United States of America v. George E. Pickett, Appellant, 470 F.2d 1255 (D.C. Cir. 1972)

Appellant Pickett was indicted for second degree murder (D.C.Code Sec. 22-2403) in the slaying of his wife and found guilty of that charge after a jury trial on July 16, 1969. At trial Pickett asserted an insanity defense. After recovery from a period of post-trial mental incompetency, Pickett was sentenced May 28, 1971 to a term of imprisonment of four to twenty years. In this appeal Pickett argues that it was reversible error for the court to have excluded the testimony of his brother and sister to the effect that in their opinion he was insane at the time the offense was committed. We agree with appellant and accordingly reverse for a new trial on the issue of insanity.

* On April 28, 1968 appellant's wife was found dead in their home with five gunshot wounds in her body. Appellant and his wife had been separated for several months. Soon after the shooting appellant told his brother he had shot his wife, and upon his brother's suggestion appellant surrendered to the police on the day following the shooting. After appellant was indicted on July 12, 1968, he was committed to St. Elizabeths Hospital for 60 days for a mental examination. This confinement was subsequently extended to over six months at the request of the hospital. During this period appellant was examined by three psychiatrists and one clinical psychologist.

At trial two psychiatrists testified for the prosecution that appellant was not suffering from any mental disease or defect at the time of the offense (Tr. 229, 247). The clinical psychologist testified that appellant suffered from a psychosexual conflict, but that there was no evidence of a serious mental disorder (Tr. 112, 120). Another psychiatrist testified for the defense that appellant was suffering from a rather severe dependent personality character neurosis (Tr. 160).

The defense also introduced testimony of appellant's brother and sister concerning his sanity. Both related incidents and observations of appellant's behavior during the deterioration of his marriage and his condition immediately prior to his wife's slaying. Each witness had observed appellant's conduct over a period of years prior to the incident in April, 1968.¹  John Pickett, appellant's brother, testified how appellant's marriage deteriorated. After what seemed to be initially a good marriage, Mr. Pickett observed his younger brother "go down," i. e., appellant started to drink heavily and soon lost his job, along with experiencing marital difficulties (Tr. 189-92, 194-95). Mr. Pickett went on to relate that appellant's condition worsened after he and his wife separated around October, 1967. Whenever Mr. Pickett tried to discuss appellant's marital problems appellant would "clam up" or "jump the subject" (Tr. 197-98). During this testimony defense counsel sought to elicit Mr. Pickett's opinion as to whether appellant suffered from a mental disease or defect, but the trial court ruled that his lay opinion would not be allowed because "only experts may give an opinion."²  Appellant's sister Mrs. Jackson testified to observing similar facts concerning appellant's behavior and again defense counsel attempted to elicit an opinion from her with respect to appellant's mental condition. The trial judge again ruled that lay opinion could not be admitted on the issue of insanity.³ 

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Following appellant's conviction he was examined by a court-appointed psychiatrist and recommitted to St. Elizabeths Hospital where he remained for over a year before he was found to be competent for sentencing. Following sentencing, appellant was returned to St. Elizabeths for further treatment.⁴ 

It has long been the rule in this circuit,⁵  and in most jurisdictions,⁶  that lay persons may testify as to the insanity of an individual. Such persons may not only testify as to observed symptoms of a mental disease or defect, but may express an opinion as to the sanity or insanity of the individual. In Carter v. United States, 102 U.S.App.D.C. 227, 237, 252 F.2d 608, 618 (1957) we said:

Lay witnesses may testify upon observed symptoms of mental disease, because mental illness is characterized by departures from normal conduct. Normal conduct and abnormal conduct are matters of common knowledge, and so lay persons may conclude from observation that certain observed conduct is abnormal. Such witnesses may testify only upon the basis of facts known to them. They may testify as to their own observations and may then express an opinion based upon those observations.

The Government acknowledges that lay opinions are permitted on the issue of insanity, but argues that their exclusion here was not error because there was a "lack of any specific underlying data" to support these opinions.⁷  The Government asserts that a witness must establish that he has observed "bizarre" or "extraordinary" conduct on the part of the subject before an opinion on that person's sanity is properly admissible. We find no support for such a restriction on lay testimony on insanity and therefore reject this assertion.

While a trial judge has discretion to determine whether a witness has had sufficient contact with a person to warrant an opinion on insanity, we feel that it would unduly restrict lay testimony on insanity to require that the witness have observed "bizarre" or "extraordinary" behavior before his opinion is admissible. The nature and extent of the contacts and the observations of the witness should be as detailed as possible, but it must be recognized that an adequate foundation for opinion testimony by a layman is established when the testimony discloses that the witness through contacts with the subject had a reasonable opportunity to form an opinion.⁸  The jury may then properly take into account the facts recited by the witness as to his opportunity to observe the subject in determining the weight to be given the lay opinion.⁹ 

We cannot say that the failure to permit the lay opinions in the insanity defense in this case did not seriously prejudice appellant. His brother and sister, through prior contacts, did have a proper foundation for expressing an opinion, and while their testimony did not detail this foundation as fully as might have been possible, this may have been due in part to the fact that the witnesses almost at the start of their testimony were cut off by the court's inaccurate statement of the law. It is also a fact that cannot be ignored that from the time appellant was indicted on July 12, 1968, he has been continuously confined in St. Elizabeths Hospital. He was so confined before trial (for examination), after trial he was so confined a year before sentencing, and since sentence was imposed he has been confined at St. Elizabeths "for treatment" and on May 21, 1971 was diagnosed as suffering from paranoic schizophrenia.¹⁰  At trial the jury is free to reject this diagnosis and the opinions of appellant's brother and sister, but under the circumstances such testimony does have the potential to influence the jury and we therefore feel that the exclusion of the opinions of his brother and sister so injured the proper presentation of appellant's insanity defense that he must be afforded a new trial on that issue. The appellant's conviction is reversed and the case is remanded for proceedings consistent with this opinion.

Judgment accordingly.