UNITED STATES of America, Plaintiff-Appellee, v. Joseph John SEGNA, Defendant-Appellant.
No. 76-1418
United States Court of Appeals, Ninth Circuit
April 6, 1977
As Amended on Denial of Rehearing and Rehearing En Banc June 7, 1977
I agree with the statements of the majority condemning the behavior of Mr. Rosengren. I do not agree, however, that in this case that behavior constitutes sufficient cause for us to order a new trial.
After the jury returned its verdict, the County moved for a new trial on the basis of Rosengren‘s misconduct. After two months of deliberation, the district judge denied the motion. In making this determination, he stated:
The verdict showed that the jury carefully sifted out the three defendants and the evidence applicable to them, and the question of liability was resolved, I think on the basis of pretty overwhelming evidence in exactly the same manner that the court would have resolved it.
The decision whether to grant a new trial is a question of federal law, even where federal jurisdiction is based upon diversity of citizenship. Holmes v. Wack, 464 F.2d 86, 88 (10th Cir. 1972); 6A Moore‘s Federal Practice ¶ 59.04[1]. Under the federal rule, the district court is free to exercise its discretion on whether to grant a new trial. We overturn that decision only when it amounts to an abuse of discretion. Ruiz v. Hamburg-American Line, 478 F.2d 29, 31 (9th Cir. 1973). The rule is particularly appropriate in a case such as this where the district judge has had a firsthand opportunity to assess the prejudicial effect of the attorney misconduct. I do not see any basis for holding that the district judge abused his discretion in denying the motion for a new trial. Accordingly, I do not believe that we are free to order a new trial on the basis of Rosengren‘s misconduct.
III
Because of the conclusion I reach on the jury instruction and attorney misconduct issues, it is appropriate to confront an additional issue that the majority examines only indirectly: Given the facts of this case (i. e., no mechanical device), was the district court correct in raising for the jury‘s consideration the doctrine of last clear chance? Does that doctrine even apply to a fact pattern such as is presented here?
The district court determined that the Arizona Supreme Court would have applied the doctrine of last clear chance on the facts of this case. In diversity cases where state law applies, it is the settled rule in this circuit that we will not overrule the district court‘s interpretation of state law unless it is clearly wrong, particularly if the highest state court has not passed on the matter. Smith v. Sturm, Ruger & Co., 524 F.2d 776, 778 (9th Cir. 1975); Robinson v. United States, 518 F.2d 1105, 1108 (9th Cir. 1975); Hurst v. Dare To Be Great, Inc., 474 F.2d 483, 484 (9th Cir. 1973); Turnbull v. Bonkowski, 419 F.2d 104, 106 (9th Cir. 1969). In my view, the relevant Arizona cases provide no basis for holding that the district judge was clearly wrong. It is not enough to suggest that were we the district judge, we would exercise caution in extending Arizona doctrines where the Arizona courts have not previously spoken. We should, therefore, uphold the district judge‘s decision on the application of the last clear chance doctrine.
I would affirm.
William C. Smitherman, U. S. Atty., Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., argued, for plaintiff-appellee.
Before WALLACE and SNEED, Circuit Judges, and Gray,* District Judge.
WALLACE, Circuit Judge:
Segna, a non-Indian, shot and killed an Indian policeman on the Navajo Indian Reservation in Arizona. After a trial where the only contested issue was Segna‘s legal sanity at the time of the
I
Segna introduced substantial evidence that he was not legally responsible for the killing because of a mental disease or defect. This evidence consisted of the testimony of three psychiatrists, one psychologist and several lay witnesses and various exhibits including letters written by Segna before the killing. All of these expert witnesses agreed that Segna was suffering from a fixed delusionary system, the central feature of which was Segna‘s belief that he was a persecuted Indian. Both the lay testimony and the nontestimonial evidence tended to substantiate this diagnosis. These experts also agreed that Segna, because of this mental disease, lacked substantial capacity at the time of the killing to conform his conduct to the requirements of the law or to appreciate the wrongfulness of his conduct. See Wade v. United States, 426 F.2d 64 (9th Cir. 1970) (en banc).
