Government of the Virgin Islands v. Fredericks

578 F.2d 927, 15 V.I. 558

• Court: Court of Appeals for the Third Circuit
• Decided: April 24, 1978
• Docket: No. 77-1963
• Status: Published

Opinions

OPINION

HUNTER, Circuit Judge

Defendant Ivar Fredericks appeals from his conviction of voluntary manslaughter, 14 V.I.C. § 924(1), in the District Court of the Virgin Islands. He has been sentenced to imprisonment for a term of six years. This appeal challenges the adequacy of the jury instructions relating to his insanity defense. We affirm.

I

In the early hours of the morning of March 7, 1977, Fredericks drove to a dilapidated house, owned by his brother, in Christiansted, St. Croix. Defendant had been drinking before he arrived at the building. The house was then temporarily occupied by some of his brother’s acquaintances.

Fredericks broke into the house, and the occupants, including Eric Baird, a/k/a “Shorty,” attempted to flee. Defendant caught up with Mr. Baird, followed him outside and across the street, and repeatedly beat him with a pipe wrench. The victim died before reaching the hospital.

Defendant then drove from the house to a lot approximately one quarter of a mile from his residence and fell asleep in his car. The car was later located by investigators and searched pursuant to a warrant. Inside were foünd the pipe wrench used in the beating and a T-shirt stained with decedent’s blood.

Fredericks was arrested on March 7, 1977 and charged with first degree murder, 14 V.I.C. § 922(a) (1), in an information filed on March 9. Subsequently Judge Warren H: Young entered an order requiring examination of defendant by Dr. Olaf Hendricks, a psychiatrist.

On April 20, 1977, defendant filed notice of his intent to rely on the defense of insanity, based on the initial report of Dr. Hendricks. Judge Young, by order dated May 4, 1977 and amended on May 6 and 13, committed defendant to the Knud-Hansen Memorial Hospital on St. Thomas for psychiatric observation, examination and treatment.

Fredericks’ jury trial began on June 6, 1977. The principal defense relied on by defendant was insanity, with an interrelated claim of intoxication. Three expert witnesses were called to support the defense: Dr. Hendricks, who had first examined defendant after his arrest, Dr. Leighman Lu, a psychiatrist at Knud-Hansen Memorial Hospital, and Dr. Kurt Konietzko, a clinical psychologist at the hospital.

Dr. Hendricks, after recounting Fredericks’ case history, testified that he had initially diagnosed defendant as an alcoholic paranoid but had later reached the opinion that he was a latent schizophrenic. Dr. Lu disagreed with both of these diagnoses and stated his finding that Fredericks had a “paranoid personality.” Dr. Konietzko analyzed defendant’s condition as a paranoid personality with an underlying latent schizophrenia. Dr. Hendricks gave his opinion that the beating death of Mr. Baird was a result of Fredericks’ mental illness, but Dr. Lu testified that he found no evidence of a causal relationship.

On June 9, the jury returned a verdict of not guilty on the charge of first degree murder, but guilty on the lesser included offense of voluntary manslaughter. On June 29, Fredericks was sentenced to imprisonment for a term of six years with directions that he be allowed to continue psychiatric treatment.

Defendant filed a timely notice of appeal, raising two issues: whether the trial court erred in denying his request that the jury be given a definition of “mental disease or defect”; and whether the court wrongly refused to instruct the jury on the consequences of a verdict of not guilty by reason of insanity. Both questions were properly preserved for appeal by timely objections to the jury charge.

II

Under Virgin Islands law, “persons who are mentally ill and who committed the act charged against them in consequence of such mental illness” are not considered capable of committing a crime. 14 V.I.C § 14(4). After charging the jury by repeating the statutory definition for insanity, the trial judge restated the standard which the jury should apply in evaluating an insanity defense by reference to the test formulated by then Chief Judge Biggs in United States v. Currens, 290 F.2d 751, 774 (3d Cir. 1961). The jury was charged:

[T]he Defendant shall be entitled to a verdict of not guilty by reason of insanity, if, at the time of the alleged criminal conduct, the Defendant, as a result of mental illness or mental defect, lacked substantial capacity to conform his conduct to the requirements of the law.¹

