United States of America, Plaintiff-appellee, v. Marshall Crosby Milne, Defendant-appellant, 487 F.2d 1232 (5th Cir. 1973)

Marshall C. Milne appeals from the judgment of conviction pursuant to a jury verdict of guilty of the unlawful distribution of a controlled substance in violation of 21 U.S.C. § 841(a) (1).¹  On February 6, 1973 he was sentenced to terms of imprisonment on the two counts of the indictment.²  Two issues are presented for our review. First, appellant contends that the trial court erred in denying his motion for acquittal because of insufficiency of the evidence. Secondly, he asserts that it was prejudicial error for the trial court to exclude from the evidence the opinions of three lay witnesses as to his insanity at the time of the offense. We agree with appellant's second contention and accordingly reverse and remand for a new trial.

* Appellant's contention regarding the sufficiency of the evidence is based upon the alleged failure of the prosecution to establish that the substance he distributed was indeed a controlled substance, heroin. The weights recorded by the field agents of the substances appellant delivered were significantly different from the weights recorded by the laboratory chemist who analyzed the substances. There was also conflicting evidence as to whether the undercover field agent obtained the allegedly controlled substances from more than one individual on the same evening in question.

Upon an examination of the record we find appellant's first contention to be without merit. The laboratory chemist testified that weight discrepancies were often present. Field scales are apparently not as accurate as those used in the laboratory. Furthermore, field agents are not as fully trained or experienced as laboratory chemists in the use of scales. In this case the containers used to mail the substance were identified by the field agent and the receiving chemist. Any question of sufficiency of the evidence was properly left for jury determination.³ II

Appellant attempted to pursue an insanity defense by offering the testimony of three lay witnesses. The witnesses were permitted to describe their relationship with the appellant and all had substantial opportunity to observe his behavior.⁴  The witnesses were also permitted to testify concerning the appellant's heavy drug use and his bizarre behavior.⁵  Based upon this foundation⁶  the appellant sought to elicit the lay opinion as to his insanity from one of the witnesses who knew him and testified as to his bizarre conduct.⁷ 

The trial court ruled, however, that lay opinion would not be allowed because "only a medical expert can answer a question which contains that magic wording, . . ."⁸ 

Because the court had ruled adversely as to appellant's first witness, John Black, he did not attempt to solicit an opinion from the succeeding witnesses, L. C. Williams and Clay Ridgeway. Although no opinion as to appellant's insanity was ever admitted into evidence the court did give a charge on the issue of insanity to the jury.

The sanity of the accused is always an element of the offense charged; when the issue is not raised, however, a presumption in favor of sanity satisfies the prosecution's burden of proof.⁹  But even if only slight evidence of insanity is introduced, the presumption disappears, and the burden is on the prosecution to prove the accused's mental capacity beyond a reasonable doubt.¹⁰  When the issue of insanity is raised as a defense in a criminal case all relevant evidence, both lay and expert, should be admitted.¹¹  As this court pointed out in Mims v. United States,¹²  " [t]he real value of expert testimony in these cases is in the explanation of the disease and its dynamics, that is, how it occurred, developed, and affected the mental and emotional processes of the defendant; it does not lie in the mere expression of conclusion." We must, of course, recognize that opinions as to sanity or insanity are distinct from opinions as to criminal capacity. Criminal capacity is a legal conclusion and even an expert, medical or legal, may not speak so as to employ a legal definition.¹³ 

It has long been the rule in most jurisdictions that the lay opinion of a witness who is sufficiently acquainted with the person involved and has observed his conduct is admissible as to the sanity of such individual.¹⁴  In such circumstances the lay witness uses his opinion as a shorthand rendition of a set of collective facts otherwise difficult to state. Assuming that a proper foundation is laid there seems to be little justification for distinguishing opinions of sanity from those of insanity.¹⁵  The quantum of proof necessary to establish an adequate factual background showing sufficient acquaintance with the individual involved and an opportunity to observe his conduct may vary from case to case. While familiarity with such person and an opportunity to observe usual or normal human behavior may support a lay opinion as to sanity, additional or more substantial proof may be required to support a lay opinion as to insanity. Insanity is a variance from usual or normal conduct. For that reason a lay witness should be required to testify as to unusual, abnormal or bizarre conduct before being permitted to express an opinion as to insanity. As in other cases involving the qualification of a witness, the trial judge must exercise a sound discretion in concluding whether or not a particular witness is qualified. In this case the court ruled, in effect, that a lay witness would not be permitted to testify as to insanity regardless of his knowledge of the appellant and his observations and knowledge of bizarre or abnormal conduct.

Although it is unquestioned that the trial judge must exercise a sound discretion in deciding whether a particular witness is qualified to testify on the issue of insanity, as we have indicated earlier, this court is committed to a liberal policy with respect to the admissibility of such evidence.¹⁶  As we stated in Blake v. United States:¹⁷ 

It follows that if there is some evidence supporting the claim of insanity, a conceded fact here, the issue must be submitted to the jury. Brock v. United States, 5 Cir. 1967, 387 F.2d 254, 257; Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 140. This means only slight evidence. Lee v. United States, 5 Cir. 1937, 91 F.2d 326-330; Howard v. United States, 5 Cir. 1956, 232 F.2d 274, 276. (Emphasis added).

* * * * * *

We come then to the sufficiency of evidence question. The district court followed the salutary principle, applicable in cases involving the defense of insanity, of admitting all evidence, both lay and expert, in any wise relevant or pertinent, to the issue of insanity. This is in keeping with the philosophy of letting in all facts which might be helpful to the jury in making the final determination of the criminal responsibility of the accused. See Mims v. United States, supra, 375 F.2d, at p. 143, where the court pointed to the sound rule that the issue of insanity should be determined by the jury from all of the evidence rather than from the opinion of experts alone.

A jury is certainly free to reject and may indeed reject such lay opinions. The witnesses here were friends of the appellant and of questionable credibility. We cannot say, however, that under these circumstances such testimony would have no potential to influence the jury. Appellant was entitled to the admission of such testimony, and hence his conviction must be reversed. The case is remanded for a new trial consistent with this opinion.

Reversed and remanded.