THE STATE OF WASHINGTON, Rеspondent, v. ERLING S. MCDONALD, Appellant.
No. 44675
En Banc.
November 17, 1977.
89 Wn.2d 256 | 571 P.2d 930
Arthur R. Eggers, Prosecuting Attorney, and Larry Siegel, Deputy, for respondent.
HICKS, J.—This case presents 10 assignments of error all relating to the insanity defense. Defendant Erling S. McDonald appeals a conviction of two counts of first-degree murder and two counts of first-degree assault for shooting his sister-in-law and her children on May 21, 1975. We affirm the conviction.
Defendant‘s very able court appointed counsel argues that defendant was insane at the time he committed the acts and therefore should not be held criminally responsible. The specific assignments of error will be considered seriatim after discussion of the facts.
Defendant was arrested in Seattle soon after the shootings, having driven a stolen Greyhound bus frоm Walla Walla. He was returned to Walla Walla by authorities, where he gave a confession.
A competency hearing was scheduled and defendant was examined on June 26 by Dr. Bruce Jarvis, a court appointed psychiatrist. Dr. Jarvis concluded that defendant was suffering from paranoid schizophrenia and was incompetent to stand trial. Following a competency hearing and order dated July 10, 1975, defendant was committed for 90
A competency evaluation was filed with the court after 90 days’ observation by three mental health professionals at Monroe: рsychiatrist R. Longanecker, psychologist William Jones, and psychiatric social worker Paltiell Mitchell. They diagnosed defendant as “chronically and profoundly mentally ill” suffering from “chronic and severe paranoid schizophrenia” manifested by “a rigid and elaborate delusional system,” but they concluded defendant was competent to stand trial.
Defendant was returned to Walla Walla and scheduled to stand trial on November 18-21, 1975, subject to another hearing on his competency. At this second hearing Dr. Jarvis, who had reexamined defendant on November 3, disagreed with the Monroe competency evaluation, expressing his belief that defendant was still not сompetent to stand trial although he may have a “factual understanding” of the proceedings. Dr. Longanecker refused to corroborate the evaluation team‘s report that defendant was competent, although his signature appeared on the report. He was equivocal and evasive in answering questions regarding his expert opinion as to defendant‘s competency.
Defendant‘s counsel, Ronald McAdams, also took the stand at the hearing and expressed his reservations about defendant‘s competency to stand trial. Mr. McAdams cited defendant‘s resistance to counsel, his resistance to the suggestion that he was insane or should plead not guilty by reason of insanity, and his belief that he was facilitated in his “mission” by many people and agencies (including Greyhound, which provided a bus with an automatic transmission for defendant to drive to Seattle after the killings, the police who assisted by not stopping him on the way to Seattle, store and motel personnel). Counsel also asserted that defendant felt allegiance to police authorities who assured him he was sane, and resented counsel who attempted to convince him to plead not guilty by reason of insanity, which he eventually did do.
After 2 more months of treatment at Monroe, Mr. Mitchell and the director of the facility, Dr. McCoy, were convinced defendant was competent. The trial court advanced the February 2, 1976, hearing to January 14, 1976, over defense counsel‘s objection. In addition to testimony by Dr. McCoy and Mr. Mitchell that defendant was competent, a letter was admitted from Dr. Jarvis, the original court appointed psychiatrist. Dr. Jarvis had examined the defendant for the third time on January 10, 1976, and concluded that defendant was “vastly improved,” his psychosis “in significant remission at this time,” and that he “is now aware of his peril and has both the capacity and the will to consult with counsel . . . with both rational and factual understanding of the proceedings.” At the end of his report, he stated that “this interview with Mr. McDonald came close to being a normal conversation and, if he holds this improvement, he will certainly continue to be competent for the near future.” Dr. Jarvis also commented that the difference of opinion between him and the Monroe mental health experts as to defendant‘s competency in November could havе been due to the defendant losing ground after he was sent from Monroe to the Walla Walla jail, where Dr. Jarvis saw him for the second time.
So, on the basis of unconflicting psychiatric testimony, defendant was found competent to stand trial. Proceedings commenced on January 22, 1976, with a CrR 3.5 hearing on the admissibility of defendant‘s confession of June 6, 1975. The trial court deemed the confession freely and voluntarily given in the presence of defendant‘s attorney after defendant had received full advice on his constitutional rights.
