Petition — Edwards v. Tennessee

yicvacy RODAK, IR. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

"6-5338

GEORGE S. EDWARDS,

Petitioner,

versus

STATE OF TENNESSEE and BROOKS McLEMORE,

Attorney General of the State of Tennessee,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of the

State of Tenmessee

LUCIUS E. BURCH, JR.

CHARLES F. NEWMAN

DeWITT M. SHY, JR.

BURCH, PORTER & JOHNSON

130 North Court

Memphis, Tennessee 38103

Attorneys for Petitioner

A TS RNAS ATED RE Res

St. Louis Law Printing Co.. Inc., 812 Olive Street 63101 314-231-4477

a oad

SUBJECT INDEX

Page

Index of Authorities ......... ‘ede cahena pian sane i

ED 6.6 cUWedoces coensaedinewekeses sys 2

PE hb a Peel cbaadecaes cde tonseepebtsaaees 2

Federal Questions Presented ... 0.0... cc ccc ccccccess 2

Raising of the Federal Questions ................545. 3

Constitutional Provisions Involved ................-. 6

SE Ge SED og cnc dnecbascovesccevetedeucs 7

Reasons for Granting the Writ .................546- 19

Sn co. Saad de epi bhek tae 6 < ack eon tbarshens 81

ET ED gg vccacct cee cdcabeevebeeusons 81

(EE OP ee ey ee See Separate Volume

INDEX OF AUTHORITIES

Case Citations

Atkins v. State, 199 Tenn. 458 (1907) ............... 33

Barber v. Page, 390 U.S. 719 (1968) ................ 57

Beltran v. United States, 302 F. 2d 48 (Ist Cir., 1962)... 28

Blackburn v. Alabama, 361 U.S. 191 (1959) .......... 43

Blunt v. United States, 244 F. 2d 355 (D.C. Cir., 1957) .. 28

Britts v. State, — Fla. —, 30 So. 2d 363 (1947) ........ 28

Brookhart v. Janis, 384 U.S. 1 (1966) ................ 8

Buatte v. United States, 330 F.2d 342 (9th Cir., 1964) ... 28

Butterworth v. State, — Tenn.Crim.App. —, (filed Feb-

ee a errr 25, 26, 27, 35

Catlin v. United States, 251 F. 2d 368 (D.C. Cir., 1957) .. 74

California v. Green, 399 U.S. 149 (1969) ......... 48, 56, 57

Chambers v. Florida, 309 U.S. 227 (1939) ............ 43

Clark v. Wilburn, 7 Tenn.App. 46 (1927)

Covey v. State, 504 $.W.2d 387 (1973), cert. den.

i Pe Pe ee ee ee Pam aayree- 25, 49, 50, 51

Davis v. State, 161 Tenn. 23 (1930) ................ 23, 53

Davis v. United States, 160 U.S. 469 (1895) ....... 21, 22, 28

Douglas v. United States, 239 F.2d 52 (D.C. Cir., 1956)... 28

Dove v. State, 50 Tenn. 348 (1871) ........ 23, 24, 25, 53, 73

Dutton v. Evans, 400 U.S. 74 (1970) ............ 48, 56, 57

Escobedo v. Illinois, 378 U.S. 478 (1964) ............ 44

Farrell v. State, — Fla. —, 101 So.2d 130 (1958) ...... 28

Fisher v. Insurance Company, 124 Tenn. 450 (1911) .... 35

Furman v. Georgia, 408 U.S. 238 (1972) ............. 36

Frigilanna v. United States, 307 F.2d 665 (D.C. Cir., 1962) 28

Garner v. State of Louisiana, 368 U.S. 157

DE Vos torts bce EN eae Rete ee auuaue i 19, 20, 24, 53

Graham v. People, — Colo. —, 38 P.2d 87 (1934) ..... 28

Greene v. McElroy, 360 U.S. 474 (1964) ............ 54, 55

Guiteau’s Case, 10 F. 161 (1882) ................... 22

Hammond v. Planters Bank, 189 Tenn. 93 (1949) ...... 33

Handspike v. State, —Ga.—, 45 S.E.2d 662 (1947) .... 28

Hartford v. United States, 362 F.2d 63 (9th Cir., 1966)

cest. den. 385 US. 883 (1966) .................. 28

Holmes v. State, 20 Tex.App. 110 (1885) ............. 28

a

ili

Houston v. Perini, 348 F.Supp. 6 (N.D. Ohio, 1972) .... 20

Isaac v. United States, 284 F.2d 158 (D.C. Cir., 1968) . .28, 68

Ingles v. People, 90 Colo. 51, 6 P.2d 455 (1931) ... . 50, 58, 59

Jackson v. Zerbst, 304 U.S. 458 (1938) ...........-. 44

Jordan v. State, 124 Tenn. 81 (1910) ............-. 23, 53

King v. State, 91 Tenn. 617-(1892) .......... 24, 25, 53, 73

Kuk v. Nevada, 80 Nev. 291, 392 P.2d 630 (1964) ..... 74

Kwosek v. State, 8 Wisc.2d 640, 100 N.W.2d 339 (1960) 69

Lee v. County Court of Erie County, 267 N.E.2d 452

SEE csc weve chee chpenshaheewnet ease ecuvuns 46, 47

Leland v. Oregon, 343 U.S. 790 (1952) .......----+55: 23

Lyles v. United States, 254 F.2d 725 (D.C. Cir., 1957),

cert. den. 356 U.S. 961 (/958), 362 U.S. 943 (1958),

and 368 U.S. 992 (1962) .............-55: 74, 75, 76, 77

McBee v. State, 213 Tenn. 15, 372 S.W. 2d 173 (1963) . .29, 30

McDonald v. United States, 312 F.2d 847 (D.C. Cir.,

ARLE SL oe een a are Pte eee 74

Melody v. Hamblin, 21 Tenn.App. 687 (1937), cert. den.

EA eT er err Th ee. 2 33

Miranda v. Arizona, 384 U.S. 436 (1966) ............ 43, 44

Mullaney v. Wilbur, 421 U.S. 684 (1975) .........-. 20, 21

Mullendore v. State, 183 Tenn. 53, 191 S.W.2d 149

NN oo as ois oe a bade LUT ES ORE AEE REE 26, 27, 32

Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498 (1968)... 51

Nelson v. State, 35 Wisc.2d 797, 151 N.W.2d 694 (1967) 74

New York Life Insurance Co. v. Taylor, 147 F.2d 297

A ere ere eee 50, 59, 61

Opper v. United States, 348 U.S. 84 (1954) ........... 44

iV

Ohio v. Tims, 9 Ohio St.2d 136, 224 N.E.2d 348

QDOGT) nn eo vee kewecess Ane 50, 61, 62

People v. Cole, 382 Mich. 695, 172 N.W.2d 354

to) Peer 32, 33, 34, 74, 76, 77

People v. Hampton, 23 Mich.App. 190, 178 N.W.2d 551

CIOTED on ccccvcevecesccsav eee nna 74

People v. Skeoch, —Ill.—, 96 N.E.2d 473 (1951) ...... 28

Phillips v. Neil, 452 F.2d 337 (6th Cir.,

ok | re ere es 23, 24, 49, 52, 53, 54, 56, 58

Phillips v. United States, 311 F.2d 204 (10th Cir., 1962) 28

Pointer v. Texas, 380 U.S. 400 (1965) .. .48, 53, 54, 55, 57, 61

Pollard v. United States, 282 F.2d 450, clarified 285 F.2d

Si Cth Cie., IGGRD. . nc cccccccscvceceueemeee 28

Richard v. State, —Tenn.Crim.App.— (filed March 8,

1972), cost. Com. OGay 4, O9FS 2.4. wees 24, 25, 26, 73

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ........ 44

Smith v. Illinois, 390 U.S. 129 (1967) .............. 55, 56

South Carolina v. Myers, 220 S.C. 309, 67 S.E.2d 506

() ) ) Pr 45

Spurlock v. State, 212 Tenn. 32, 368 S.W.2d 299 (1963) ..70, 71

State v. Holt, 222 Tenn. 721, 440 S.W.2d 591 (1969) ... 34

State v. Shoffner, 31 Wisc.2d 412, 143 N.W.2d 458 (1966) 74

State ex rel. LaFollett v. Rasier, 34 Wisc.2d 607, 150 N.W.

26 318 CIDGT) ... vc ccccccwecnceeseso ee 45

Stuart v. State, 60 Tenn. 178 (1873) ................ 23, 53

Taylor v. United States, 222 F.2d 398 (D.C. Cir., 1955).74, 75

Thompson v. City of Louisville, 362 U.S. 199 (1960). 19, 24, 53

United States v. Horne, 304 F.2d 727 (D.C.Cir., 1969). .23, 53

Oe ROR Re ee ee

I hs ee he ee ee

United States v. Palladino, 475 F.2d 65 (ist Cir., 1973),

judgment vacated 413 U.S. 916 (1973)......... se

United States ex rel Tate v. Powell, 325 F.Supp. 333 (1971) 23

United States v. Wade, 388 U.S. 218 (1966) ........... 46

United States v. Westerhausen, 283 F.2d 844 (7th Cir.,

ES er COCO 28

Union Traction Company v. Anderson, 146 Tenn. 476

Ee EeePC E eee sea cs ecececccoccccs 35

Wilcox v. State, 94 Tenn. 106, 28 S.W. 312 (1894) ...... 32

In re Winship, 397 U.S. 358 (1970) ...........--. 20, 21, 23

Constitutional Provisions

Constitution of the United States, Amendment V..... 6, 42, 43

Constitution of the United States, Amendment

ee 7, 24, 35, 42, 46, 54, 55, 56, 57, 58

Constitution of the United States, Amendment

ee Dh eo €0 0 7, 19, 20, 21, 23, 24, 32, 35,

42, 48, 54, 55, 62, 63, 74, 78

Tennessee State Statute

ee eee cee cesecss 56

Miscellaneous Citations

5 Wigmore on Evidence, Section 1397, p. 131 ......... 56

29 Am. Jur. 2d Evidence § $29 ...............000-- 44

Annot., Instructions in Criminal Case in which Defend-

ant Pleads Insanity as to his Hospital Confinement in

the event of Acquittal, 11 A.L.R. 3d 727........... 77, 78

vi

Note, Pretrial Mental Examination and Commitment:

Some Procedural Problems in the District of Columbia,

Pe Gk ED ng o's co Oconee bs oer. 47, 48

The Admissibility of Expert Medical Testimony Based in

Part Upon Information Received from Third Persons,

i Tee eee 59

ee a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

GEORGE S. EDWARDS,

Petitioner,

versus

STATE OF TENNESSEE and BROOKS McLEMORE,

Attorney General of the State of Tennessee,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the Supreme Court of the

State of Tennessee

To THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES

OF THE SUPREME COURT OF THE UNITED STATES.

The Petitioner, George S. Edwards, prays that a Writ of

Certiorari issue to review the opinion and judgment of the

Supreme Court of Tennessee filed in these proceedings on May

17, 1976, affirming the conviction, and the opinion and judg-

ment filed on July 19, 1976, denying the Petition to Rehear.

a

OPINIONS BELOW

The judgment of the Criminal Court of Shelby County,

which is unreported, appears in Appendix A, p. A-!.* The

judgment and opinion of the Tennessee Court of Criminal Ap-

peals at Jackson, which is unreported, appears at Appendix B,

p. A-3. The judgment and opinion of the Supreme Court

of the State of Tennessee is unreported, and appears at Ap-

pendix C, pp. A-24. The opinion of the Supreme Court of

Tennessee denying the Petition to Rehear appears at Appen-

dix D, p. A-58.

JURISDICTION

The judgment of the Supreme Court of the State of Ten-

nessee was entered on May 17, 1976. See Appendix C, pp.

A-24-25. A Petition to Rehear was denied by the Tennessee

Supreme Court on July 19, 1976. See Appendix D, p. A-58.

This Petition for Certiorari is being filed less than ninety days

from the latter date. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(3).

FEDERAL QUESTIONS PRESENTED

| I. Whether Petitioner's conviction is so devoid of eviden-

tiary support as to render it unconstitutional under the Due

Process Clause of the Fourteenth Amendment, because the

state failed, as a matter of law, to prove beyond a reasonable

doubt that Petitioner was sane at the time of the crime and

with respect to the crime.

II. Whether Petitioner was denied a fair trial and due proc-

ess, in violation of his rights under the Fourteenth Amend-

* The Appendix to this Petition for Wri i 5 ie wal

in a separate volume. t Writ of Certiorari is printed

PT ee EE Wee ahs ww

a, wo

ment, because the Trial Court's instructions to the jury failed

to properly instruct the jury as to the reasonable doubt stand-

ard and its application.

III. Whether Petitioner was denied a fair trial and due proc-

ess because the Court failed to instruct the jury properly as to

the application of the so-called M’Naghten Rule, in that the

Court several times stated that portion of the M’Naghten Rule

relating to the ability to distinguish right from wrong without

stating that portion of the Rule relating to knowledge of the

“nature and quality” of the act.

IV. Whether Petitioner was denied a fair trial and due

process because the jury was instructed to determine whether

the presumption of insanity had been overcome or remained

in the case at the end of the proof, when the presumption of

sanity had, prior to the conclusion of the state’s proof, and

certainly prior to the end of the trial, been overcome as a mat-

ter of law and the state was, by that time, as a matter of law,

clearly under the burden of proving beyond a reasonable doubt

that the Petitioner was not legally insane at the time of the

act and with respect to the act.

V. Whether Petitioner was denied a fair trial and due proc-

ess because the Court refused to instruct the jury as to the

meaning, effect and consequences of a verdict of not guilty by

reason of insanity and prohibited Petitioner's attorneys from

discussing this subject. during voir dire and argument.

RAISING OF THE FEDERAL QUESTIONS

The Federal Questions Presented were raised in the following

manner:

Federal Question I was raised in the Trial Court by Petition-

er’s motion for a directed verdict at the conclusion of all the

—

proof (T., 627') and by Petitioner’s written Motion for Judg-

ment Notwithstanding the Verdict or a New Trial, filed on

March 22, 1973, under Grounds 1-3, 7-10, 14-15, 29-30, and

36. See T., Vol. I, pp. 29ff, and Appendix E, pp. E A-59-62,

A-65-67. The Trial Court overruled both motions.

On appeal to the Tennessee Court of Criminal Appeals, Peti-

tioner made the same contentions in its Brief in Assignments of

Error 1-3, 7-10, 14-15, 29-30, and 36. See Appendix F, pp.

A-68. With respect to Assignments of Error 1-3, the Court held

that the evidence was legally sufficient. Court of Appeals Opin-

ion, pp. 3, 6; Appendix B, pp. A-8-12. The Court overruled

Assignments of Error 7-10, stating that “[I]t was permissible to

ask Mrs. Owensby about the basis for her opinion, including

the statements of others and plaintiff in error himself.” Court

of Appeals Opinion, pp. 4, 6; Appendix B, pp. A-9-12. With

respect to the lay testimony (Assignments of Error 14-15), the

Court held “that the lay witnesses were properly allowed to tes-

tify”. Court of Appeals Opinion, pp. 4, 6; Appendix B, pp.

A-9-12. Assignments of Error 29 and 30 dealing with the jury in-

structions as to expert and lay testimony were overruled, the

Court stating that “. . . the jury was properly instructed to re-

ceive the expert testimony with caution” and “. . . the Trial

Court properly preserved the distinction between lay witnesses

and expert witnesses . . .” Court of Appeals Opinion, pp. 5-6;

Appendix B, pp. A-10-12.

' Reference to the Transcript will made throughout this Petition

by the letter “T”, followed by the number of the page referred to.

The Volume will be included in the reference only in the case of ref-

erence to Volumes I and II and Volume VII, which have separate

pagination, and to Volume VIII which contains the Exhibits. There-

fore, if no Volume is referred to, it may be assumed that the page

referred to is in Volumes III through VI of the Transcript.

Reference to the Appendix pages will be made throughout this

Petition by the letter of the particular appendix followed by the

number of the page referred to within this particular appendix.

ee oer en eer ee

=

The Petitioner raised these contentions in its Petition for Writ

of Certiorari in the Tennessee Supreme Court in Assignments

of Error 1-3, 7-10, 14-15, 29-30 and 36. See Appendix G, pp.

A-84. The Supreme Court rejected these contentions in its

Opinion at pp. 7-13, 16. See Appendix C, pp. A-3 1-36, A-37.

Federal Questions II, II] and IV were raised in the Trial Court

by Petitioner's Motion for Judgment Notwithstanding the Ver-

dict or a New Trial under Grounds 27, 28, 31, 32, and 36.

See Appendix E, pp. A-65-67; T., Vol. I, p. 29ff. The Trial

Court overruled this Motion.

On appeal to the Tennessee Court of Criminal Appeals, Peti-

tioner made the same contentions in its Brief under Assign-

ments of Error 27, 28, 31, 32, and 36. See Appendix F, pp.

