State v. Goyet

Holden, J.

(dissenting). Respondent’s exceptions 9, 11 and 14 point out to me deviations from established principles of criminal procedure.

Exception 9. The jury was permitted to examine, consider and speculate concerning the mutilated, unexpended bullet included in State’s Exhibit 32. When the trial court indicated its concern for the offered exhibit, the State made an offer to the Court and the respondent to connect the exhibit by scientific proof that would associate the bits of lead taken from the questioned bullet, with the fragments of lead removed from the wound inflicted on the victim, State’s Exhibits 25 and 33. This promised crucial connection in the proof was never accomplished. The offensive exhibit remained in the case as an instrument for conjecture. See State v. McDonnell, 32 Vt 491, 535. Even though the offer was made at the bench, with the-right purpose to bring it out of earshot of the jury, it was made-in the presence of the jury, with, at best, but a few feet separating court and counsel from the jury. I am unable to afiirmatively say that the challenged exhibit worked no injury to the-accused. Such affirmation is the requirement of our cases, State v. McDonnell, supra; State v. Meader, 54 Vt 126, 130; State v. Hopkins, 50 Vt 316, 330; State v. Longe, 96 Vt 7, 10, 116 A 81; See also Paul v. Drown, 108 Vt 458, 462, 189 A 144, 109 ALR 1085 , concerning a prejudicial offer.

*76 Exception 11. The trial court excluded the oral confession without assigning reason- for its rejection. Whether the ruling emanated from considerations of law or discretion does not appear. Whatever reasons moved the court to the exclusion of the oral confession, it was ruled out of the case. After such a ruling, to justify the admission of the subsequent written confession, it became incumbent upon the State to establish that the influences that produced the original confession had been removed. The evidence required to support the subsequent confession, in this situation, must be strong and clear. 3 Wigmore, Evidence, §855, page 335; State v. Ellis, 294 Mo 269, 242 SW 952 , 24 ALR 682, 689 ; Edwards v. State, 194 Md 387, 71 A2d 487, 493 . See also State v. Carr, 37 Vt 191, where this principle is recognized and the evidence intervening the first and second confession was held sufficient to meet the test.

The record, in so far as I can perceive, reveals but the single factor of the removal of handcuffs from the confessor to justify the severance of his two incriminating statements. In my judgment, this fact, standing alone, fails to discharge the burden which the law casts upon it.

Exception 14. V. S. 47, §2478 requires the separate examination of witnesses in a criminal trial on the request of either the respondent or the prosecuting attorney. In this instance the request came from both sources. The statute employs the word "shall”; thereby the implication of a mandate arises and the import is restrictive. Snyder v. Central Vermont Railway, 112 Vt 190, 193, 22 A2d 181 .

In the absence of a statute, there appears to be a difference of judicial opinion whether separate examination of witnesses is a demandable right or is available only in the trial court’s discretion. 3 Wigmore, §1839, page 357. The wording of our statute seems to remove these differences for this jurisdiction. Upon the request of either party it provides, "The court shall have the witnesses examined separately and apart from each other.”

At the last October Term of this Court, it was held that the violation of the mandate of the common law, supported by the statutory oath prescribed for court officers to hold the jury *77 together in a criminal cause, was improper and constituted reversible error unless the respondent consented to the jury’s separation. State v. Anderson, 119 Vt 355, 125 A2d 827, 831 . To my mind, the same reasoning applies with equal force here. I differ with my associates on the existence of such consent. The majority opinion states that the request for an opportunity to examine the data contained in Dr. Forrest’s medical file followed by the grant of that request constituted a waiver of his right to have the witness excluded, during the examination of all but psychiatric witnesses.

"A waiver is the voluntary relinquishment of a known right. To establish it, there must be shown an act or omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right in question. It may be expressed or implied. But if it is of the latter class, caution must be exercised both in proof and application. The facts and circumstances relied upon must be unequivocal in character. Silence, alone, is never a waiver. It is only where there is an obligation to speak, that it has that result. When it is in derogation of a statutory right, it is not favored, and will not be inferred from doubtful acts.” Powers, C. J. in Dunbar v. Farnham, 109 Vt 313, 322-323, 196 A 237, 241, 114 ALR 996 .

