SHIRLEY v. THE STATE
56501
Court of Appeals of Georgia
February 9, 1979
Rehearing Denied March 2, 1979
149 Ga. App. 194 | 253 S.E.2d 787
WEBB, Presiding Judge.
SUBMITTED FEBRUARY 6, 1979 — DECIDED MARCH 1, 1979.
Eckhardt & Lee, William Eckhardt, for appellant. Beauchamp & Hedrick, William H. Hedrick, for appellee.
56501. SHIRLEY v. THE STATE.
WEBB, Presiding Judge.
Shirley has appealed his conviction for burglary and possession of a firearm during the commission of a crime. His principal contentions are that the court erred in refusing to charge the jury on his defense of insanity and denying his counsel permission to argue that issue to the jury. He also contends that the trial court should have charged
1. The threshold issue in this case is whether there was any evidence to support a charge on insanity under
2. Remaining enumerations are without merit. Accordingly, the judgment of conviction is affirmed.
Judgment affirmed. McMurray, Smith, Shulman, Banke and Birdsong, JJ., concur. Deen, C. J., concurs specially. Quillian, P. J., dissents.
SUBMITTED SEPTEMBER 6, 1978 — DECIDED FEBRUARY 9, 1979 — REHEARING DENIED MARCH 2, 1979 —
DEEN, Chief Judge, concurring specially.
This case involves and invokes a hybrid version of “act of God,” “act of Satan” and “Act of drunkenness” testimony militating toward societal forgiveness under insanity and delusional compulsion defenses. All three of these could be classified as crutches of excusability in shifting the blame to someone else. These arguments vary little from the popular sociological and psychological debates as to the origin of aggression and violent and destructive traits, that is, either heredity or environment. The proponents of the former theory are adamant that aggression is due to alleged animal ancestral innate latent instincts, while the latter are equally sure that destructive tendencies are learned from others in society. These two arguments are also crutches of shifting the blame.
Presiding Judge Quillian makes a strong scholarly argument that the legislature has modified the “right from wrong” test to include “mental illness.” One might cite further that drunkenness has been reclassified as an illness of alcoholism, instead of a wrongful act. Many intellectuals teach today that situation ethics or circumstances determine whether an action is right or wrong. Some say there really is no right or wrong but only “sick or well.” My only response is that “one convinced against his will is of the same opinion still.”
The “McNaughton Rule” is based on the philosophy that humans have a free will, do not act on innate instincts of the lower order, and are responsible for their acts based on a right and wrong test. I believe this is still the law, but also agree that no evidence was presented that appellant could not distinguish right from wrong, therefore there was no error in the charge.
“The right-wrong test has its roots in England. There, by the first quarter of the eighteenth century, an accused escaped punishment if he could not distinguish ‘good and evil,’ i.e., if he doth not know what he is doing,
The dissent cites and relies heavily on psychiatrists, Drs. Guttmacher, Weihofen and Zilboorg, in chiding the legal profession‘s having muddied up and confused psychiatric garbled verbiage stating that the law should follow rather than lead, but to stay at a close and sufficient pace as to “keep in sight of the rest of the procession.” Even Judge David L. Bazelon, author of the Durham decision which substantially revised the Federal Insanity Test, acknowledges and states the error of many psychiatric conclusions: “Zilboorg‘s appraisal can be evaluated now. He was wrong.” “Psychiatrists and Adversary Process,” by David L. Bazelon, p. 176, Bio-medical Ethics and the Law, Humber and Almeder, Plenum Press, New York, 1976. Bazelon states further: “Psychiatry, I suppose, is the ultimate wizardry” and “In view of the inherent lack of certainty in psychiatric (as in other scientific) decisions, we held that the question of adequacy must be weighed on the basis of the ‘state of the art.’ ” Ibid., pp. 173 and 179. Psychiatrists, as lawyers, disagree as to “mental illness.”
