United States v. McCracken, No. 72-3785.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: TUTTLE. BELL and GOLDBERG, Circuit
• Citation: 488 F.2d 406
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James E. McCRACKEN, Defendant-Appellant.
• Docket Number: No. 72-3785.
• Decision Date: 17 January 1974

488 F.2d 406 (1974)

UNITED STATES of America, Plaintiff-Appellee,
v.
James E. McCRACKEN, Defendant-Appellant.

No. 72-3785.

United States Court of Appeals, Fifth Circuit.

January 17, 1974.

488 F.2d 407

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488 F.2d 408

Howard A. McDonnell (Court-appointed), Albert Sidney Johnston, Jr., Biloxi, Miss., for defendant-appellant

Robert E. Hauberg, U. S. Atty., James B. Tucker, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.

Before TUTTLE. BELL and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

This is a direct appeal from a conviction for first degree murder. On August 18, 1971, James E. McCracken, then a fifty-six year old domiciliary patient at the Veterans Administration Hospital in Biloxi, Mississippi, shot and killed Dr. Hugh B. McGill, a member of the medical staff at the facility. Using the same .38 caliber pistol, he then shot and wounded himself. He made no attempt to escape or to conceal or deny his actions.

Following his indictment for first degree murder,¹ McCracken was sent to the U.S. Medical Center for Federal Prisoners, Springfield, Missouri, pursuant to 18 U.S.C. § 4244 (1970), for examination into both his mental health at the time of the shooting and his present ability to aid in his own defense. Based on the report of the Springfield staff, the district court entered an order finding McCracken presently sane and mentally competent to stand trial for the charges against him.

He was tried before a jury in the Southern District of Mississippi. His only defense was that at the time of the offense he was not legally sane. The jury rejected the insanity defense, and McCracken was convicted of first degree murder and sentenced to life imprisonment.

On appeal McCracken specifies seven points of error, which raise three basic issues. First, was the Government's evidence sufficient to make an issue for the jury on insanity and to sustain the jury's conclusion that McCracken was legally sane at the time of the offense points 1, 2, and 7; second, were the instructions relating to the definition of insanity so repetitious as to be prejudicial point 4; and third, did the trial court err in instructing the jury that if found "not guilty by reason of insanity," the defendant would be "turned a loose" points 3, 5, and 6. We cannot agree with appellant that on the basis of the record as a whole the Government's

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evidence was insufficient as a matter of law to avoid a directed verdict on the issue of insanity or to sustain the jury's verdict. The second issue is also without merit. As to the third issue, however, we have concluded that the trial judge committed harmful and substantial error, and we reverse

I. INSANITY DEFENSE

Evaluating the sufficiency of the evidence of a defendant's sanity is by no means an easy task, at either the trial or the appellate level. Nevertheless, the parameters by which the determination must be made are by now well-settled in this Circuit.² The defendant's sanity is always an element of the offense charged. When no question of insanity is raised, the Government's burden of proving sanity is satisfied by the so-called "presumption of sanity," which stands in the place of evidence. When, however, "some" evidence is received, establishing the hypothesis of insanity, the burden is on the Government to prove beyond a reasonable doubt that the defendant was sane at the time of the offense. Blake v. United States, 5 Cir. 1969, 407 F.2d 908, 911, 912; Brock v. United States, 5 Cir. 1967, 387 F.2d 254, 257; Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 140.

Once raised, the question of the defendant's sanity will normally be for the trier of fact to resolve, but at three different points the court may face the question of the sufficiency of the evidence as a matter of law. Initially, of course, the court must always determine whether the defendant has presented enough evidence to put his sanity in question. See United States v. Holt, 5 Cir. 1971, 450 F.2d 868. The court must also determine whether the Government's evidence is sufficient to make an issue for the jury on the defense of insanity and thus avoid a directed verdict of acquittal. Finally, in the event of a guilty verdict, the court must decide whether the Government's evidence is sufficient to support the conclusion of the trier of facts as to the defendant's sanity at the time of the offense. United States v. Collier, 5 Cir. 1972, 453 F.2d 1173, 1176-1177; Gordon v. United States, 5 Cir. (1971) 438 F.2d 858, 885, cert. denied, 1971, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56; Blake v. United States, supra, 407 F.2d at 911.

