United States v. William James Thigpen, United States of America v. Herman Campbell Barnett, Jr.

4 F.3d 1573, 39 Fed. R. Serv. 874, 1993 U.S. App. LEXIS 27308, 1993 WL 393567

Opinions

BIRCH, Circuit Judge:

These cases require us to consider whether a defendant raising an insanity defense is entitled to an instruction informing the jury of the commitment procedure codified in the Insanity Defense Reform Act of 1984, 18 U.S.C. §§ 4241^47. We hold that a defendant is not entitled to such an instruction unless necessary to cure an erroneous view of the consequences of a not guilty by reason of insanity verdict due to inadmissible evidence or improper argument at the defendant’s trial. We also direct district courts to instruct juries not to consider the consequences of a not guilty by reason of insanity verdict when that defense is presented.

I. BACKGROUND

A. Barnett

Appellant Herman Campbell Barnett, Jr., was convicted of four armed bank robberies. At trial, Barnett argued, as his only defense, that he was not guilty by reason of insanity. An expert presented by the defense testified that Barnett suffered from a chronic and severe case of post-traumatic stress disorder as a result of his experiences during three tours of duty as a combat soldier in Vietnam. Barnett requested the court to instruct the jury that if he was found not guilty by reason of insanity, he would not be released, but would be committed to a suitable medical facility until he proved that his release would not endanger himself or others. The district court denied the proffered instruction, ruling that “in deciding this case [the jury] should not be concerned with the effect of their verdict but merely its correctness.” R5^467. The court charged the jury as follows.

The question of punishment should never be considered by you in any way in deciding this case. If the defendant is convicted, the matter of punishment is for the Court to decide. As to any verdict you make, you should not be concerned with its consequences. You’re to be concerned only with the correctness of any verdict that you make.

R5-529-30.

B. Thigpen

William James Thigpen, a felon, illegally obtained three semi-automatic pistols. At times prior to trial, he resided in an adult congregate living facility for the mentally disturbed and at another medical facility. He complained of voices informing him that others were trying to kill him. Thigpen was charged with making false statements concerning his criminal background when purchasing the pistols and with illegally possessing those weapons after a felony conviction. His sole defense was insanity.

At trial, two psychiatrists testified that Thigpen suffered from a schizophrenic disorder. The jury also heard testimony that Thigpen had been diagnosed by no less than eleven psychiatrists as schizophrenic. During the prosecutor’s cross-examination of the psychiatric expert called by the defense, the following transpired:

Q: [Mr. Devereaux, Assistant United States Attorney] If Mr. Thigpen stays on his medications, he’s okay to go out in the world amongst society; correct? Is that your opinion?

A: He’s not okay. He’s stable and can function.

Q: Well, he’s released from the hospital, he’s on society?

R2-110-11. Defense counsel did not object following this exchange. The prosecutor also asked a series of questions aimed at eliciting an opinion as to whether a person suffering from schizophrenia would necessarily be unable to appreciate the nature of wrongfulness of his actions. The court overruled Thig-pen’s objections to these questions. The prosecutor was permitted to ask the government’s expert a similar question on direct examination, again over Thigpen’s objection.

Thigpen requested a jury instruction that if found not guilty by reason of insanity, he would “be committed to a suitable facility until ... it is found that he would not create substantial risk of bodily injury to another person or serious damage to the property of another.” Rl-26. The district court denied the proposed instruction.

Barnett’s conviction was affirmed by a panel of this court. We vacated the panel opinion and consolidated Barnett’s appeal with that of Thigpen, prior to the entry of an opinion in the latter case, for en banc consideration. United States v. Thigpen, 989 F.2d 1116 (11th Cir.1993).

II. JURY INSTRUCTION

Barnett and Thigpen argue that, upon request, a defendant presenting an insanity defense is entitled to an instruction that, if found not guilty by reason of insanity, the defendant is not released, but committed to a medical facility. This argument is premised first on the Insanity Defense Reform Act of 1984. Prior to the passage of this legislation, a defendant acquitted by reason of insanity in federal court was released.¹ In the absence of any federal provision for the confinement and treatment of defendants found not guilty by reason of insanity, the states would frequently institute civil commitment proceedings against federal defendants released following an insanity verdict. See United States v. McCracken, 488 F.2d 406, 416-17 (5th Cir.1974). With the passage of the Insanity Defense Reform Act, however, a defendant acquitted by reason of insanity is committed to a medical facility for care and treatment until the court finds that his release will not “create a substantial risk of bodily injury to another person or serious damage of property of another due to a present mental disease or defect.” 18 U.S.C. § 4243(d).