The request of the respondent for access to data from Dr. Forrest’s file is, at best, "a doubtful act” upon which to attach a waiver. The respondent’s resistance to the trial court’s ruling, followed by the court’s allowance of an exception to the respondent "on all grounds”, repels the idea of voluntary consent to the relinquishment of an important statutory right. And such a statutory right, even by implication, should not be made the instrument of trade for factual data in a criminal prosecution.

The final area of my departure from the majority opinion relates to the treatment afforded the controversial case of Durham v. United States, 94 US App DC 228, 214 F2d 862, 45 ALR 2d 1430 . I concur with the majority, that there was no error, in this instance, in the failure of the trial court to charge the requests submitted by the respondent, extracted verbatim from the Durham decision. I believe the charge of the court upon *78 the issue of criminal responsibility was correct, fair and appropriate to the expert psychiatric testimony appearing in the case.

I feel it should be pointed out, however, that the charge given went substantially beyond the instructions that appear in the majority opinion. I believe the instructions in full, which the trial court afforded to the jury on the issue of insanity, are not inconsistent, nor out of harmony with the decision in Durham v. United States, supra, and State v. Pike, 49 NH 399, 407-408. The jury was instructed, "Insanity may be general or it may be partial. The degree of it must have been so great as to control the will of its subject and to have taken from him the freedom of moral action.” In my judgment, this instruction conveys substantially the same thought, expressed in the words of the Durham case "that an accused is not criminally responsible if his unlawful action was the product of mental disease $ ‡ ‡ 99

The record discloses that the respondent’s expert witnesses on the issue of insanity frequently referred to the impulsive nature of the respondent’s act. In response to that evidence, the court instructed the jury, "The mind must be so overcome that it has no power to resist the insane impulse to commit the deed so that the action is the direct and immediate consequence of the result of insanity, in short, that the deed is an insane act in respect to which the reason is powerless.” This portion of the court’s instruction was obviously consistent with the testimony of the psychiatrists, that the respondent’s mental condition was such that he was compelled to yield to the "irresistible impulse to kill the victim” and that it was impossible for him to resist the impulse to carry out the act in question. The so-called "irresistible impulse” rule had particular application to the testimony then before the jury.

On the evidence, the court was under no obligation to use the term "mental defect” requested by the respondent, in the sense that it is employed in the Durham case. Under the definition given to that term by the Durham opinion, a mental defect is a condition considered incapable of improvement of deterioration. It is there regarded as a static and permanent impairment of the mind. The evidence of the psychsatrists *79 called by the respondent, was that he suffered from "incipient Schizophrenia” capable of progressing into severe stages and diagnosed as a severe mental disturbance as distinguished from a physical or brain disturbance, and that further mental deterioration would follow.

In the Durham decision, the so-called "irresistible impulse” rule was regarded as an inadequate guide to the determination of criminal responsibility, for it carried with it the misleading implication that the diseased mental condition produces only sudden or spontaneous inclinations to commit unlawful acts, Durham v. United States, supra, 94 US App DC at 239, 214 F2d at 873, 45 ALR2d at 1444. Such an implication was particularly inappropriate in the case then before that court, where the offense charged was housebreaking.

The misleading connotation of the rule referred to in the Durham case has been expressly removed from the standard of criminal responsibility applied in this jurisdiction by what is said in State v. Blair, 118 Vt 81, 96, 99 A2d 677, 686 , "The irresistible impulse must be one produced and growing out of mental disease and not from an episode of emotional excitement.” The irresistible impulse instruction, thus qualified, is consonant with what is said in Durham v. United States.

The opinion of the majority of the Court states that we have been called upon to accept the "Durham rule” and its acceptance is denied.