A-80-83. The Court rejected these contentions stating “[t}he

charge as given fully and fairly states the law as insanity, both

as to the burden of proof and the M’Naghten rule, and these

assignments are without merit”. See Court of Appeals Opinion,

p. 5, 6; Appendix B, pp. A-1 1-12.

In the Tennessee Supreme Court, Petitioner again made the

same contentions in its Petition for Writ of Certiorari in Assign-

ments of Error 27, 28, 31, 32 and 36. See Appendix G, pp.

A-95-96, 97-99. The Supreme Court affirmed the opinion of

the Appeals Court stating, “. . . we have considered the assign-

ments anew and find ourselves in ful! agreement with the Court

of Criminal Appeals that the charge given by the trial court was

complete and accurate.” Supreme Court Opinion, p. 16; Ap-

pendix C, p. A-38.

Federal Question V was raised in the Trial Court by Special

Requests for instructions to the jury, by objections to the Court's

charge to the jury, and in Petitioner's Motion for Judgment Not-

withstanding the Verdict or for New Trial under Grounds 4, 8,

11, 16-21, and 36. See Appendix E, pp. A-59, 63, 67. The

Trial Court overruled the Motion.

—

On appeal to the Tennessee Court of Criminal Appeals, Peti-

tioner made these contentions in its Brief in Assignments of

Error 4, 8, 11, 16-21 and 36. See Appendix F, pp. A-69, 70, 71,

75-78, 81. The Couft rejected these contentions. With respect

to Petitioner's attempt to discuss the meaning and effect of a

verdict of not guilty by reason of insanity during voir dire

(Ground 4), the Court stated that “. . . the trial court did not

abuse his discretion in controlling the extent of the voir dire

examination.” Court of Appeals Opinion, pp. 3, 6; Appendix B,

A-9, 11. The Court held that Mrs. Owensby’s testimony allud-

ing to the consequences of a verdict of not guilty by reason of

insanity was properly admitted. Court of Appeals Opinion, pp.

4, 6; Appendix B, pp. A-10, 12. The Court also rejected the

Petitioner's contention that the Trial Court erred in allowing the

state’s Attorney to imply in his argument that the Petitioner

would go free upon a verdict of not guilty by reason of insanity.

Court of Appeals Opinion, pp. 4, 6; Appendix B, pp. A-10, 12.

Finally, the Court rejected Petitioner's claim that the Trial

Court erred in failing to charge the Special Requests setting

forth the meaning and the consequences of a verdict of not guilty

by reason of insanity, stating that the Petitioner “cites no Ten-

nessee authority requiring a trial court to so instruct the jury,

. . . Court of Appeals Opinion, pp. 5, 6; Appendix B, pp.

A-10, 11.

In the Tennessee Supreme Court, Petitioner raised these con-

tentions in its Petition for Writ of Certiorari in Assignments of

Error, 4, 8, 11, 16-21, and 36. See Appendix G, pp. A-85, 87-

88, 91-94, 98. The Court discussed and rejected these conten-

tions in its Opinion, at pp. 13-16. See Appendix C, pp. A-36-38.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment V:

“No person shall . . . be compelled in any criminal

case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law. . .”

=

Constitution of the United States, Amendment VI:

“In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against

him .. . and to have the assistance of Counsel for his

defense.”

Constitution of the United States, Amendment XIV, § 1:

. nor shall any state deprive any person of life,

liberty, or property without due process of law. . .”

STATEMENT OF THE CASE

The Petitioner, George S. Edwards, was indicted for first

degree murder in the shooting of his sister. At trial the Peti-

tioner contended that he was not guilty by reason of insanity

at the time of the commission of the act. The jury found him

guilty of murder in the second degree, sentencing him to ten

years in prison. The Petitioner filed a Motion that he be granted

a judgment of not guilty by reason of insanity, notwithstanding

the verdict, or in the alternative that he be granted a new trial,

assigning numerous errors at trial. This Motion was overruled

by the Trial Court and the Petitioner appealed. The Tennessee

Court of Criminal Appeals at Jackson, Tennessee, affirmed in

a two to one decision, Judge O’Brien dissenting. On a Petition

for Certiorari the Supreme Court of Tennessee affirmed the

conviction in a three to two decision, Justice Henry and Justice

Fones dissenting. A Motion to Rehear was denied by the Ten-

nessee Supreme Court in a three to two decision, Justice Henry

and Justice Fones dissenting. The case is before this Court on

a Petition for Writ of Certiorari. The facts material to the con-

sideration of the questions presented are as follows:

The Petitioner had a long history of very serious mental

illness prior to the killing and came from a family in which

—

there was much mental illness. An uncle died in Western State

Hospital. Two cousins were receiving psychiatric treatment at

the time of the trial, and the Petitioner’s mother is an unstable

individual who had made two attempts on her life. T., 296.

On the paternal side, a grandmother died at Whitfield, which

is the Mississippi insane asylum. A great-unc‘e died while a

patient at Veterans Hospital at Murfreesboro, Tennessee, and

a grandfather was in a psychiatric institution in Memphis. T..,

297.

For many years prior to the shooting, the Petitioner was in-

troverted, quiet, very lonely and insecure. T., 76. He was a

“loner”. T., 77. He was dependent upon his mother to an

unusual and very noticeable degree. T., 78-79. Witnesses who

had known him for years testified that he never had a single

close friend, T., 231, and that, if the Petitioner was close to

anyone, it was to his deceased sister, Betty, the victim of the

murder on which the instant case is based. T., 93.

After his marriage, friction developed between the Petitioner

and his wife’s children, and became progressively worse. T..,

79. He was very domineering, tyrannical, and cruel to the

eldest stepdaughter, T., 73, and took sadistic pleasure in forcibly

cutting his stepson’s hair. T., 74. Business and family pressures

increased as a result of the wife’s development of a malignancy

and he seemed unable to deal with those pressures. T., 80. In

September, 1971, part of the Petitioner’s business territory was

taken away from him and given to his wife’s ex-husband, and

this had a very depressing effect upon him, T., 84, causing

the wife to go to the Family Service Bureau with her daughter

to seek help. T., 84. It was then apparent to her that the Peti-

tioner was “sick”. T., 87. There was a bizarre episode in October,

1971, which resulted in a separation between the Petitioner and

his wife and the institution of divorce proceedings by her. They

were reconciled on the express condition that he seek psychiatric

help. T., 69-70.

=

The wife went to the minister of her church, the Reverend

Daly Thompson, with her problem, and he recommended that

she see a psychiatrist, Dr. Parks Walker, as a result of which

the Petitioner became a patient of Dr. Parks Walker in Novem-

ber, 1971. T., 87-88...

In January, 1972, new evidence of cancer was found in the

wife and the Petitioner became even more depressed and spoke

frequently of suicide. T., 88.

For several weeks before the shooting, the Petitioner was so

depressed and withdrawn that he stopped doing any work what-

ever, and on the Wednesday before the shooting he was in such

a state of depression that the wife insisted that he go to see

Dr. Walker, the psychiatrist, again. T., 90-91. As she described

his condition:

“He withdrew completely. He didn’t want to be around

people. He even withdrew from the family. Usually when

he would be depressed—he never wanted to be around

people much anyway, but he even withdrew from the

children. And the last three weeks he didn’t do much of

anything but eat and sleep. He may read a little bit but

that was really about all.” T., 92.

On the night of the shooting, his sister Betty’s presence was un-

anticipated and unexpected. T., 92-93. After she arrived, the

Petitioner gave her a can of beer and entered into a conversation

and “everything was amiable and everything seemed fine.” T.,

47. After a short while, the wife went into the house for an emery

board and the Petitioner followed, closing the door and locking

out his sister. T., 47. It was the wife and not the Petitioner who

went back and admitted the sister. T., 93-94. The wife and the

sister then went in the bathroom to find some nasal spray and

when they both walked into the bedroom together, the Petitioner

was lying on the bed and, without a word, he got up and turned

to the chest of drawers and opened a drawer and took out the

— =

gun and pointed it past his wife, avoiding her, and shot his

sister. T., 48-49. The wife’s spontaneous actions and outcries

immediately following the shooting confirmed that she believed

the Petitioner to be insane at the time of the act. She exclaimed:

“Get back from the window. Turn out the lights. That man is

crazy.” T., 123. And the first person to be called at the wife's

request was Dr. Parks Walker, the psychiatrist. T., 115.

When the arresting and investigating officers arrived, the

Petitioner made conflicting and obviously irrational statements.

He said, “My wife shot herself.” T., 165. This statement was

made when his wife was alive, next door, and the pistol had been

opened and there were three spent and two live rounds lying on

the bed. T., 168. He repeated the contention that his wife had

shot herself. T., 175. His eyes were glassy and there was no

appearance of intoxication. T., 186. He next stated that he shot

his sister “because she had sinned too much” and “She was

better off now dead.” T., Vol. VIII, Exhibit 16 and T., 191-194.

The arresting officer noticed the sick or inappropriate grin,

T., 195, 203, which the wife had noticed for the three or four

months preceding the shooting. T., 96-97. This is objective evi-

dence of the disease of which he was diagnosed as suffering.

T., 408-413.

The deranged condition of the Petitioner was obvious to

everyone having dealings with him. Mr. Rinkes noticed that

the Petitioner was a loner and would not mix with the other

salesmen at the sales conventions. T., 368. By January, 1972,

his condition had deteriorated so that within a five-minute span

he would seem quite normal and immediately thereafter at-

tempts at conversation would be met with a glassy stare, T.,

369, and he became antagonistic to his fellow salesmen. T., 369.

In February Rinkes made a special trip to Memphis for the

purpose of talking with the Petitioner’s father about his condi-

tion. He inquired if the father had noticed anything different

about his son and was informed that the Petitioner was under

~ ee ee ee

— on

psychiatric care. T., 371. The condition was so noticeable that

other salesmen would say, “What is wrong with George?” T.,

372.

Reverend William Mullins is the Associate Minister of St.

John’s United Methodist Church. T., 375. A part of his duties

is counseling and he is especially trained as a counselor, having

studied psychology and psychiatry, and both the Petitioner and

his wife were members of his church. T., 375-376. On the morn-

ing before the day of the shooting, he had a conversation with

the wife as to her anxiety concerning her husband’s condition

and that afternoon he went by the house, accompanied by his

secretary, to observe the Petitioner. T., 377, 378. The Petitioner

was withdrawn more than he had ever seen him before. He had

a beady stare. A smirk, or funny smile. He was very noncom-

municative. Very withdrawn. T., 378. Reverend Mulins im-

mediately realized that the Petitioner needed psychiatric help

and was beyond counseling. T., 384.

The Reverend Daly Thompson, who is the Minister of St.

John’s United Methodist Church, had earlier attempted to

counsel with the Petitioner and his wife but recognized that the

matter was beyond counseling and reterred the Petitioner to

Dr. Parks Walker, the psychiatrist. T., 396.

Dr. Parks Walker is a practicing psychiatrist, trained at the

University of Tennessee. T., 400. He first saw the Petitioner

on November 4, 1971, at the request of the Reverend Daly

Thompson. T., 402. At that time, it was Dr. Walker's opinion

that the Petitioner had personality problems of long standing.

T., 402. He had a paranoid type of personality. T., 402, 403.

His condition had deteriorated to the point that he was actu-

ally psychotic when first seen by Dr. Walker and was diag-

nosed as suffering from schizophrenia. T., 403. He was placed

on a strong drug, a major tranquilizer, used primarily for

people with psychotic conditions. T., 404-405. He seemed

_—

improved somewhat until January when he went into a de-

pressive state. T., 405. He was then put on an antidepressant

type of drug and seemed to respond to it somewhat. T., 406,

407. However, in March, 1972, “He still had some of the

symptoms of schizophrenia, symptoms of peculiar bodily

changes, like he felt he had a hole in his chest with blood run-

ning out and numbness in his feet, feeling of being unreal.”

T., 408. These are symptoms of schizophrenia. T., 408. The

Petitioner exhibited classic symptoms of schizophrenia—bizarre

ideas, ambivalence, disturbance in the expression of his emo-

tions—doing and saying things inappropriate to the circum-

stances (including the sick and silly grin which so many wit-

nesses noticed)—inability to maintain a train of thought, and

autistic thinking. T., 408-413. Schizophrenia is a disease which

is subject to fluctuation. T., 413.

Dr. Walker last saw the Petitioner prior to the shooting in

May, when he was quite depressed. T., 413 ff. He had not

been working for three weeks prior to the consultation and

had not been taking his medication—just lying around the

house in a morose, deeply depressed state. T.. 414. He was

put back on medication and told to return in two weeks —

the doctor having the intention of putting him in the hospital

if he was not improved. T., 414. After the shooting, he was

confined in the Psychiatric Unit of the John Gaston Hospital

where he became afraid to talk with Dr. Walker. He expressed

suspicions that his attorney was working against him. These

are typical examples of paranoid thinking. T., 416. An acute

psychotic episode developed when medication was withdrawn

and the Petitioner became extremely fearful—thought he heard

sounds in the vents—thought he heard people crawling through

the vents—thought he heard his dead sister's horn outside—

and became so excited that he set fire to the mattresses. T., 416.

It was the unqualified opinion of Dr. Walker that, at the

time of the killing, the Petitioner was insane under the so-

called M’Naghten Rule. T., 418.

ee ee eee

aw 13 a=

The other psychiatrist offered by the Petitioner is Dr. G. H.

Aivazian. Dr. Aivazian is superlatively trained. He holds a

Rockefeller Foundation fellowship in psychiatry, is a member

of the American Board of Psychiatry, and is Chairman of the

Department of Psychiatry at the University of Tennessee, Col-

lege of Medicine. T., 458, 459. He had an excellent oppor-

tunity to examine the Petitioner, who was confined in the John

Gaston Hospital Security Unit, which is a part of the teaching

complex of the University of Tennessee. Dr. Aivazian also

had access to the entire medical record, consulted with Dr.

Parks Walker, and Dr. Allen Battle, and personally examined

the Petitioner on seven separate occasions between June 12

and August 14, 1972. T., 460, 461. His conclusion was that

the Petitioner was suffering from schizophrenia, which he de-

scribed as a very serious psychosis. T., 462.

Dr. Aivazian testified that inappropriate responses, such as

a grin or smile, are physical manifestations of schizophrenia, T.,

466, and that predisposition to schizophrenia is hereditary. T..

469. It is a fluctuating disease with periods of improvement

when symptoms are mild or nonapparent and periods of ex-

acerbation. T., 474. It was his opinion that on the night of the

shooting George Edwards was psychotic to the degree that he

was insane under the M’Naghten Rule. T., 475-476. His diag-

nosis is not borderline but is a very, very firm, clear decision.

T., 480.

Dr. Jacob Norman Fidelholtz, the head of the Forensic Serv-

ices Division at Central State Psychiatric Hospital, (where Peti-

tioner was sent by the Trial Court for a determination of his ca-

pacity to stand trial), had testified at a pre-trial hearing in the

case and had given highly favorable testimony for the Petitioner.

He had testified that neither he, Fidelholtz, nor any member of

his staff had an opinion as to whether or not the Petitioner was

psychotic on the night of the shooting and that the psychia-

trists who had access to the Petitioner immediately following the

—_—"

shooting would be in much better position to give an accurate

diagnosis than would Dr. Fidelholtz and his staff, who did not

see the Petitioner until some months after the shooting. T., Vol.

VIII, Exhibit 18 (transcript of hearing of November 2, 1972),

pp. 8-9, and T., 665-667, 669-670. The only witness tendered

by the State as an “expert”, Mrs. Nona Owensby, was one of the

members of Dr. Fidelholtz’ staff. She was not a doctor and did

not have sufficient medical qualifications to allow her to pre-

scribe medication. T., 593-4, 623, 632-3.

After the trial in this case, and after the decision of the Ten-

nessee Court of Criminal Appeals, Mrs. Owensby was made the

subject of an investigation by a Special Committee named by

the Commissioner of the State Department of Mental Health,

Dr. C. Richard Treadway, and Mrs. Owensby was, on the basis

of the findings of the Committee, discharged as an employee

of the State of Tennessee. Appendix H, pp. A-100-101, 115.

As is set forth in Appendix H, pp. A-100-101, the Special Com-

mittee made the following specific findings, among others, with

respect to Mrs. Owensby’s conduct:

1. “That she exceeded her authority in testifying before the

courts on matters of . . . insanity”.

2. “That she flagrantly exceeded the authority of her license

as a psychological examiner”.

3. “That she failed or refused to pursue clarification of the

extent of her licensed authority when this was brought to her

attention, and continued her activities”.

4. “That she furnished courts, defense attorneys, and Dis-

trict Attorneys with ‘Qualifications as an Expert Witness’ con-

taining information that was inaccurate and misleading, imply-

ing professional education and capabilities exceeding those ac-

tually possessed.”

ee te ER ee ees. 8 —-

—_— =

5. “That she considered herself competent to counsel, evalu-

ate and perform all duties without supervision and did so.”

