*1 day jail. spend a Economics will prevail justice. legislature pro- If the over Wyoming, Plaintiff, The STATE of pay vided for a convicted defendant cost his enthusiasm for a jury, of a ZESPY, Robin Defendant. trial would diminish. Oft times DWUI jail sentence a salutary No. 85-165. cases a short has most successful effect. The sentence im- Supreme Wyoming. Court posed as district was one hour in a Aug. county driving after a drunk jail convic- tion. law did require common not a offenses. petty Duncan v. Loui
siana, supra. Wyoming’s Constitution was
adopted background, Wyo since
ming expressly adopted the common law as by judicial
modified decisions. McClellan (1983);
v. Tottenhoff, v. Epperley, Wyo., Choman 592 P.2d 8-1-101, W.S.1977
(Aug. Replacement), reads: England
“The common law of as mod- decisions, by judicial
ified so far as the
same is of nature and not
inapplicable, declaratory and all or reme- of,
dial acts or statutes made in aid or to
supply the defects of the common law
prior year to the fourth James (Excepting
First the second section of Elizabeth, chapter forty-third
the sixth eighth chapter of thirteenth Eliza- chapter thirty-seventh
beth and ninth gener-
Henry Eighth) and which are aof England,
al not local to nature and in this when rule of decision state not thereof,
inconsistent with laws as of full until re- considered force
pealed legislative authority.” majority well written and however, illogical; poli- establishes
cy required by Wyoming Constitu-
tion. I affirm the trial court. *2 Hospital Evanston, Elkin, by
State
Dr.
a
private psychiatrist practicing
Casper,
Miracle,
by
psychologist.
and
Dr.
a
They
mentally responsible
found that he was not
7-ll-305(b),
for his actions under
W.S.
§
determined, nevertheless,
1977. The State
proceed;
that it should
and his
Gen.,
McClintock, Atty.
Sylvia
A.G.
began
January
1985.
Gen.,
Goddard,
Hackl,
Tim
Atty.
Asst.
Sr.
7-ll-305(b)
Although
had been amend-
§
Intern,
Evans,
and J.
argued, Legal
Scott
place
proving
insanity
ed
burden of
Dist.,
Judicial
Atty., Seventh
for
Dist.
defendant,
upon
parties agreed
plaintiff.
applied.
the older version of the statute
Chapman, Casper, for
Frank R.
defend-
version,
pro-
Under that
once the defense
ant.
insanity,
duced some evidence of
the bur-
prove
beyond
den shifted
the State to
a
C.J.,
THOMAS,
BROWN,
Before
Zespy
that Mr.
reasonable doubt
was sane
CARDINE,
MACY,
JJ.
URBIGKIT
at the time of the offense. Prior to its
amendment,
7-ll-305(b) provided:
§
CARDINE, Justice.
prosecution
prove beyond
“The
shall
a
reasonable doubt all the elements of the
FACTS
charged
responsi-
offense
and the mental
scanty
presented
very
with a
However,
bility
every
of the defendant.
transcript
proceedings. Many
of our
presumed
mentally
defendant
to be
background
par
facts are drawn from
responsible
going
and the burden of first
by
made
ties’ briefs
from statements
entering
evidence
forward
on the
lawyers during
hearings.
motion
These
responsibility
upon
issue of
mental
stage
facts are included to set the
for our
defendant.”1
form
resolu
opinion but cannot
a basis for
pro-
There
doubt that the defense
sufficiency-of-the-evidence ques
tion
enough
duced
evidence of
to shift
only
decide a case
tion. “We
prosecution.
Drs. Mir-
the burden
appears in the record
us.”
what
before
acle, Elkin and Burnett all testified that
Reed, Wyo., 566
Matter
Estate
P.2d
Zespy
mentally responsible for
Mr.
was not
Matters alluded to
at
alleged
his actions when he committed the
torneys
hearings or in
at motion
briefs
crimes.
rebuttal
the State called
testimony and cannot
considered.
not
Coleman, psychiatrist
Berkeley,
Lee
from
Building Systems,
Indepen
Kirby
Inc.
California,
personally
who had never
exam-
One,
Partnership
Wyo., 634
dence
No.
Zespy.
inquiring into Dr.
ined Mr.
