United States v. Frisbee

• Decision Date: 20 December 1985
• Docket Number: No. CR-85-0762 EFL.,CR-85-0762 EFL.
• Citation: 623 F. Supp. 1217
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Robert William Dion FRISBEE, Defendant.

623 F. Supp. 1217

UNITED STATES of America, Plaintiff, v. Robert William Dion FRISBEE, Defendant.

No. CR-85-0762 EFL.

United States District Court, N.D. California.

December 20, 1985.

Robert L. Dondero, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.

V. Roy Lefcourt, San Francisco, Cal., for defendant.

MEMORANDUM OPINION

LYNCH, District Judge.

I. Introduction

On August 19, 1985, defendant Robert Frisbee was indicted for first degree murder in violation of 18 U.S.C.A. section 1111 (West Supp.1985). The murder allegedly occurred on a commercial cruise ship that was sailing to the port of San Francisco in Pacific waters off the coast of California. The deceased was an 80 year old woman who apparently died from multiple traumas to the head. The defendant had been traveling with the deceased on the cruise ship, sharing a suite with her.

After the cruise ship docked in San Francisco, authorities arrested the defendant. In the course of an interview, the defendant reportedly indicated that, to the best of his knowledge, he was the only person in the room other than the victim at the time the murder allegedly occurred. United States v. Frisbee, No. CR-85-0762 EFL (N.D.Cal.1985) (Detention Order). The defendant also allegedly stated to the investigating authorities that he "did believe he committed the crime, in view of the fact that no one else was in the room at the time." Id. (quoting an affidavit of Jan K. Smith, Special Agent for the Federal Bureau of Investigation). According to psychiatric reports submitted to the Court by the defendant's counsel, the defendant has, however, never had any recollection of the actual events surrounding the death of the deceased. The reports also indicate that the defendant has suffered from periodic blackouts or seizures and from amnesia, all caused by serious alcohol abuse over many years.

Pursuant to rule 12.2(b) of the Federal Rules of Criminal Procedure, the defendant has given notice to the government that he "intends to introduce expert testimony relating to a mental disease or defect or ... other mental condition of the defendant bearing upon the issue of his guilt ...." Fed.R.Crim.P. 12.2(b). More specifically, the defendant has indicated that he will offer expert testimony supporting his contention that due to some combination of pathological intoxication, organic brain damage, and an alcoholic blackout or seizure, he did not possess the requisite specific intent during the relevant time period to have committed first degree murder.¹

Currently before the Court is a motion brought by the government in opposition to the admission of psychiatric testimony by the defendant to negate the existence of specific intent. The government contends that the recently enacted section 20 of Title 18 of the United States Code, Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 402, 98 Stat. 1837, 2057, prohibits the admission of psychiatric testimony to negate the existence of an element of the crime unless such testimony is admitted in conjunction with an insanity defense.

While the government bears the burden of proving beyond a reasonable doubt all elements of the crime charged, In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), section 20 makes the insanity defense an affirmative defense that the defendant must prove by clear and convincing evidence. 18 U.S.C.A. § 20(b) (West Supp.1985). Consequently, the government's argument, if successful, would prohibit the defendant from using psychiatric testimony to negate specific intent, an element the government must prove beyond a reasonable doubt, but would allow the admission of such evidence to prove insanity, an affirmative defense that the defendant must prove by clear and convincing evidence. For the reasons stated below, the Court rejects the government's argument. The Court will allow expert testimony on the issue of specific intent but will limit the scope and use of such evidence in the manner described in the final section of this Opinion.

II. Admissibility Prior to Section 20 of Expert Testimony on the Issue of Specific Intent

It is quite clear that, prior to the enactment of section 20, the Ninth Circuit allowed the admission of expert testimony to negate the existence of specific intent. In United States v. Erskine, 588 F.2d 721 (9th Cir.1978), the court held that a "trial court has wide latitude in admitting or excluding psychiatric testimony on the question of a defendant's incapacity to form specific intent ..." and that the "defendant was entitled to introduce competent evidence pertaining to the defense of lack of specific intent." Id. at 722-23.

While there seems to be little dispute between the defendant and the government concerning the state of the law in the Ninth Circuit prior to the enactment of section 20, the parties disagree over the effect of section 20. It is this dispute which the Court must now resolve.

III. Effect of Section 20

Section 20 provides 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.A. § 20 (West Supp.1985).

The government argues that the language of section 20(a) providing that "mental disease or defect does not otherwise constitute a defense" is intended to exclude all psychiatric testimony not admitted in conjunction with an insanity defense. The Court disagrees. As discussed below, the Court believes that section 20 is not intended to limit the admissibility of evidence negating the existence of specific intent; rather, the Court finds that the section is intended to narrowly restrict situations in which mental disease or defect will excuse an otherwise guilty defendant. In short, the Court finds that section 20 represents an attempt by Congress to define the circumstances in which an otherwise culpable defendant will be excused for his or her conduct because of mental disease or defect, and that the section has no effect on the admissibility of evidence offered by a defendant to negate the existence of specific intent and thereby to show his or her innocence. This conclusion is supported by the legislative history of section 20 and the overall statutory scheme of which section 20 is a part.

A. Legislative Intent.

Section 20 makes the defense of insanity an affirmative defense. The term "affirmative defense" has generally referred to defenses that must be affirmatively raised by the defendant and that are based on justifications or excuses for conduct that is otherwise criminal. See W. LaFave & A. Scott, Criminal Law 152 (1972). Consequently, evidence used to negate the existence of an element of the crime would not traditionally be considered part of an affirmative defense because the evidence is used to show innocence, as opposed to an excuse or justification for an otherwise criminal act.

The legislative history of section 20 indicates that when Congress used the term "affirmative defense" in section 20, it intended that the term be given its traditional meaning and, consequently, did not intend on addressing the question of the admissibility of expert testimony on the issue of guilt or innocence. In discussing the language of section 20 that the government relies on in making this motion, Senate Report 225 states as follows:

The Committee also included language in section 20 explicitly providing that mental disease or defect other than that which renders the defendant unable to appreciate the nature and quality or wrongfulness of his acts does not constitute a defense. This is intended to insure that the insanity defense is not improperly resurrected in the guise of showing some other affirmative defense, such as that the defendant had a "diminished responsibility" or some similarly asserted state of mind which would serve to excuse the offense and open the door, once again, to needlessly confusing psychiatric testimony.

S.Rep. No. 225, 98th Cong., 2d Sess. 229, reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3411 (emphasis added). The Report's discussion of an affirmative defense as involving an "excuse" for an "offense" indicates that section 20 was written only to delimit when mental disease or defect will be allowed to excuse a criminal offense.

Furthermore, other language contained in the same Senate Report indicates that Congress clearly understood that section 20 would not have the effect of making expert testimony on the issue of specific intent inadmissible unless offered in conjunction with an insanity defense. In describing why section 20 uses the term "severe," the paragraph of the Report directly following the language quoted above states:

The provision that the mental disease or defect must be "severe" was added to section 20 as a Committee amendment. As introduced in S. 829, the provision referred only to a "mental disease or defect." The concept of severity was added to emphasize that nonpsychotic behavior disorders or neuroses such as an "inadequate personality," "immature personality," or a pattern of "antisocial tendencies" do not constitute the defense. The Committee also intends that, as has been held under present case law interpretation, the voluntary use of alcohol or drugs, even if they render the defendant unable to appreciate the nature and quality of his acts, does not constitute insanity or any other species of legally valid affirmative defense. Footnote.

Id.

In the footnote to the final sentence of the above-quoted paragraph, the Report acknowledges that "of course, intoxication may negate a state of mind...