6. “That she held herself out to be a psychologist by using

her ‘working title’ as an indication of professional qualifica-

tions, tending to mislead courts before [whom] she gave testi-

mony.”

The Committee also found that the State’s job description of

Mrs. Owensby’s position did not correspond with the capabili-

ties specified by the Board of Healing Arts when it licensed her.

On July 29, 1974, one week after the opinion of the Court of

Criminal Appeals was filed, Dr. Treadway, State Commissioner

of Mental Health, issued Mental Health Rule and Regulation

53-74, a copy of which appears in Appendix I at pp. A-117-

118. This Rule and Regulation clearly states that, “Any em-

ployee of or consultant to the Tennessee Department of Mental

Health who testifies as an expert witness in a criminal case as to

the issue of the defense of insanity, must have earned the Ph.D.

degree in clinical psychology and must be licensed to practice in

the State of Tennessee in accordance with the provisions in Title

63, Chapter 11 of the Tennessee Code Annotated, or must be a

psychiatrist, who is licensed to practice medicine in the State

of Tennessee in accordance with the provisions of Title 63, Chap-

ter 6 of the Tennessee Code Annotated, and has completed a

psychiatric residency in an accredited program”. Obviously Mrs.

Owensby’s testimony would have been in conflict with this Rule

and Regulation, had it been in effect at the time of the trial.

As stated previously, the information concerning Mrs.

Owensby’s conduct prior to and at this trial, did not become a

matter of public knowledge and was not known to Petitioner or

his attorneys until after the opinion of the Court of Appeals

was delivered. Upon discovery of this information, and as a re-

sult of a conference between the Attorney for the Petitioner, the

Attorney General, and the Advocate General of the State of

= =

Tennessee, the Advocate General, in a letter dated September

24, 1975, agreed to suggest to the State Supreme Court that the

material regarding Mrs. Owensby filed by Petitioner’s attorney

with the Court should be considered by the Court:

“General Ashley and I have discussed this case and have

concluded that we have a responsibility to the Court to

advise them concerning the misrepresentation of qualifica-

tions by Mrs. Nona Owensby at the trial, and would suggest

that even though the material you have filed in that regard

is de hors the record, that the Court, because of the unusual

circumstances, should consider it. If you have no objection,

I would like to make that announcement to the Court prior

to your opening argument on the merits.”

Appendix J, pp. A-119-120.

Pursuant to this agreement, the Attorney General made this

suggestion in a preliminary statement to the Tennessee Supreme

Court, and thereafter repeated it in response to remarks made

by Judge Fones, during argument. And so that there could be

no possible gap in the record of the case, in a letter dated No-

vember 7, 1975, the Attorney for the Petitioner wrote the Clerk

of the Supreme Court of Tennessee requesting the written under-

taking to be filed and distributed to each member of the Court.

This entire correspondence between the Attorney for the Peti-

tioner, the Attorney General, the Advocate General, and the

Clerk of the Tennessee Supreme Court is included in Appendix

J at pp. A-119-123.

Despite these attempts by both parties to the action the Ten-

nessee Supreme Court refused to consider or appropriately re-

spond to the urgings of the Petitioner concerning the conduct

of Mrs. Owensby at trial.

Over the repeated objections of Petitioner, Mrs. Owensby was

allowed at the trial to testify as an “expert” rebuttal witness for

ee ed

ee et

Fe ee ROBB te

od

3 ere. ee

a= {7 —

the State after the conclusion of the Petitioner’s proof. She tes-

tified that in her opinion the Petitioner did know right from

wrong on the date of the shooting. T., 625. She diagnosed him

as suffering from a “schizoid personality” with alcohol addic-

tion. T., 629 Although she claimed to have personally inter-

viewed the Petitioner, she was unable to state when she inter-

viewed the Petitioner or produce a single record of an interview.

T., 630.

Mrs. Owensby admitted that the entire time the Petitioner

was at Central State Hospital he was medicated with thorazine,

which is a strong antipsychotic drug, a major tranquilizer.

T., 633:

“Q. And though you say this man had nothing but a

personality disorder, he was on a strong anti-psychotic drug

and a major tranquilizer all this period that he was up there

and subject to that drug when all these observations were

made?

“A. Yes.

“Q. That is true, isn’t it?

“A. That is true.”

T., 633.

The record which Mrs. Owensby had available, which came

to the hospital with the patient, reflects that when thorazine had

been withdrawn, while the Petitioner was at the John Gaston

Hospital, he relapsed into a psychotic state and began to hal-

lucinate. Although she expressed the “opinion” in her testimony

that the Petitioner was not psychotic on the date of the shooting,

on cross-examination she admitted that in a prior conversation

she had stated that she did not have an “opinion”. Her own

notes produced at the trial reflected a “question” rather than

an “opinion”, exactly as she had previously stated in verbal

—_—

conversation. T., 644-645. Moreover, she admitted that in a

prior conversation she had stated that the examination was con-

cerned with the question of “present insanity” and not insanity

at the time of the shooting. T., 651.

Dr. Fidelholtz, head of the Forensic Services Division of

Central State Hospital who was referred to above, was called

in surrebuttal when the State and the Court declined to call him

as a witness. T., 664 ff> His qualifications were admitted by a

stipulation by the State. T., 665. As indicated above, he stated

that neither he nor any member of his staff (including, pre-

sumably, Mrs. Owensby) had expressed an opinion as to whether

the Petitioner was psychotic on the date of the killing. T., 665-

666. He said that in his opinion the Petitioner had “the ingredi-

ents to have a psychotic break, possible a schizophrenic break

under duress or under a lot of stress.” T., 666. He testified that

Dr. Aivazian and Dr. Walker had a much better diagnostic op-

portunity than anyone at Central State. T., 666-667.

No witness in the case suggested a sane reason or motive

which this man might have for slaying his sister, to whom of

all persons he had been closest throughout his life. Neither in

its proof nor, indeed, in argument did the State suggest a sane

reason for the killing and none can be found in the record other

than in the workings of a diseased mind.

ee ee ee —

—o

i ee

—_~

REASONS FOR GRANTING THE WRIT

Petitioner's Conviction Is So Devoid of Evidentiary Support

as to Render It Unconstitutional Under the Due Process Clause

of the Fourteenth Amendment, Because the State Failed, as a

Matter of Law, to Prove Beyond a Reasonable Doubt that Peti-

tioner Was Sane at the Time of the Crime and With Respect to

the Crime.

A. A conviction which is devoid of evidentiary support is un-

constitutional under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution.

In Thompson v. City of Louisville, 362 U.S. '99 (1960), this

Court said:

“The ultimate question presented to us is whether the

charges against the petitioner were so totally devoid of

evidentiary support as to render his conviction unconstitu-

tional under the due process cluase of the Fourteenth

Amendment.”

362 U.S. 199, at p. 199.

The Court concluded:

. We find no evidence whatever in the record to

support these convictions. Just as ‘conviction upon a

charge not made would be sheer denial of due process’ so

is it a violation of due process to convict and punish the

man without evidence of his guilt.”

362 U.S. 199, at p. 206.

Again in Garner v. State of Louisiana, 368 U.S. 157 (1961),

this Court held state criminal convictions to be so devoid of

evidentiary support as to render them unconstitutional:

—_— a

. . We hold that the convictions in these cases are

so totally devoid of evidentiary support as to render them

unconstitutional under the due process clause of the Four-

teenth Amendment. .. .”

368 U.S. 157, at p. 162.

See also Houston v. Pierini, 348 F.Supp. 6, 8 (N.D. Ohio 1972).

B. As a corollary, a conviction is not Constitutional under

the Due Process Clause of the Fourteenth Amendment unless

there is proof beyond a reasonable doubt of every fact necessary

to constitute the crime charged.

In /n re Winship, 397 U.S. 358 (1970), this Court stated:

“Lest there remain any doubt about the constitutional

stature of the reasonable doubt standard, we explicitly hold

that the due process clause protects the accused against

conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which

he is charged.”

397 U.S. 358, at p. 375 (Emphasis added).

Last year, in Mullaney v. Wilbur, 421 U.S. 684 (1975),

this Court reemphasized the importance of the reasonable doubt

standard, as articulated in Winship, quoting from that decision

as follows:

“In Winship, the court emphasized the societal interests

in the reliability of jury verdicts:

‘The requirement of proof beyond a reasonable doubt

has [a] vital role in our criminal procedure for cogent

reasons. The accused during a criminal prosecution

has at stake interests of immense importance, both

because of the possibility that he may lose his liberty

— 2)

upon conviction and because of the certainty that he

would be stigmatized by the conviction. . .

Moreover, use of the reasonable doubt standard is

indispensible to command the respect and confidence

of the community in applications of the criminal law.

It is critical that the moral force of the criminal law

not be diluted by a standard of proof that leaves people

in doubt whether innocent men are being condemned.’

397 US. at 363, 364.”

421 U.S. 684, at p. 699.

C. Where, under state law, the prosecution is required to

prove the sanity of the defendant, the defendant’s sanity must,

as a matter of Federal Constitutional law, be proven by the state

beyond a reasonable doubt.

In Davis v. United States, 160 U.S. 469 (1895), this Court

reversed and remanded for new trial the conviction of the peti-

tioner, charged with having committed murder “at the Creek

Nation, in the Indian territory, within the western district of

Arkansas”. The Court discussed extensively the authorities,

English and American, on the subject of the insanity defense

and held that, once the initial presumption of sanity is overcome

by the appearance of some evidence to the contrary, the burden

is upon the prosecution to prove the defendant's sanity beyond

a reasonable doubt, and that the accused is entitled to an ac-

quittal unless the evidence excludes beyond a reasonable doubt

the hypothesis of insanity. Although the Court was applying

Federal criminal law, we submit that the Court's discussion of

the basic questions of fairness involved is relevant in deter-

mining whether the Due Process Clause requires sanity to be

proved beyond a reasonable doubt in states where the prosecu-

tion has the burden of proving sanity. The Court approached

the matter at a very fundamental level:

— won

. it is desirable that there be uniformity of rule in

the administration.of the criminal law in governments whose

Constitutions equally recognize the fundamental principles

that are deemed essential for the protection of life and

liberty.”

160 U.S. 469, at p. 488

(Emphasis added ).

“No man should be deprived of his life under the forms

of the law unless the jurors who try him are able, upon

their consciences, to say that the evidence before them, by

whomsoever adduced, is sufficient to show beyond a rea-

sonable doubt the existence of every fact necessary to con-

Stitute the crime charged.”

160 U.S. 469, at p. 493

“The principle is accurately stated by Mr. Justice Cox of

the Supreme Court of the District of Columbia as follows:

‘The crime, then, involves three elements, viz., the killing,

malice, and a responsible mind in the murderer. But after

all the evidence is in, if the jury, while bearing in mind both

these presumptions that I have mentioned—i.e. that the

defendant is innocent until proven guilty, and that he is and

was sane, unless evidence to the contrary appears,—and

considering the whole evidence in the case, still entertain

what is called a reasonable doubt, on any ground (either as

to the killing or the responsible condition of the mind), . . .

then the rule is that the defendant is entitled to the benefit

of that doubt and to an acquittal.’ Guiteau’s Case, 10 Fed.

Rep. 161, 163.”

160 U.S. 469, at p. 492

(Emphasis added ).

= =

In Leland v. Oregon, 343 U.S. 790, (1952) this Court held,

inter alia, that the states are not required by the Due Process

Clause to place the burden of proving sanity upon the prosecu-

tion, (over the very strong dissent of Justice Frankfurter, joined

by Justice Black). The Leland decision is not, however, incon-

sistent with the holding of /n re Winship and other decisions

that the Due Process Clause requires the proof beyond a rea-

sonable doubt of every fact necessary to constitute the crime

charged, including sanity in states where the burden of proving

sanity is placed upon the prosecution. See in this connection

United States ex rel. Tate v. Powell, 325 F.Supp. 333 (E.D.

Penn. 1971).

The Sixth Circuit Court of Appeals recognized in Phillips v.

Neil, 452 F.2d 337 (6th Cir., 1971) that the Due Process

Clause requires, in states like Tennessee where the burden is

upon the state to prove sanity, that sanity be proved beyond a

reasonable doubt. In this case the Sixth Circuit held, upon other

grounds, that a petition for a writ of habeas corpus challenging

a Tennessee criminal conviction for first degree murder, where

the petitioner pled insanity, must be granted,’ and said, after

quoting extensively from the decision of the Tennessee Supreme

Court in Davis v. State, 161 Tenn. 23 (1930):

“Applying this rule, Tennessee Courts have held that

once a defense has made out a prima facie case of insanity

in terms of the M’Naghten Rule the State must in order to

overcome the defense offer evidence in rebuttal which

demonstrates beyond a reasonable doubt the sanity of the

defendant. Dove v. State, 50 Tenn. 348 . . .; Stuart v.

State, 91 Tenn. 617, . . . See also Jordan v. State, 124

Tenn. 81, . . . and United States v. Horne, 304 F.2d 727

(D.C. 1969).

2 The Court directed entry of judgment granting the writ dis-

charging the appellant from custody unless retried within a reason-

able time.

—

“In Garner v. Louisiana, 368 U.S. 157, . . . the Su-

preme Court reversed criminal convictions for disturbing

the peace when it found that:

. the convictions in these cases are so totally devoid

of evidentiary support as to render them unconstitutional

under the due process clause of the Fourteenth Amendment.

368 U.S. at 163...’

“See also Thompson v. City of Louisville, 362 US.

199, . a

452 F.2d 337, at p. 342

The Sixth Circuit Court of Appeals went on to say:

“It is our view after a careful review of the record that no

evidence was introduced tending to cast substantial doubt

on the prima facie case that the appellant was insane at

the time of the slaying. More certainly, there was no evi-

dence introduced demonstrating the defendant's sanity be-

yond a reasonable doubt. We choose not to rely on this

ground however, since we hold that the admission of the

three challenged reports constituted a violation of appel-

lant’s Sixth Amendment right to confrontation and cross-

examination.”

452 F.2d 337, at p. 342 (Emphasis added).

D. In Tennessee it is clearly established that, although there

is an initial presumption of the sanity of the defendant, once any

evidence of insanity appears, the presumption ceases to exist

and the burden is then upon the prosecution to prove beyond a

reasonable doubt that the defendant is sane.

This has been the law in Tennessee for over 100 years. See

Dove v. State, 50 Tenn. 348 (1871); King v. State, 91 Tenn.

617 (1892), esp. pp. 647-8; Richard v. State, — Tenn. Cr.

Pas ee

—

App. —, filed March 8, 1972; Butterworth v. State, — Tenn.

Cr. App. —, filed February 11, 1972;* Covey v. State, 504

S.W.2d 387 (1973), cert. den. (1973).

In Richard, supra, the Court unanimously reversed a rape

conviction, and said:

“. . . upon a careful weighing of the evidence, we are

satisfied that the State has failed to carry the burden re-

quired of it to prove beyond a reasonable doubt the defend-

ant’s sanity at the time of the commission of the offense.

“For at least one hundred years the rule on this question

in this State has been that to warrant a conviction, once the

issue of insanity has been established, it must appear that

the accused is capable, at the time of the crime, of dis-

tinguishing between good and evil, and had a consciousness

of doing wrong. It is the duty of the State to prove all the

essential elements on this issue beyond a reasonable doubt.

(See Dove v. State, 50 Tenn. 348, p. 371).”

Richard v. State, supra, at pp. 8 & 9; Appendix K,

p. A-133.

“In King v. State, 91 Tenn. 617, p. 648, citing Dove v.

State, supra, the Court said:

‘The presumption of sanity stands for sufficient proof of

sanity until the presumption is overturned. When the proof

of insanity makes an equipoise, the presumption of sanity

is neutralized; it is overturned; it ceases to weigh, and the

jury are in reasonable doubt.’ ”

* Copies of the Richard opinion and the Opinion of the Court and

the Concurring Opinion in the Butterworth case, which are unre-

ported, are included in . ~~ K and L, at pp. A-124-137 and

A-138-149, respectively. The dissenting opinion in the Butterworth

case was not included due to its length, but will be forwarded to the

Court upon request.

= =

Richard v. State, supra, at pp. 8 & 9; Appendix K,

pp. A-132-134.

In Butterworth, supra, the Court also held that the prosecu-

tion had failed to sustain its burden of proving sanity beyond a

reasonable doubt, emphasizing especially the state’s failure to

present expert medical testimony:

“Applying the above rule to this case and the proof in

the record before us we are struck by the fact that there

was actually no proof offered in rebuttal of the three

medical experts who testified that the defendant was in-

sane at the time of the alleged crimes and thus corrobo-

rated the defendant’s own testimony that when he saw his

wife in bed with another man he was shocked to such an

extent that everything seemed weird and unreal and that

he was not conscious of the fact that he was shooting them

until it was done.

“No reason is suggested for the medical authorities to

have deliberately testified falsely as to their observations

and findings. No medical proof to the contrary was offered

by the State.”

Butterworth v. State, Opinion of the Court, at p. 3;

Appendix L, at pp. A-140-141.