After
345 n. 2
training, practical experience
Coleman’s
writings,
prosecutor
him
asked
charged
Zespy
Mr.
was
with manufactur-
the kind of
he
describe
possessing psilocybin
with intent to
usually gave in
cases. Dr. Cole-
criminal
35-7-1031(a)(ii),
deliver
violation
responded:
man
pled
guilty,
guilty
He
not
W.S.1977.
deficiency,
my
reason of mental illness or
the limits on
“Because of
view about
psychi-
trial. He
of the art of
and not
to stand
methods of the state
atry,
the state of
Wyoming
examined
Dr. Burnett at the
I do not
statute,
amended,
deficiency,
provides:
he
a result of mental
illness or
1. The
as
capacity
appreciate
either
lacked
prosecution
prove beyond a reason-
"The
shall
wrongfulness of his conduct or to conform
able doubt all the elements of the offense
charged. Every
presumed
requirements
defendant is
to be
his conduct to the
of the law.”
responsible.
W.S.1977,
mentally
7-ll-305(b),
Cum.Supp.
The defendant shall
going
prov-
have the burden of
forward and
that,
greater
ing by
weight
of evidence
as
mind of the defendant at the time of the
“THE
it,
COURT: As
your
understand
person
crime or whether a
will be dan-
witness is
going
say
par-
that the
gerous
give
try
diagnosis.
ticular methods
experts
used
just
bringing
might
their
is
deserve to be
answer to
case,
the methods
trists,
“So
testify
that the state of
[*]
my testimony goes
don’t have the
deserve
case,
be
who have
interested
in
about whether or not the meth-
[*]
your question
it will be the other side who
any credibility. My opinion
employed by
given
[*]
already
tools[;]
that
psychiatry
having
[*]
to whether or not
that whoever is
credibility.
testified in the
therefore the
try
me come in
[*]
does not
prove
[*]
methodology.
American
haps
concern and the concerns of a lot of
to
focus on what
rect, except
opinion that there is a
been
done, but no matter what would have
“MR.
deficient,
the Defense in this case
focus on what
he
*3
done,
EVANS:
could
Psychiatric
that his
it would not be sufficient.
suggest
something
I
they did,
they
think that that is cor-
did and
Association about
it,
better
but he is
better could be
if he has an
express
necessarily
is
way per-
going
going
his
to
ods are
really
reliable.
[******]
judge
for psychiatrists
tion that
conclusions
methods which could
utes. Dr. Coleman
that it would amount to an attack on the
chiatric
man’s
an
opinion,
methods psychiatry applies
wrong
do.”
Defense counsel objected to Dr. Cole-
upon diagnosis,
decide
atry,
“I
person
he did not
am
[******]
asked Dr. Coleman if it was his
expertise
anticipated
witnesses are
the methods
saying
upon legal
or had
there are no
not come
knew what
in insanity cases. The district
set forth
determination that
believe that
that the methods of
capacity
the method which we
testimony on
said that was
issues such as whether
testify
up
in Wyoming
be
the law thinks
they
to the standard of
proper psychiatric
used
to conform. The
which we decide
were
under the
their
to reach the
expert psy-
do,
doing
to render
opinions
grounds
psychi-
proper
in my
posi-
stat-
they
law,
prospective testimony
tory
ute.
it, have stated that there are no methods
that could be used to
ods that were used.
finished
fense and
testify
experts who have testified for the De-
amine the
“THE COURT: But
be used to reach
good,
“THE WITNESS:
thought there were methods that could
work
belongs probably in
Legislature
“THE
say
Coleman then tried to
answer to the
that is not for us to
with, obviously
COURT:
to once these
position
with, my expectation
give my opinion
law for the
methods and means used
has
to the
given
I
conclusions,
think
Well,
you,
qualifications
present
us a law we must
wrong
Legislature
you
Iwhat
Legislature,
as I understand
judge:
on the meth-
are
in our stat-
explain
Legislature
forum that
say
was to ex-
a satisfac-
otherwise
intend to
present-
here.”
is not
‘his
Well,
“THE WITNESS:
any credibility.
they
were entitled to
are satis-
judge
factory,
they
legally permissible,
then
prosecutor
told the
that he did not
I
expect
understand
what would
how Dr. Coleman’s
is as to
admissible,
credibility,
scientific,
their
prosecutor
how
psy-
and the
how
responded by explaining
diagnosis,
chiatrists arrive at
doctor
are there
record,
would talk
specific
about the merits of the
inconsistencies in the
are the
by the
followed
other
statements of the
reports
doctors
their
trists. The following discussion between
inconsistent with
hospi-
actual records of
prosecutor
talization,
occurred:
many, many
other such
issues,
my study
I
he
pointed
which found
was sane.
