114 U.S. App. D.C. 120, 312 F.2d 847 (D.C. Cir. 1962)
McDonald was convicted of manslaughter and sentenced to from five to fifteen years' imprisonment.1 He had been charged with second degree murder for aiding and abetting his employer, Davis, in the shooting of one Jenkins during an altercation.2 The District Court allowed this appeal in forma pauperis.3 This court appointed new counsel.4 After the case was heard by a division of this court, a rehearing en banc was ordered sua sponte.5
At trial a psychiatrist and a psychologist testified that the defendant had a mental defect, principally because his I.Q. rating shown by various tests was below the average intelligence range of 90 to 110.6 His overall I.Q. was 68.7 Neither witness was able to say whether appellant's mental defect stemmed from organic injury or from some other cause.8 The psychologist testified that a person suffering from a mental defect would have less ability than normal persons to distinguish between right and wrong in complex situations.9 The psychologist also testified that such a person would tend to act impulsively under stress and would readily become dependent upon and be strongly influenced by someone who befriended him.1011 The psychiatrist stated that McDonald would lack the ability of normal persons to foresee the consequences of his acts.1213 The psychiatrist offered an opinion that appellant's relationship to Davis was to some extent a product of his mental deficiency.14
After the charge was concluded, the court called a bench conference at which defense counsel expressed substantial satisfaction with the instructions.15 Defense counsel made no reference to or request concerning the so-called Lyles instruction on mandatory commitment of persons found not guilty by reason of insanity.16 Thereupon the court told the jury that it could return any one of five possible verdicts: guilty of second degree murder, guilty of manslaughter, guilty of assault with a dangerous weapon, guilty of assault, or not guilty.17 Earlier in the charge the court had instructed on criminal responsibility.18 The court had stated that if the jury was not satisfied beyond a reasonable doubt that the act was not a product of a mental defect, then the verdict must be not guilty because of insanity.19
The Government urged that defense counsel's failure to object showed it appeared affirmatively that appellant did not want the Lyles instruction.20 The Government also urged that the omission of an insanity verdict from the court's lists of alternatives must be deemed harmless because of reference to it elsewhere.21 The Government urged that the evidence was insufficient to require an instruction on responsibility.22
Whether the trial court was required to instruct the jury on the consequences of a verdict of not guilty by reason of insanity?23
Under Lyles v. United States, whenever the defense of insanity is fairly raised the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity.24 This statement is required unless it appears affirmatively on the record that the defendant did not want the instruction.25
Yes. The established facts show that after the charge concluded the court called a bench conference at which defense counsel expressed substantial satisfaction with the instructions.26 Defense counsel made no reference to the Lyles instruction on mandatory commitment.27 The court then repeated to the jury that it could return any one of five possible verdicts excluding not guilty by reason of insanity.28
The court had earlier instructed that if the jury was not satisfied beyond a reasonable doubt that the act was not a product of a mental defect the verdict must be not guilty because of insanity.29 The Government urged that counsel's failure to object showed affirmative waiver.30 The court was unable from its study of the record to say that this defendant affirmatively waived the Lyles instruction.31 The rule therefore required the instruction.32
Its omission was reversible error.33
The trial court was required to give the Lyles instruction and its failure to do so requires reversal and remand for a new trial.34
Related opinions on this issue
Judge Danaher concurs in Parts I, II and III of the opinion.35 He has not changed his view on the Lyles point with respect to hospital confinement following a verdict of not guilty by reason of insanity.36 Here the defense did not request such an instruction although various other requests were submitted.37
Rule 30 provides that no omission from the charge shall be assigned as error unless before the jury retires objection be made stating distinctly the matter to which counsel objects and the grounds of his objection.38 The judge specifically asked trial counsel if he had any other objection to the charge as given.39 Counsel replied no other objection to the charge.40
Of course the instruction if requested would have been given.41 But in view of the trial strategy the accused may not have wanted an instruction on the Lyles question.42 We now seem to say that the defense could sit back, wait to see what verdict the jury might reach, and thereafter secure reversal here because it does not affirmatively appear that the Lyles instruction was waived.43
Lyles thus becomes a legal trap for the trial judge who relied upon the position voiced by counsel.44 Judge Danaher does not subscribe to that view.45
Judge Bastian concurs except that he adheres to the view stated in his opinion in Lyles v. United States.46 He believes the trial court should not be obliged to give in its charge a statement as to the effect of a verdict of not guilty by reason of insanity.47 Judge Bastian believes Parts I and II of the majority opinion are correct and will do much to relieve the natural uncertainty in the minds of the District Court as to the insanity question.48
Chief Judge Miller dissents from the reversal of McDonald's conviction on the ground that the Lyles instruction was not given.49 He is convinced that the majority opinion in the Lyles case is in that respect not an authoritative holding of this court and therefore is not binding on us in this or any other case.50 He thinks moreover that if the Lyles requirement of the meaning instruction is considered authoritative and if it is not overruled nevertheless McDonald's conviction should not be reversed for the failure to give it because it appears affirmatively on the record that McDonald did not want the instruction.51
First as to his suggestion that the Lyles requirement of the meaning instruction is obiter dictum.52 There the majority correctly but unnecessarily say a verdict of not guilty by reason of insanity means that the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies and the court is satisfied that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others.53 The implication is clear that a failure to instruct on the meaning of such a verdict would be regarded as reversible error unless the accused had indicated he did not want the instruction.54
Chief Judge Miller suggests that Point I of the Lyles majority opinion is not an authoritative holding of this court but is a gratuitous essay on the subject with which it deals.55 It decides a question which was not presented by the facts of the Lyles case and was not suggested or discussed by the parties.56
Whether defense counsel's statements after the charge constituted an affirmative waiver of that instruction?57
No. The established facts establish that at the bench conference defense counsel expressed substantial satisfaction with the instructions.60 Defense counsel answered no other objection to the charge but made no reference to or request concerning the Lyles instruction.61 The court thereafter repeated the five verdicts without the insanity option.62 The court was unable from its study of the record to say that this defendant affirmatively waived the Lyles instruction.