Trial before jury commenced February 3, 1976, and, as the defense conceded, the only issue was sanity. The facts of the crime were undisputed. The jury convicted on all counts and defendant was sent to the State Penitentiary at Walla Walla, for two consecutive life terms. Motions were made and denied for a directed acquittal on the basis of defendant‘s insanity and to have the testimony of Dr. McCoy and Mr. Mitchell stricken because, as adherents to a minority theory of psychiatry called transactional analysis, they failed to apply the M‘Naghten test in making their determinations.
Defendant‘s personal history is rife with unresolved conflicts with parents and ex-wives and the internal demons which afflict most of us in some way. The record shows two periods of commitment and a year of private therapy prior to defendant‘s arrival in the state of Washington. In 1970 he was hospitalized for a nervous breakdown in Maryland. Sometime after that he was jailed for 6 months in Florida for raping his ex-wife, and was then transferred to a mental hospital. The doctors there found him safe to be at large after a short time. He then went to Maryland where he was once again jailed and hospitalized, this time for obstructing
Defendant‘s first assignment of error is based on a misapprehension of
Subsection 1 of
If the court finds by a preponderance of the evidence that the defendant is incompetent, the court shall have the option of extending the order of commitment or alternative treatment for an additional ninety day period, but it must at the time of extension set a date for a prompt hearing to determine the defendant‘s competency before the expiration of the second ninety day period. The defendant, his attorney, the prosecutor, or the judge shall have the right to demand that the hearing on or before the expiration of the second ninety day period be before a jury.
(Italics ours.) We read this section of the statute as directory, not mandatory. We said in Spokane County ex rel. Sullivan v. Glover, 2 Wn.2d 162, 169, 97 P.2d 628 (1940):
There is no universal rule or absolute test by which it can be positively determined whether a provision in a statute is mandatory or directory. In the determination of that question, as of every other question of statutory construction, the prime object is to ascertain the legislative intent as disclosed by all the terms and provisions of the act in relation to the subject of legislation, and by a consideration of the nature of the act, the general object
to be accomplished, and the consequences that would result from construing the рarticular statute in one way or another.
More recent cases reading “shall” as directory rather than mandatory are Spokane v. Spokane Police Guild, 87 Wn.2d 457, 553 P.2d 1316 (1977), and State Liquor Control Bd. v. State Personnel Bd., 88 Wn.2d 368, 561 P.2d 195 (1977).
To read
The second assignment of error is that defendant‘s confession should not have been admitted because there was overreaching by police authorities, and defendant was not competent to voluntarily waive his constitutional rights. We find nothing in the record to indicate overreaching on the part of police. In fact, it is apparent that the officers who questioned defendant were careful to caution him beyond what is required of them by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966). They did this in response to defense counsel‘s expressed concern regarding his client‘s capacity to waive his right to silence. Defense counsel, who was present at the confession, stressed that his client had told him he was working as an agent of the State in committing the killings. At the hearing, held as required by this court in CrR 3.5 expressly for the purpose of determining the confession‘s admissibility, the officer who took the confession testified as follows:
The fact that defendant was repeatedly told his Miranda rights and voluntarily gave the statement is clear and undisputed. We perceive that the basis for the claim of error is that defendant‘s confession was too voluntary to be intelligent.
However, the trial court, having heard the testimony of the officers and observing firsthand the defendant‘s demeanor, is in the best position to determine whether defendant had sufficient sensibility and cognition at the time to intelligently waive his Fifth Amendment rights. The court‘s findings pursuant to the CrR 3.5 hearing were that the confession was not coerced and was freely and voluntarily given. The fact that the confession was intelligently given inheres in this conclusion. The test is whether defendant knew that he had the right to remain silent, not whether he understood the precise nature of the risks of talking. State v. Aiken, 72 Wn.2d 306, 434 P.2d 10 (1967). Defendant understood his right to remain silent sufficiently enough that he remained silent for 15 days. He was taken into custody May 21 and made a taped confession in the presence of his attorney on June 6. It was within the trial court‘s discretion to admit the confession, and as a reviewing court, we do not substitute our judgment for that of the trial court even if there is conflicting evidence upon which a different conclusion could be reasoned. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959).