Id. at 902-903. We
that,
if
out
the defendant’s
records.
evidence of
According
dict the
questions posed by
islature was
Coleman’s
are some valid methods that can be used to
cate that
answer the
not at this time
tion amounts
id,
The district
procedure.
methods don’t exist.
statement
method,
stand
sible.”
approach,
“THE
“THE
“THE COURT:
the
jfc
[*]
questions posed by
right?
correctly,
COURT:
WITNESS:
Legislature
there are no valid methods
testimony, because it
to the
which
that can be
questions proposed.”
it
i|c
[*]
“obviously
that our
I do
seems
judge
to is
can
judge,
Well,
Doctor,
[*]
[*]
any scientifically
you
intent because the
to
be used
refused to admit Dr.
law
is mistaken
Yes,
think
me,
*4
problem
applied
this would contra-
[*]
[*]
think,
is no
our statute?
what
it is
saying
that
opinion
good,
[*]
[*]
do under-
answer
basically
to answer
your posi-
with that
is admis-
I
statute.
there is
in this
inval-
there
valid
[*]
true,
n
indi-
leg-
the
Is
in
always
tradict the defendant’s
But we never said that
must
dence
cited to the district
able to
Gerard
whose
the trial court nor this
evidence to
the ultimate
behavior and state of mind
stitute its
in People
fered with if there is
sis of which it could have found defend-
this view Jarrett v.
by
ant sane at that
“We noted
doctor.
at the time of the
it
had
always produce
N.W.2d
proper
simply by producing
a case which neither of the
insufficient or that the
finding
provide
before it evidence
expert
* * * ’
strong,
v.
opinion
in Reilly,
rule more
support
judge
Krugman,
of fact should not be inter-
opinion testimony
substantial credible evi
time,
judge:
the State
crime,
[(1966)],
for
of defendant’s
it. As the court said
psychiatrists.
psychiatrist
lay
supra,
it was not bound
again recognized
that of the
body
State, Wyo.,
clearly
any
witnesses were
377 Mich.
of
lay witnesses.
that neither
‘The
should sub-
defendant’s
prosecution
* * *
substantial
stated in
the ba-
parties
not be
to con
sanity
since
jury,
[(1972)], involving
P.2d
1031-1032
Without Dr. Coleman’s rebuttal testimo-
charge,
held
a murder
where we
that
ny,
only lay
left with
wit-
State was
correctly
denied a motion for
court
nesses to contradict the
testimo-
acquittal notwithstanding
testimony
ny
by
Relying
the defense.
introduced
psychiatrists
of
that defendant had suf-
(1972),
State, Wyo.,
Reilly v.
disorder,
fered from a mental disease or
lay testimony
the district
held that
being
position
our
the other evi-
insufficient,
itself,
by
sanity
prove
be-
dence
had
adduced
suffi-
which
been
was
yond a reasonable doubt when it is contra-
cient to
knew and
show that defendant
by
examining psychia-
dicted
probable
understood the
con-
nature
Therefore, the trial court concluded
trists.
act,
sequences
that it was
of his
knew
Zespy was entitled to a directed
that Mr.
law,
morally wrong
or forbidden
acquittal by
insanity.
reason of
verdict
power
had
to control his
sufficient will
McIntyre
acts. As Mr.
Justice
said
Chief
EXPERT
REBUTTING
State,
Rice v.