Prior to the passage of the Insanity Defense Reform Act, the former Fifth Circuit disallowed a requested instruction that the defendant would be committed to a psychiatric hospital if acquitted by reason of insanity. Pope v. United States, 298 F.2d 507 (5th Cir.1962), cert. denied, 381 U.S. 941, 85 S.Ct. 1776, 14 L.Ed.2d 704 (1965). The defendants argue, however, that because of the commitment procedure established by the Insanity Defense Reform Act such an instruction should be granted upon request. The defendants augment this position with a second argument: an instruction regarding the consequences of an insanity verdict is required to correct the jurors’ possible misconception that a not guilty by reason of insanity verdict will result in the release of an insane, potentially dangerous defendant.

The Insanity Defense Reform Act does not address the issue of whether the trial court should instruct the jury about the consequences of an insanity verdict. In the absence of any statutory provision speaking to this issue, Barnett and Thigpen rely on the following language from the Senate Committee Report on the Insanity Defense Reform Act:

The Committee endorses the procedure used in the District of Columbia whereby the jury, in a case in which the insanity defense has been raised, may be instructed on the effect of a verdict of not guilty by reason of insanity. If- a defendant requests that the instruction not be given, it is within the discretion of the court whether to give it or not.

S.Rep. No. 98-225, 98th Cong., 2d Sess. (1983), reprinted in 1984 U.S. C.C.A.N. 3182, 3422. A committee report does not have the force of law, nor does this statement purport to explain ambiguous or vague language appearing in the statute. “While a committee report may ordinarily be used to interpret unclear language contained in a statute, a committee report cannot serve as an independent statutory source having the force of law.” International Bhd. of Elec. Workers Local Union No. 474 v. NLRB, 814 F.2d 697, 712 (D.C.Cir.1987). “[A] cardinal principle of the judicial function of statutory interpretation is that courts have no authority to enforce principles gleaned solely from legislative history that has no statutory reference point.” Id. In the absence of any statutory provision addressing the issue, we conclude that the Insanity Defense Reform Act does not require the trial court to instruct the jury about the consequences of a not guilty by reason of insanity verdict. Accord United States v. Shannon, 981 F.2d 759, 763-64 (5th Cir.1993), petition for cert. filed, - U.S.L.W.-(April 12, 1993) (No. 92-8346); United States v. Frank, 956 F.2d 872, 881-882 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 363, 121 L.Ed.2d 276 (1992).

Nor are we persuaded that an instruction is required to correct the jury’s possible misconception concerning the fate of a defendant acquitted by reason of insanity. The former Fifth Circuit held that “[e]xcept where a special statutory provision mandates a jury role in assessment or determination of penalty, the punishment provided by law for offenses charged is a matter exclusively for the court and should not be considered by the jury in arriving at a verdict as to guilt or innocence.” McCracken, 488 F.2d at 423.

Unless otherwise provided by statute, it is the duty of the court to impose sentence, or make such other disposition of the case as required by law, after the facts have been decided by the jury. To inform the jury that the court may impose minimum or maximum sentence, will or will not grant probation, when a defendant will be eligible for a parole, or other matters relating to disposition of the defendant, tend[s] to draw the attention of the jury away from their chief function as sole judges of the facts, open the door to compromise verdicts and to confuse the issue or issues to be decided.

Pope, 298 F.2d at 508; See also Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1 (1975) (“jury [has] no sentencing function and should reach its verdict without regard to what sentence might be imposed”).

Moreover, the fact that, since McCracken and Pope, Congress has established a procedure for the automatic commitment of a defendant acquitted by reason of insanity does not alter this principle. In McCracken, the jury was informed that the defendant, if found not guilty by reason of insanity, would be turned “a loose.” 488 F.2d at 424. Although this was an accurate summary of federal law at the time of McCracken’s trial, the former Fifth Circuit reversed the conviction.

[Application of the principle that it is error to instruct the jury on punishment or consequences of a certain verdict does not depend on the correctness of the information imparted to the jury. It is error to tell the jury about the consequences of a certain verdict even if they are mandatory. It was as erroneous for the trial judge to tell the jury that McCracken would be released if found insane as it would have been to tell them that the court intended to impose a life sentence if he were found guilty of murder in the first degree.

Id. at 425 (citations omitted). The instruction requested by Barnett and Thigpen would require us to disregard the established canon that juries are not to be informed of or concerned with the consequences of their verdicts.