Because the two capacity tests differ, we decline to hold as a matter of law that a defendant found incompetent to stand trial is аlso incompetent to confess to the crime. We are mindful of defendant‘s previous commitments, but
In view of the constitutional magnitude of this assignment of error, we have reviewed defendant McDonald‘s total record, including medical and criminal history, and are satisfied that the trial court did not err in determining that the defendant had the capacity to waive his right to remain silent and voluntarily did so. The jury ultimately found defendant to be sane, which buttresses the trial court‘s determination in this matter.
Though we find no error in the trial court‘s determination of voluntariness, it is worth noting that defendant was in no way prejudiced by admission of his confession but in fact utilized the confession in developing his insanity defense. The confession was coherent and detailed, indicating total recollection of the motive and planning of the crime. But references to his victims as enemies of the State, and to himself as an agent of the State, provided the defendant with his only direct evidence of the disturbed thought process upon which he based his defense. Defense counsel acknowledged that the only issue in the case was sanity; the facts of the crime were conceded in the opening
The evidence of guilt was overwhelming and the confession was not necessary to conviction. It would be fair to say that the defense relied as much as the prosecution on the confession, and the confession was more probative of defendant‘s thought processes than any element of the crime. Where there is оverwhelming evidence of guilt and the appellate court can declare the constitutional error harmless beyond a reasonable doubt, the conviction will stand. State v. Johnson, 71 Wn.2d 239, 244-45, 427 P.2d 705 (1967); State v. Burri, 87 Wn.2d 175, 182, 550 P.2d 507 (1976). See also Null v. Wainwright, 508 F.2d 340 (5th Cir. 1975), holding the admission of a tainted confession harmless error where, on review of the entire record, the court was convinced that the trier of fact would have reached the same result without the confession, and citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065 (1967); Milton v. Wainwright, 407 U.S. 371, 33 L. Ed. 2d 1, 92 S. Ct. 2174 (1972); Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969).
Defendant next assigns error to the failure of the trial court to find insanity as a matter of law, pursuant to a motion for acquittal under
We are especially convinced of this in reviewing the record. Viewing the evidence in the light most favorable to the prevailing party, the facts of the crime provide direct evidence of defendant‘s sanity. The crime was well planned and expertly executed. Mr. McDonald came from Maryland by bus to avoid discovery of his gun by airport metal detectors. When he arrived in Walla Walla, he stayed at a hotel near the Greyhound Bus Depot to watch the buses, ride them, learn how to drive them, and learn their schedules. The arrival time of the bus he drove from the scene of the crime was found written on a piece of paper in his hotel room. He went to a hardware store in Walla Walla and bought a tool to get in his sister-in-law‘s house, in case it was locked. He watched the house for a couple of days to be sure of who was inside, who came and who went. He purchased a mask and surgical gloves to commit the crime. He bleached his hair and went under the assumed name of “Joe Eads” to avert discovery. When he killed his sister-in-law, he also shot her children, intending to eliminate witnesses. He threw away the unspent cartridges before driving away in the Greyhound bus. This is all evidence of calculated premeditation and cunning which the jury was entitled to find substantially outweighed the evidence of insanity. Clearly the trial judge did not err in submitting the issue to the jury. The question of sanity is one of fact and should go to the jury when there is conflicting evidence on the issue.
Further, we find no error in the court‘s failure to enter findings or conclusions in denying defendant‘s motion for acquittal.
The fourth and fifth assignments of error are in regard to expert testimony, objected to on the grounds that, (1) a psychiatric social worker with 3 1/2 years of clinical experience in the Monroe Mental Health Unit is not sufficiently qualified to testify as an expert, and (2) mental health professionals who subscribe to minority theories within the psychiatric profession, such as transactional analysis, should not be allowed to testify as their theories are not “accepted” by Washington law.
These objections go to the weight rather than the admissibility of the evidence. Admissibility of expert testimony is within the sound discretion of the trial court. The weight to be given the testimony is in the jury‘s domain. As to minority theorists not subscribing to the M‘Naghten test, readings of secondary sources make clear the continuing controversy between different schools within the mental health profession. Further, it is clear that no matter what “school” is subscribed to, there will be little or no support for the mеdically disfavored, but long legally accepted M‘Naghten test. Some reasons for the disfavor shown M‘Naghten are the courts’ failure under M‘Naghten to take into consideration emotional “affect,” instead defining “know” as being a purely intellectual or cognitive knowledge, the failure to take into consideration the defendant‘s capacity to control his behavior even if he does know it is wrong (the superego function), and the mental disease or defect definition being too restrictive. See A. Morris, Criminal Insanity, 43 Wash. L. Rev. 583 (1967–68).