PSYCHIATRIC TESTIMONY
[(1972)],
always disregard
‘A
can
placed upon Reil
The constriction
jurors
if the
testimony
ly
Wyo.,
W.S.1977, which states: logical there why reason he cannot designated addition “In examiners group stating attack them as a [to *5 compe- examined the defendant for who there are no valid tests that have been tency], the state and the defendant developed psychiatric profession. the other summon witnesses who did legislature thought If the that there are examine the defendant. Such ex- psychiatric at least some valid tests of sani- perts competent testify are not as to ty, have in it could endorsed those tests the responsibility the mental of the defend- legislature statute. But the did not do so. ant; however, may testify they as to the Apparently, legislature the could not decide the of followed tests, psychiatric valid, which any, are so if propositions the stat- scientific it left decision on juries to the a case- ” (Emphasis ed other witnesses. add- by-case legislative basis. The intent is not ed.) when violated a rebuttal tells witness State, According statute this ex- jury psychiatric there are no tests pressly permitted Dr. to attack sanity. Coleman which be used to can ascertain In- stead, employed by testimony jury various tests the defense helps per- such psychiatrists. agree. delegated task, form its of the evaluation psychiatric tests.
When it was held that Dr. Coleman’s proffered testimony undermine stat- would interpretation Under our 7-11- of § procedures, utory between the distinction 305(d), jury disregard is free to competency and the com- of a witness testimony rebuttal of a like Dr. witness petency improper- of opinion a witness’ Coleman conclude that or all of some ly 7-ll-305(c), legisla- blurred. performed by examining psy- the tests psychiatrists ture examining hand, stated that are chiatrists credible. On the other competent are sanity of jury should also be free to conclude the defendant.2 A cannot psychiatric rebuttal witness that there are no tests can argue examining psychiatrists help sanity are in- it ascertain the at defendant’s competent not be of witnesses who should the time the offense. jury W.S.1977, 7-ll-305(c), competent or 7-242.4 303] [§ states: 7-11-304] designated witnesses.” “The examined the examiners who pursuant defendant 7-11- [§ to W.S. 7-242.3 sanity then have to decide the ining psychiatrists issue based witness- other than es, evidence test re- and it would not prevented have example, might apply sults. For have to jury applying from defini- understanding its collective of human be- insanity. tion of acts, havior to the defendant’s criminal his in demeanor the courtroom or his other SUFFICIENCY OF THE EVIDENCE out-of-court conduct. argues, The State in a perfunctory man jury’s reliance on evidence other ner, that there would have been sufficient psychiatric opinion
than is consistent with evidence of sanity prevent a directed our supra, Gerard v. 511 verdict if the permitted court had Dr. Cole P.2d at 104. There we said that a testify. man to This is not the kind of disregard psychiatric testimony rely on legal issue which merits attention in a bill othér evidence which shows that the de exceptions. of analysis Our of the suffi fendant knew his actions morally ciency of the evidence under the facts of wrong and pow that he had sufficient will this case will have impact on either of er to control quoted his acts.3 We parties these litigants. future More approval following statement: over, the record does any psy not contain “ ‘The jury is the ultimate of de- lay testimony chiatric or other than the crime, sanity fendant’s at the time of the statements of Dr. Coleman. this With * * * since it had before it evidence record, we would not be able to comment of defendant’s behavior and state sufficiency on the of the evidence even if it mind the basis of which it could merited our attention. See Matter Es time, have found defendant sane at that Manning, Wyo., tate 646 P.2d expert opinion it was not bound ” Id., quoting the doctor.’ People Krugman, 377 Mich. URBIGKIT, Justice, concurring part N.W.2d dissenting part. course, Of would have been free to determining concur with the court in ignore Dr. Coleman’s rely upon views and lay that the rebuttal witness- *6 opinions of the defendant’s may es is admissible and have been suffi- case, trists. In either would have issue, cient to raise a and further that ultimately applied legislature’s defini- sufficiency-of-the-evidence issue was insanity. tion of critique Coleman’s of suitably presented. psychiatric testing all would not have inter- majority regard I differ with the fered jury’s with the ability to determine claimed error of the trial in rejecting Zespy’s Mr. sanity legislature’s under the proffered testimony of the nonexam- definition of that term. ining psychiatric expert which was ten- conclusion, In the district court should efficacy dered to rebut the of the exam- have allowed Dr. Coleman testify to about ining experts’ testimony on the mental ill- the tests examining conducted ex- deficiency plea. ness and perts. He should also permitted have been to Although that there psychiatric are no tests I have serious concern for psychiatrist which a supervision can base a valid court control and expert of wit- opinion about a sanity. paid defendant’s This nesses professionals, as a class of this kind of testimony permitted peculiar 7-11- discussion will be confined to the § 305(d), W.S.1977. It have nulli- experts Wyoming, would not status of within the fied the purview plea decision that exam- pursuant of the made to Rule 7-ll-304(a), capacity 3. Under appreciate § W.S.1977: stantial either wrongfulness person of his conduct or to responsible "A conform for criminal con- conduct, requirements duct if at the time his conduct of as a result of law.” deficiency, of mental illness or he lacked sub- 570 15, 214, and seq., (1907); W.R.Cr.P. 7-11-301 et W.S. 92 P. Drope Missouri, § 806
1977,
7-ll-305(d).