The Court acknowledged that there was in the Butterworth case

lay testimony in support of the defendant's sanity, but said:

“Even if the accounts of the lay witnesses to the effect

that the defendant exhibited a calm and unimpassioned

manner before, during, and after the incident causing the

death and wounding of the victims be considered as evi-

dence suggesting sanity at the time of the commission of

the crime as urged upon us by the State relying on the

opinion of our Supreme Court in Mullendore v. State, 183

Tenn. 537, 194 S.W.2d 332, it is clear that in this case,

aon 27 an

unlike in Mullendore, the overwhelming weight of the evi-

dence on the issue is to the effect that at the time of the

shootings, Sergeant Butterworth was not possessed of that

degree of rationality so as to meet the test of sanity.”

Butterworth v. State, Opinion of the Court, at p. 5;

Appendix L, at p. A-142.

The Butterworth factual situation presented a much less com-

pelling basis for the grant of a directed verdict, judgment not-

withstanding the verdict, or new trial than does the Edwards

case for a number of reasons, including the following:

1. Butterworth shot a man who was in bed with his wife

and therefore the defendant had a strong and obvious motive

for the killing. This was a classic case for reduction of the

charge, but not for application of the insanity defense. Edwards,

on the other hand, shot his younger sister and the evidence

suggests absolutely no sane motive for the killing.

2. Butterworth had no history of psychiatric illness. Edwards

was diagnosed as suffering from a serious psychosis months

before the event, was under treatment at the time of the al-

leged crime, the physician who was treating Edwards prior to

and at the time of the shooting himself testified that Edwards

was legally insane at the time of the act, the only other phy-

sician who examined him soon enough after the act to reach

a reliable conclusion unqualifiedly confirmed the treating phy-

sician’s diagnosis, and the th ¢ physician employed by the

State testified that the first two physicians were in a better po-

sition than himself or anyone else at Central State to reach a

reliable conclusion with respect to the Petitioner's mental con-

dition at the time of the act and with respect to it, and he

confirmed that Edwards had the “ingredients” for a “psychotic

break”.

The meaning of the reasonable doubt standard as applied

to the insanity defense is illuminated by a number of decisions

=

from jurisdictions other than Tennessee, including especially

Federal criminal decisions. See for example /ssac v. United

States, 284 F.2d 168 (D.C. Cir. 1968); Hartford v. United

States, 311 F.2d 204 (9th Cir., 1966), cert. den. 385 US.

883 (1966); Buatte v. United States, 330 F.2d 342 (9th Cir.

1964); Frigilanna v. United States, 307 F.2d 665 (D.C. Cir.

1962); Beltran v. United States, 302 F.2d 48 (ist Cir. 1962);

Phillips v. United States, 311 F.2d 204 (10th Cir. 1962); Pol-

lard v. United States, 282 F.2d 450 (6th Cir. 1960); United

States v. Westerhauser, 283 F.2d 844 (7th Cir. 1960); Blunt

v. United States, 244 F.2d 355 (ist Cir. 1962); Douglas v.

United States, 239 F.2d 52 (D.C. Cir. 1956); Britts v. State,

— Fla. —, 30 So.2d 363 (1947); Farrel v. State, — Fla. —.,

101 So.2d 130 (1958); Graham v. People, — Colo. —, 38 P.

2d 87 (1934); Handspike v. State, — Ga. —, 45 S.E.2d 662

(1947); Holmes v. State, 20 Tex. App. 110 (1885); People

v. Skeoch, — Ill. —, 96 N.E.2d 473 (1951).

In Frigilanna, the Court's opinion was written by Mr. Jus-

tice Burger, who was then sitting on the District of Columbia

Court of Appeals. In his opinion, Justice Burger emphasized

that the burden of proving beyond a reasonable doubt that the

defendant is not insane is a very heavy one:

“To prove the negative proposition beyond a reasonable

doubt is in itself a very heavy burden.”

“The Davis case [Davis v. United States, 160 U.S. 469]

imposed on the prosecution the very heavy burden of

proving beyond a reasonable doubt that the accused was

mentally competent according to the applicable standards

of criminal responsibility of the particular jurisdiction.”

307 F.2d 664, at p. 667.

(Emphasis added.)

The Trial Court, the Court of Appeals, and the Supreme Court

in the instant case all acknowledged in a general way that the

aw 29 a=

presumption of sanity was overcome early in the state’s proof,

and that the state therefore had the burden of proving sanity

beyond a reasonable doubt. See Trial Court’s Charge to the

Jury, T., pp. 764; 770-775; 775-780;* Court of Criminal Ap-

peals Opinion, at pp. 2ff; Appendix B, p. A-8ff; Supreme Court

Opinion at pp. 7ff, 10ff; Appendix C, pp. A-31ff, 33ff. None

of the Courts below, however, focused clearly on this matter,

and none of them properly enforced the reasonable doubt

standard in this case. So far as we have been able to discover,

the phrase “reasonable doubt” does not appear at any point

in the Majority Opinions of either the Tennessee Supreme

Court or the Court of Criminal Appeals. The test which the

Supreme Court Majority says it applied in determining whether

the state carried its burden is, rather, whether the evidence

“preponderates against” the jury's verdict. See Supreme Court

Majority Opinion, at p. 10, Appendix C, p. C A-34:

“The jury's verdict indicates they found the state car-

ried its burden of showing that petitioner was sane at

the time of the homicide. In reviewing this finding to see

if it comports with the evidence, we are bound by the

rule that the verdict of the jury, approved by the trial

judge accredits the testimony of the witnesses for the state

and resolves all conflicts in favor of the theory of the state.

McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

We have read the record carefully keeping in mind the

limits set forth in the McBee rule, and have concluded

the evidence does not preponderate against the jury's find-

ing that the petitioner, the moment he shot and killed his

sister, knew what he was doing and knew right from

wrong and that his acts were wrong.”

(Emphasis added.)

4+ However, the inadequacy of the instructions on this matter is

discussed in detail below, at pp. 63ff.

— =

See also the Court of Criminal Appeals Majority Opinion at

p. 3, Appendix B, p. A-9, which puts misplaced reliance upon

the McBee rule in this connection.

E. The state failed in the instant case, as a matter of law,

to prove beyond a reasonable doubt that the Petitioner was

sane at the time of the crime, and with respect to it.

The only evidence introduced by the state in its attempt to

sustain its burden of proof were:

(1) the opinions of lay persons, and

(2) the testimony of the supposed “expert”, Mrs. Owensby.

See T., pp. 622-651; Appendix M, pp. A-150-166.

The lay testimony did not provide an adequate basis for a

jury finding that there was no reasonable dombt as to the Pe-

titioner’s sanity, because the lay witnesses were not adequately

qualified and were not shown to have had adequate basis for

their opinions, and because the instructions to the jury regard-

ing this testimony were in error.

The supposedly “expert” testimony of Mrs. Owensby did

not provide an adequate basis for a finding by the jury that

the Petitioner was sane at the time of the crime and with re-

spect to it, for the following reasons:

(a) Mrs. Owensby committed perjury and misrepresented

her qualifications;

(b) Mrs. Owensby was not qualified to testify as an expert;

(c) Mrs. Owensby had no basis for providing and did not

provide competent evidence as to the Petitioner's sanity at the

time of the crime and with respect to the crime;

=

(d) That portion of Mrs. Owensby’s testimony which dis-

cussed the meaning, effect, and consequences of a verdict of not

guilty by reason of insanity, (which includes the most important

part of her testimony), should have been excluded because of

the Court’s refusal to instruct the jury on this subject or to

allow Petitioner’s attorneys to discuss it.

(e) That portion of Mrs. Owensby’s testimony which quoted

or was based upon statements made to her by Petitioner, (which

is substantially the same portion as referred to in (d)), should

have been excluded for reasons which will be discussed.

(f) That portion of Mrs. Owensby’s testimony which quoted

or was based upon the statements and opinions of third persons

regarding the mental condition of the Petitioner should have

been excluded for reasons which will be discussed.

Let us now consider the above points in further detail:

1. Lay Testimony. The Courts below erred in allowing lay

witnesses to express their opinions as to the ultimate issues in

the case and in allowing them to express the opinions which

they did express, because there was insufficient foundation laid

to qualify these witnesses to express the opinions and to support

the opinions expressed, and because the questions to these lay

witnesses failed to accurately state the M’Naghten Rule. See

T., 101, line 20; 102, line 5; 224, line 8; 225, line 10, 230,

line 20; 231, line 6; 240, lines 18-24. The instructions to the

jury with respect to expert witnesses were in error because the

Court's instructions tended to encourage the jury to disregard

the expert testimony and to give undue emphasis to the lay tes-

timony. See T., 767. And the Court erred in failing to charge

that the jury should review the opinions expressed by lay wit-

nesses with respect to the ultimate issues in the case with at

least the same degree of caution and skepticism with which the

Court instructed the jury to view the testimony of the expert

witnesses. See T., 767.

—=—=

While it may be that none of these errors, standing alone,

would raise Federal Constitutional questions, we submit that

each must be given consideration in determining whether the

state carried its burden of proving the Petitioner’s sanity beyond

a reasonable doubt, as required by the Due Process Clause.

As Judge O’Brien, of the Tennessee Court of Criminal Appeals

said in his Dissenting Opinion in the instant case:

“While expert testimony is to be received with great cau-

tion, Mullendore v. State, 183 Tenn. 53, 191 S.W.2d 149,

as was correctly charged by the trial judge in this case, a

nonexpert witness does not testify from the sam¢g stand-

point as the expert, and it is for this very reason that he is

required to give the facts upon which he bases his conclu-

sions, so that the jury may say whether his conclusions are

warranted by the facts, and the opinion of the nonexpert

are only valuable and competent to the extent that they are

supported by the facts and circumstances upon which they

are predicated. Wilcox v. State, 94 Tenn. 106, p. 112, 28

S.W. 312. Nowhere in this record was it leveloped that

the lay witnesses who testified about defendant's mental

competence were aware he was under psychiatric treatment

for several months prior to the homicide. Nor were the

particular facts coming under their observation, and on

which their opinions were based, brought to the jury's at-

tention in any fashion in order for the jury to determine

whether their conclusions were warranted by the facts, as

they applied to the time of the homicide.”

Judge O'Brien's Dissenting Opinion, at p. 9; Appendix

B, pp. A-20-21. (Emphasis added).

One of the leading cases regarding lay testimony in insanity

cases is People v. Cole, 382 Mich. 695, 172 N.W.2d 354

(1969). In this case the defendant had been convicted of

second degree murder. The Supreme Court of Michigan re-

=

versed, holding that there was insufficient foundation for the

testimony by the prosecution’s witnesses, (all of whom were

laymen), as to the defendant's sanity or insanity and that the

admission of the testimony of such witnesses was reversible

error.

The Court acknowledged that it is an almost universally ac-

cepted doctrine that the right to express an opinion as to sanity

or insanity, where it is an issue, is not confined to experts. The

Court said that it was equally well established that non-expert

witnesses are not permitted to express general opinions as to

sanity or insanity or to give opinions independent of the facts and

circumstances within their own knowledge. (There are many

Tennessee decisions so holding. See for example Clark v. Wil-

bourn, 7 Tenn. App. 46 (1927); Atkins v. State, 119 Tenn.

458 (1907); Melody v. Hamblin, 21 Tenn. App. 687 (1937);

and Hammond v. UP Bank, 189 Tenn. 93 (1949).)

The Court went on to set forth the following guidelines:

“Before a lay witness is permitted to state an opinion

regarding the sanity or insanity or mental competency or

incompetency of a person whose mental condition is at

issue, the witness must have had ample opportunity to ob-

serve the speech, manner, habits, or conduct of the person.

To render himself competent under this rule, the witness

must establish he was sufficiently acquainted with the de-

fendant or testator so as to testify to mental condition on

a comparative basis and not merely to some manifested

idiosyncrasy or eccentric behavior. The foundation to be

laid in such a case must indicate that the conclusions of

the witness bear directly upon the issue of insagity and not

merely conclusions of fact as to defendant’s conduct. * * *

“The trial judge must also consider the character and

nature of the alleged mental condition. In the area of

criminal law we must be ever mindful of the fact that ‘there

— ae

are cases of insanity open to the slightest scrutiny, while

others defy the keenest search’ * * * Bearing this in mind,

we urge that before admitting non-expert testimony on a

matter as vital as the sanity of a defendant being tried for

a capital offense, the trial judge’s discretion should be exer-

cised by resolving all doubts in favor of defendant. * * *

“It must further appear that the witness took advantage

of the opportunities to observe closely the person whose

mental condition is at issue. The nature and number of

extraordinary circumstances detailed must precede the giv-

ing of any opinion and the facts and circumstances so de-

tailed must be such as tend to support the witness’ conclu-

— °**

“Finally, there must be a proximity in point of time be-

tween the act involved and the facts and circumstances

offered as a basis to render and support the non-expert'’s

opinion. * * *

“We take great pains to point out and emphasize that

the careful consideration of the factors detailed above and

the ultimate decision reached by the trial judge goes to the

admissibility of the lay witnesses’ opinion and conclusion.

* *

172 N.W.2d 354, at p. 361.

(Emphasis added).

The Court went on to analyze in detail the testimony of the lay

witnesses. See 172 N.W.2d 354, at pp. 362-3. And the Court

concluded that this testimony was “wholly inadequate to render

any of the opinions of the lay witnesses as being competent

under the law above stated” and that the “admission of these

opinions was a manifest and palpable abuse of discretion”, con-

stituting reversible error. 172 N.W.2d 354, at p. 363.

As the Tennessee Supreme Court said in State v. Holt, 222

Tenn. 721, 440 S.W.2d 591 (1969), at 592, expert testimony

~_ =

is almost indispensable in cases where the issue of sanity or in-

sanity exists and a jury cannot be deemed competent to reach a

satisfactory decision as to the question of mental condition with-

out being instructed by experts as to the manifestation of mental

derangement and disease and the significance of the symptoms

in evidence. See also Union Traction Co. v. Anderson, 146

Tenn. 476 (1921), at 495, and Fisher v. Insurance Co., 124

Tenn. 450 (1911).

It should also be noted that, as discussed above, in Butter-

worth v. State, — Tenn.Crim.App. —, filed February 11, 1972

(unreported opinions set forth in Appendix L, pp. A-138-149.)

The conviction was reversed on the ground that the state had

failed to prove the defendant’s sanity beyond a reasonable doubt,

notwithstanding the fact that the state presented some lay testi-

mony indicating or suggesting sanity. See Butterworth, Opinion

of the Court, pp. 2ff; Appendix L, pp. A-139-143.

In a recent decision reversing a federal obscenity conviction

after a jury trial in which the prosecution offered no expert tes-

timony, the United States Court of Appeals for the First Circuit

held such expert testimony to be essential to “fundamental fair-

ness” and “due process”:

“Although it seems unfortunate to change the ground

rules after a trial as well run as this one, we have come to

the point where, so long as the tests for obscenity remain

the present sophisticated trilogy, we think fundamental fair-

ness, and therefore due process, requires the intervention of

experts. If we are mistaken in that conclusion, we have

such doubts about our own unassisted ability to give ob-

scenity cases informed judicial review, that we reach the

same result through our supervisory power.

“In saying this we are under no illusion that ‘experts’

will render the process of adjudicating obscenity a com-

pletely rational one, at either trial or on appellate review.

_— a

* * * Nevertheless, we think that the several applicable

tests can have a fair chance of being fairly applied only if

jurors and judges are exposed to opinion and made to

think about whether the ‘dominant’ theme is an appeal to

‘prurient interest’ . . . etc.) Such matters as prurience,

deviant attitudes, national standards of acceptability, and

redeeming social values are far removed from the thought

and experience of the average jury. Jurors, it seems to us,

need assistance in wrestling with such issues fully as much

as they need assistance in evaluating insanity or other

mental or emotional illness defense. * * *

* * * * * * *

“If we are to present uneven and hence unequal applica-

tion of the same federal law, we must have experts to ad-

vise the jury, and the no less limited appellate judges, as to

contemporary national standards.”

U. S. v. Palladino, 475 F.2d 65 (ist Cir., 1973);

judgment vacated, 413 U.S. 916 (1973). (Em-

phasis added).

We submit that the considerations to which the First Circuit

Court of Appeals adverts in the above decision are equally ap-

plicable in the instant case. Surely if the conviction of a de-

fendant charged with violation of the federal obscenity ‘laws

Constitutionally requires expert testimony, the conviction of a

defendant raising the insanity defense in a murder case requires

expert testimony of sanity.

We believe the Court’s reference to the necessity of expert

testimony “to prevent uneven and hence unequal application of

the same federal law” to be especially significant. See in this

connection the recent decision of this Court in the capital punish-

ment cases, Furman v. Georgia, et al., 408 U.S. 238 (1972).