“A psychiatrist who accepts as his ‘patient’ a person who does not wish to be his patient, defines him as a ‘mentally ill’ person, then incarcerates him in an institution, bars his escape from the institution and from the role of mental patient, and proceeds to ‘treat’ him against his will—such a psychiatrist, I maintain, creates ‘mental illness’ and ‘mental patients.’ He does so in exactly the same way as the white man who sailed for Africa, captured the Negro, brought him to America in shackles, and then sold him as if he were an animal, created slavery and slaves.” Ibid., p. 169, “Involuntary Mental Hospitalization,” Thomas Szasz.
To comprehend the obsession of many experts to eliminate the simple understandable moral or immoral “right-wrong” test from the jury and substitute a more
I trust lay people, non-experts, to best decide among the experts, based on a less complicated right-wrong test of responsibility rather than compounding the problem by substituting a sick-well test of irresponsibility. I would affirm.
QUILLIAN, Presiding Judge, dissenting.
I respectfully dissent from the majority holding. In particular, I cannot agree with the statements that the “threshold issue in this case is whether there was any evidence to support a charge on insanity under
The primary thrust of the defendant‘s appellate and trial arguments was that the trial court erred “in refusing to charge the jury on the defense of insanity . . . [and] in refusing to charge the jury on Code Section 27-1503 . . . [and] in calling counsel to the Bench and informing counsel for appellant and counsel for co-defendant that they could not argue the defense of insanity to the jury and if they attempted to do so they would be stopped by the Court.”
The testimony of the defendant, now 29 years of age, was that on the day preceding the robbery he and his co-defendant had ingested mushroom juice, “diet pills [and] speed.” He had “been on drugs” since he was 11 years old, and “alcohol and drugs” since age 17. He had taken “barbiturates, speed, THC, heroin, [and] morphine.” He had been “committed to . . . Central State Hospital . . . [for] drugs and alcoholism and . . . psychotherapy . . . [for] almost 10 months.” He had been treated at the Spalding County mental health center and placed on medication. Just prior to the burglary, he and his co-defendant — Ms. Hopper, “prayed for a long time . . . [He] thought it was alright . . . to go in there and get clothes . . . because I thought God was going to grant us just a few clothes.” Subsequently the defendant testified: “they was [sic] out to get Floyd Shirley, Lucifer was there. Q. Lucifer was there? A. That‘s right. Q. Who is Lucifer, we [sic] hadn‘t testified yet, who is that? A. That‘s Satan, yes sir, he has testified . . .” As argument to the jury was about to commence, the defendant stated aloud: “The devil is here, Lucifer is among us.” The court cautioned the defendant that he would be removed if further outbursts occurred.
Defendant‘s sister confirmed her brother‘s use of drugs and alcohol and commitment to the Central State Hospital. She testified that “in the last year or two . . . he just doesn‘t seem sane at all.” From the foregoing evidence, we must determine: First — whether the issue of “insanity” was raised — which would require an instruction under either
“Insanity” is a misunderstood, misused, and abused word. From a lawyer‘s viewpoint, there are two types of insanity — legal and medical. Although they are related they are not the same. From a doctor‘s viewpoint, psychiatrists and psychologists in particular, they resist using the word “insanity” except in a legal context. Psychiatrists are attempting “to eliminate the word insanity from medical nomenclature.” Singer, Insanity and the Law 3. They prefer the terms “mental health” and “mental illness” when referring to psychological problems of their patients. They categorize a patient‘s mental illness in terms of neuroses, psychoses, organic brain disorders and congenital deficiencies. Weihofen, Mental Disorder as a Criminal Defense 13. However, lawyers and laymen alike have always used the antipodal terms of “sane” and “insane” when describing the mental health of a person.
A person would be considered medically insane “if he is mentally ill and is (a) likely to injure himself or others if not hospitalized or (b) incapable of caring for his physical health or safety.”
