Government of Virgin Islands v. Knight

COWEN, Circuit Judge.

After numerous postponements of trial dates largely attributable to the defense, defendant Henry Knight filed a notice of intent to raise an insanity defense several days before his trial was scheduled to commence. Federal Rule of Criminal Procedure 12.2(a) precludes a defendant from presenting an insanity defense if the notice of intent is filed after the pretrial motion deadline, but in this case no pretrial motion deadline was set. We hold that when no pretrial motion deadline exists to delineate when a motion is untimely, Rule 12.2(a) contains an implicit requirement that a notice of intent be filed within a reasonable time. Because Knight's notice of intent was filed unreasonably late without any justifiable cause, the district court properly precluded him from interposing an insanity defense at trial. We also find no merit in Knight's challenges to the exclusion of lay opinion testimony, the omission of lesser included offenses from the jury instructions, and the enhancement of his sentence based on a finding that he is a habitual criminal. We therefore will affirm Knight's convictions and his sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

While Henry Knight repeatedly struck Andreas Miller's head with a pistol, the gun discharged and killed Miller. As a result of this incident, Knight was indicted for (1) second degree murder, (2) possession of a firearm by a felon, and (3) possession of a firearm during a crime of violence. He initially pled not guilty, and a trial date of October 22, 1990 was scheduled with a pretrial motion deadline of October 10, 1990. A week before trial, Knight fired his attorney and retained new counsel. Knight sought and was granted a continuance to allow his new lawyer to prepare for trial. The district court set December 5, 1990 as the new trial date. The day before trial, Knight pled guilty to voluntary manslaughter and possession of a firearm by a felon.

At sentencing, Knight moved to withdraw his guilty plea and, once again, substitute counsel. Finding an insufficient factual basis on the plea hearing record to establish all of the elements of voluntary manslaughter, the court permitted Knight to withdraw his plea and to be represented by new counsel. The government demanded a speedy trial and suggested the first week in August. Volunteering to waive his right to a speedy trial, the defendant asked that the case be postponed while his new attorney campaigned for elective office in New York. The court accommodated this request and rescheduled the trial to commence on October 7, 1991, almost a year later than the original trial date. The magistrate judge did not assign a pretrial motion deadline for this new trial date.

On September 30, 1991, the defendant filed with the court a notice of intent to assert an insanity defense. The defense asserted that at the time Knight assaulted the victim he suffered from an adjustment disorder, which was sufficiently severe to qualify him as insane. To support this theory, Dr. Olaf Hendricks, a psychiatrist, filed a report that concluded Knight temporarily lost the capacity to control his behavior at the time of the offense. The defense served the government with notice of Knight's insanity defense on October 1, 1991, three working days before trial was scheduled to commence. The prosecution, surprised by the newly interposed allegation of insanity, moved to strike the notice as untimely. At the hearing on the government's motion, defense counsel informed the district court that he just had discovered that Knight had seen Dr. Hendricks on three occasions. The first meeting occurred two months after the offense, the second at the end of 1990, and the third on the day the notice of intent was filed. None of these meetings took place in the psychiatrist's office.

A criminal defendant waives his right to assert an insanity defense if he files a notice of intent after the pretrial motion deadline. . . . An insanity defense may be presented at trial despite a belated notification to the government “for cause shown.” Although no pretrial motion deadline had been set for the new trial date, the district court held that Knight's notice of intent was unreasonably late. Defense counsel argued that due to the reluctance of West Indian males to discuss psychiatric counseling, he only recently became aware of Knight's meetings with Dr. Hendricks. Because Knight appeared and acted normal, he reasoned, the defense previously had no reason to suspect Knight suffered from a mental defect. The district court found that Knight proffered neither an adequate explanation for the late filing nor sufficient evidence demonstrating the merits of an insanity defense. It therefore precluded Knight from presenting an insanity defense at trial.

The trial commenced as scheduled. During the four-day jury trial, the following facts emerged. On May 31, 1990, Rena Brodhurst and her brother entered Brodhurst's hurricane-damaged house. Once inside, Brodhurst encountered an individual in the process of stealing personal property. She recognized the intruder as Andreas Miller. Brodhurst, who was eight months pregnant and afraid Miller would hurt her, ran out of her home with her brother. Brodhurst was shaking and crying, but not physically harmed. She immediately located her husband, Henry Knight, and related the event to him.

Knight and his brother immediately searched for Miller and located him at the home of Miller's grandmother. Knight demanded that Miller return the stolen property, but Miller denied any involvement in the burglary. Knight threatened future violence against Miller, and witnesses testified that Knight knocked over Miller's grandmother.