In the instant case, the instructions to the jury with respect

to its consideration of expert testimony were as follows:

= =

“The jurors are the sole judges of the facts. Expert wit-

nesses have been allowed to testify as to certain matters of

issue in this case and to state their opinions. With refer-

ence to this testimony, which you should consider and

judge along with all the other proof, the Court charges

you that it should be received with caution. While this

kind of testimony is sometimes the only means or the best

way to reach the truth, yet it is largely a field of specula-

tion, beset with pitfalls and uncertainties, and requires

patience and intelligent consideration to reach the truth.

You should give it the same consideration as all the other

proof, governed by the same rules to arrive at the truth

as you are governed by in your consideration of all the

proof.” T., 767-768

These instructions were erroneous and prejudiced the rights of

the Petitioner because the sole issues in the case were issues re-

quiring the testimony of experts and the full consideration

thereof by the jury, and the instructions encouraged the jury

to disregard such testimony, and to base its verdict upon un-

informed lay testimony. The jury should in any event have

been instructed to view the opinions expressed by the lay wit-

nesses with respect to the ultimate issues in the case with at

least the same degree of caution and skepticism with which the

Court instructed the jury to view the testimony of the expert

witnesses.

The science of psychiatry, although well established, recog-

nized by all, and given full recognition and support by the laws

of the State of Tennessee, has been the target of much irra-

tional suspicion and prejudice in dur society, and it is for this

reason especially important that—in cases where the very lives

and liberty of defendants depend upon the fair and just con-

sideration and the accurate determination of psychiatric issues

—the jurors be given instructions which will insure that psychi-

atric evidence will be given fair hearing and consideration. We

— __

believe that the instant case provides a striking illustration of

the strength of this prejudice—and that this provides the only

rational explanation for the jury’s apparent disregard of the tes-

timony of the expert witnesses offered on behalf of the Peti-

tioner.

We submit that it is time that the courts acknowledge in their

instructions to criminal juries what all educated men in this

society know, and what the legislature of this State has re-

peatedly recognized—that determinations with respect to men-

tal derangement and disease, their manifestations and symptoms,

and the interpretation thereof, are determinations which can-

not be rationally made unless informed by the knowledge of

experts.

2. The Owensby Testimony. As Justice Henry stated in his

Dissenting Opinion in the Tennessee Supreme Court, the state’s

case against Petitioner “in the last analysis, must stand or fall

on the testimony of Nona Owensby.” Justice Henry’s Dissent-

ing Opinion (Justice Fones Concurring), at p. 17; Appendix

C, p. A-54. Her testimony was allowed to be given special

emphasis with the jury because the Trial Court, over the Pe-

titioner’s strenuous objections, allowed the State to deliberately

withhold her testimony until after the Petitioner’s proof, and

to present her testimony to the jury at the end of the trial.

Even if Mrs. Owensby’s testimony were accepted in full, the

testimony (which is set forth in full in Appendix M, pp. M

A-150-166) would not provide an adequate basis for a finding

that there is no reasonable doubt as to the Petitioner's sanity.

Most or all of her testimony must be disregarded, however, upon

a variety of grounds, including the six enumerated above, which

we will now discuss in more detail.

—_ 99 an

(a) Owensby’s Perjury—Misrepresentation of Qualifications.

As Justice Henry noted in his Dissenting Opinion, “After

giving her name, the first words she uttered [identifying herself

as a psychologist in the Forensic Services Division at Central

State Hospital] were false.” Justice Henry’s Dissenting Opinion,

at p. 13; Appendix C, p. A-50. As was indicated in the State-

ment of the Case, supra, the Petitioner and his attorneys had

no way of knowing that Mrs. Owensby had committed this

perjury, and did not know it, until after the decision of the

Court of Criminal Appeals was rendered in this case. At that

time, there appeared in the newspapers articles regarding the

rather sensational testimony of Mrs. Owensby and others dur-

ing hearings before a Special Committee named by the State

Department of Mental Health Commissioner to investigate

charges of misconduct on the part of Mrs. Owensby and other

employees at Central State Hospital. See Statement of the

Case, supra, at pp. 14ff, and Appendix H, at pp. A-102-116. As

has been stated, the Special Committee specifically found as

follows regarding Mrs. Owensby’s conduct:

1. “That she exceeded her authority in testifying before

the Courts on matters of . . . insanity.”

2. “That she flagrantly exceeded the authority of her

license as a psychological examiner.”

3. “That she failed or refused to pursue clarification of

the extent of her licensed authority when this was

brought to her attention, and continued her activities.”

4. “That she furnished courts, defense attorneys, and

District Attorneys with ‘Qualifications as an Expert

Witness’ containing information that was inaccurate

and misleading, implying professional education in

capabilities exceeding those actually possessed.”

—

5. “That she considered herself competent to counsel,

evaluate and perform all duties without supervision

and did so.”

6. “That she held herself out to be a psychologist by

using her working title as an indication of profes-

sional qualifications, tending to mislead Courts be-

fore [whom] she gave testimony.”

The Tennessee Advocate General, as has been set forth in the

Statement of Facts, advised the State Supreme Court concern-

ing Mrs. Owensby’s misrepresentation of her qualifications and

agreed that the material filed by Petitioner regarding this mat-

ter, although de hors the record, should be considered by the

Court. See Statement of the Case, p. 16, Appendix J, pp. A-119-

120. Unaccountably, the majority opinion of the Tennessee Su-

preme Court refused to consider this matter.

This perjury by the State’s only supposedly “expert” wit-

ness, who the State admits deliberately misinformed the jury

and Court as to her qualifications, absolutely requires the grant

of this Petition and the reversal of this conviction, in our view.

Surely, in view of the misrepresentation of the qualifications of

this most crucial witness, it cannot be found that the Petitioner

has received due process and a fair trial.

(b) and (c) Owensby Not Qualified as Expert—No Basis

for Testimony.

Independently of the prejudicial effect of her misrepresenta-

tion of her qualifications, Mrs. Owensby was not qualified to

testify as an expert in this case and in any event was in no

position to testify as to the Petitioner’s sanity at the time of

and with respect to the crime. She was not a psychologist.

She was not a doctor and did not have sufficient medical qual-

ifications to allow her to prescribe medication. T., 593-4, 623,

— ya

632-3. She had never seen the Petitioner until long after the

murder, when he was sent to Central State Hospital for an

evaluation of his mental capacity to stand trial. T., 625. Dr.

Jacob Fidelholtz, head of the Forensic Services Division at

Central State Hospital, and Mrs. Owensby’s superior testified

that neither he nor any member of his staff (of which Mrs.

Owensby was a member) had formed or expressed any opinion

as to the Petitioner’s sanity at the time of the murder. T., Vol.

VIII, Ex. 18 (Transcript of Hearing of November 2, 1972,

pp. 8-9), and T., 665-667, 669-670. He also testified that

Drs. Walker and Aivazian, who had examined the Petitioner

at the time of the crime and who testified in the most con-

clusive terms that the Petitioner was insane at the time of the

murder, were in a better position than he (or anyone at Cen-

tral State) to reach an opinion as to Petitioner’s mental con-

dition at that time. /bid. Mrs. Owensby testified that she

made no notes of any interviews with the Petitioner and did

not give the dates of any such interviews. She admitted, and

the record clearly shows, that at the time when she examined

the Petitioner, he was under the influence of a “major tran-

quilizer”, thorazine, which was capable of masking some of

Petitioner's symptoms of insanity. T., 633; Appendix M, p.

A-156. She was under the impression that the psychiatrists who

had testified in this case had diagnosed the Petitioner’s disorder

as manic-depression, which was completely erroneous. T., 637,

Appendix M, p. A-159. See, generally, Justice Henry's Dis-

senting Opinion, at pp. 12-17; Appendix C, pp. A-49-55.

(d) Owensby Testimony re meaning, effect, and conse-

quences of insanity verdict.

It is important to recognize the extent to which Mrs. Owensby

in her testimony dwelt upon the meaning, effect, and conse-

quences of a verdict of not guilty by reason of insanity. See T.,

pp. 625-628; Appendix M, pp. A-151-154. As we will discuss in

— pen

detail below, it is our contention that the Court should have

instructed the jury as to the meaning, effect, and consequences

of such a verdict. See pp. 73ff, infra. However, it is in any

event clear that having refused to explain this matter to the

jury in its charge, or to allow the Petitioner’s attorneys to make

any reference thereto in voir dire or argument, the Court should

have excluded any discussion of this subject by Mrs. Owensby

(and should also, as is discussed infra, at pp. 73ff, have pro-

hibited any discussion thereof by the State’s attorneys in their

argument).

As a review of Mrs. Owensby’s testimony will confirm, her

principal reason for concluding that the Petitioner was not in

fact insane at the time of the crime and with respect to it was

the alleged fact that the Petitioner, in his interviews with her,

discussed his belief that he would go free if found insane at

the time of the crime but presently sane. See T., pp. 625-628;

Appendix M, pp. A-151-154. This testimony obviously made a

great impression upon the jurors, and may well be the best

explanation for their surprising verdict. Certainly, under the

circumstances, it left them with the vivid impression that the

Petitioner would indeed go free upon such a verdict—an im-

pression which was underlined and reemphasized by the argu-

ment of the State’s attorney.

(e) Qwensby’s Testimony re Petitioners Admissions.

There is a second, and wholly independent, reason why the

portion of Mrs. Owensby’s testimony, discussed immediately

above under (d), should have been excluded—namely, be-

cause the admission of her testimony concerning such state-

ments by Petitioner violated his rights under the Fifth, Sixth,

and Fourteenth Amendments to the United States Constitution.

At the time when Petitioner made these statements he had

been indicted and was in custody, in an authoritarian, coercive

—_—

environment, he was under the influence of strong drugs, ad-

ministered by agents of the state, he was not advised of his

rights, or given the warnings to which he is entitled under the

Constitution, and he could not be held to have intelligently -

and voluntarily waived his rights. He had been transferred to

Central State Hospital solely for evaluation of his competency

to stand trial. Petitioner did not directly or indirectly consent

to an examination of his sanity at the time of the crime or with

respect to it, or waive any of his Federal Constitutional rights

relating thereto.

In Miranda v. Arizona, 384 U.S. 436 (1966), this Court em-

phasized that the modern practice of in-custody interrogation 1s

psychologically rather than physically oriented:

“Again we stress that the modern practice of in-custody

interrogation is psychologically rather than physically

oriented. As we have stated before, ‘since Chambers v.

Florida, 309 U.S. 227 . . . this Court has recognized that

coercion can be mental as well as physical and that the

blood of the accused is not the only hallmark of an uncon-

stitutional inquisition’. Blackburn v. Alabama, 361 U.S.

_ Pore,

384 U.S. 436, at p. 448.

The Court also stressed that the Fifth Amendment privilege is

available outside Criminal Court proceedings:

“Today, then, there can be no doubt that the Fifth

Amendment privilege is available outside of Criminal Court

proceedings and serves to protect persons in all settings in

which their freedom of action is curtailed from being com-

pelled to incriminate themselves.”

384 U.S. 436, at p. 467. (Emphasis added. )

The logic of Miranda is clearly applicable to the case at bar.

— vee

In addition to Miranda, there is a well established independ-

ent requirement that a confession of a person accused of crime

can be admitted into evidence only if it was freely and volun-

tarily made, with full knowledge of the nature and consequences

of the confession. See, for example, the decisions cited in 29

Am.Jur.2d, Evidence, § 529, especially footnotes 15-16. As

this Court has stated in Jackson v. Zerbst, 304 U.S. 458 (1938),

a voluntary waiver of the protections afforded by the Constitu-

tion is “an intentional relinquishment or abandonment of a

known right or privilege.” And as this Court has reiterated re-

cently in Schneckloth vy. Bustamonte, 412 U.S. 218 (1973),

at pp. 238, 239.

“The guarantees afforded a criminal defendant at trial

also protect him at certain stages before the actual trial,

and any alleged waiver must meet the strict standard of an

intentional relinquishment of a ‘known’ right . . . [T]he

‘trial’ guarantees that have been applied to the ‘pre-trial’

stage of the criminal process are similarly designed to pro-

tect the fairness of the trial itself.”

Petitioner's statements to Mrs. Owensby, if not confessions,

were in any event admissions against interest, which are sub-

ject to the same Constitutional requirements concerning waiver

as are confessions. See Opper v. United States, 348 U.S. 84

(1954). In the Miranda decision itself, this Court held that

no distinction could be drawn between statements which were

direct confessions, and statements which amounted to admission

of part or all of an offense, nor between inculpatory statements

and statements alleged to be merely exculpatory. See 384 U.S.

436 (1966), at pp. 476-477. And Escobedo v. Illinois, 378

U.S. 478 (1964), held inadmissible incriminating statements

which amounted to something less than a confession.

We have found very few decisions dealing with the admissi-

bility of testimony by psychiatrists and psychologists employed

—_

at state mental hospitals setting forth admissions or confessions

by criminal defendants committed for determinations of ca-

pacity to stand trial. See, however, South Carolina v. Myers,

220 S.C. 309, 67 SE2d 506 (1951), in which, while an indict-

ment for murder was pending against the appellant, his counsel

obtained an order from the Court allowing him to be taken to

the Veterans Hospital at Columbia, South Carolina, for a series

of tests and examinations to determine his mental condition.

Thereafter, on motion of the state and over objection of coun-

sel for the appellant, the Court issued an order committing him

to the State Hospital for Insane at Columbia for a period of

thirty days, for the purpose of having the authorities of that

institution make an examination as to his sanity. This order

was appealed. On appeal the appellant contended that the

action of the Court in compelling him to undergo such exami-

nation (1) violated his Constitutional rights in that it compelled

him to be a witness against himself and (2) constituted a denial

of the Constitutional guarantee of due process of law. Although

the South Carolina Supreme Court rejected these contentions,

the Court stated:

“We do not undertake now to define the limits of such

rights except to say that the authorities of that institution

will not be permitted, over the protest of the accused, to

reveal any confession made by him in the course of such

examination, or any declarations implicating him in the

crime charged.”

67 SE2d 506, at p. 508.

See also State ex rel. LaFollet v. Raskin, 34 Wisc. 2d 607, 150

N.W. 2d 318 (1967), to the effect that where it appears that

any incriminating statements have been made by an accused

during a compulsory mental examination, he should have his

privilege against self-incrimination recognized and protected at

the trial by a sequential order of proof so that such evidence will

not be admitted while the jury is determining the issue of guilt.

en

Petitioner’s confinement and questioning by an agent of the

State without being afforded the presence of counsel also vio-

lated his rights under the Sixth Amendment.

In U. S. v. Wade, 388 U.S. 218 (1966), this Court held that

the Sixth Amendment mandates the presence of counsel at

critical stages of the prosecution to preserve the right to a fair

trial. A “critical stage” was defined by this court as:

“Any stage of the prosecution, formal or informal, in

court or out, where . . . the presence of his counsel is

necessary to preserve the defendant’s basic right to a fair

trial as affected by his right meaningfully to cross-examine

the witnesses against him and to have effective assistance

of counsel at the trial itself.”

388 U.S. 218, at pp. 226-227.

Since pretrial psychiatric examinations are a critical stage in the

prosecution of one accused of a crime, Petitioner is entitled to

have counsel present to make more effective his basic right of

cross-examination.

This Court has apparently not rendered a definitive decision

regarding compliance with the Sixth Amendment requirements

in such a court ordered pretrial psychiatric examination. How-

ever, a number of lower courts have held the Sixth Amendment

guarantees of right to counsel applicable in such a setting.

In Lee v. County Court of Erie County, 267 N.E.2d 452

(1971), the Court of Appeals of New York held that a psychi-

atric examination constituted a critical stage of the criminal

proceedings. It therefore reversed a lower court order pro-

hibiting the presence of defense counsel at the psychiatric ex-

amination. Two judges dissented from the majority opinion’s

requirement that defense counsel be allowed only to attend as

observers, and stated that the defendant's right of counsel during

a pretrial mental examination should not be limited. As stated

by Chief Judge Fuld, dissenting:

—_ 67 <n

“I think it’s self evident that to restrict a defendant's

right to a lawyer upon his pretrial mental examination—

at least when he is being questioned for the purpose of

determining his mental condition at the time of the crime

—will frequently have the effect of substantially abridging,

if not eliminating, every right he may have to the effective

assistance of counsel in the preparation of his defense.”

267 N.E.2d 452, at p. 460.

The dissenting opinion of Judge Breitel also dealt with the con-

sequences of limited representation at such an examination.

“ . . The line between an inquiry limited to [a defend-

ant’s] mental condition and one extended to the merits of

the charge against the defendant cannot be drawn. Several

consequences follow from this. In the first place, it marks

as especially critical to defendant his exposure to oral inter-

rogatory examination, and, therefore, emphasizes the criti-

cal need for him to be represented by counsel even during

a mental examination, clumsy and awkward although that

might be. . .”

