Otney v. United States, 340 F.2d 696, 698-699 (10th Cir. 1965), held that the presumption of sanity disappears when some evidence of insanity is introduced, and that 'the statement of the prosecutor, concurred in by the court, was erroneous as a matter of law in advising the jury in effect that it could weigh the presumption against Bohle in reaching its verdict.' 445 F.2d at 71.

In the concluding paragraph of the section of its opinion dealing with this point, the Bohle majority said, 'Further, we find it prejudicially erroneous where the jury is misinformed concerning what it could consider on the critical issue of a case and that misinformation is reenforced by the court after the defendant challenges its accuracy.' 445 F.2d at 71. The court, however, held that three other trial errors had occurred (id. at 63, 69, 75), and, at the conclusion of the entire opinion, said, '. . . without deciding whether any of the errors recited herein would, standing alone, be of sufficient magnitude in this case to require reversal, we are convinced that, when taken together, their prejudicial impact was sufficient to deny Bohle a fair trial on the issue of insanity.' Id. at 76.

Although the opinion does not disclose the instructions given to the jury on the issue of insanity in Bohle, the record in that case shows that the District Court gave the Shapiro instruction. The treatment at trial of the presumption of sanity in Bohle and the case at bar were thus similar. In each case the prosecutor, in his closing argument, made a reference to the presumption of sanity, based on the Shapiro instruction which was to be given to the jury, and contended in substance that the jury, after considering the evidence of insanity, could determine that the presumption was not overcome.

Here, unlike Bohle, there was no objection to the argument at the time it was made; but, at the conference on instructions held shortly before the argument, defendant's counsel had objected to the giving of the Shapiro instruction because of its reference to the presumption, and the court had overruled that objection. Counsel was therefore not required, in order to preserve error, to object to an argument based on that instruction. Nevertheless, because such an objection was not made, the prosecutor's argument was not reenforced in the presence of the jury by a ruling of the court, as it was in Bohle.

The only direction the jury in the case at bar received from the court with respect to the law applicable to the defense of insanity came from the instructions. These included not only the Shapiro instruction but the instruction set forth above which defendant tendered. By giving the latter, the court unequivocally told the jury that in this case the government had the burden of proving was sane. ¹

Bohle is therefore distinguishable, because the error found there was one of several, the...