Legal insanity relates only to the mental responsibility of a defendant at the time the crime was committed. Ricks v. State, 240 Ga. 853, 854 (242 SE2d 604). Legislators and jurists alike have confused the mental responsibility of a defendant for a crime — which is relevant only at the time of the commission of the crime, with mental competency of the defendant to stand trial — which is to be determined only at the time of the trial. See Ricks v. State, 240 Ga. 853, 854, supra;
Mental competence also has a double meaning. Mental competence, when used in a criminal law context, relates only to the mental capacity of a defendant to intelligently participate in his trial. Pate v. Robinson, 383 U. S. 375 (86 SC 836, 16 LE2d 815) (1966);
Mental competence, when used in a civil law context, relates to “mental illness” and the capacity of a person to contract, to make a will, or whether a guardian is required. See
Under Georgia law in effect at the time of this incident a person was “mentally ill” if he had “a psychiatric disorder which substantially impair[ed his] mental health.”
Accordingly, under the civil statutes, a person is “mentally ill” if he has “a psychiatric disorder which substantially impair[ed] health,” and under the criminal procedure statute if the defendant was found “mentally incompetent” to stand trial he was referred for treatment under the “mentally ill” statute or “mentally retarded” statutes. Thus the law treats the “mentally incompetent” accused as a “mentally ill” person in need of guardian (
Legal insanity is a complete defense for criminal acts committed during such period of insanity.
Professor Weihofen correctly concluded that the word “insanity” “is used by courts and legislators indiscriminately to convey either of two meanings: (1) any type or degree of mental defect or disease, or (2) such a degree of mental defect or disease as to entail legal consequences” such as avoidance of a contract or will, the need for a guardian, civil commitment to a hospital, or denial of criminal responsibility for an illegal act. Weihofen, Mental Disorder as a Criminal Defense 5.
The various “insanity” statutes of the several states affirm the psychiatrists’ conclusions. The statutes are more noteworthy for their diversity than their unanimity. (See Weihofen, Mental Disorder as a Criminal Defense, pp. 129-173, for mental responsibility tests of all states.) The greater majority of states have adopted variations of the “McNaughton Rule.” (He did not know the nature or quality of the act, thus he could not distinguish between right and wrong. Biggs, The Guilty Mind 105). A large number of states have added the “irresistable impulse” test to the McNaughton Rule. (The accused was unable to adhere to the right even though he knew the act was wrong. The so-called “sexual psychopath” and the “kleptomaniac” generally fall within this category.) Professor Weihofen refers to the “delusional compulsion . . . which overmastered his will” test as that “peculiar rule followed in Georgia.” Weihofen, Mental Disorder as a Criminal Defense 105. Dr. Guttmacher states that the “delusion defense,” a “naively legalistic attempt to devise
In summary, we find that legal insanity represents societal forgiveness, for it is exactly what the legislature says it is, and only insofar as society is inclined to forgive a criminal act because of a mentally disordered defendant, the insanity statute will be couched in those words.
In Georgia there was thought to be only two types of legal insanity, total (
It has also been the practice in Georgia to enter two types of “insanity” pleas. There is a plea of not guilty by reason of insanity which is entered on the merits. See Durham v. State, 239 Ga. 697 (1) (238 SE2d 334). There is also a “special plea of insanity.” Spencer v. State, 236 Ga. 697 (2) (224 SE2d 910). The Supreme Court held that “the issue raised by a special plea of insanity at the time of trial is not, whether the defendant can distinguish between right and wrong, but is, whether he is capable at the time of the trial of understanding the nature and object of the proceedings going on against him and rightly comprehends his own condition in reference to such proceedings, and is capable of rendering his attorneys such assistance as a proper defense to the indictment preferred against him demands.’ ” Crawford v. State, 240 Ga. 321, 326 (240 SE2d 824). However, as stated earlier, “insanity” relates only to a defendant‘s mental responsibility for the offense charged, and not whether he is “mentally incompetent” to stand trial.