The dissent argues that the Virgin Islands statute on insanity was constructed around the Durham rule enunciated in Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954). The statute was apparently influenced by the “product test” of Durham which was rejected in the Currens opinion, see 290 F.2d at 771-774. While of course this court cannot supplant the Virgin Islands statute with its own notions of the insanity defense, we do not read the Currens test as being fundamentally at odds with the statute.² This court has given some indication that the Currens test may properly be used in the Virgin Islands. Bee Government of the Virgin Islands, v. Bellott, 11 V.I. 181, 495 F.2d 1393, 1397-98 & n.3 (3d Cir. 1974). Both parties to this appeal seem to have accepted the trial judge’s use of Currens language; no objection was raised at trial, and neither party has briefed or argued this issue on appeal. In light of these circumstances, we do not believe that the charge given to the Fredericks jury contained a fundamental error which this court should raise sua sponte. See F.R. Crim. P. 30; Government of the Virgin Islands v. Navarro, 513 F.2d 11, 16 (3d Cir.), cert. denied, 422 U.S. 1045 (1975). We shall therefore consider the contentions of the appellant in the context of the charge actually given to the jury.

. The defendant’s first contention on appeal is that the rule of Currens which was applied by the trial judge should have been augmented by the following language:

Mental disease (or defect) includes any abnormal condition of the mind, regardless of its medical label, which substantially affects mental or emotional processes and substantially impairs behavior controls. The term “behavior controls” refers to the processes and capacity of a person to regulate and control his conduct and his actions.

In considering whether the defendant had a mental disease (or defect) at the time of the unlawful act with which he is charged, you may consider testimony in this case concerning the development, adaptation and functioning of these mental and emotional processes and behavior controls.

The judge ruled that he would not give the charge. In the course of instructing the jury, however, the judge did take cognizance of the definition of mental disease or defect by commenting:

I don’t think I need to go into all the ramifications on what is or what is not a mental illness. You have had that given to you by the experts and even by the lawyers. As I say, it is your decision.

After the charge had been given, defendant objected to the omission of his requested instruction. In overruling the objection, the judge commented, “That is argument and not instructions.”

Defendant argues that the instruction he requested was necessary to avoid jury confusion over the correlation of the medical labels used by expert witnesses to describe his mental condition and the legal definition of “insanity.” At trial, much of the examination and cross-examination of the medical experts dealt with the appropriate label to attach to defendant’s condition.

2a, Currens emphasized that the medical label used by experts is not determinative on the issue of insanity; the jury has an independent role in determining criminal responsibility based on its weighing of all evidence, expert and lay, of the defendant’s mental condition before and after the acts charged. 290 F.2d at 772-75. Defendant contends that, without the definition he proposed, the jury had no basis except the medical labels on which to make a determination of whether defendant suffered from a mental disease or defect.

Much of the substance of the proposed instruction was already covered in the judge’s charge to the jury under Currens. The requested instruction contained the concept of a mental disease or defect as an abnormal condition of the mind which substantially impairs “behavior controls.” It also defined “behavior controls” as the capacity of a person to regulate and control his conduct or actions. Both of these aspects of the requested charge are contained in the Currens instructions given during Fredericks’ trial that defendant should be acquitted if

at the time of the alleged conduct, the Defendant, as a result of mental disease or defect, lacked substantial capacity to conform his conduct to the requirements of the law.

The part of the requested charge that directed the jury not to be bound by the medical labels used by the experts and to consider all evidence bearing on “the development* adaptation, and functioning of . . . mental and emotional processes and behavior controls” is covered by the following part of the jury charge:

In considering the issue of insanity, you may consider all of the circumstantial evidence just prior to the incident, during the incident, and after the incident. You should consider all of the lay testimony, that is, all the non-expert testimony that you had presented to you. You should consider all the evidence that has been admitted as to the Defendant’s mental condition before and after the offense charged, as well as the testimony as to the Defendant’s mental condition at the time of the incident. . . .

. . . [Y]ou are not bound by the experts’ opinion and you may accept or reject their opinions. You are not bound by their definitions, their labels as to what is or what is not a mental illness. It is for you to decide . . . whether Mr. Fredericks was, at the time [of the homicide], mentally ill.