As to a psychiatric social worker not being sufficiently qualified to testify as an expert, whatever he is lacking in professional schooling may be compensated by clinical experience. It is also true that in most clinics the people most in contact with the patients are the psychiatric social workers and other “lesser degreed” individuals. In a state which allows lay testimony as to a defendant‘s insanity (established in State v. Brooks, 4 Wash. 328, 30 P. 147 (1892)), a clinical background and close contact over a period of time with the defendant could qualify one to testify regarding the defendant‘s sanity. It was clearly within the trial court‘s discretion to admit the testimony of Mr. Mitchell and Dr. McCoy.
The sixth assignment of error is based on what defendant claims was such a confusion of law on the insanity defense in this state between 1973 and 1976 that the true test could not be ascertained during this trial. Instruction No. 20 was a correct statement of the law on insanity at the time of trial:
Insanity existing at the time of the commission of the act charged is a defense.
To be found not guilty by reason of insanity the defendant‘s mind must have been affected by mental disease or defect to such an extent that the defendant was unable to perceive the nature and quality of the act charged and was unable to tell right from wrong with reference to the particular act charged.
(Italics ours.)
Defendant discusses at length the amendments made between 1973 and 1974 to
Nevertheless, the law at the time1 although not evolving
The seventh assignment of error is that the trial court failed to instruct the jury on the effect of finding the defendant not guilty by reason of insanity. The proposed instruction informed the jury that the defendant would bе hospitalized at one of the state‘s facilities for the criminally insane until the court determined he should be released. We find no error in refusing the proposed instruction. Although members of this court have, from time to time, urged instructions similar to that proposed by defendant, a majority of the court has not concurred. For example, see State v. White, 60 Wn.2d 551, 602, 374 P.2d 942 (1962), Hunter, J., concurring in part and dissenting in part. The majority of states neither requires nor suggests that the jury be told the consequences of their findings regarding insanity. W. LaFave & A. Scott, Criminal Law 316 (1972); Morris, Criminal Insanity, supra at 622.
The eighth and ninth assignments of error relate to jury instructions which set forth certain presumptions. Instruction No. 19 told the jury that, since every person is presumed sane and that every sаne person is presumed to intend the natural consequences of his acts, the burden of proving insanity as a defense to a crime is on the defendant. That burden must be sustained by a preponderance of the evidence. Instruction No. 10 told the jury that the law presumes that every sane person who kills someone by an act which would naturally and ordinarily produce death presumptively intended that death. Defendant proposed an instruction which would have told the jury that the defendant had the burden of proving insanity by a preponderance of the evidence but once established by that standard, the State must prove sanity beyond a reasonable
Defendant concedes that the instructions given comply with past Washington law. But he argues that the reasoning of State v. Odom, 83 Wn.2d 541, 520 P.2d 152 (1974), and State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977), based on Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), should be extended to the insanity defense. He asserts that the presumption of sanity and the requirement that the defendant prove insanity by a preponderance without then requiring the prosecution to prove sanity beyond a reasonable doubt is an unconstitutional burden on defendant. We do not agree.
The presumption of sanity is as old as the common law and well established in this and every other state. State v. Clark, 34 Wash. 485, 493, 76 P. 98 (1904); State v. Mays, 65 Wn.2d 58, 66-68, 395 P.2d 758 (1964). It is a presumption grounded in common experience and in оur society‘s most basic traditions of free will and personal responsibility. Further, insanity is an affirmative defense in this state for the defendant to plead and prove by a preponderance. This was established before we were a state. McAllister v. Territory, 1 Wash. Terr. 360 (1872). The jury must have more than a reasonable doubt as to a defendant‘s sanity in order to acquit him. State v. Clark, supra. The requirement has continued to be affirmed by this court, State v. Collins, 50 Wn.2d 740, 314 P.2d 660 (1957), and now it is codified in
We do not think this requirement of proof in any way emasculates the requirement that the prosecution prove every element of the crime beyond a reasonable dоubt. Sanity is not in itself such an element. Therefore, we choose not to join the federal courts and a minority of state courts (see 17 A.L.R.3d 146, 158-59 (1968)) in allowing the defendant to produce only some evidence of insanity
The approach argued by defendant is not constitutionally mandated.2 From the United States Supreme Court‘s most recent expression on this matter, Patterson v. New York, 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977), it is apparent that Mullaney reasoning is not applicable to the аffirmative defense of insanity.