This court has never precisely defined the quantum of evidence necessary to constitute sufficiency for each of these determinations, though the level obviously rises from the first to the third. Indeed exact quantification, even if possible, would probably be undesirable. Instead, through the painful process of case-by-case adjudication we have educed a set of general principles to guide both the trial court in exercising its role of weighing the evidence as a matter of law and the appellate court in reviewing that exercise. Foremost among these principles is the realization that "each case must be decided upon its own facts with careful attention to the weight of the evidence on each side." Nagell v. United States, 5 Cir. 1968, 392 F.2d 934, 937. Applying these principles to the case sub judice, we have concluded that appellant's challenges to the sufficiency of the evidence must fail.

The defense theory was that McCracken suffered from psychomotor epilepsy, developed traumatically during World War II from a gun blast in the face, from malaria, or from both, which caused him to suffer frequent seizures, especially at times of stress, manifested by tearing, salivation, and jerking or jabbing movements of the right hand.

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Acts of violence might be committed during the seizures, and McCracken would have no subsequent memory of such conduct. According to the theory, McCracken was bitter about his failure to receive a service-connected disability allowance. When he went to Dr. McGill, hoping a threat would produce action on his application, he suffered a seizure that caused the unintentional shooting

In support of this theory the defense presented the expert testimony of Dr. Morris H. Lampert, a Texas neurologist who had been treating McCracken for epileptic disorders for ten years. Dr. Lampert testified about the general characteristics and effects of psychomotor epilepsy, including seizures, automatism, aggressive or hostile behavior, alteration in personality, and amnesia. He also testified concerning the defendant's own condition, concluding that though treatable, McCracken was probably not curable. In addition, a number of lay witnesses—relatives, fellow patients and attendants at the V.A. hospital, and two jailers—described in detail McCracken's actions during various observed seizures over the years.

On a number of occasions this court has said that it takes only a slight quantum of evidence to raise the issue of insanity. E. g., United States v. Collier, supra, 453 F.2d at 1176; Gordon v. United States, supra, 438 F.2d at 885. The very strong case presented by the defense was certainly more than sufficient to this end, and placed the burden of proving sanity beyond a reasonable doubt on the Government.

In determining whether the Government met its burden at least enough to warrant submission of the question of insanity to the jury, both the amount and kind of evidence presented by the Government are important. As we noted in Brock v. United States, supra, 387 F.2d at 258, however, "the nature and quantum of rebuttal evidence sufficient to present a jury question is to some degree determined by the strength of the case for insanity." Thus it is possible for the Government to meet its burden without using expert testimony on the sanity question. In Mims v. United States, supra, 375 F.2d at 143-144, we outlined techniques by which the Government might meet its burden by discrediting the defense experts:

Expert opinion evidence may be rebutted by showing the incorrectness or inadequacy of the factual assumptions on which the opinion is based, "the reasoning by which he progresses from his material to his conclusion," the interest or bias of the expert, inconsistencies or contradictions in his testimony as to material matters, material variations between the experts themselves, and defendant\'s lack of co-operation with the expert. Also, in cases involving opinions of medical experts, the probative force of that character of testimony is lessened where it is predicated on subjective symptoms, or where it is based on narrative statements to the expert as to past events not in evidence at the trial. In some cases, the cross examination of the expert may be such as to justify the trier of facts in not being convinced by him.

No more than a brief review of the Government's case is necessary for us to conclude that the trial court did not err in denying McCracken's motion for directed verdict of acquittal and in submitting the question of insanity to the jury. The Government presented one expert witness, Dr. H. B. Fain, the Acting Chief of Psychiatry at the United States Medical Center for Federal Prisoners at Springfield, Missouri. Dr. Fain testified concerning the examination made about one month after the shooting to determine McCracken's competency to stand trial. He included his own opinion about McCracken's possible sanity at the time of the offense.³ From the absence of residual

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evidence, Dr. Fain concluded that McCracken did not lack substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law at the time of the offense. Dr. Fain did acknowledge that he would not know appellant's mental condition on the day of the shooting if McCracken had in...