Further, even if the contents of the requested instruction were not substantially covered by the charge to the Fredericks’ jury — specifically the fixing of a medico-legal definition of mental disease or defect as an “abnormal condition of the mind which substantially affects mental or emotional processes” — we do not believe that such a charge should be mandated. The proposed instruction would not illuminate the charge given and could conceivably confuse the jurors in their application of it. We do not think it self-evident that the concepts of “mental or emotional processes” and “behavior controls” would be more intelligible to a jury than the concept now embodied in Currens of a mental disease or defect which deprives defendant of the substantial capacity to conform his conduct to the requirements of the law. Additionally, the evidence adduced during the Fredericks’ trial did not bear closely on these terms of the requested charge. Indeed, we are not convinced that this specification of psychiatric terminology is correct in light of current (let alone future) psychiatric thought.

We also believe that requiring that defendant’s proposed instruction be given would conflict with the responsibility of the jury in considering an insanity defense. As this Court indicated in the Currens opinion, the decision of whether a defendant is affected by a mental disease or defect rests with the jury’s evaluation of all lay and medical evidence in the case. 290 F.2d at 772-74. See Government of the Virgin Islands v. Bellott, supra, 495 F.2d at 1397-98; United States v. Collins, 491 F.2d 1050 (5th Cir.), cert. denied, 419 U.S. 857 (1974); Blake v. United States, 407 F.2d 908, 913 (5th Cir. 1969) (en banc). The requested instruction, insofar as not covered by the Currens charge, directs the jury to trial testimony given in terms of “mental or emotional processes” and “behavior controls” as the determinate of this decision. The definition of mental disease or defect is essentially a factual, medical question, not a legal issue. The court should not encroach upon the jury’s function of resolving possibly competing psychiatric views of this definition.

The development of the law regarding the insanity defense in federal courts supports our conclusion. While almost all the courts of appeals have adopted a standard for insanity-similar to that of our circuit in Currens, only the Court of Appeals for the District of Columbia has insisted that instructions to the jury contain a “legal definition” of mental disease or defect.

The first appearance of the sort of instruction requested by defendant was in McDonald v. United States, 312 F.2d 847 (D.C. Cir. 1962) (en banc). At that time the District of Columbia court was following the insanity test of Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954), which required the jury to determine whether the acts charged were the “product” of a mental disease or defect.³ In McDonald, the court noted that its experience under Durham had shown that a “judicial definition” of disease or defect was needed to emphasize that “neither the court nor the jury is bound by ad hoc definitions or conclusions as to what experts state is a disease or defect.” 312 F.2d at 851.

The American Law Institute in its Model Penal Code and this court in its decision in Currens similarly noted the problems of vagueness in the Durham “product” test. Instead of attempting to define more closely the term “mental disease or defect,” both the Institute and this court departed from Durham.⁴ The ALI formulated a rule which depends on whether the defendant, as a result of a mental disease or defect, either lacks the substantial capacity to appreciate the wrongfulness or criminality of his conduct or lacks the substantial capacity to conform his conduct to the requirements of the law.⁵ This court’s rule in Currens was derived in part from the ALI’s test. 290 F.2d at 774 n.32.

Under both the ALI and the Currens rule, the problem of vagueness in the Durham test is ameliorated. As the dissent points out, the jury still faces two distinct issues: 1) whether the defendant suffers from a mental disease or defect and 2) whether that condition deprives him of the substantial capacity to conform his conduct to the requirements of the law. Nevertheless, the insertion of the second step gives guidance to the jury which was lacking in Durham. The jury, when informed of the result of a mental disease or defect which would constitute legal insanity, is able better to understand what a mental disease or defect is.

The approach of the ALI and this circuit, which has omitted the McDonald definition of mental disease or defect, is now widely accepted among federal courts.⁶ Although some of these courts have discussed the criticism of the Durham test raised in McDonald, they have assumed that the ALI test would eliminate the problem.⁷

The sole exception currently is the District of Columbia court. When that court adopted the ALI standard, it ruled that the McDonald definition should be retained to cure the “inherent ambiguity” of the term “mental disease or defect.” United States v. Brawner, 471 F.2d 969, 983-84 (D.C. Cir. 1972) (en banc). As we mentioned above, we do not find inherently ambiguous the concept of a mental disease or defect which deprives defendant of the substantial ability to conform his conduct to the requirements of the law. We therefore agree with the majority of circuits which have not inserted the McDonald instruction into the ALI test. We hold that under a Currens charge as was given in this case, the trial judge was not required to give the instruction requested by Fredericks on the “legal definition” of mental disease or defect.