A review of prior decisions in Georgia reveals inaccurate and incorrect usage of the word “insanity” as being interchangeable with “psychotic,” “psychopathic,”
Psychiatrists take great delight in this confusion of terms by legislators and jurists, and argue that “[t]he law, then, should attempt to follow rather than to lead [psychiatry], although it is also true that it should at least follow at a sufficient distance to be able to keep in sight of the rest of the procession!” Overholser, The Psychiatrist and the Law 7. If judges, legislators, and lawyers would confine usage of the word “insanity” to “mental responsibility” of an accused for the criminal act charged, and “mental competence” — in criminal trials, to the capacity or ability of an accused to participate in his trial, such consistency would remove most of the ambiguity that surrounds the “insanity” defense. See Crawford v. State, 240 Ga. 321, 326, supra.
It is significant that the Uniform Code Committee and the American Law Institute both adopted the same test for mental responsibility of an accused for his criminal acts (10 Uniform Laws Annotated 490; American Law Institute, Model Penal Code § 4.01), and mental competence to assist in his trial (10 Uniform Laws Annotated 491; American Law Institute, Model Penal Code § 4.04). These tests reflect enlightened attitudes of our jurists, legal scholars, and medico-legal experts in this area of expertise. I do not subscribe to the “100 year rule,” e.g. this is the way we have been doing it for 100 years so it must be right. If the jurists were correct in their first assumption in the McNaughton case of 1843 of accepting psychiatric knowledge of that day in determining criminal responsibility, I am of the opinion that in 1979 psychiatric knowledge has progressed past that known in 1843 and we should again defer to their area of expertise in formulating a legal test for insanity — rather than clinging to a test which has no basis in
Thus, although Georgia‘s “insanity” tests are set out in
First, the title to
Has there been a confusion of terms by the legislature? Under
The meaning of the term “mental incompetency” as used in
The fact that the legislature enacted an amendment indicates it “intended to change the original act by creating a new right or withdraw an existing one. Therefore, any material change in the language of the original act is presumed to indicate a change in legal rights.” 1A Sutherland Statutory Construction 178, § 22.30. In the instant case, the title and the body of the Act were changed to authorize a new plea and an acquittal if supported by the evidence for “mental incompetency at the time of the crime.”
In looking at the preamble to the 1977 Act, the legislature stated its intent and purpose: “An act to amend Chapter 27-15 . . . so as to change the title of said Code Chapter; to provide procedures in criminal trial involving contentions that the defendant was insane or mentally incompetent at the time of the act charged . . . to amend an Act providing that in all criminal trials in the courts of this State wherein a contention is made on behalf of the accused that he was mentally incompetent at the time the acts charged against him were committed, the judge shall require the jury to so specify in verdicts of acquittal based on such contention . . .” Ga. L. 1977, pp. 1293-1294 (Emphasis supplied.)
The defendant did contend that he was mentally incompetent at the time of the acts charged. The majority opinion addresses only the issue of “insanity” under
“Other statutes dealing with the same subject as the one being construed — commonly referred to as statutes in pari materia — comprise another form of extrinsic aid deemed relevant as a source from which conclusions as to how a statute should be interpreted and applied . . .” 2A Sutherland Statutory Interpretation 287, § 51.01. Further, “words or clauses may be enlarged or restricted to harmonize with other provisions of an act.” Id. 65-66, § 46.07. Both Code sections,
With this background, we turn first to the question of whether the issue of mental responsibility (insanity) as defined by
To raise the issue of “competency” or “mental illness” requires a lesser degree of evidence than that required to establish whether a person can distinguish between right and wrong, or committed an act because of a delusional compulsion which overmasters one‘s will. Testimony of a lay witness would be sufficient. Smith v. State, 141 Ga. App. 720, 722 (234 SE2d 385). Particularly where the witness gives the basis for her opinion as observation over the past two years that “. . . he just doesn‘t seem sane at all.” See Spencer v. State, 236 Ga. 697, 700 (224 SE2d 910).
I submit that the evidence introduced was sufficient to raise an issue of “mental incompetency” of the defendant at the time of the act charged requiring an instruction under