Chrisp Heard, Jr. v. United States

J. SKELLY WRIGHT, Circuit Judge

(dissenting):

As the court’s opinion indicates, the trial judge was specifically requested to allow the jury to decide the issue of criminal responsibility in this case. Instead, the trial judge decided this issue against the defendant. In my opinion, this ac *47 tion, and the opinion of the majority here, are based on a misconception of the question of responsibility raised by a defense grounded in drug addiction.

The majority here holds that there is no evidence to support the suggestion that at the time of the offense charged appellant was either so under the influence of narcotics or under such compulsion to obtain narcotics that his ability to control his behavior was substantially impaired. But this is not the issue which appellant presents. Appellant argues that his drug addiction reflects an underlying mental illness which has been exacerbated by the long continued use of drugs. It was in speaking of this condition — this cause and this effect, not the momentary effects of narcotics or the need of them — that we said in Brown v. United States, 118 U.S.App.D.C. 76, 77 , 331 F.2d 822, 823 (1964) :

“ * * * ‘[Njarcotic addiction is an illness. * * * “Of course it is generally conceded that a narcotic addict, particularly one addicted to the use of heroin, is in a state of mental and physical illness.” ’ Robinson v. California, 370 U.S. 660 , 667 and n. 8, 82 S.Ct. 1417, 1420 , 8 L.Ed. 2d 758 (1962). ‘They are diseased and proper subjects for such [medical] treatment * * Linder v. United States, 268 U.S. 5, 18 , 45 S.Ct. 446, 449 , 69 L.Ed. 819 (1925). The defense of insanity based on drug addiction generally presents a jury issue as to criminal responsibility. Horton v. United States, 115 U.S.App.D.C. 184 , 317 F.2d 595 (1963); Rivers v. United States, 117 U.S.App.D.C. 375 , 330 F.2d 841 1964 ). The trier of fact must decide whether the defendant had a mental disability and, if so, whether his act was the product thereof. Hightower v. United States, 117 U.S.App.D.C. 43 , 45-46, 325 F.2d 616, 618-619 (1963).”

It is true the Government psychiatrists in this case testified that in their opinion Heard, though addicted, was not suffering from a “mental disease or defect.” But, in explaining the cause and effect of narcotics addiction 1 in general and in Heard’s case in particular, each of them also testified that Heard’s long addiction would affect his mental and emotional processes as well as his behavior controls. Thus each of them indicated that by our legal definition, 2 as distinguished *48 from their medical opinion, Heard may be suffering from a mental disease. Under the circumstances, it is difficult for me to understand why this is not the “some evidence” required to take the mental issue to the jury. Davis v. United States, 160 U.S. 469, 486-487 , 16 S.Ct. 858 , 40 L.Ed. 499 (1895).

With respect to “some evidence,” in McDonald v. United States, supra Note 2, we said:

“ * * * The subject matter being what it is, there can be no sharp quantitative or qualitative definition of ‘some evidence.’ Certainly it means more than a scintilla, yet, of course, the amount need not be so substantial as to require, if un-controverted, a directed verdict of acquittal. The judgment of the trial judge as to the sufficiency of the evidence is entitled to great weight on appeal, but, since the defendant’s burden is merely to raise the issue, any real doubt should be resolved in his favor.” 114 U.S.App.D.C. at 122, 312 F.2d at 849. (Footnotes omitted; emphasis added.)

In this connection, footnote 4 3 in the McDonald opinion is also of interest, since it applies specifically to this case.

In McDonald our purpose was, so far as the law would allow, to take the issue of mental illness out of the hands of judges and psychiatrists, and place it in the hands of the jury. In view of the uncontroverted evidence that appellant was addicted to narcotics drugs, that is where it should have been placed in this case, irrespective of the lack of evidence that he acted under the immediate influence of, or need for, drugs.

I respectfully dissent.

Before BAZELON, Chief Judge, and FAHY, WASHINGTON, DANAHER, BURGER, WRIGHT, McGOWAN, TAMM and LEYENTHAL, Circuit Judges, in Chambers. (Senior Circuit Judge Bastían was a member of the court at the time the votes were taken and voted to deny appellant’s petition for rehearing en banc.)

ORDER

There not being a majority of the circuit judges of this circuit in favor of a rehearing of the above-entitled case by the court en banc, the petition for rehearing en banc is denied.

BAZELON, Chief Judge, and FAHY, WASHINGTON and WRIGHT, Circuit Judges, being of the view that the issue should have the consideration of the full court would grant rehearing en banc and reserve the right to file statements of views.

TAMM, Circuit Judge, did not participate in the foregoing order, because he was not a' member of the Court at the time the petition was filed or when the vote was taken.

*49 LEVENTHAL, Circuit Judge, did not participate in the consideration or disposition of the foregoing order.

. The Government’s psychiatrists’ explanation of the cause and effect of narcotics addiction accorded generally with the views of the authorities recited by this court in Castle v. United States, 120 U. S.App.D.C. -, 347 F.2d 492 (No. 17,-894, decided November 19, 1964). There, at pp. 493, we stated these views as follows :

“Chronic narcotics addiction is characterized by ‘an overpowering desire or need (compulsion) to continue taking the drug and to obtain it by any means.’ World Health Organization, Technical Report No. 21, p. 6 (1950). The addict’s physical dependence is ‘the development of an altered physiological state which is brought about by the repeated administration of the drug and which necessitates continued administration of the drug to prevent the appearance of the characteristic illness which is termed an abstinence syndrome. * * * [Physical dependence] forces the addict to seek his drugs by any and all means. The first concern of many addicts becomes obtaining and maintaining an adequate supply of drugs.’ Counsel of Mental Health, American Medical Association, Report on Narcotic Addiction, 165 J.A. M.A. 1707, 1713 (1957). There is also a ‘psychological dependence [which] is, of course, related to the effects opiates create within the central nervous system.’ Ibid. See also Kolb, Narcotic Addiction 95 (1962). Thus the dependence has been described as ‘the body’s slavery to the continued use of opiates.’ Id. at 4. For the addict with a strong habit, abrupt withdrawal is dangerous. Kolb and Himmelsback, Clinical Studies of Drug Addiction, 94 Am.J. of Psych. 759, 781 (1938).”

. In McDonald v. United States, 114 U.S. App.D.C. 120, 124, 312 F.2d 847, 851 (1962) (en banc) (per curiam), we said:

“ * * * Our purpose now is to make it very clear that neither the court nor the jury is bound by ad hoc definitions or conclusions as to what experts state is a disease or defect. [Emphasis added.] What psychiatrists may con *48 sider a ‘mental disease or defect’ for clinical purposes, where their concern is treatment, may or may not be the same as mental disease or defect for the jury’s purpose in determining criminal responsibility. Consequently, for that purpose the jury should be told that a mental disease or defect includes any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls. * * *

. Footnote 4 in McDonald reads:

“In considering the quantum of evidence necessary to raise the issue of criminal responsibility, we cannot ignore our experience that in most cases the accused does not possess the knowledge and financial ability required to seek and obtain expert testimony in his behalf. Ordinarily such persons can only obtain examinations by psychiatrists employed in government institutions, and if these examinations are inadequate, ‘the [resulting] inadequacy of the evidence is not a point in favor of the prosecution.’ Williams v. United States, 102 U.S.App.D.C. 51 , 55-56, 250 F.2d 19, 23-24 .” 114 U.S.App.D.C. at 122 n. 4, 321 F.2d at 849 n. 4.