Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

MEMORANDUM^** 

A jury in state court convicted Watson of attempted deliberate homicide, aggravated assault and burglary. He argues that an instruction regarding "mental disease or defect" had the effect of directing a verdict on intent in violation of Sandstrom v. Montana. We hold that the instruction contained no error.

FACTS

State v. Watson, 686 P.2d 879 (Mont.1984), provides the case background. Watson entered a Missoula apartment, stole some change and a knife, entered another apartment, took a purse and left. He returned to the second apartment, entered the bedroom and stabbed a sleeping woman 35 times. He later admitted that he returned with the intent to have sexual intercourse. When a man entered the room, Watson stabbed him in the leg and fled. The woman survived although her injuries were life threatening.

At trial, Watson relied on the defense of mental disease or defect. Witnesses testified about his past involvement with Satanic worship and his belief that a demon possessed his body on the night of his criminal acts. A clinical psychologist testified that he suffered from a mental disease. The jury returned unanimous guilty verdicts on each of the three counts.

DISCUSSION

Sandstrom Error

The trial judge instructed the jury:

You are to determine the meaning of the phrase "mental disease or defect," and in so doing you may apply the common meanings of these words in your experience in life, and you may be guided by the testimony you find credible and relevant. However, the term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or antisocial conduct.

Watson objects to the last sentence. He characterizes the issue as whether he was deprived of due process because "the court instructed the jury over defense objection in a manner which constituted a directed verdict for the prosecution as to mens rea, or which at least constituted an unconstitutional presumption of mens rea." In Montana, a conviction for the offenses of attempted deliberate homicide, aggravated assault and burglary requires that the jury find beyond a reasonable doubt that Watson acted knowingly or purposely. See State v. Watson, id. at 885.

Watson argues principally that the instruction directed a verdict that no mental disease or defect existed. He does not articulate the steps necessary to reach the conclusion that this instruction directed a verdict on intent. We would first need to conclude that all the evidence of mental disease or defect indicated an abnormality manifested only by repeated criminal or antisocial conduct.¹  If we reach this conclusion, Watson argues in effect that the instruction required the jury to conclude no mental disease or defect existed. Finally, because the instruction required the jury to conclude that mental disease or defect did not exist to negate intent, Watson would argue that the instruction directed the jury to conclude that he had the requisite criminal intent.² 

In determining whether Sandstrom error occurred, we consider the instructions alone and in the context of the overall charge. See, e.g., Carella v. California, 57 U.S.L.W. 4731, 4731 (June 15, 1989) (per curiam); Francis v. Franklin, 471 U.S. 307, 315 (1985); Huffman v. Ricketts, 750 F.2d 798, 805 (9th Cir. 1984). We focus on the words actually used, considering how a rational juror would have viewed them. See, e.g., Sandstrom, 442 U.S. 510, 514 (1979); McKenzie v. Risley, 842 F.2d 1525, 1533 n. 15 (9th Cir.) (en banc), cert. denied, 109 S. Ct. 250 (1988).

First, the instruction given did not direct a verdict that no mental disease or defect existed. It directed the jury to determine the meaning of the phrase "mental disease or defect," applying common meanings from life experiences and guided by testimony the jury finds credible and relevant. The judge circumscribed this general instruction narrowly with the proviso that the term does not include an abnormality manifested only by repeated criminal or antisocial conduct. Here, the court left it to the jury to consider the overall evidence and decide if a mental disease or defect existed.

This is not in the nature of a Sandstrom error. The jury was free to decide what facts to find from the evidence. See United States v. Ross, 626 F.2d 77, 79-80 (9th Cir. 1980). After instructing the jury correctly regarding Montana law, the judge left it to the jury to decide whether the evidence indicated that the abnormality was manifested only by repeated criminal or antisocial conduct.

The judge also did not direct a verdict that no mental disease or defect existed because evidence other than repeated criminal or antisocial conduct was presented. Watson's expert, Dr. John G. Watkins, a clinical psychologist, testified specifically regarding abnormal conduct by Watson he would not consider antisocial. The Montana Supreme Court also concluded that Watson presented other evidence. State v. Watson, 686 P.2d at 885. For these reasons as well, the instruction did not direct a verdict on mental disease or defect.

Second, even assuming the court had directed a verdict on mental disease or defect, the instruction did not direct a verdict or shift the burden on the element of intent. A finding of no mental disease does not require a finding of intent as Watson implicitly argues. Assuming that both parties had presented only evidence of repeated acts of criminal or antisocial conduct, this instruction did not direct a verdict or shift the burden on the element of intent. In such a circumstance, the jury would conclude properly that no mental disease or defect existed, but would not conclude that Watson had the requisite intent without other evidence. Cf. McKenzie, 842 F.2d at 1533 n. 16 (presumption that jury follows clear instructions).

The judge properly instructed on the elements of each of the crimes charged, the burden of proof, and reasonable doubt. He also instructed the jury properly regarding Montana law on mental disease or defect. See State v. Watson, 686 P.2d at 886. The instruction did not require Watson to offer contrary evidence or require the jury to apply any presumptions regarding intent from the absence of a mental disease or defect. See Carella, 57 U.S.L.W. at 4731; Huffman, 750 F.2d at 804-05. It did not require any inferences and it did not shift the burden.

The judgment is AFFIRMED.