On August 8, 1990, more than two months after the burglary, Knight visited his mother-in-law's residence. By happenstance, he noticed Miller across the street at an auto body shop. Knight decided to confront Miller and demand the return of the property that Miller allegedly stole. Believing that Miller often carried a weapon, Knight armed himself with a .357 magnum pistol and walked directly toward Miller. Knight, a convicted felon, did not have a license to possess a firearm.

Knight demanded the return of his property, but Miller only laughed and cursed at him. Knight admitted that he then grabbed Miller by the collar and struck him on the head with the gun several times. At one point Knight switched the gun into his left hand, picked up a broomstick with his right hand, and beat Miller with the stick until it broke. Witnesses testified that Knight then returned the pistol to his right hand and continued pistol-whipping Miller while Miller retreated and attempted to cover his head. As Knight delivered the final blow to Miller's head, a single shot discharged and entered Miller's neck, causing his death. The pathologist who conducted the autopsy on the victim's body found nine distinct wounds, in addition to the gunshot wound.

Knight disputed that the gun ever returned to his right hand. He testified that Miller grabbed his left hand, which held the pistol, and squeezed it, causing the gun accidentally to discharge. The defense supported this version of the facts with evidence that Knight's left hand was scratched. Defense counsel also elicited eyewitness testimony that Knight never pointed the gun at Miller and never threatened to shoot him. The district court permitted this factual testimony, but precluded the eyewitness, as well as the investigating police officer, from offering their opinions that the firing of the gun was an accident.

After the prosecution and the defense rested, the district court instructed the jury on second degree murder, voluntary manslaughter, and two types of felony possession of a firearm. The district court declined to give jury instructions on the lesser included offenses of involuntary manslaughter and excusable homicide. Although Knight initially requested an involuntary manslaughter charge, he later rescinded his request because the district court indicated that it would couple the jury instruction that involuntary manslaughter is defined as killing while committing an unlawful act not amounting to a felony, with an instruction that assault with a deadly weapon is a felony. The district court refused to include an excusable homicide charge because it found that a rational jury could not conclude that the killing was excusable.

The jury found Knight guilty of voluntary manslaughter, possession of a firearm during the commission of a crime of violence, and possession of a firearm by a felon. The government sought an enhanced sentence, . . . because Knight was a habitual criminal. The statute defines a habitual criminal as one convicted of a felony within ten years after completing a sentence for a prior felony conviction. . . . After being convicted of prior felonies, Knight had been released from prison over ten years before his current conviction, but had completed his parole term only eight years earlier. The defense argued that ten years had elapsed since Knight finished his sentence on the theory that a sentence includes only periods of incarceration. Finding that the statutory term “sentence” embraces parole in addition to jail time, the district court found Knight to be a habitual criminal and sentenced him to ten years imprisonment on all counts.

Knight appeals his conviction as well as his sentence.

II. INSANITY DEFENSE

Although a criminal defendant initially is presumed sane, . . . he has the right to raise the defense of insanity, . . . Once the defendant's sanity is challenged, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was sane at the time of the offense. . . . A defendant may forfeit the right to assert an insanity defense, however, by allowing the pretrial motion deadline to pass without informing the government and the court of his intention to present the defense. . . . Rule 12.2(a) provides in relevant part:

If a defendant intends to rely upon the defense of insanity at the time of the alleged offense, the defendant shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk.

A defendant who fails to comply with this provision may not raise insanity as a defense at trial without demonstrating “cause” for the belated filing. . . .

In this case, the magistrate overlooked setting a deadline for pretrial motions, and Knight served the government with a notice of intent to assert an insanity defense three working days before trial. Because of the absence of a pretrial motion cutoff date, the district court substituted a reasonableness test to determine whether Knight's notice of intent was timely. Finding that Knight's filing was unreasonably late, the district court prohibited Knight from presenting an insanity defense to the jury. Knight asserts that the district court erred by reading a reasonable time limit into Rule 12.2(a). Absent a pretrial motion deadline, Knight argues that a defendant may file a notice of intent up until the actual commencement of the trial (or even midtrial). The government defends the approach of the district court as necessary to achieve the rule's objective-to provide the government time to counter an insanity defense without delaying trial. We exercise plenary review over this question of statutory construction. . . .

Although we generally interpret statutory language in accordance with its plain meaning, the Supreme Court has cautioned that the Federal Rules of Criminal Procedure “are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances.” . . . In Fallen, a pro se prisoner mailed a notice of appeal eight days after sentencing. Due to the infrequent prison mail pickup schedule, the notice did not reach the courthouse until five days later. The defendant thus failed to comply with the literal terms of the then effective Federal Rules of Criminal Procedure, which required a notice of appeal to be filed within ten days of sentencing. The Supreme Court nevertheless allowed the prisoner to proceed on the merits of the appeal because “petitioner had done all that could reasonably be expected to get the letter to its destination within the required 10 days.” . . . The purpose of the notice requirement-compelling litigants to take all precautions to ensure that appeal notices promptly reach the courthouse-was not subverted by bending the rule and softening the harsh result dictated by its literal application.