particularly
162,
and
896,
420 U.S.
95 S.Ct.
We said in Smith v. as the basis for testi- (1977): mony. apparent objectivi- Because of its " * * * cunning bureaucracy easily pass through of modern be turned back. As we hierarchy that it great ideological dragon psy- creates a in which no one the 1980s the personally responsible anything chiatry feels im- has been coaxed out of its cave. The *8 portant goes wrong. Everywhere major legal fought, I look I battles have been and public system being dragon gone see the mental health when the dust settled the was shaped by cunning, legal this and reform and all that remained was a collection of process. hapless seems to me to have hastened that civil servants. Yet madness has not By setting path gone hoped, barriers in the of treatment out of the world as was in fact responsibilities, by imposing madness is more visible than ever before in fulfill, responsibilities Stone, they Law, century." trists legal Psychiatry, could this (1984). p. reform has Morality turned ratchet that will not 156 572
ty,
opinion
facts,
an
that claims a scientific
upon special
based
knowledge,
apt
carry
skill,
weight
experience,
basis
undue
with
or
expert may
the
assist
addition,
the trier of fact.
the trier of
is diffi
fact to draw inferences from
opinion
cult
facts.
except by
to rebut such an
To warrant use
expert,
the
experts
‘subject
other
cross-examination
inference must be so dis-
tinctively
science,
thorough acquaintance
profes-
based on a
related to some
with
sion,
underlying principles.
occupation
business
as
In order to
to be be-
yond the
average
ken of the
prevent deception
layman.’
or mistake and to al
[Cleary, McCormick’s Handbook of
possibility
response,
low the
effective
(2d
Law of
1972).]”
Evidence
ed.
demonstrable, objective
there must
abe
reaching
procedure
opinion
and The article properly comports
my
con-
qualified persons
dupli
who can either
cern and distills the
basis
which the
cate the result or criticize
the means
sound discretion of the trial court to evalu-
reached, drawing
which it was
their own
proffered
ate the
testimony should still be
underlying
from the
conclusions
facts.”
afforded.
Baller,
463,
United States v.
519 F.2d
“In
Estelle,
Supreme
v.
Barefoot
(4th Cir.),
1019,
cert. denied 423 U.S.
Court admitted
testimony of
456,
(1975).
46 L.Ed.2d
S.Ct.
dangerousness
in the
penalty
death
defense,
insanity
practice
“Like the
phase
capital offense,
of a trial for a
whereby
experts
courts call
despite
empirical
substantial
evidence
advise them on matters not generally
predictions
such
wrong
were more often
average person goes
right,
known to the
back
than
despite opposition
from
courts,
long
English
Psychiatric
time:
over four
the American
Association
experts
stating
centuries.
Initially,
predictions
that such
were scien-
tifically
court,
unacceptable
used as
possibly
technical assistants to the
uneth-
ical. The
judge
rather
than as
Court’s
relied on
witnesses. The
adver-
sary process
protect against
experts
summoned
to inform him
the unre-
matters;
liability
expert testimony.”
technical
he then
Jour-
determined
Psychiatry
Law,
nal of
supra,
synop-
whether
the information should be
sis at 147.
passed
jury. By
toon
the middle of
century,
seventeenth
when the find-
State, Wyo.,
See also Chavez v.
604 P.2d
ing of the
had
facts
become
exclusive
1341, 1349(1979),
cert. denied 446 U.S.
province
jury,
practice
100 S.Ct.
because an be able to contrib- something beyond
ute lay jury what the
or fact finder can determine from the
facts. expert may only testify