We also uphold the presumption of sanity and find that it was validly applied to defendant under the circumstances of this case. Evidence of prior criminal insanity commitments in other states, which resulted in defendant‘s release after he was deemed sufficiently recovered, does not merely by its introduction eradicate the presumption of sanity. The reason for this is grounded in common experience, and this state‘s policy exemplified by our criminal insanity test and our requirement that insanity be established as an affirmative defense.
It must be remembered that our test for insanity, the M‘Naghten test, is very rigorous. This court has held that only those persons “who have lost contact with reality so completely that they are beyond any of the influences of the criminal law,” may have the benefit of the insanity defense in a criminal case. State v. White, supra at 590. Those who are commonly regarded as “odd” or “unsound”
Regarding the presumption of sanity and other matters concerning the defense of insanity, the judges in M‘Naghten‘s Case, supra at 722-23, speaking through Lord Chief Justice Tindal, responded to questions propounded to them in the House of Lоrds. Lord Tindal‘s remarks seem particularly appropriate to this case and they are set forth in part as follows:
Your Lordships are pleased to inquire of us, secondly, “What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?” And, thirdly, “In what terms ought the question to be left to the jury as to the prisoner‘s state of mind at the time when the act was committed?” And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.
(Italics ours.)
We hold that the instructions considered as a whole do not attenuate the fundamental presumption of innocence or the requirement that the State prove every element of a crime beyond a reasonable doubt.
Affirmed.
WRIGHT, C.J., ROSELLINI, HAMILTON, BRACHTENBACH, and HOROWITZ, JJ., and HENRY, J. Pro Tem., concur.
UTTER, J. (concurring)—I concur in the result reached by the majority; however, I cannot subscribe to the treatment afforded the admission of the defendant‘s confession. As I understand the majority opinion, it upholds the admission of the challenged confession on two grounds. The opinion asserts the admission of the confession was not prejudicial because the facts pertinent to the commission of the crimes charged were conceded to be true at the time of trial and the confession was utilized by the defense in attempting to establish the defendant was not guilty by reason of insanity. This discussion is dispositive of the issue raised and I
The record indicates that at the time of giving the challenged confession, the defendant felt he had been functioning as an agent of the State in committing the crimes charged and would never be brought to trial. He also felt the interrogating officers to be his allies and was suspicious of the motives of his counsel. It is difficult to comprehend how one who was in fact operating under such a delusion could intelligently eleсt to confess his crimes. The majority‘s suggestion that knowledge of the right to remain silent, standing alone, establishes an adequate foundation for a valid confession is inconsistent with established constitutional principles and unnecessary to the resolution of the issue raised.
STAFFORD, J., concurs with UTTER, J.
Petition for rehearing denied March 29, 1978.
Notes
“To establish the defense of insanity, it must be shown that:
“(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:
“(a) He was unable to perceive the nature and quality of the act with which he is charged; or
“(b) He was unable to tell right from wrong with referenсe to the particular act charged.
“(2) The defense of insanity must be established by a preponderance of the evidence.” (Italics ours.)
“I agree with the Court that In re Winship, 397 U. S. 358 [25 L. Ed. 2d 368, 90 S. Ct. 1068] (1970), does require that the prosecution prove beyond a reasonable doubt every element which constitutes the crime charged against a defendant. I see no inconsistency between that holding and the holding of Leland v. Oregon, 343 U. S. 790 [96 L. Ed. 1302, 72 S. Ct. 1002] (1952). In the latter case this Court held that there was no constitutional requirement that the State shoulder the burden of proving the sanity of the defendant.”
In Leland, the Oregon statute (since repealed) required defendant to prove his insanity beyond a reasonable doubt. Our requirement of a defendant is proof by a preponderance of the evidence.