Ill

Defendant’s second claim is that the trial judge improperly refused to inform the jury during instructions of the consequences of a verdict of not guilty by reason of insanity. Following such a verdict, the defendant faces mandatory commitment proceedings under 5 V.I.C. § 3637 (a).⁸

Defendant attempted to direct the jury’s attention to the disposition of a defendant after an insanity verdict during two phases of the trial. First, during voir dire, he requested that the jury be told that, following a verdict of not guilty by reason of insanity, a defendant would be committed to a public institution. This information would be followed by the question, whether any juror, knowing this, would find it difficult voting for such a verdict.

The requested question was discussed during a conference in chambers. The prosecutor objected on the grounds .that, it was improper to inform the jury of the consequences of a verdict, since these should not influence their deliberations on the evidence. The defense counsel answered that he feared that a juror would hesitate to agree to a verdict of not guilty by reason of insanity if he felt that defendant would thereafter be allowed to “walk out.”

The court ruled that the question would be given. The trial judge expressed two reasons for his decision. First, if a juror disagreed with the idea of institutional confinement, he might be unwilling to assent to an insanity verdict. Next, the judge expressed his concern over the common misapprehension that an insanity verdict allows defendant to go free.⁹ The judge therefore made the following statement to the array from which all of Fredericks’ jurors were selected:

If your verdict, if the jury’s verdict comes out not guilty by reason of insanity, the Defendant must be committed to a public institution for custody and care and will not be discharged from that institution until the Court is satisfied that he has regained his capacity for judgment, discretion and control so that he no longer represents a danger to himself or to others.

Now, having that in mind, is there anyone who would have difficulty returning a verdict such as an insanity verdict, not guilty by reason of insanity, if it is warranted, if the facts warrant such a verdict, is there anyone here that would have difficulty with such a verdict if it is warranted? If so, please stand.

I might elaborate a little bit, some people feel that just going to an institution is not enough if a person had done some act that a person should normally, a sane person would be punished for, so if anyone has that difficulty or has that position, would you please stand?

There was no affirmative response.

The second attempt to inform the jury came when the court entertained requests for instructions. The defendant submitted the following proposed instruction:

You are instructed that if you find the defendant not guilty by reason of mental illness, you must state that fact in your verdict. If you do so find, the law in this jurisdiction requires that the court shall thereupon commit the defendant to a suitable public institution for custody, care and treatment from which he shall not be discharged until the court is satisfied that he has regained his capacity for judgment, discretion and control of his affairs and social relations.

The charge was not given. The jury was directed not to consider what punishment might result from a guilty verdict.

Defendant objected to the omission of the instruction, which contained the same information as was given all jurors during voir dire. The court answered,

I am denying that because I don’t feel that, that was important to find out the state of mind of jurors on voir dire, but that it is not a proper instruction to tell them what might happen as a result of their verdict.

In this appeal defendant argues that the instruction informing the jury of the consequences of a verdict of not guilty by reason of insanity should be given to insure that jurors do not labor under the misapprehension that the defendant would go free after such a verdict. Defendant contends that jurors, from common knowledge, know the general consequences of the verdicts of guilty and not guilty but often carry with them into deliberations a misunderstanding of the consequences of an insanity verdict. He concludes that, if jurors wrongly believe that an insane and possibly dangerous defendant will be released after a verdict of not guilty by reason of insanity, they will feel constrained by fear for the public safety to return a guilty verdict. Fredericks relies on cases in the District of Columbia¹⁰ and in a growing number of states¹¹ which require that an instruction substantially like the one requested be given.¹²

We first note that, for the Virgin Islands, this argument is not foreclosed by our decision in United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975). That case held that, in federal prosecutions in this circuit, the trial judge may properly refuse to give an instruction dealing with the consequences of an insanity verdict. We pointed out that, except in the District of Columbia, there is no federal law requiring commitment proceedings for a defendant found not guilty by reasons of insanity.¹³ We therefore concluded that it would be misleading in a federal prosecution to inform the jurors that an insane defendant would be committed. Id. at 1047-48.

