Mitchell v. Commonwealth

781 S.W.2d 510, 1989 Ky. LEXIS 86, 1989 WL 122569

• Court: Kentucky Supreme Court
• Decided: October 19, 1989
• Docket: 88-SC-316-MR
• Status: Published

Opinions

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Mitchell of the murder of her nine-month-old daughter. She was sentenced to twenty years in prison. She relied on the defense of insanity and was found guilty but mentally ill.

The principal issue presented here is whether the trial judge improperly refused to allow defense counsel to comment on the result of a guilty but mentally ill verdict.

Mitchell gave birth to a baby girl on March 9, 1987. Although originally very happy and excited over the birth of the child, Mitchell became increasingly depressed over the following months. Believing she was failing as a mother and suffering from post partem depression, Mitchell became more troubled and told others of thoughts of suicide and fear that she could harm the baby she loved. She was treated by various physicians and stayed for a short time in a hospital. She suffered from anorexia and insomnia as well as severe depression. In October she attempted to strangle the baby with a cord, and shortly thereafter the district court ordered that she not be left alone with the child. In December of 1987, she threw the child in a lake. When the baby cried, she retrieved her from the water, suffocated the child and threw her back into the lake. She voluntarily informed the police that she may have murdered her daughter. At trial her defense was insanity, but the jury found her guilty of murder but mentally ill pursuant to K.R.S. 504.120.

Mitchell argues that the trial judge improperly refused to allow comment by defense counsel on the result of a guilty but mentally ill verdict. She argues that the jurors are totally confused as to what the consequences of their actions in returning a particular verdict will actually be. She contends that the legislature in 1982 enacted the guilty but mentally ill provision in response to a public outcry against a perceived misuse of the insanity defense. She claims that well meaning jurors do not want to bear the public stigma of having turned loose a child killer even though they may believe that such an individual should be relieved of criminal responsibility and receive psychiatric treatment. She argues that the jurors believe this can be accomplished by the middle ground of guilty but mentally ill verdict. Mitchell asserts that such is not the case.

Payne v. Commonwealth, Ky., 628 S.W.2d 867 (1981) clearly and unambiguously stated that the principal function of the jury is to determine guilt or innocence. The constitutional right to a trial by jury is limited to that determination. The consideration of future consequences such as treatment, civil commitment, probation, shock probation and parole have no place in the jury’s finding of fact and may serve to distort it.

Payne, supra, held that neither the prosecutor, defense counsel or the court may make any comment about the consequences of a particular verdict at any time during a criminal trial. Earlier, Edwards v. Commonwealth, Ky., 554 S.W.2d 380, 383 (1977) held that external considerations have no legitimate bearing on the jury’s factual determination of guilt or innocence.

The enactment of K.R.S. 504.120 presents no reason to change the rule enunciated in Payne for cases involving the insanity defense. The trial judge did not commit any error in refusing to allow defense counsel to comment on the result of a guilty but mentally ill verdict.

As noted in Payne, the denial of jury instructions on the consequences of an acquittal by reason of insanity does not prohibit both prosecuting and defense counsel during closing argument to comment on the consequences of the verdict.

Mitchell also presents fourteen other assignments of error. Upon careful consideration of each claim of error, we find them to be without merit.

The argument that the trial judge improperly admitted photographs and a videotape of the body of the baby is nonprejudicial. Harper v. Commonwealth, Ky., 694 S.W.2d 665 (1985); Napier v. Commonwealth, Ky., 426 S.W.2d 121 (1968).

In view of the overwhelming evidence against the defendant, the testimony by the pathologist was harmless.

The trial judge correctly overruled a motion for a directed verdict on the charge of attempted murder. Mitchell was not entitled to a directed verdict of acquittal in regard to the murder charge. There was no variance between the bill of particulars and the proof as to the suffocation of the child presented at trial.

The trial judge did not err in refusing to allow into evidence the case record and notes of the social worker. There was no abuse of discretion.

The trial judge did not abuse his discretion in refusing to permit the expert witness for the defense to testify from portions of a learned treatise. In addition the trial judge was within his discretion in admonishing the same expert with respect to the manner of answering questions.

The trial judge did not err in allowing Dr. Silva to present rebuttal testimony for the prosecution. Mitchell opened the door by her own expert witness and cannot close it based on alleged privilege. Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985). We believe that the psychiatric expert for the prosecution gave proper testimony and his medical opinions were both properly expressed and permissibly admitted into evidence. The trial court did not err in denying a motion for a directed verdict of acquittal at the close of all the evidence.

Finally, the trial judge properly instructed the jury pursuant to K.R.S. 504.120. There was no evidence that Mitchell was incompetent to be sentenced. The fact that she may have been mentally ill at the time of the offense is not the same question as that of competency to be sentenced.

The judgment of conviction is affirmed.

STEPHENS, C.J., and COMBS, J., concur. GANT, J., concurs in result only. VANCE, J., files a separate concurring opinion. LEIBSON, J., files a separate dissenting opinion in which LAMBERT, J., joins.