I believe there is danger in endeavoring to catalog rules in regard to criminal responsibility. In Snyder v. Commonwealth, 291 US 97, 114 , 54 S Ct 330, 335 , 78 L Ed 674 at 682 , Justice Cardozo wrote of the "tyranny of labels” and pointed out that they were a source of perversion in constitutional theory and observed: "Out of the vague precepts of the Fourteenth Amendment, a court frames a rule which is general in form,though it has been wrought under the pressure of particular situations. Forthwith another situation is placed under the rule because it is fitted to the words, though related faintly, if at all, to the reasons that brought the rule into existence.” This well-founded observation applies with equal force to the conflicting theories that have arisen in the treatment of the subject of criminal insanity. In this case, the Durham decision has been *80 treated as a rule. If I read the Durham case correctly, it states a concept but does not undertake to establish a rule, for it is there stated, "Whenever there is 'some evidence’ that the accused suffered from a diseased or defective mental condition at the time the unlawful act was committed, the trial court must provide the jury with guides for determining whether the accused can be held criminally responsible. We do not, and indeed could not, formulate an instruction which would be either appropriate or binding in all cases.’’ Thus, an instruction to be afforded the jury in connection with a criminal act involving a relatively lengthy period of deliberation and execution is not exactly appropriate to a criminal act that is impetuous and swift in its conception and execution, impulsive in nature.

The Durham case states the concept that criminal insanity is incapable of precise definition. The plethora of conflicting opinion, both legal and psychiatric, manifests the same truth. The way to the true ascertainment of criminal responsibility should not be encumbered by any single definition or label.

Vermont went beyond the rigid confines of the so-called McNaghten rule in Doherty v. State, 1901, 73 Vt 380, 50 A 1113. The Court in an opinion by its Chief Justice Taft, in considering a petition for a new trial on the issue of insanity, found itself in the position of a jury. In disposing of the issue then before it, the Court recognized that insanity may be general or partial but whatever its degree, criminal responsibility will not attach to one suffering from such disease if the mental illness controls the will of the subject and takes from him the freedom of moral action, thereby destroying the voluntary character of the offense. This was reported as a legal guide followed by the Court, in reaching its ultimate decision.

Then, as now, the ascertainment of the truth of criminal responsibility must rest on the determination of the issue of fact, — whether the offense is the product of a guilty or criminal mind, or whether it be the result of the operation of a mind so infected by disease that guilt cannot be assigned to it. In the case before us the jury was afforded reasonable guides for fixing criminal responsibility in accord with the expert testimony *81 before them. They were left free to discern the mental capacity of the respondent to commit the criminal deed with which he stood charged.

I am at variance with the majority opinion in so far as it attempts to accept or reject standardized rules, involving legal definition of criminal insanity that will unnecessarily restrict the law of this jurisdiction in finding the truth of criminal responsibility in any particular case.

The weight and integrity of psychiatric testimony is not for the court. It is for the jury, in the same measure as their control of medical testimony in search of the truth on an issue of physical disease or injury.

The opportunity for enlightened progress in the field of psychiatric jurisprudence should not be unnecessarily trammeled or restricted by the arbitrary selection of a single rule or definition. The law has wisely preserved flexibility to allow the jury a wide freedom of action in dealing with "proximate cause”, "reasonable doubt”, "the prudent man” and in supplying other guides for fixing responsibility, both civil and criminal. I believe the same freedom of action should be preserved for the jury’s determination of criminal responsibility where insanity is the issue.

I reluctantly take a position apart from the majority of the court. My reluctance is generated from a deep-seated respect for the considered and more experienced judgment of my associates. I appreciate too, that the verdict of the jury, upon a crime so savagely brutal, should not be rejected for other than the most compelling reasons. Such reasons appear to me, by way of Respondent’s Exceptions 9, 11 and 14.

"A criminal, however shocking his crime, is not to answer' for it with forfeiture of life or liberty till tried and convicted in conformity with law.” People v. Moran, 246 NY 100 , 158 NE 35, 37 . This is the precept of State v. Brewster, 76 Vt 341, 352, 40 A 1037, 42 LRA 444, and State v. Frotten, 114 Vt 410, 416, 46 A2d 921 . It is my view that a new trial is required in order that a verdict may be achieved, free from the shadow of legal infirmity.

I am authorized to state that Mr. Justice Hulburd is in accord with that part of this memorandum that is in concur *82 rence with the majority, relating to the charge of the trial court on the matter of criminal responsibility.