In the Virgin Islands, the legislature has provided for commitment proceedings following an insanity verdict, 5 V.I.C. § 3637(a). The rationale in Alvarez is therefore inapplicable to Virgin Islands prosecutions. The question of whether an instruction should be given on consequences of an insanity verdict is an open one under Virgin Islands law.

Resolution of this issue poses a difficult balance of the functions of the judge and jury. It is clear that the consequences following any verdict are solely a matter for the judge and for the legislature. What is done with defendant after any verdict should not in the slightest affect the decision of the jury on whether that defendant is guilty or innocent. See, e.g., United States v. McCracken, 488 F.2d 406, 425 (5th Cir. 1974); Lyles v. United States, 254 F.2d 725, 728 (D.C. Cir. 1957) (en banc), cert. denied 356 U.S. 961 (1958).

Nonetheless, the requested instruction on the consequences of the insanity verdict presents a unique situation where there may be a common misunderstanding, not of the particulars of the result of a verdict, but of the nature of the verdict itself.¹⁴ The words “not guilty” contained in the insanity verdict invoke the idea that a potentially dangerous defendant will be unconditionally released after trial, while in fact he faces mandatory corrective proceedings. A juror who feels that a verdict importing freedom for defendant will endanger the community might, out of his sense of social responsibility, be swayed from rational deliberation and be unwilling to weigh properly the evi__ dence of defendant’s mental condition. See, e.g., United States v. Grimes, 421 F.2d 1119, 1125 (D.C. Cir. 1969), cert. denied, 398 U.S. 932 (1970); Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294 (1975). This type of problem arises solely with respect to the insanity verdict.

To accept defendant’s reasoning, however, would be a substantial departure from the usual rules for allocating responsibility between the judge and jury. See, e.g., United States v. McCracken, 488 F.2d 406, 423 (5th Cir. 1974); United States v. Borum, 464 F.2d 896, 901 (10th Cir. 1972). He asks, in effect, that we assume that the jury will disregard its instructions to ignore the consequences of its verdict and then allow erroneous extraneous information to affect its judgment. The cure proposed is to give the jury the correct information, which it should then be instructed to ignore.

Further, we note that accepting this reasoning could be prejudicial to a criminal defendant. A juror who is convinced that a defendant is dangerous, but who believes that he did not in fact commit the acts charged, might be willing to compromise on a verdict of not guilty by reason of insanity rather than insist on an acquittal. See, e.g., State v. Wallace, 333 A.2d 78, 78 (Me. 1975); People v. Adams, 26 N.Y.2d 129, 257 N.E.2d 610, 309 N.Y.2d 145, 151, cert. denied, 399 U.S. 931 (1970).

The premise of defendant’s argument is not that the judge made an erroneous statement of the law, but rather that he failed to rebut a misconception possibly held by jurors before they entered the courtroom. In this case, however, each juror was informed during voir dire questioning that the defendant must be civilly committed after a verdict of not guilty by reason of insanity. This information was given upon defendant’s request for the express purpose of informing the jurors of these consequences. Thus, whatever the belief of the jurors before their involvement with this case, all of them were told the correct knowledge from an authoritative source before the trial began.¹⁵

We therefore find no prejudice to defendant in this case. Even if the judge did commit an error in failing to give the instruction, the error would have been harmless. We have no doubts that the jury reached its verdict based solely on the evidence. Since the judge gave the jurors the information which defendant requested, this is not an appropriate case to decide whether, as a matter of Virgin Islands law, an instruction on the consequences of an insanity verdict must be given when requested by defendant.¹⁶

We find no reversible error in this case and affirm.

1 The charge to the jury on the insanity defense was as follows:

The law provides that a jury shall bring in a verdict of not guilty by way of insanity if at the time of the alleged criminal conduct, the defendant was suffering from a mental illness and that he committed the act charged against him as a consequence of such mental illness. That actually comes right from our Code. That is right in the wording of our Code. The Court has put this another way, that the Defendant shall be entitled to a verdict of not guilty by reason of insanity, if, at the time of the alleged criminal conduct, the Defendant, as a result of mental illness or mental defect, lacked substantial capacity to conform his conduct to the requirements of the law.