This evidence clearly destroyed the presumption of sanity and placed on the government the burden of establishing Segna‘s legal sanity beyond a reasonable doubt. United States v. Monroe, 552 F.2d 860, 863 (9th Cir. Feb. 22, 1977); United States v. Shackelford, 494 F.2d 67, 70 (9th Cir.), cert. denied, 417 U.S. 934 (1974); United States v. Ingman, 426 F.2d 973, 976 (9th Cir. 1970). In an effort to meet its burden, the government called several lay witnesses and one psychiatrist, Dr. Gorman. The lay witnesses testified that on occasion prior to and after the killing, Segna did not refer to himself as an Indian but as an Italian, his true ethnic derivation. Dr. Gorman disagreed with the experts called by Segna and opined that Segna was not legally insane under the Wade test at the time of the killing. In Gorman‘s view, Segna had an anti-social, psychopathic personality which did not constitute a mental disease or defect within the meaning of Wade.
During cross-examination of Gorman, the doctor‘s opinion was attacked in three ways. First, Segna‘s counsel established that the doctor‘s diagnosis was based on an incorrect view of the facts of Segna‘s prior life. Second, the doctor was required to modify substantially his definition of “anti-social, psychopathic personality” when counsel pointed out that the actual facts of Segna‘s life did not coincide with the symptoms which Dr. Gorman had originally stated were characteristic. Finally, Gorman was required to engage in rather farfetched speculation to account for Segna‘s pre-killing assertions that he was a Indian.
The jury resolved the evidentiary conflict against Segna. On appeal, he asks us to conclude that Gorman‘s testimony was
In United States v. Ortiz, 488 F.2d 175 (9th Cir. 1973), we were confronted with a similar question and decided that the evidence of sanity was sufficient to sustain the verdict. There we said:
The psychiatric testimony, presented by both sides, was in conflict. The jury could properly weigh the opinions of both psychiatrists and resolve that conflict. In reviewing their determination, we must view the evidence and all reasonable inferences in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This standard of review extends to the issue of sanity and the credibility of the experts. United States v. Handy, 454 F.2d 885, 888 (9th Cir.), cert. denied, 409 U.S. 846 (1972). In addition to the experts, the jury also heard lay witnesses who, because they had observed [the defendant] during the execution of the crime, provided meaningful testimony that the jury could consider. . . . We hold that this evidence was sufficient to sustain the verdict.
The reasoning of Ortiz leads us to the conclusion that the evidence presented in this case could sustain the verdict. The jury may properly resolve conflicts in psychiatric testimony. Id. Dr. Gorman testified that Segna was not legally insane and there was some basis for his conclusion. He examined Segna for approximately one and one-half hours. Further, even after he came to a correct knowledge of Segna‘s prior life during cross-examination, the doctor adhered to his conclusion regarding Segna‘s sanity. Reviewing this evidence in a light most favorable to the government, as Ortiz directs, we find that the jury could have reasonably believed Dr. Gorman and disbelieved the other expert witnesses. Moreover, the testimony of lay witnesses provided some support for a conclusion of sanity. The jury is entitled to consider this evidence in its deliberations. See id. We therefore hold that, when viewed in the light most favorable to the government, the evidence was sufficient to permit reasonable jurors to conclude that Segna was legally sane beyond a reasonable doubt.
II
In his closing argument to the jury, the prosecutor made erroneous and misleading statements of the law. The effect of those statements was to shift the burden of proof from the government to Segna and to deprive Segna of the benefits of the reasonable doubt standard.2 Although no objection was interposed, the argument amounts to plain error and requires reversal.
While commenting on Segna‘s insanity defense in his argument, the prosecutor told the jury that in resolving the issue
there are two things you can rely on. Fortunately, the law is something that you can rely on. There are certain presumptions in the law. One of those presumptions is that a person realizes the consequences of his acts.