267 N.E.2d 452, at p. 461.

See also the Note, “Pretrial Mental Examination and Commit-

ment; Some Procedural Problems in the District of Columbia,”

51 Geo. L.J. 143 (1962), at 162:

“The dangers inherent in subjecting the defendant to

[such an examination] without giving him the benefit of

an attorney’s advice are obvious. The . . . often unedu-

cated defendant will seldom understand the far-reaching

significance of the questions put to him by a trained psychia-

trist. Questions calling for seemingly innocuous answers

can be aimed at eliciting the most damaging responses.

Without the benefit of counsel to advise him, it is quite

likely that the accused will unknowingly provide the prose-

—_—

cution with sufficient evidence to secure his conviction by

defeating his defense of insanity before the trial has even

begun. In such a situation the harm done to the defend-

ant’s case is irreparable. When the sole issue is the de-

fendant’s sanity at the time of the crime, the right to the

assistance of counsel is thus as important at the time of

the defendant’s mental examination as it is at the time of

the trial itself.”

(f) Owensby testimony re statements and opinions of third

persons.

The rights of confrontation and cross-examination are essen-

tial componets of a fair trial and due process. See Pointer v.

Texas, 380 U.S. 400 (1965):

“There are few subjects, perhaps, upon which this court

and other courts have been more nearly unanimous than in

their expressions of belief that the right of confrontation

and cross-examination is an essential and fundamental re-

quirement for the kind of fair trial which is this country’s

constitutional goal. Indeed, we have expressly declared

that to deprive an accused of the right to cross-examine

the witnesses against him is a denial of the Fourteenth

Amendment's guarantee of due process of law.”

380 U.S. 400, at 405.

See also Dutton v. Evans, 400 U.S. 74 (1970):

“The decisions of this court make it clear that the mis-

sion of the confrontation clause is to advance a practical

concern for the accuracy of the truth determining process

in criminal trials by assuring that ‘the trier of fact [has]

a satisfactory basis for evaluating the truth of the prior

statement’. California v. Green, 399 U.S., at 161.”

400 U.S. 74, at p. 79.

—_

Mrs. Owensby’s testimony was based in substantial part upon

information received from third persons—especially informa-

tion contained in the Petitioner's medical records. See T., 606-

621;° 625-630; 630-640; Appendix M, pp. A-151-155, 155-

161. As she stated in answering a question posed by the trial

judge:

. . However, your Honor, J think, you know, all of

the information we gather from all sources has a bearing

on the opinions that I found. . .”

T., p. 610.°

Later at trial, Mrs. Owensby testified concerning a diagnosis

of an unknown third party that the Petitioner was a “manic-

depressive” when in fact, such was not the case.

“Q. (Counsel for Petitioner): Madam, while you have

[your records] open there, if you will call my attention to

the point where you say there was a diagnosis of manic-

depressive, well, call it to the attention of the court and

jury and to me, please, ma’am?

“A. Well, I don’t see it here.

“Q. It is not there, is it?

“A. No, but the word came to me and I cannot tell you

how.

“Q. The word came to you?

“A. Uh-huh, that’s right.”

T., 638-39; Appendix M, p. A-160.

We would call the Court’s attention in this connection to the

following decisions: Covey v. State, 504 S.W.2d 387 (1973),

cert. den. 1973; Phillips v. Neil, 452 F.2d 337 (6th Cir. 1971);

* This portion of the testimony of Mrs. Owensby, which occurred

outside the presence of the jury, is not included in the Appendix.

a= 9D aw

Ingles v. People, 90 Colo. 51, 6 P.2d 455 (1931); New York

Life Insurance Company v. Taylor, 147 F.2d 297 (D.C. Cir.

1945); and Ohio v. Tims, 9 Ohio St. 2d 136, 224 N.E.2d 348

(1967).

In Covey, supra, the defendant was convicted of murder in

the first degree of his mother. The only expert witness in the

case was Mrs. Nona Owensby, the same Nona Owensby testi-

fying on behalf of the State in the instant case. Mrs. Owensby

was permitted to testify over defense objections, (as a witness

for the State in rebuttal, incidentally), that in her opinion the

defendant was sane at the time of the crime and that it was

the opinion of the hospital staff that defendant was sane when

examined and evaluated over this period of time. 504 S.W.2d

387, at 389. The Court of Criminal Appeals reversed and re-

manded the case based on a number of errors committed at

trial, emphasizing that it was error for the trial court to permit

Mrs. Owensby to testify as to what other alleged experts had

said, and that it was error to admit the report of such experts

without establishing their qualifications. The Court said in this

connection:

“Hearsay testimony was admitted over objection to the

effect that the medical staff at Central State Hospital had

certified that the defendant was presently sane and com-

petent to advise counsel in his defense. Although the trial

court was satisfied with the qualifications of the witness,

Mrs. Owensby, and allowed her expert opinion testimony

on the issue of insanity at the time of the crime based on

her personal observations and evaluations of tests, there

was no foundation laid for the qualification of other staff

members. The state urges admissibility of such testimony

and certificate under the Business Records Act, .

Finding error in.the admission of the report of a physician

whose qualifications had not been proved and who was

not available for cross-examination, the [Tennessee] Su-

preme Court quite recently said:

_— on

‘Defendant insists it was error for the trial judge to admit

into evidence the autopsy report. We agree.’

“Hearsay evidence, as previously defined is evidence

which derives its value not solely from the credit to be

given the witness upon the stand, but in part from the

veracity and competency of some other person. The clearest

case of hearsay is where a witness testifies to the declaration

of another for the purpose of proving the facts asserted by

the declarant.” 20 Am.Jur., Evidence, Section 458; Schlick-

ling v. Georgia Conference Association, 49 Tenn. App.

412, 355 S.W.2d 469 (1961).

“In the case of Tevis v. Proctor and Gamble Distributing

Company, 21 Tenn. App. 494, 113 S.W.2d 64 (1937), a

physician undertook to testify to what another physician

said with respect to his diagnosis of plaintiff and also from

a written report of another physician. The trial judge ex-

cluded the evidence. The Court of Appeals affirmed the

action of the trial judge, saying:

“The admission of the report gave petitioner the benefit

of an opinion of Dr. Moss whose qualifications are not

shown and deprived defendant of the right of cross-exam-

ination.

o +. * . e

“Nor do we think the report was admissible under the

Uniform Business Records as Evidence Act, . . .”

Neas v. Snapp, 221 Tenn. 325, 426 S.W.2d 498.

“{12] Thus it was error for the Court to permit Mrs.

Owensby to testify as to what other alleged experts had

said, and it was error to admit the report of such experts

without establishing their qualifications.”

504 S.W.2d 387, at 391, 392. (Emphasis added. )

—— ye

Phillips v. Neil, supra, is a 1971 decision of the U. S. Court

of Appeals for the Sixth Circuit upon a petition for writ of

habeas corpus challenging the Tennessee criminal conviction

of Phillips for first degree murder, Phillips having raised the

insanity defense. Phillips’ motions for directed verdict and for

new trial were denied. He then exhausted his state appellate

remedies. The Federal District Court denied his petition for

habeas corpus. The Court of Appeals for the Sixth Circuit re-

versed and remanded with direction for entry of judgment grant-

ing the writ discharging the appellant from custody unless retried

within a reasonable time.

The appeal was based on two contentions, one of which was

that due process was denied when the trial court did not sustain

the defendant's objections to the prosecutor’s reading of certain

portions of his medical record in rebuttal to the insanity defense,

these portions consisting of the reports of mental examinations

made approximately one year prior to the alleged offense and

containing, among other statements prejudicial to the defendant,

the conclusion that the defendant had returned to Eastern State

to avoid certain criminal charges.

At trial, the first witness to testify regarding the mental con-

dition of the appellant was Dr. Manuel Cortinas, a psychiatrist

at Eastern State Hospital at the time of the events in question.

Dr. Cortinas testified as to statements made by Phillips at this

interview which amounted to a confession to the offense. During

direct examination of Dr. Cortinas by the prosecution, a copy

of the appellant’s medical record at Eastern State was filed in

evidence. The defense counsel acquiesced in the filing of a

copy of the medical record rather than the original. No question

was raised at this point regarding the admissibility of the record

or any part of it either under Tennessee Rules of evidence or

Federal Constitutional standards. See 452 F.2d 337, at 338-9.

At the conclusion of the appellant’s proof, the state offered re-

buttal evidence which consisted solely of the reading of certain

— aN

portions of the appellant’s lengthy medical record compiled

at Eastern State. The portions of the record which were read

were reports of mental examinations made almost one year

prior to the events in question. The defense objected ta this,

and these objections were overruled.

The Court of Appeals said that the statements made in the

challenged reports were the only evidence before the jury which

suggested that the appellant might be responsible for his actions.

The Court said that since the guilty verdict represented a rejec-

tion of the insanity defense, “It seems apparent that the jury

relied on these reports and therefore that their introduction was

highly prejudicial to the appellant”. 452 F.2d 337, at 341.

The Sixth Circuit Court quoted extensively from the decision of

the Tennessee Supreme Court in Davis v. State, 161 Tenn. 23

(1930) and said:

“Applying this rule, Tennessee Courts have held that

once a defense has made out a prima facie case of insanity

in terms of the M’Naghten Rule the State must in order

to overcome the defense offer evidence in rebuttal which

demonstrates beyond a reasonable doubt the sanity of the

defendant. Dove v. State, 50 Tenn. 348, . . .; Stuart v.

State, 60 Tenn. 378, . . .; and King v. State, 91 Tenn.

617, . . . See also Jordan v. State, 124 Tenn. 81,. . .

and United States v. Horne, 304 F.2d 727 (D.C. 1969).

“In Garner v. Louisiana, 368 U.S. 157, . . . the Su-

preme Court reversed criminal convictions for disturbing

the peace when it found out that:

‘ _ . the convictions in these cases are so totally devoid

of evidentiary support as to render them unconstitutional

under the due process clause of the Fourteenth Amend-

ment. 368 U.S. at 163...’

“See also Thompson v. City of Louisville, 362 US.

re

452 F.2d 337, at 342.

_— =

The Sixth Circuit Court of Appeals went on to say:

“It is our view after a careful review of the record that no

evidence was introduced tending to cast substantial doubt

on the prima facie case that the appellant was insane at the

time of the slaying. More certainly, there was no evidence

introduced demonstrating the defendant's sanity beyond a

reasonable doubt. We choose not to rely on this ground

however, since we hold that the admission of the three

challenged reports constituted a violation of appellant's

Sixth Amendment right to confrontation and cross-exami-

nation.

“In Pointer v. Texas, 380 U.S. 400, . . . the Supreme

Court held that ‘the Sixth Amendment's right of an accused

to confront the witnesses against Lim is . . . a fundamen-

tal right and is made obligatory on the States by the Four-

teenth Amendment.’ Emphasizing the importance of cross-

examination and the fair adjudication of criminal matters

the Court stated:

‘It cannot seriously be doubted at this late date that

the right of cross-examination is included in the right

of an accused in a criminal case to confront the wit-

nesses against him. And probably no one, certainly

no one experienced in the trial of lawsuits, would deny

the value of cross-examination in exposing falsehood

and bringing out the truth in the trial of a criminal

case. 380 U.S. at 404, 85 S.Ct. at 1068.’

“The Court has made clear the importance of this right

in our scheme of criminal justice on a number of occa-

sions. For example, in Greene v. McElroy, 360 U.S. 474,

79 S.Ct. 1400, 3 L.Ed. 2d 1377 (1964), the Supreme

Court said of rights of confrontation and cross-examina-

tion:

‘They have ancient roots. They find expression in

the Sixth Amendment which provides that in all crim-

—_— =

inal cases the accused shall enjoy the right “to be con-

fronted with the witnesses against him.” This Court

has been zealous to protect these rights from erosion.

360 U.S. at 496-497, 79 S.Ct. at 1413.’

“And again in Pointer, it was said:

‘There are few subjects, perhaps, upon which this

Court and other courts have been more nearly unani-

mous than in their expressions of belief that the right

of confrontation and cross-examination is an essential

and fundamental requirement for the kind of fair trial

which is this country's constitutional goal. Indeed, we

have expressly declared that to deprive an accused of

the right to cross-examine the witnesses against him

is a denial of the Fourteenth Amendment's guarantee

of due process of law. 380 U.S. at 405, 85 S.Ct. at

1068.”

“Especially pertinent is Smith v. Illinois, 390 U.S. 129,

88 S.Ct. 748, 19 L.Ed. 2d 956 (1967), where the ac-

cused’s Sixth Amendment rights were held to have been

abridged when the trial court sustained the prosecutor's

objections to disclosure on cross-examination of the correct

name and address of the key witness for the prosecution.

The Court stated:

‘In the present case there was not, to be sure, a com-

plete denial of all right of cross-examination. But

the petitioner was denied the right to ask the principal

prosecution witness either his name or where he lived,

although the witness admitted that the name he had

first given was false. Yet when the credibility of a

witness is in issue, the very starting point in “exposing

falsehood and bringing out the trust” through cross-

examination must necessarily be to ask the witness

who he is and where he lives. The witness’ name and

address open countless avenues of in-court examina-

=

tion and out-of-court investigation. To forbid this

most rudimentary inquiry at the threshold is effectively

to emasculate the right of cross-examination itself.

390 U.S. at 131, 88 S.Ct. 748, 750, 19 L.Ed. 2d

956.”

452 F.2d 337, at pp. 342-3 (Emphasis added).

The Court rejected the contention that the challenged evi-

dence was properly admitted under the statutory exception to

the hearsay rule embodied in TCA Section 24-714, saying that

even if the proffered evidence was a business or hospital record

within the meaning of that statute it was nevertheless not ad-

missible. The Court said:

“The relationship bewteen the Sixth Amendment right

to confrontation and cross-examination and the hearsay

rule and its exceptions has not been fully explored. Some

time ago Professor Wigmore asserted an identity between

the two, stating, seemingly withou: qualification:

‘The rule sanctioned by the constitution is the Hear-

say rule as to cross-examination, with all the excep-

tions that may be legitimately found, developed, or

created therein. 5 Wigmore on Evidence, Section

1397, p. 131.

“In two recent cases, Dutton v. Evans, 400 U.S. 74, 91

S.Ct. 210, 27 L.Ed. 2d 213 (1970) and California v.

Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed. 2d 489

(1969), the Supreme Court, while refusing to set forth

a theory that would determine the validity of all such hear-

say ‘exceptions’ (399 U.S. at 162, 90 S.Ct. at 1937), pro-

vided guidance regarding proper application of the

Confrontation Clause. In both cases the Court expressly re-

jected the notion of congruency. In Dutton v. Evans,

supra, Mr. Justice Stewart stated:

‘It seems apparent that the Sixth Amendment's Con-

frontation Clause and the evidentiary hearsay rule

te RO oe

Le Ant eee ee eaten wth

ie atintecien ata

aime

—_— =

stem from the same roots. But this Court has never

equated the two, and we decline to do so now. 400

U.S. at 86, 91 S.Ct. at 218.’

And in California v. Green, supra, Mr. Justice White stated:

‘While it may readily be conceded that hearsay

rules and the Confrontation Clause are generally de-

signed to protect similar values, it is quite a different

thing to suggest that the overlap is complete and that

the Confrontation Clause is nothing more or less

than a codification of the rules of hearsay and their ex-

ceptions as they existed historically at common law.

Our decisions have never established such a congru-

ence; indeed, we have more than once found a

viols ion of confrontation values even though the state-

ments in issue were admitted under an arguably recog-

nized hearsay exception. See Barber v. Page, 390

U.S. 719 [88 S.Ct. 1318, 20 L.Ed.2d 255] (1968);

Pointer v. Texas, 380 U.S. 400 [85 S.Ct. 1065, 13

L.Ed.2d 923] (1965). The converse is equally true;

merely because evidence is admitted in violation of

a long-established hearsay rule does not lead to the

automatic conclusion that confrontation rights have

been denied. 399 U.S. 155, 156, 90 S.Ct. 1933.’”

The Court concluded:

“Thus, it is abundantly clear that proper admission of

evidence under an exception to the hearsay rule does not

relieve a federal court considering a state criminal convic-

tion from the responsibility for reviewing all the facts of

the case in light of governing federal constitutional prin-

ciples. Furthermore, fundamental constitutional rights may

find protection both in procedural safeguards and in sub-

stantive rules. Standards of due process are not necessarily

embodied in state evidentiary rules. For example, as we

shall see below, while the colloquy which took place when

—_

the medical records were filed as Exhibit 3 might arguably

have constituted a waiver of a hearsay objection under

Tennessee law, it in no way constitutes a valid waiver of a

‘fundamental right’ guaranteed in both state and federal

criminal prosecutions. Thus, that the reports may have

been validly admitted under Tennessee rules of evidence

does not dispose of the question whether their admission

constituted a violation of the appellant's Sixth Amendment

rights.”

452 F.2d 337, at p. 345.

(Emphasis added )

Turning to the question of waiver, the Court said that the

State and the Courts below had made the agreement of the

defendant's trial counsel to the filing of the medical records

the focus of their analysis of the case. The Court said:

“We find that trial counsel’s acquiescence did not consti-

tute a valid waiver of the appellant's fundamental consti-

tutional right to confrontation with regard to the crucial

evidence here in question.”