Defense counsel's statements did not constitute an affirmative waiver of the Lyles instruction.63
Related opinions on this issue
Judge Danaher states that counsel's approval of the charge without the Lyles instruction and failure to request it effectively and affirmatively indicated he did not want it given.64 The majority imposes too stringent a restriction on the principle of waiver.65 Of course the instruction if requested would have been given.
But in view of the trial strategy the accused may not have wanted an instruction on the Lyles question. We now seem to say that the defense could sit back, wait to see what verdict the jury might reach, and thereafter secure reversal here because it does not affirmatively appear that the Lyles instruction was waived. Lyles thus becomes a legal trap for the trial judge who relied upon the position voiced by counsel.
Chief Judge Miller urges that counsel's approval of the charge without the Lyles instruction and failure to request it shows affirmatively that McDonald did not want the instruction.66 The majority's view of what constitutes affirmative waiver is far too stringent.67 With respect to this the majority merely say we are unable from our study of the record to say that this defendant affirmatively waived the Lyles instruction.68
Their only discussion of the record in this regard is the following after the charge was concluded the court called a bench conference at which defense counsel expressed substantial satisfaction with the instructions making no reference to or request concerning the so-called Lyles instruction.69 Chief Judge Miller thinks this is quite enough to justify the conclusion that defense counsel who undoubtedly was familiar with the Lyles decision deliberately decided he did not want the instruction given.70
Whether the evidence of mental defect was sufficient to require an instruction on criminal responsibility?71
Yes. The established facts include testimony by a psychiatrist and a psychologist that the defendant had a mental defect principally because his I.Q. rating was 68 below the average range of 90 to 110.74 A person suffering from such a defect would have less ability to distinguish right from wrong in complex situations.75 Such a person would tend to act impulsively under stress and would readily become dependent upon and be strongly influenced by someone who befriended him.
McDonald would lack the ability of normal persons to foresee the consequences of his acts. The psychiatrist offered an opinion that appellant's relationship to Davis was to some extent a product of his mental deficiency. This body of testimony constitutes some evidence of mental defect sufficient to require the instruction.76
The evidence of mental defect was sufficient to require an instruction on criminal responsibility.77
Whether the trial court's repeated enumeration of five possible verdicts without including not guilty by reason of insanity was error?78
No. The established facts show that although the court twice enumerated five possible verdicts without including not guilty by reason of insanity the court had earlier instructed at length that if the jury was not satisfied beyond a reasonable doubt that the act was not a product of a mental defect then the verdict must be not guilty because of insanity.81 Defense counsel did not complain that the charge might give the jury the impression that acquittal for insanity was not a possible verdict.82 The charge considered as a whole adequately informed the jury of the insanity verdict option.83 The enumeration was at most an inadvertence that does not require reversal.84
The trial court's repeated enumeration of five possible verdicts without including not guilty by reason of insanity was not reversible error.85
Related opinions on this issue
Chief Judge Miller states that it is inconceivable the jury could have been misled into thinking it could not return a verdict of not guilty by reason of insanity when the judge had so emphatically and at such length instructed that it might do so.86 The listing of five verdicts was plainly not intended to exclude the insanity verdict because it occurred in the context of explaining lesser included offenses.87
To construe this as excluding a verdict of not guilty by reason of insanity which he discussed at such length and with such care in other places in the charge seems to Chief Judge Miller to be not only illogical but also a decided undervaluation of the intelligence of the average jury.88
Whether the trial court's instruction on the relationship between mental disease or defect and the charged act accurately stated the test for criminal responsibility?89
Capacity or lack thereof to distinguish right from wrong and ability to refrain from doing a wrong or unlawful act may be considered in determining whether there is a relationship between the mental disease and the act charged.90 These considerations are not to be regarded in themselves as independently controlling or alternative tests of mental responsibility.91
No. The established facts show that the trial court charged that if the jury found the defendant committed the offense and was suffering from a mental disease or defect which affected him so that he was incapable of distinguishing right from wrong or if he could tell right from wrong was incapable of controlling his actions then the act was the product of the mental abnormality.92 This formulation treated the right-wrong and control factors as independently controlling tests rather than as factors a jury may take into account in deciding whether the act was a product of mental disease or defect.93
The trial court's instruction did not accurately state the test for criminal responsibility.94