He then stated that this presumption continues until overcome by competent evidence. Thereafter he made both direct and oblique attacks on the competency of Segna‘s evidence of insanity.
Also, in an effort to defend Dr. Gorman‘s testimony, the prosecutor argued:
The only difference between his [Dr. Gorman‘s] opinion and the other shrinks’ opinions is that his opinion has a presumption of law with it. That is, a man is presumed sane.
In concluding, the prosecutor asked the jury to return a guilty verdict “unless you are convinced by scientific evidence the man [Segna] is sick and doesn‘t appreciate the wrongfulness of his acts.”
As noted earlier, at the outset of every criminal case there is a presumption that the accused was legally sane at the time he committed the alleged offense. If, how-
After Segna produced his expert and lay witnesses and nontestimonial evidence on the insanity issue, no presumption of sanity existed in the present case.3 No presumption was available to aid the prosecution in meeting its burden of proof, and no legal presumption could have been considered properly by the jury. United States v. Bohle, 445 F.2d 54, 69-71 (7th Cir. 1971).
In light of these principles, it is clear that the prosecutor‘s argument was erroneous as a matter of law. In essence, he stated that it was still open to the jury to weigh the presumption of sanity against Segna in reaching its verdict. This error was compounded by his final request to the jury that it return a guilty verdict not if it found Segna sane beyond a reasonable doubt, but rather if Segna failed to convince the jury “by scientific evidence” that he was not sane.4
Finding error, however, is only the first step. Because Segna‘s counsel failed to object, we may reverse only if the error amounts to “plain error” under
Plain error is not determined in a vacuum. The prejudicial nature of unobjected-to error must be determined by reference to the whole case. See Reisman v. United States, supra, 409 F.2d at 791; 3 C. Wright, Federal Practice & Procedure § 856, at p. 373 (1969). Particularly we should attempt to determine the impact of the error on the jurors’ deliberations. If the probability is high that the error materially affected their verdict, reversal may be justified. Cf. United States v. Valle-Valdez, 554 F.2d 911 (No. 76-1953, 9th Cir. Mar. 8, 1977).
Here the only contested issue was Segna‘s legal sanity. The crucial nature of this issue was heightened by the sharply conflicting views of the experts. Although the evidence was sufficient for us to sustain a finding of sanity by the jury, an objective review of the record, that is, one that does not view the evidence only in the light most favorable to the government as the prevailing party, reveals that the issue was extremely close.
In this setting, the jury was told that Dr. Gorman‘s opinion had “a presumption of law with it” while the opinions of the other experts did not. The effect of this was to
Some facts and circumstances in the case tend to mitigate the prejudicial effect of the prosecutor‘s argument. The court‘s instructions to the jury correctly stated the law regarding proof of sanity or insanity. During argument, Segna‘s counsel likewise correctly stated the law, and even some of the prosecutor‘s comments on the issue were correct. Nevertheless, in light of all the facts and circumstances of this case, including the extremely close question the jury was to resolve and the timing of the error, we believe it is highly probable that the prosecutor‘s argument materially affected the verdict and thereby seriously prejudiced Segna. This amounts to plain error under
III
Segna raises one issue on appeal which we believe should be addressed in an effort to avoid error in the trial on remand.
Segna requested, but was refused, an instruction defining the term wrongfulness in the Wade test of legal insanity.5 He proposed to define wrongfulness as meaning moral wrongfulness rather than criminal wrongfulness. In other words, if you find that the defendant, because of a
One of the classic debates in criminal law has centered on the meaning of the words wrong and wrongfulness as they are used in the various definitions of criminal responsibility. In this context, the word wrong has three possible definitions. First, the word may mean legally wrong, or “contrary to law.” Thus a person is criminally responsible if he has substantial capacity to appreciate that his act violates the law. Second, the word may mean “contrary to public morality.” Here a person is criminally responsible, regardless of his appreciation of his act‘s legal wrongfulness, if he is aware at the time of the offending act that society morally condemns such acts. Third, the word may mean “contrary to one‘s own conscience.” Under this “subjective” approach, the accused is not criminally responsible for his offending act if, because of mental disease or defect, he believes that he is morally justified in his conduct—even though he may appreciate either that his act is criminal or that it is contrary to public morality. See H. Fingarette, The Meaning of Criminal Insanity 152-157 (1972); A. Goldstein, The Insanity Defense 51-53 (1967).