452 F.2d 337 at pp. 348-9.

(Emphasis added. )

The Court went on to discuss Brookhart v. Janis, 348 U.S. 1

(1966), and other cases dealing with the waiver of Constitu-

tional rights and held that it was clear that the appellant Phil-

lips had not intentionally, intelligently, and knowingly waived

his Sixth Amendment right to confrontation.

In Ingles v. People, 90 Colo. 51, 6 P.2d 455 (1931), the

defendant had pled not guilty by reason of insanity to a charge

of first degree murder. Pursuant to the plea, he was committed

to the Colorado Psychopathic Hospital for psychiatric observa-

tion. At the trial the Assistant Director of the hospital, testi-

fying for the prosecution, described the manner in which in-

An RE es ely Ran ee

et a rer

OAR A Ok =

a= 99

formation was obtained to aid in ascertaining whether or not

the defendant was insane. He also testified that in his opinion

the defendant was sane though his intellectual capabilities were

retarded. The Colorado Supreme Court reversed the conviction,

stating:

“(A psychiatrist] cannot express an opinion based in whole

or in part upon information obtained from third persons

who have not testified to the facts. A defendant is entitled

to test the reliability of such statements made by a third

person, by having that statement made under oath, and

by cross-examining the person making them and exhibit-

ing the situation of the witness with respect to the defend-

Mier

6 P. 2d 455, at p. 459.

(Emphasis added. )

According to the article, “The Admissibility of Expert Med-

ical Testimony Based in Part Upon Information Received from

Third Persons”, 357 Cal. L. Rev. 193 (1962), at p. 205:

“ . the majority of courts presently exclude the opin-

ion of a psychologist or psychiatrist who bases his opin-

ion, in part, upon information received from third per-

sons. * * *”

(Emphasis added. )

This is true even in civil cases. For example, in New York

Life Insurance Company v. Taylor, 127 F. 2d 297 (D.C. Cir.,

1945), which involved a claim for life insurance policy for a

double indemnity for accidental death where the defense was

that the insured had committed suicide, the United States Court

of Appeals held in a powerful majority opinion by Judge

Arnold that the trial judge had properly excluded, under the

Federal Business Records Act, hospital records showing a di-

agnostic report by psychiatrists of “psychoneurosis, hysteria,

—_

conversion type”. In so holding the court drew a distinction

between ordinary information and information regarding com-

plicated psychiatric conditions. The Court said:

“Hospital records are no different from any other kind

of records kept in the regular course of business. * * *

Regularly recorded facts as to the patient’s condition or

treatment on which the observations of ‘ompetent physi-

cians would not differ are of the same character as rec-

ords of sales or payrolls. * * * But the records before us

here are not of that character. The diagnosis of a psycho-

neurotic state involves conjecture and opinion. It must,

therefore, be subjected to the safeguard of cross-examina-

tion of the physician who makes it. And accounts of se-

lected items from interviews with patients must be subjected

to the same safeguard.

“It is no reflection upon the profession of psychiatry to

say that it necessarily deals in a field of conjecture. Even

in the diagnosis of actual insanity, cases are rare in which

trained psychiatric witnesses do not come to opposite con-

clusions. The opinions here relate to neurosis, a condition

short of insanity, on which there are countless theories and

infinite diagnostic possibilities. /t is difficult to conceive

of records in which the right of cross-examination is more

important than the conjectures of a psychiatrist of a psy-

choneurotic condition.

“The drastic impairment of the right of cross-examina-

tion resulting from the admission of this type of unsworn

observation and opinion evidence will be recognized by

anyone familiar with the psychology of a jury trial. The

unsworn psychiatric diagnosis would be introduced, with

appropriate fanfare as to the distinguished character of the

alienist who made it, but who is not called as a witness.

The opposing party might have plenty of data to shake

this testimony on cross-examination, yet he would have

_

to remain silent while a strong prima facie case is made

against him. * * *”

147 F. 2d 297, at pp. 303-305.

(Emphasis added. )

\

In Ohio v. Tims, 9 Ohio St. 2d 136, 224 N.E. 2d 348 (1967),

the Supreme Court of Ohio reversed a conviction for statutory

rape of a twelve year old girl. The victim was examined at

Cincinnati General Hospital and the examining physician filled

out a document entitled, “Report of Examination for Alleged

Rape”. During the course of the trial the State called as a

witness a clerk in the medical record room and through her

admitted this report into evidence over the objection of the

defendant. The Ohio Supreme Court held that the admission

of this report into evidence was erroneous and violated the

defendant's Constitutional right of confrontation of witnesses

against him. The report said that, whatever might be the situ-

ation in a civil case, the report could not legally be admitted

against the defendant in a criminal case:

. what may be an acceptable liberalizing of the rules

of evidence in civil cases is not necessarily acceptable in a

criminal prosecution. The difficulty of obtaining witnesses

is not sufficient grounds for liberalizing an exception to

the hearsay rule if the effect of such liberalization is to

deny an accused a fair trial.

* * & * . * .

“One of the basic and fundamental rights guaranteed

an accused by both the State and Federal Constitutions

is the confrontation of the witnesses against him. * * *

As was said in Pointer v. State of Texas, 380 U. S. 400,

at405... .:

‘There are few subjects, perhaps, upon which this

court and other courts have been more nearly unani-

mous than in their expressions of belief that the right

— ee

of confrontation and cross-examination is an essen-

tial and fundamental requirement for the kind of fair

trial which is this country’s constitutional goal. In-

deed, we have expressly declared that to deprive an

accused of the right to cross-examine the witnesses

against him is a denial of the Fourteenth Amend-

ment’s guarantee of due process of law.’

“This right of confrontation includes the right of cross-

examination of the person who is the actual witness against

him.

“Here, the actual witness against the appellant was the

examining physician whose findings were incorporated in

the record offered as evidence.

“The effect of admitting hospital records in this type

of case would be to allow the examining physician to tes-

tify without being subject to cross-examination.

“The rules of civil procedure are not, therefore, appli-

cable in a criminal case, where such rules would serve to

deprive an accused of a constitutional right.”

224 N. W. 2d 348, at pp. 350-1.

Therefore the rights of cross-examina*ion and confrontation

deemed so fundamental in our Constitutional scheme were de-

nied to Petitioner by the admission of Mrs. Owensby’s testi-

mony, and this alone constitutes ample basis for granting this

Petition.

== 63 ——

Il

Petitioner Was Denied a Fair Trial and Due Process, in Vio-

lation of His Rights Under the Fourteenth Amendment, Because

the Trial Court’s Instructions to the Jury Failed to Properly

Instruct the Jury as to the Reasonable Doubt Standard and Its

Application.

The trial court erred in its charge to the jury in that it failed

to instruct the jury properly as to the State’s burden of proving

beyond a reasonable doubt that the Petitioner was legally sane

at the time of the act and as to the meaning of that burden;

failed to give sufficient emphasis to the fact that the only real

issue in the case was whether, at the time of the shooting and

with respect to that particular act, the Petitioner was legally in-

sane and did not know its nature and quality and did not know

that it was wrong; and, the charge, by giving undue attention

and emphasis to matters which would not be at issue in the case

if the plea of insanity were good, matters which were not in fact

contested by the Petitioner at the trial, indicated to the jury that

the Court did not believe that a verdict of not guilty by reason

of insanity should be returned.

The Court gave the following charge to the jury with respect

to reasonable doubt:

“Reasonable doubt is that doubt engendered by an in-

vestigation of all the proof in the case and an inability after

such investigation to let the mind rest easily upon the cer-

tainty of guilt. Reasonable doubt does not mean a doubt

that may arise from possibility. Absolute certaiaty of guilt

is not demanded by the law to convict of any criminal

charge, but moral certainty is required and this certainly is

required as ‘0 every proposition of proof requisite to con-

stitute the offense.”

T., 764.

— =

It should be noted that there is no attempt made at this point

in the charge to relate the concept of reasonable doubt to the

issue of the sanity or insanity of the petitioner. The first reference

which we have found in the charge to the issue of sanity is as

follows:

“The law presumes this defendant on trial to be of sound

mind, but this is merely a presumption, and a presumption

is not allowed to stand where there is sufficient evidence to

overcome it. When insanity is offered as a defense or ex-

cuse for the commission of an alleged crime, the burden of

proceeding is on the defendant to overcome, by proof, this

presumption of sanity and to raise in the minds of the Jury

a reasonable doubt as to whether or not the defendant, at

the time the alleged murder was committed, was able to

distinguish right from wrong and to know that such act was

wrong.

“The Court instructs you that if there is sufficient evi-

dence introduced in this hearing on behalf of the defend-

ant to overcome the presumption of sanity and to raise in

your minds a reasonable doubt as to whether the defendant

was able to distinguish right from wrong and know his act

was wrong at the time of the commission of the alleged of-

fense, then the burden is upon the State to show, by evi-

dence of sanity beyond a reasonable doubt, that at the

time of the commission of the alleged offense the defend-

ant was able to distinguish between right and wrong and

know that his act was wrong.

“When insanity is offered as a defense or excuse for an

alleged crime such insanity must be of such a nature that

the mind of the person charged with the crime was so de-

throned as to render him unable to distinguish between

right and wrong at the time of the commission of the al-

leged offense.

—

“Where the plea of insanity is offered for your consid-

eration, you should consider it justly and fairly along with

all the facts and circumstances in the case. In determining

the question of whether or not the defendant was insane

at the time of the alleged commissi »n of the act, you should

consider all his acts at the time of, before and since the

alleged commission of the act, if such acts or conduct have

been shown by the evidence, and you should consider his

appearance and actions during the trial as a circumstance

in determining his sanity, at the time of the alleged crime.

“If you find from the evidence, beyond a reasonable

doubt, that the defendant committed the crime in the man-

ner and form charged in the indictment, and find, beyond

a reasonable doubt, that at the time of committing such

crime he was able to distinguish between right and wrong,

and know such act was wrong, it is your duty to convict

him.

“On the other hand, if, upon the proof, you believe he

was not able to distinguish right from wrong and know his

act was wrong, or if you have a reasonable doubt as to

whether or not he was able to distinguish right from wrong

and know his act was wrong, it is your duty to acquit such

defendant by reason of insanity at the time of the commis-

sion of the offense.

“I charge you that you should return a verdict of not

guilty by reason of insanity if you have a reasonable doubt

as to whether, at the time of the shooting of his sister, and

with respect to the act of shooting her, the defendant either

did not know the nature and quality of that act, or if he

understood its nature and quality, did not know that the

act was wrong. The issue for you to determine is not

whether the defendant understood or understands in the

abstract or in general the difference between right and

wrong or the nature and quality of his actions. And, the

_—

issue is not whether the defendant presently, or at any time

before or after the shooting understood the difference be-

tween right and wrong or the nature and quality of his acts.

The issue is whether or not he understood the nature and

quality of that particular act and knew that that particular

act was wrong at the time when he committed that act.

And, if you have a reasonable doubt whether the defend-

ant, at the time when he committed that act, knew the

nature and quality of the act, or a reasonable doubt as to

whether, at that very time, knew that that act was wrong,

you should return a verdict of not guilty by reason of in-

sanity.”

T., 770-775. (Emphasis Added)

The Court then proceeded to list for the jury the various offenses

of which they might find the petitioner guilty, charging the jury

in each case that the petitioner could be found guilty of the

offense concerned only if the jury found him to be guilty thereof

beyond a reasonable doubt. But in this portion of the charge

the Court did not relate its instructions regarding reasonable

doubt to the issue of insanity and did not expressly charge the

jury that it should acquit the petitioner of each such offense if

the jury had a reasonable doubt as to the petitioner's sanity at

the time of the act and with respect to the act. The Court's

charge to the jury regarding second degree murder, for example.

was as follows:

“If you should find, beyond a reasonable doubt, that the

defendant is guilty of Murder in the Second Degree, your

verdict should be,

“We, the Jury, find the defendant guilty of Murder

in the Second Degree and fix his punishment at im-

prisonment in the State Penitentiary for not more

than .... years,’ (inserting in said blank space the

maximum term of the convicted defendant at some

—_—

period of time not less than ten [10] years nor more

than twenty [20] years.)

“If you find the defendant not guilty of this offense, or if

you have a reasonable doubt of his guilt of his offense, you

will acquit him thereof and then proceed to inquire whether

or not he is guilty of Voluntary Manslaughter.”

T., 776-777.

On pages 775-778 the Court repeated substantially this same

charge with respect to first degree murder, second degree murder,

voluntary manslaughter, and involuntary manslaughter. The

Court then on page 779 of the Transcript concluded its charge

with the following:

“If you find the defendant guilty at all, you must say

in your verdict of what degree of felonious homicide the

defendant is guilty, and if you do find the defendant guilty,

you can convict him of only one of the above named offenses

included in the indictment.

“If upon all the proof in the case, you have a reasonable

doubt of the defendant's guilt of any of the offenses defined

and explained to you, it is your duty to acquit the defendant,

and your verdict should be,

‘We, the Jury, find the defendant not guilty.’

“On the other hand, if you find from all the proof in

the case that the defendant is guilty, beyond a reasonable

doubt, of one of the offenses included in the indictment,

and you further find that the defendant was not able to

distinguish right from wrong and know that his act was

wrong, or if you have a reasonable doubt as to whether he

was able to distinguish right from wrong and know his

act was wrong, your verdict should be,

—_—

‘We, the Jury, find the defendant not guilty by reason

of insanity at the time of the commission of the

offense.’ ”

T., 779-780.

It is extremely important to note that in the last two paragraphs

in the charge, the Court again twice stated its charge regarding

reasonable doubt without reference to the issue of insanity and

only then added, “and you further find that the defendant was

not able to distinguish right from wrong and know that his act

was wrong, or if you have a reasonable doubt as to whether he

was able to distinguish right from wrong and know his act was

wrong, . . .” T., 779.

We believe that this method of expressing the law to the jury

was extremely confusing to the jury and that it is likely that

some or all of the jurors may have understood that they were

being instructed to first determine the Petitioner's guilt or in-

nocence of each offense, applying the reasonable doubt test at

that point, but without consideration of the sanity issue, and

that they were only to consider the sanity issue after determining

guilt, and we submit that there is a serious question whether the

jury understood properly the applicability of the reasonable

doubt test to the sanity issue. Therefore the jury may well have

failed to understand that they were not to find the Petitioner

guilty of any offense unless the State fulfilled its burden of prov-

ing beyond a reasonable doubt that the Petitioner was sane at

the time of the act and with respect to the act charged.

The law with regard to burden of proof has been discussed

extensively elsewhere in this Petition and we will not burden

the Court with a repetition of it here. We would, however, call

the Court’s attention to the following passage from Isaac v.

United States, 284 F.2d 168 (D.C. Cir., 1969), where the

Court of Appeals held that the Trial Court’s charge to the jury

with respect to the burden of proof on the issue of sanity was

confusing and said:

—_ we

“It is true that the Court correctly stated to the jury

several times that the burden of proof was on the Govern-

ment to establish beyond a reasonable doubt the accused

was not suffering from a mental disease or that the acts

were not the product of a mental disease. The two con-

flicting views of the law, the erroneous and the correct, as

to the burden of proof were repeated several times in this

charge. We cannot speculate that the correct statement

obliterated in the minds of the jurors the repeated errone-

ous statements. We recognize that the problems posed by

the burden of proof rule in this respect to the defense of

insanity was somewhat difficult but the rule of law is plain

and absolutely certain. It should be made plain and cer-

tain to the jury in such cases. [Citing Kwosek v. State, —

Wisc. —, 100 N.W.2d 339].”

We believe that the importance of these contentions can best

be appreciated by a complete re-reading of the charge. We be-

lieve that upon a re-reading of the charge the Court will agree

that the charge failed to convey to the jury the paramount im-

portance of the issue of the Petitioner's sanity and that the

charge, by giving primary emphasis to many other matters

which were not really at issue in the case, distracted the atten-

tion of the jurors from the matter to which they should have

been devoting their primary attention. We submit that the

Court's charge may have conveyed to the jury, in this way, the

impression that the Court did not consider the issue of the

Petitioner's sanity to merit serious attention by the Court and

the jury.

_— om

Ill

Petitioner Was Denied a Fair Trial and Due Process Because

the Court Failed to Instruct the Jury Properly as to the Applica-

tion of the So-Called M’Naghten Rule, in That the Court Sev-

eral Times Stated That Portion of the M’Naghten Rule Relating

to the Ability to Distinguish Right From Wrong Without Stating

That Portion of the Rule Relating to Knowledge of the “Nature

and Quality” of the Act.

