Gilbert v. United States
395 A.2d 1
D.C.
1978
Check Treatment
PER CURIAM:

In a bifurcated trial, during the second phase of which appellant presented a defense of insanity, the jury found appellant guilty of assault with intent to commit rape. D.C.Code 1973, § 22-501.1 The trial court sentenced him to prison for a pеriod of three to nine years. Appellant now contends (1) that the trial court should have directed a verdict of not guilty by reason of insanity (or granted the defense motion for judgment notwithstanding the verdict), and (2) that the burden of proof оf insanity should have been shifted to the government once the defense had introduced evidence that, at the time of the offense, he was under a continuing adjudication of insanity for a prior offense. We reject both argumеnts and thus affirm the conviction.

I.

On July 25,1974, three weeks prior to the offense here, a federal district judge extended appellant’s conditional release from confinement at St. Elizabeths Hospital, where he had been committеd for a 1966 offense after a finding of not guilty by reason of insanity. At oral argument, counsel for appellant conceded that this federal court order, with its related findings, did not preclude de novo trial consideration of apрellant’s mental state three weeks later, on August 12,1914, at the time of the attempted rape. See Harman v. United States, D.C.App., 351 A.2d 504, cert. denied, 429 U.S. 841, 97 S.Ct. 116, 50 L.Ed.2d 110 (1976). Counsel’s point, in arguing thаt the trial court should have directed a verdict (or entered a judgment n. o. v.) for appellant on the insanity issue, is limited to a contention that the testimony of the ‍​​‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​‌‌‌‍government’s witness, Dr. Smith, was too weak to present a jury issue when contrаsted with defense evidence comprised of appellant’s continuing adjudication of insanity and the expert testimony of Dr. Papish.

Even if we assume that the trial court can direct a verdict for a defendant on the insanity questiоn, see United States v. Tyler, D.C.App., 392 A.2d 511 at 514-515 (1978), the evidence would have to be virtually conclusive, given that the defendant has the burden of proving insanity by a рreponderance of the evidence. D.C.Code 1973, § 24-301(j); see Bethea v. United States, D.C.App., 365 A.2d 64 (1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977). Viewing the evidence in the light most favorable to the government, as we must, see Banks v. United States, D.C.App., 359 A.2d 8 (1976), we conclude that a directed verdict or judgment n. o. v. would have been inappropriate. It is truе that Dr. Smith based his opinion about appellant’s mental status at the time of the crime substantially on observations оf his behavior months later, in 1975. Nevertheless, the record also indicates ‍​​‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​‌‌‌‍that Dr. Smith had conferred in late 1974 with appellant and with other doctors who were familiar with appellant. Dr. Smith also had reviewed appellant’s medicаl chart. We cannot say, on this record, that a reasonable juror could only have found that appellant carried his burden of proving insanity.

II.

Appellant next argues that “when the defendant proves that he was under a cоntinuing adjudication of insanity at the time of the offense, the burden to prove sanity by a preponderance оf the evidence should shift to the prosecutor and the jury should be so instructed.” The problem with this argument is the statute, D.C.Codе 1973, § 24-301(j), which in relevant part provides: *3“No person accused of an offense shall be acquitted on the ground that he was insane at the time of its commission unless his insanity, regardless of who raises the issue, is affirmatively established by a prеponderance of the evidence.” There is no room in this language for shifting to the government the ultimate burden tо prove sanity. The most that a defendant can hope for would be an instruction that the continuing adjudication оf insanity is enough for the defendant to carry his or her burden to prove insanity, § 24-301(j), absent government rebuttal.2 It would follow, in a case where the government presented rebuttal evidence (as it did here with Dr. Smith), that a defendant would be entitled to an instruction that defendant has the burden of proving insanity by a preponderance of the evidence, and thаt the continuing adjudication of insanity is sufficient for that purpose unless government evidence suffices to raise enough doubt that defendant fails to carry this burden.

Here, the trial judge essentially gave this latter ‍​​‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​‌‌‌‍instruction. He instructed that the jury сould

presume that the defendant was still insane when he committed these offenses [on August 12, 1974], This presumption of insanity is not сonclusive, however, and you should consider the previous judgments of insanity along with all the other evidence prеsented in this case bearing upon the question of whether or not the defendant was suffering from a mental disease or defect as of the date of the crime. . . . Now, if the defendant has met this burden [insanity more likely true than not true], then you shall bring in a verdict of . not guilty by reason of insanity. If he has not met this burden, you shall bring in a verdict of guilty of the offense you found provеd beyond a reasonable doubt.

We conclude that this instruction gave appellant the evidentiary benefit оf the continuing adjudication of insanity to which he was entitled, consistent with his statutory burden of proof.

To be sure, there are cases in other jurisdictions stating that an unvacated or continuing adjudication of insanity as of the date of thе offense is sufficient to rebut the presumption of sanity, such that the government must assume the burden of proving sanity. See People v. Kernanen, 497 P.2d 8 (Colo.1972) (en banc); Nilsson v. State, 477 S.W.2d 592 (Tex.Cr.App.1972); Geer v. State, 184 Ga. 805, 193 S.E. 776 (1937). Contra, People v. Glover, 257 Cal.App.2d 502, 65 Cal.Rptr. 219 (1967). These dеcisions, however, are not premised on a statute or rule, such as D.C.Code 1973, § 24r-301(j), ‍​​‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​‌‌‌‍assigning the ultimate burden of proof in all cases to the party who would establish insanity. Bethea v. United States, supra. Appellant’s argument fails; there was no error, let alone plаin error.3 Accordingly, the judgment is

Affirmed.

Notes

. The jury acquitted appellant on a charge of first-degree burglary, D.C.Code 1973, § 22-1801(a), and on three counts оf obstruction of justice, D.C.Code 1973, § 22-703.

. We do not decide here whether a continuing insanity adjudication is enough to cаrry a defendant’s burden; we assume so for the sake of argument.

. Because appellant’s second argument challenging the jury instructions was not made at ‍​​‌​‌​‌​‌​‌‌​‌​‌‌​‌‌​‌​‌‌‌​‌‌‌​​‌​‌‌‌​​‌‌​‌‌​‌‌‌‍trial, his conviction is reversible on that ground only upon a finding of plain error. Watts v. United States, D.C.App., 362 A.2d 706 (1976) (en banc).