In Wade, we adopted the third definition by choosing the alternate word wrongfulness6 in the American Law Institute‘s test of legal insanity, rather than the
But one word can carry only a limited conceptual burden. Accordingly, in United States v. McGraw, 515 F.2d 758 (9th Cir. 1975), we found it necessary to reverse and remand a case because the district court had refused to give a requested instruction elaborating on the meaning of the word wrongfulness. There, both sides had introduced expert testimony that because of mental illness McGraw believed that he was morally justified in committing the act, although the government‘s expert opined that McGraw did not lack the capacity to appreciate that society considered his conduct to be wrong. Likewise, in United States v. Sullivan, 544 F.2d 1052 (9th Cir. 1976), we reversed and remanded because the district court had refused a clarifying instruction on wrongfulness. As in McGraw, evidence arose during the course of the trial that Sullivan committed the criminal act under a false belief, resulting from a mental disease, that the act was morally justified.
The government argues that a clarifying, amplifying instruction is proper only when an expert witness concludes that the defendant lacks substantial capacity to appreciate the moral wrongfulness of his conduct. Segna suggests that the term wrongfulness is always ambiguous and that a clarifying instruction must be given on request. We reject both extremes and adhere to a more traditional rule that the district court must, when properly requested, instruct on the issue if the record contains evidentiary support for the defendant‘s theory that, although he realized the offending act was illegal, because of mental disease he possessed a false belief that the act was morally justified. United States v. Sullivan, supra, 544 F.2d at 1056; see United States v. Noah, 475 F.2d 688, 697 (9th Cir.), cert. denied, 414 U.S. 821 (1973); 414 U.S. 1095 (1973); Charron v. United States, 412 F.2d 657, 660 (9th Cir. 1969); Perkins v. United States, 315 F.2d 120, 124 (9th Cir.), cert. denied, 375 U.S. 916 (1963).
We do not pass upon Segna‘s proposed instruction on this subject nor do we consider whether there was sufficient evidence to require its being given. These questions can be resolved at the new trial. We find it unnecessary to discuss the remaining issues which Segna has raised.
REVERSED AND REMANDED.
WILLIAM P. GRAY, District Judge, concurring and dissenting:
I agree that the conviction must be reversed for the reason asserted in the opinion of the court. However, in light of all of the evidence presented at the trial, I do not see how any reasonable jury could possibly have found beyond reasonable doubt that Segna was sane. It is true that Dr. Gorman testified to a contrary conclusion, but most of the factual assumptions upon which his opinion rested were thoroughly destroyed, and his “rather far-fetched speculation” to which the majority opinion refers bordered on the incredible. I think that a directed verdict on the insanity issue was indicated.
Also, it seems to me that one aspect of the prosecutor‘s conduct deserves more attention than has thus far been accorded it in the opinion (see footnote No. 1). There was never any issue as to the fact that Segna shot and killed the decedent police officer shortly after the latter and a fellow officer drove in their patrol car to the scene of a disturbance that Segna had created.
Nonetheless, the prosecutor called as his first witness the widow of the decedent and began his interrogation by asking her if she was married (!). She responded that she was a widow and, in reply to further questioning, testified that she had been made a widow and her young children fatherless by the events of the day concerned, and that her husband had been in good health when he left for work that morning. In the course of such testimony, this unfortunate lady began to cry, thus fulfilling the obvious reason for her having been called to the stand. It seems to me that such an intentional injection of sympathy and prejudice falls far below the standard of conduct that should be expected of a responsible representative of the United States Attorney.
Notes
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.
Wade v. United States, 426 F.2d 64, 71-72 (9th Cir. 1970) (en banc).