Now, the burden is on the Government to prove beyond a reasonable doubt either that the Defendant was not suffering from a mental disease or defect, or else that he, nevertheless, had substantial capacity to conform his conduct to the requirements of the law. If the Government has not established this beyond a reasonable doubt, you shall bring in a verdict of not guilty by reason of insanity.

In considering the issue of insanity, you may consider all of the circumstantial evidence just prior to the incident, during the incident and after the incident. You should consider all of the lay testimony, that is, all the non-expert testimony that you had presented to you. You should consider all the evidence that has been admitted as to the Defendant’s mental condition before and after the offense charged, as well as the testimony as to the Defendant’s mental condition at the time of the incident. The evidence as to the Defendant’s mental condition before and after the incident has been admitted solely for the purpose of assisting you to determine the Defendant’s mental condition on the date and time of the alleged offense.

. . . [Y] ou are not bound by the experts’ opinion and you may accept or reject their opinions. You are not bound by their definitions, their labels as to what is or what is not a mental illness. It is for you to decide whether Mr. Fredericks did, in fact, kill Mr. Baird, either murder first, murder second, or voluntary manslaughter, and if you so decide, then it is for you to decide whether Mr. Fredericks was, at the time mentally ill. If you so decide, then you must go one step further and you are to decide whether he acted as he did as a consequence or by reason of that mental illness.

I don’t think I need to go into all the ramifications on what is or what is not mental illness. You have had that given to you by the experts and even by the lawyers. As I say, it is your decision.

2 The dissent relies heavily upon a lengthy letter written by former Chief Judge Biggs on July 19, 1956, to the chairman of the Advisory Committee on the Revision of the Virgin Islands Code when it was considering legislation on the subject of criminal insanity. In his exhaustive and scholarly opinion in United States v. Currens, 290 F.2d 751 (3d Cir. 1961), dealing with the proper standard to be adopted in this circuit, Judge Biggs had the opportunity to consider “approximately seventy decisions . . . built around the Durham decision and the Durham formula over a period of approximately seventy years.” Id. at 769. Judge Biggs noted that the Durham formula had been “severely criticized on the ground that it is too vague and indefinite to provide a workable rule for the determination of a criminal responsibility,” Id. at 771, and projected a rule which needfully fills the vague interstices of the formula which is the basis of the Virgin Islands statute.

We would note that emphasis on technical labels for defendant’s mental condition should be minimized. See United States v. Currens, 290 F.2d 751, 772 (3d Gir. 1961); United States v. Brawner, 471 F.2d 969, 984 (D.C. Cir. 1972) (en banc); United States v. Chandler, 393 F.2d 920, 926 n.17 (4th Cir. 1968) (en banc).

3 “[A]n accused is not criminally responsible if Ms unlawful act was the product of mental disease or defect.” Durham v. United States, 214 F.2d 862, 874-75 (D.C. Cir. 1954).

4 ALI Model Penal Code § 4.01, Comments 5, 6 (Tent. Draft No. 4, 1955); United States v. Currens, 290 F.2d 751, 771 (3d Cir. 1961).

5 ALI Model Penal Code § 4.01(1) (1962):

Mental Disease or Defect Excluding Responsibility

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law.

6 See United States v. Freeman, 357 F.2d 606 (2d Cir. 1966); United States v. Chandler, 393 F.2d 920 (4th Cir. 1968) (en banc); Blake v. United States, 407 F.2d 908 (5th Cir. 1969) (en banc); United States v. Smith, 404 F.2d 720 (6th Cir. 1968); United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967) (en banc); United States v. Frazier, 458 F.2d 911 (8th Cir. 1972); Wade v. United States, 426 F.2d 64 (9th Cir. 1970) (en banc); Wion v. United States, 325 F.2d 420 (10th Cir. 1963) (en banc), cert. denied, 377 U.S. 946 (1964). See also Amador Beltran v. United States, 302 F.2d 48, 52 (1st Cir. 1962).