Furthermore, the defendants’ argument asks that we undermine another settled principle of law: juries are presumed to follow the court’s instructions. See, e.g., United States v. Saldarriaga, 987 F.2d 1526, 1532 (11th Cir.1993) (per curiam); United States v. Simon, 964 F.2d 1082, 1087 (11th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. , 123 L.Ed.2d 476 (1993); Adams v. Wainwright, 709 F.2d 1443, 1447 (11th Cir.1983) (per curiam), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984). The jury that found Thigpen guilty was instructed that “the question of punishment should never be considered by the jury in any way in deciding the case. If the Defendant is convicted the matter of punishment is for the Judge to determine.” Rl-23.² Similarly, in Barnett’s ease, the jury was charged not to consider matters of punishment. Barnett’s jury was also instructed that it should not be concerned with the consequences of its verdict. The hidden premise of the defendants’ argument is that jurors will violate both the court’s instructions and their oath to render a verdict based on the facts without consideration of the consequences. We are not convinced that the risk that jurors may erroneously believe that a defendant acquitted by reason of insanity is released warrants dispensing with this circuit’s precedents, which teach that juries are not to be concerned with the consequences of their verdicts and that, if so instructed, juries are presumed to render verdicts without doing so. Juries are not informed of mandatory minimum or maximum sentences, nor are they instructed regarding probation, parole, or the sentencing range accompanying a lesser included offense.³ We decline to assume the task of distinguishing those dispositional consequences of which the jury should be advised. An instruction informing the jury that a defendant found not guilty by reason of insanity will be committed to a psychiatric facility all but invites the jury to consider the likelihood and timing of his release. We therefore hold that a defendant is not entitled upon request to an instruction concerning the consequences of an insanity verdict.

Moreover, we are also concerned that where the jury is only instructed not to consider the punishment occasioned by its verdict, the jury may feel permitted, at least tacitly, to consider the consequences of a not guilty by reason of insanity verdict. Accordingly, to prevent any such speculation, we direct district courts to specifically instruct juries not to consider the consequences of a not guilty by reason of insanity verdict when that defense is presented.

As an alternative position, the defendants contend that an instruction as to the consequences of an insanity verdict would be appropriate where the evidence tends to show that the defendant is prone to uncontrolled, violent conduct. According to this argument, both Barnett, who was convicted of multiple armed robberies, and Thigpen, who illegally possessed firearms while under the influence of voices telling him that others intended to hurt him, would be entitled to an instruction regarding the consequences of an acquittal by reason of insanity. We reject this argument and hold that the general rule against informing jurors of the consequences of a verdict governs such eases. We do think, however, that this general rule admits of one exception. If a witness or the prosecutor states or implies that the defendant would be released if found not guilty by reason of insanity, a curative instruction would be appropriate to ensure that the jurors are not misled into an erroneous view of the consequences of such a verdict. The rule articulated in McCracken, which we confirm today, requires no less nor permits any more. A curative instruction regarding the consequences of an insanity verdict is appropriate where the jury hears inadmissible evidence or improper argument or questions by the government from which it may infer that the defendant will be released as a consequence of an insanity verdict. Accord Evalt v. United States, 359 F.2d 534, 544-46 (9th Cir.1966) (reversing conviction based on district court’s failure to instruct the jury regarding commitment procedure that would follow an insanity verdict where the prosecution was allowed to comment upon the consequences of the verdict).⁴ Such an instruction may vary as necessary to cure the specific error committed at trial, but should generally inform the jurors that, if found not guilty by reason of insanity, the defendant will be committed to a medical facility until the court determines that the defendant’s release would not pose a substantial risk of bodily injury to another person or serious damage to property of another due to a then present mental disease or defect.

Barnett does not suggest that the evidence or arguments at his trial misled the jury as to the consequences of a verdict of not guilty by reason of insanity. Thigpen argues, however, that the prosecutor’s .questions suggested that he would, be released if acquitted by reason of insanity. The prosecutor asked the defense expert whether Thigpen would be suitable for release “out in the world amongst society” if he “stays on his medications.” R2-110. As a followup question, the prosecutor remarked “he’s released from the hospital, he’s on society?” Id. at 111. Thigpen neither objected nor requested a curative instruction following these remarks. He instead allowed these questions and the answers of the witness to remain in evidence and did not specify the conduct of the prosecutor as a ground for giving his proposed instruction on the consequences of an insanity verdict.

Because Thigpen did not contemporaneously object to these questions, we determine only whether the district court’s failure to give a curative instruction sua sponte constitutes plain error. The prosecutor’s questions do not clearly suggest that, following an insanity verdict, the defendant would enjoy the sporadic and unrestrained psychiatric care that he had received in the past. Any error was therefore not clear or obvious. United States v. Olano, - U.S. -, -, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). Further, Thigpen has not shown that the prosecutor’s questions affected the outcome of the case or otherwise implicated his substantial rights. Id. at -, 113 S.Ct. at 1778; Fed.R.Crim.P. 52(b). Therefore, in neither Barnett nor Thigpen’s case does the failure of the respective trial courts to instruct the jury regarding the consequences of an insanity verdict require reversal.⁵

III. EXPERT TESTIMONY

Thigpen contends that, in violation of Federal Rule of Evidence 704(b), the district court allowed the government to elicit expert testimony as to his ability to appreciate the nature or wrongfulness of his actions. “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.” Fed.R.Evid. 704(b). At trial, Thigpen sought to prove as an affirmative defense that “at the time of the commission of the acts constituting the offense, the-defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wpongfulness of his acts.” 18 U.S.C. § 17. The psychiatric experts offered by the government and the defense both testified that Thigpen suffered from schizophrenia. When cross-examining the defense’s expert, the prosecutor asked a series of questions to elicit an opinion as to whether such a condition by necessity implies that a person would be unable to appreciate the nature and quality of his acts. The prosecutor asked a similar question of its psychiatric expert on direct examination. No question by the prosecutor asked the witness to opine whether Thigpen was able to appreciate his actions.