The portion of the charge to which we refer is that which

appears on pages 770 and following of the Transcript, quoted

in this Petition just above at pages 64-69. It should be noted

that although the Court does state the M’Naghten Rule correctly

on page 774 and following, the Court's statement of the Rule

on pages 771 through 773 is not correct. The Court misstated

the M’Naghten Rule in that, while stating that portion of the

Rule relating to the ability to distinguish right from wrong with

respect to the act, the Court did not state that portion of the

Rule relating to knowledge of the “nature and quality” of the

act. The only reference which we have found in the charge to

the “nature and quality” of the act is on page 774, by which

time the Court had several times stated the Rule without any

reference to the “nature and quality” of the act. On pages 771

and following the Court repeatedly instructed the jury that the

issue to be determined was “whether the defendant was able to

distinguish right from wrong and know his act was wrong”. We

believe that that portion of the M’Naghten Rule which requires

the jury to determine whether the defendant knew the nature

and quality of his act is a crucially important portion of the Rule

and that the Court's repeated statement of the Rule omitting

this portion constitutes reversible error. See for example Spur-

lock v. State, 212 Tenn. 132, 368 SW2d 299 ( 1963), where the

Court said:

“We, in this State, for nearly a hundred years, have fol-

lowed the view quoted below:

—_——_

‘The prevailing view, however, is apparently to the

effect that the capacity of the accused to distinguish

right from wrong in respect of the act charged as a

crime at the time of its commission is made the test

of his responsibility, and not his capacity or ability to

distinguish right from wrong in the abstract. Hence,

as a composite rule, if a person at the time of the com-

mission of an alleged crime has sufficient mental ca-

pacity to understand the nature and quality of the par-

ticular act or acts constituting the crime and to know

whether they are right or wrong, he is responsible if

he commits such act or acts, whatever may be his ca-

pacity in other particulars; but if he does not possess

this degree or capacity, then he is not so responsible.’ q

368 SW2d 299, at p. 301.

We submit that it is clear from the proof in the instant case

that, whether or not George Edwards knew right from wrong

at the time of the shooting, he clearly did not know the nature

and quality of his act, and that it was therefore especially im-

portant that the jury understand this portion of the M’Naghten

Rule if Edwards was to receive a fair trial.

aw Tf ae

IV

Petitioner Was Denied a Fair Trial and Due Process Be-

cause the Jury Was Instructed to Determine Whether the Pre-

sumption of Insanity Had Been Overcome or Remained in the

Case at the End of the Proof, When the Presumption of Sanity

Had, Prior to the Conclusion of the State’s Proof, and Certainly

Prior to the End of the Trial, Been Overcome as a Matter of

Law and the State Was, by That Time, as a Matter of Law,

Clearly Under the Burden of Proving Beyond a Reasonable

Doubt That the Petitioner Was Not Legally Insane at the Time

of the Act and With Respect to the Act.

The portion of the charge to which we refer is at T., 777ff,

and especially the second paragraph on page 771 where the

Court says:

“The Court instructs you that if there is sufficient evi-

dence introduced in this hearing on behalf of the defend-

ant to overcome the presumption of sanity and to raise

in your minds a reasonable doubt as to whether the de-

fendant was able to distinguish right from wrong and know

his act was wrong at the time of the commission of the

alleged offense, then the burden is upon the State to show,

by evidence of sanity, beyond a reasonable doubt that. . .”

T.,771. (Emphasis added.)

The point is simply that, contrary to what the jury was in-

structed in this portion of the charge, the jury did not have

the duty of determining whether the presumption of sanity

had been overcome. The presumption of sanity did not exist

and should not have been mentioned to the jury at all. The

Court spent approximately one and one-half pages of the charge

discussing the presumption of sanity and instructing the jury

to give some weight to it and to determine whether it had been

overcome. This may very well have misled and confused some

=—_

or all of the jurors and clearly constitutes, we submit, reversible

error.

As the Tennessee Supreme Court said in one of its earliest

decisions (1871) involving the insanity defense, Dove v. State,

50 Tenn. 348, at 371 (1871), when any evidence of insanity

appears the presumption of insanity is neutralized:

“it is overturned, it ceases to weigh, and the jury are in

reasonable doubt. How, then, can a presumption, which

has been neutralized by countervailing proof. be resorted

to to turn the scale?”

See also King v. State, 91 Tenn. at 648 (1892), and Richard

v. State, — Tenn.Crim.App. — (filed March 8, 1972), at

page 11 (quoting King, supra); Appendix K, pp. A-124ff.

Vv

Petitioner Was Denied a Fair Trial and Due Process Be-

cause the Court Refused to Instruct the Jury as to the Mean-

ing, Effect, and Consequences of a Verdict of Not Guilty by

Reason of Insanity and Prohibited Petitioner’s Attorneys From

Discussing This Subject, During Voir Dire and Argument.

The Court failed and refused to give any instruction to the

jury setting forth the meaning, effect, and consequences of a

verdict of not guilty by reason of insanity. See in this con-

nection T., Vol. I, pp. 3-10; 12-28; 30; T., 745-8; and Special

Requests 15, 5, 4, 2, 1 found in Appendix N, pp. A-167-169. Pe-

titioner maintains that this refusal was Constitutional error.

We have continued to attempt, in the development of Amer-

ican criminal law, to eliminate therefrom to the extent possible

all elements of chance. We have attempted to get away from

the “sporting theory” of justice and to take such steps as are

—

reasonably possible to insure that the decisions of juries and

Courts will be made upon rational bases. And we submit that

to leave a jury’s understanding of the consequences of a ver-

dict of not guilty by reason of insanity to chance is to de-

liberately inject into the decision making process an irrational

element, and that this denies to the defendant his right to a

rational and orderly consideration of his case upon the merits.

We would also contend that it denies him due process and

fair trial in violation of the Fourteenth Amendment to the

United States Constitution.

We believe that the best reasoned decisions on this subject

are those of the Court of Appeals for the District of Columbia and

the Michigan Supreme Court. See, for example, Taylor v. United

States, 222 F.2d 398 (DC, Cir., 1955): Lyles v. United States,

254 F.2d 725 (DC Cir. 1957) cert. den. 356 U.S. 961 (1958).

362 U.S. 943 (1958), and 368 U.S. 992 (1962); Catlin v.

United States, 251 F.2d 368 (DC Cir., 1957); McDonald v.

United States, 312 F.2d 847 (DC Cir., 1962). See also People

v. Cole, 382 Mich. 695, 172 N.W.2d 354 (1969). Kuk v. Ne-

vada, 80 Nev. 291, 392 P.2d 630 (1964); People v. Hampton,

23 Mich. App. 190, 178 N.W.2d 551 (1970); Nelson v. State,

35 Wisc.2d 797, 151 N.W.2d 694 (1967); and State v. Shoffner,

31 Wisc.2d 412, 143 N.W.2d 458 (1966).

The principal bases for the conclusion of the Court of Ap-

peals for the District of Columbia that such an instruction should

be given appear to be: (1) that although the consequences to

the defendant of a verdict of not guilty by reason of insanity

may be of no theoretical concern to the jury, they are of “prac-

tical” concern, and (2) that although the average juror may be

assumed to have a fairly accurate understanding of what will

happen if he votes “guilty” or “not guilty”, he is most unlikely

to know the consequences of a verdict of “not guilty by reason

of insanity”, and he is very likely to be influenced, in making his

decision, by whatever notion he may have as to the consequences

thereof.

=

In Taylor v. United States, 222 F.2d 389 (DC Cir., 1955),

at p. 404, the Court of Appeals for the District of Columbia

said, referring to its holding that the jury should be instructed

as to the meaning and effect of a verdict of not guilty by reason

of insanity, “Though this fact has no theoretical bearing on the

jury's verdict, it may have a practical bearing.” The same Court

said in Lyles v. United States, 254 F. 2d 725 (DC Cir., 1957),

at p. 728:

“This point [the question whether the jury should have

been instructed as to the meaning and effect of a verdict

of not guilty by reason of insanity) arises under the

doctrine, well established and sound, that the jury has no

concern with the consequences of a verdict, either in the

sentence, if any, or the nature or the extent of it, or in pro-

bation. But we think that the doctrine does not apply in the

problem before us. The issue of insanity having been fairly

raised, the jury may return one of three verdicts, guilty,

not guilty, or not guilty by reason of insanity. Jurors, in

common with people in general, are aware of the meanings

of verdicts of guilty and not guilty. It is common knowledge

that a verdict of not guilty means that the prisoner goes free

and that a verdict of guilty means that he is subject to such

punishment as the Court may impose. But a verdict of not

guilty by reason of insanity has no such commonly under-

stood meaning. As a matter of fact its meaning was not

made clear in this jurisdiction until Congress enacted the

statute of August 9, 1955. It means neither freedom or

punishment. It means the accused will be confined in a

hospital for the mentally ill until the superintendent of such

hospital certified, and the Court is satisfied, that such per-

son has recovered his sanity and will not in the reasonable

future be dangerous to himself or others. We think the

jury has a right to know the meaning of this possible verdict

as accurately as it knows by common knowledge the mean-

ing of the other two possible verdicts.

= =

“We do not prescribe a form of instruction. We think

a recitation of the statutory procedure in great detail, such

as a reading of the entire section of the statute, would tend

to increase confusion. We think that when the instruction

is given the jury should simply be informed that a verdict

of not guilty by reason of insanity means that the accused

will be confined in a hospital for the mentally ill until the

superintendent has certified, and the Court is satisfied, that

such person has recovered his sanity and will not in the

reasonable future be dangerous to himself or to others,

and at which time the Court shall order his release either

unconditionally or under such conditions as the Court may

see fit.”

(Emphasis added. )

In People v. Cole, 382 Mich. 695, 172 N. W. 2d 354 (1969)

at pp. 364 and following, the Michigan Supreme Court, while

recognizing that as a general rule the assessment of punishment

is a question of law which is exclusively within the province of

the Court, so that instructions as to punishment should not be

given to the jury, held nevertheless that the jury should be in-

structed as to the consequences of returning a verdict of not

guilty by reason of insanity. The Court said in this connection:

. we recognize as an inherent problem, in extending

this general rule to the facts of the instant case, that the

post-verdict status of one acquitted on grounds of insanity

is not ‘punishment in the true sense or usage of that word.”

172 N. W. 2d 354, at 365.

The Court quoted exiensively from the Court of Appeals for

the District of Columbia's opinion in Lyles v. United States,

supra, and said:

“This appeal makes it mandatory that this Court choose

between: (1) the possible miscarriage of justice by im-

a= Fi a=

prisoning a defendant who should be hospitalized, due to

refusal to so advise the jury: and (2) the possible ‘invitation

to the jury’ to forget their oath to render a true verdict

according to the evidence by advising them of the conse-

quences of a verdict of not guilty by reason of insanity.

“We conclude that the reasons given in support of the

first proposition far outweigh the fear of jury integrity ex-

pressed in the second propisition.

“We believe that Lyles v. United States, supra, is the

better reasoned authority and hold that in all criminal

trials or retrials taking place after the date of the filing of

this opinion, whether defense of insanity is present and

that issue is made submissible by the proofs, the defendant,

upon his own timely request, or upon request of the jury,

shall be entitled to instruction in accord with the rule of

Lyle.”

172 N.W. 2d 354, at 366.

It should be noted that, in the above cases, both the Court

of Appeals for the District of Columbia and the Supreme Court

of the State of Michigan saw, as the major obstacle to the adop-

tion of the rule requiring such an instruction, the authorities in

their jurisdictions to the effect that punishment was a matter for

the Court. The Annotation, “Instructions in Criminal Case in

which Defendant Pleads Insanity as to his Hospital Confinement

in the event of Acquittal”, 11 ALR 3d 737, points out that

most of the decisions holding that no such instruction is neces-

sary are based upon the doctrine “that in a criminal case, as in

a civil case, it is the province of the Court, not the jury, to

decide all questions of law, among which is, in the absence of

a contrary statute, the punishment to be fixed” and that it is

“accordingly, a general rule that where the assessment of punish-

ment is for the Court, instructions as to punishment are ununeces-

sary and should not be given, since they will not aid the jury

—_ =

in determining the issue of guilt”. 11 ALR 3d 737, at 739.

It is important to recognize that this is the primary basis of

the decisions denying such instructions because, of course, in

Tennessee punishment is a matter for the jury. Therefore, the

principal basis upon which the Courts have decided to the con-

trary in other jurisdictions is simply not present in Tennessee.

Many of the decisions from other jurisdictions which refuse

to grant specially requested instructions to the jury regarding

the consequences of a verdict of not guilty by reason of insanity

base such refusal upon objections to the partiular language of

the instruction which is specifically requested. See Annotation,

“Instructions in Criminal Court in which Defendant Pleads In-

sanity as to his Hospital Confinement in the Event of Acquittal”,

11 ALR 3d 737. The refusal to grant such an instruction in

the instant case cannot be justified upon that ground because

the Petitioner tendered to the Court Special Requests (Appendix

N, at pp. A-167-169 which fully cover the range of possible

wordings, from the specific to the general.

In any event, even if the Court's failure to instruct the jury

as to the meaning and effect of an insanity verdict was not a

denial of Petitioner's Fourteenth Amendment rights, he was

denied Due Process and a fair trial when the Court at the same

time allowed Mrs. Owensby in her testimony and the State’s

Attorney in his argument to create in the minds of the jurors

the impression that Petitioner would go free if an insanity

verdict were returned, and to clearly charge that Petitioner

was faking insanity to achieve such freedom.

Mrs. Owensby’s testimony on this subject has been dis-

cussed above at pages 41 ff.

The portions of the State's Attorney's argument to which we

refer, where he states and implies in the strongest terms that,

upon a verdict of insanity, Petitioner would go free, is as follows:

— we

“What happens later, gentlemen? He starts out right

away trying to avoid what he has done. He knew that he

had done wrong and he starts a pattern to avoid it.

“The proof shows that the defendant is not a dumb per-

son. As a matter of fact, he is a rather intelligent indi-

vidual.

“And what does he do, gentlemen? First, which is logi-

cal, I don’t blame him, I would hire me a good lawyer too.

But what happens shortly? He goes into psychiatry, John

Gaston Hospital. He is all right over there. Nobody has

any problems with him. As a matter of fact, while he was

there and even before, he set up on this design to convince

you gentlemen that he was insane. Dr. Aivazian says he

was fine. Do you think that the wheels had started turning

a little bit?

‘| have got to do something erratic to convince

people that I am crazy.’

“Sets his mattress on fire. But let me ask you this, gentle-

men: he had sense not to sit down in it, didn’t he? Huh?

Why didn’t he set himself afire? Why didn’t he lay down

in the mattress? That would be consistent with a person

who was mentally disturbed, but he didn’t. And since he

didn’t, that would be consistent with the fact that he was

not insane.

mide said he heard voices. He could very well have heard

voices. I have heard voices through vents and possibly

you have too if you happen to be in the right area, in a

motel, or something like that, you could hear, if you hap-

pen to be where there is a vent, or even maybe here. That

is not unusual, gentlemen.

“But was he setting out on a design because he knew that

one day he would be called to the Bar of twelve men to

answer what he had done?

— 80 — — 81 —

“He went to Central State. No problem before he went

to Central State. The doctors say he was fine. He was CONCLUSION

orientated, but out of an abundance of precaution he went il

to Central State. Central State stated that when he was For the reasons stated herein, Petitioner respectfully prays

there, there was no problem, that he knew right from that this Petition for a Writ of Certiorari be granted.

wrong. He knew the nature of the offense and he knew or

had the ability to aid in the defense of his own lawsuit to

the extent, gentlemen, that something that you may not

even be able to know unless you had been into that area,

and he probably just picked it up from hearing the psychia-

trists talk. But he knew the possibilities of how he could

avoid any punishment whatsoever.

“If you find him guilty, he is writing his own verdict | Can

before he is even tried, gentlemen. If you find him not Poy 4

guilty by reason of insanity, what is the result of that? DEWITT M. SHY, JR.

Not guilty means you are not guilty. But if you find him BURCH, PORTER & JOHNSON

guilty, that means confinement, gentlemen. He doesn't par- 130 North Court

ticularly care for this. 1 don’t blame him. I think that is a Memphis, Tennessee 38103

normal assumption there. I am not trying to be facetious. Attorneys for Petitioner

That is a kind of a normal reaction, to avoid the inevitable.

“Don't become confused, gentlemen. Mr. Edwards

would not be on trial here today for his liberty if he was

presently insane. He is sane, gentlemen. Mr. Edwards to-

day sitting before you is sane, and, according to their own

defense of Dr. Aivazian, he was sane five or seven days

after the commission of this act. Don’t be fooled by this

plea of insanity. Don’t let George Edwards foo! you in his

plea of insanity, gentlemen. Look to the facts. That's

where you are to render your decision.”

Certificate of Service

I hereby certify that three copies of the foregoing Petition

for Writ of Certiorari were mailed, with first class postage pre-

paid, to the Respondent, Brooks McLemore, Attorney General,

State of Tennessee, Supreme Court Building, Nashville, Ten-

nessee 37219, this the 15th day of October, 1976.

T. 705-708 (Emphasis added. ) CHARLES F. NEWMAN

BURCH, PORTER & JOHNSON

There were other such statements and implications in the argu- 130 North Court

ments of the State's attorneys. Memphis, Tennessee 38103

Attorneys for Petitioner