7 See, e.g., Wade v. United States, 426 F.2d 64, 68-69, 71-73 (9th Cir. 1970) (en banc); Blake v. United States, 407 F.2d 908, 914, 916 (5th Cir. 1969) (en banc); United States v. Smith, 404 F.2d 720, 726, 727 (6th Cir. 1968); United States v. Chandler, 393 F.2d 920, 925-26, 928-29 (4th Cir. 1968) (en banc).

8 5 V.I.C. § 3637 (a) provides:

(a) If the defense is the mental illness of the defendant, the jury shall be instructed, if they find him not guilty on that ground, to state that fact in their verdict, and the court shall thereupon commit the defendant to a suitable public institution for custody, care and treatment from which he shall not be discharged until the court is satisfied that he has regained his capacity for judgment, discretion and control of the conduct of his affairs and social relations.

9 The court stated in part:

■ I think most people say “Well, an insanity defense, I wouldn’t allow that because all that happens is he goes to an institution and he is there about half year and then he is free.”

10 Lyles v. United States, 254 F.2d 725 (D.C. Cir. 1957) (en banc); cert. denied, 356 U.S. 961 (1958). See also United States v. Brawner, 471 F.2d 969, 996-98 (D.C. Cir. 1972) (en banc).

11 Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294 (1975); State v. Babin, 319 So. 2d 367, on rehearing, 319 So. 2d 379 (La. 1975); Schade v. State, 512 P.2d 907 (Alaska 1973); People v. Cole, 382 Mich. 695, 172 N.W.2d 354 (1969); Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965), cert. denied, 384 U.S. 1012 (1966); State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975) (based on state statute); State v. Pike, 516 S.W.2d 505 (Mo. App. 1974) (same). See also State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976); State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975); State v. Shoffner, 31 Wis. 2d 412, 143 N.W.2d 458 (1966) (“prefer” that instruction be given).

We note, however, that the majority of states either forbid the instruction or merely permit it to be given in the trial judge’s discretion. See State v. Wallace, 333 A.2d 78, 78 (Me. 1975) ; Lonquest v. State, 495 P.2d 575, 584 (Wyo.), cert. denied, 409 U.S. 1006 (1972); People v. Adams, 26 N.Y.2d 129, 257 N.E.2d 610, 309 N.Y.S.2d 145, 151, cert. denied, 399 U.S. 931 (1970). See generally State v. Hood, 123 Vt. 273, 87 A.2d 499 (1963); State v. Wade, 96 Conn. 238, 113 A. 458 (1921); Annot., 11 A.L.R.3d 737 (1967 & Supp. 1977).

12 Fredericks also urges that the instruction he requested is required by the language of 5 V.I.C. § 3637(a), quoted at note 8 supra. We read the statute to require only that the jury be instructed to return a verdict of not guilty by reason of insanity if they conclude that defendant is not guilty for that reason. The remainder of the section deals with the court’s treatment of defendant after such a verdict.

13 Under federal law outside of the District of Columbia (where the commitment procedures of 24 U.S.C. §§ 211, 212 (1970) and D.C. Code § 24-301 are available), a defendant acquitted by reason of insanity is “simply released with the hope that State authorities may commence civil commitment proceedings.” United States v. Alvarez, 519 F.2d 1036, 1048 (3d Cir. 1975).

14 Cases which have required the instruction on the consequences of an insanity verdict have emphasized that this verdict is unique and, unless guided by statute, have consistently and firmly distinguished this requirement from informing the jury of consequences of other verdicts. See, e.g., State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 602 (1976); State v. Babin, 319 So.2d 367, 379-80 (La. 1975); People v. Cole, 382 Mich. 695, 172 N.W.2d 354, 365 (1969); Lyles v. United States, 254 F.2d 725, 728 (D.C. Cir. 1957) (en banc), cert. denied, 356 U.S. 961 (1958).

15 We note that it is not at all clear that the jury does in fact misunderstand the consequences of a verdict of not guilty by reason of insanity. Compare, e.g., State v. Hood, 123 Vt. 273, 187 A.2d 499, 501 (1963), with, e.g., Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294, 300-301 (1975), and Lyles v. United States, 254 F.2d 725, 728 (D.C. Cir. 1957) (en banc), cert. denied, 356 U.S. 961 (1958).

16 Several courts have first observed prejudice to a defendant absent the sort of charge Fredericks requests before deciding to require such an instruction. See, e.g., State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976); Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294 (1975).