Expert testimony concerning the nature of a defendant’s mental disease or defect, including its typical effect on a person’s mental state is admissible. United States v. Davis, 835 F.2d 274, 276 (11th Cir.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2874, 101 L.Ed.2d 909 (1988). In Davis, the defendant, who attempted to establish an insanity defense based on a multiple personality disorder, objected to the testimony of a government expert that such a disorder does not in itself indicate that a person does not understand what he is doing. 835 F.2d at 276. We upheld the admission of this testimony since it “did not include an opinion as to Davis’ capacity to conform his conduct to the law at the time of the robbery.” Id. (emphasis added). Similarly, the testimony elicited by the government in Thigpen’s case concerned the general effect of a schizophrenic disorder on a person’s ability to appreciate the nature or wrongfulness of his actions.

In United States v. Manley, 893 F.2d 1221, 1224 (11th Cir.) (per curiam), cert. denied, 498 U.S. 901, 111 S.Ct. 259, 112 L.Ed.2d 216 (1990), we upheld the exclusion of opinion testimony by a defense expert where counsel inquired as to the mental capacity of a hypothetical person with each of the pertinent characteristics of the defendant. While “a thinly veiled hypothetical” may not be used to circumvent Rule 704(b), the rule does not bar “an explanation of the disease and its typical effect on a person’s mental state.” Manley, 893 F.2d at 1224 (citing Davis, 835 F.2d at 276). The government’s questions in Thigpen’s case sought the latter and were therefore allowed without error.

IV. CONCLUSION

When a defendant raises the defense of insanity, the function of the jury is to determine, based solely on the evidence introduced at trial, whether the defendant is guilty, not guilty, or not guilty by reason of insanity. The consequences of the verdict dictated by the evidence are not properly considered by the jury and are therefore not an appropriate subject for instruction. Only where the jury’s attention has been improperly drawn to the consequences of an acquittal by reason of insanity should the jury be charged, upon contemporaneous objection and request, as to the actual ramifications of such a verdict. We AFFIRM the convictions of Barnett and Thigpen.

Footnotes

1

. The District of Columbia was the only federal jurisdiction with a statute providing for commitment after an acquittal by reason of insanity. See United States v. McCracken, 488 F.2d 406, 415-17 (5th Cir.1974).

2

. This charge tracks the language of this circuit's pattern instruction. Pattern Jury Instructions, Basic Instruction 10.4 (Eleventh Circuit District Judges Ass’n 1985).

3

. "The jurors decide the facts in accordance with the rules of law as stated in the instructions of the Court. The Court imposes sentence or makes such other disposition of a defendant as required by law. This is eminently sensible and in the absence of a statutory requirement there is no duty on the Court to inform the jury of what would happen to a defendant if this or that finding is made by them.” White v. United States, 387 F.2d 367, 367-68 (5th Cir.1967) (per curiam).

4

. Similarly, of those states that do not automatically give an instruction regarding the consequences of an insanity verdict upon request, several allow such an instruction to cure an erroneous view of the consequences of such a verdict. See, e.g., Dipert v. State, 259 Ind. 260, 286 N.E.2d 405, 407 (1972) ("[A] defendant, through an appropriate channel, such as a curative instruction or statement by the judge, will be entitled to inform the jury of [post-trial confinement] procedures where an erroneous view of the law on this subject has been planted in their minds.”); State v. Huiett, 271 S.C. 205, 246 S.E.2d 862, 864 (1978) (”[U]nless the commitment charge is curative under the circumstances of a particular trial or is required to clarify a misstatement of the law and can be given without legal prejudice to either appellant or the State, the rule that the jury is not concerned with the disposition of the defendant is applicable....”).

5

. Barnett also contends that he was not tried within the period required by the Speedy Trial Act, 18 U.S.C. § 3164(b). The panel opinion rejected this argument, reasoning that the Speedy Trial Act allows the district court to toll the trial deadline during the period associated with Barnett's psychiatric examination as it related to his insanity defense. We reinstate the panel’s treatment of this issue as set out under roman numeral “I" in the panel opinion. See United States v. Barnett, 968 F.2d 1189, 1190-91 (11th Cir.1992), vacated, reh'g en banc granted, 989 F.2d 1116 (11th Cir.1993).