No rule should be read literally if such a reading is contrary to its objective. . . . Although literal interpretation is favored, “[t]he intention prevails over the letter.” Indeed, this court has noted that “the surest way to misinterpret a statute or a rule is to follow its literal language without reference to its purpose.” . . . As Justice Roger Traynor stated, we need “literate, not literal, judges.” . . .

To implement a rule's purpose, courts of appeals have not hesitated to graft implicit reasonable time limits onto Federal Rules of Criminal Procedure. For example, Federal Rule of Criminal Procedure 14 permits severance of trials when a defendant will be prejudiced by joinder. Although this rule contains no express deadline, a motion for severance may be time barred because a “defendant seeking severance ... must act in a timely fashion.” . . . Courts also have read reasonable time limits into Federal Rules of Civil Procedure. . . .

Knight interprets Rule 12.2(a) in a slavishly literal fashion. If read literally, Rule 12.2(a) states that a defendant forfeits the right to assert an insanity defense only when a pretrial motion date passes without the filing of a notice of intent. Following this analysis to its logical end, if no pretrial motion date is set, no notice of intent, whenever filed, is untimely. Adopting this construction would subvert, rather then implement, the purpose of Rule 12.2(a).

The Advisory Committee Notes to Rule 12.2 make it clear that the objective of the notice requirement is “to give the government time to prepare to meet the [insanity] issue, which will usually require reliance upon expert testimony.” . . . When evidence of insanity is introduced, the prosecution bears the burden of proving sanity beyond a reasonable doubt. . . . “In view of the significance of this burden, justice requires prior notice to the Government of an insanity defense.” . . . Last minute insanity defenses also “commonly result[ ] in the necessity for a continuance in the middle of a trial, thus unnecessarily delaying the administration of justice.” . . . Timeliness is thus imperative to conserve judicial resources and to promote the public interest in the speedy disposition of justice.

Because Rule 12.2 aims to provide the prosecution with sufficient advance notice of a defendant's intent to raise an insanity defense to avoid postponing criminal trials, we hold that notice must be given within a reasonable time. Therefore, when no pretrial motion deadline is set, a defendant still may waive his right to present an insanity defense by filing an unreasonably late notice of intent. While we decline to select a number of days before trial beyond which a notice is unreasonably tardy, providing notice three working days before trial, as Knight did in this case, is unreasonable. Knight's failure to comply with the notice requirement of Rule 12.2(a) waived his right to assert an insanity defense.

Despite the waiver, Knight nevertheless may interpose his insanity defense at trial if he establishes sufficient “cause” for his failure to satisfy the notice requirement. . . . To establish cause, a criminal defendant must provide both an explanation for the late assertion of insanity and some evidence that this defense may prevail. . . . The district court found that the defendant had not established either prong of the cause requirement. We review the district court's finding for abuse of discretion. . . .

We first address whether Knight provided an adequate explanation for the belatedness of his notice. Defense counsel asserts, as the reason for the last-minute filing, his discovery only days before trial that Knight had conferred with a psychiatrist. Knight failed to disclose these meetings earlier, the defense suggests, because West Indian males are hesitant to acknowledge that they sought psychiatric counseling. The psychiatrist, Dr. Hendricks, believed that Knight had an adjustment disorder, which prevented him from controlling his behavior at the time of the assault. Since Knight appeared normal, defense counsel argues that he had no reason to suspect that he suffered from a mental defect.

The district court did not abuse its discretion by finding that this explanation failed to establish cause for the late filing. The dilatory character of the pursuit of the defense is a factor to consider when analyzing whether cause exists, . . . and a factor we find compelling in the present case. The many attorneys who had represented Knight had a collective history of employing tactics to delay trial while Knight was free on bail. Approximately one week before his first trial date, Knight discharged his attorney and successfully sought a continuance to allow new counsel time to prepare for trial. Knight then pled guilty to voluntary manslaughter and possession of a firearm by a felon on December 4, 1990, the day before his continued trial date. At the sentencing hearing, Knight sought to withdraw his guilty plea and, once again, retain new counsel to represent him. After receiving court permission to withdraw his guilty plea and to retain new counsel, Knight requested that the case be postponed while his new attorney campaigned for elective office. The court accommodated this request and trial was scheduled for October 7, 1991. Three working days before trial, Knight filed a notice of intent to assert an insanity defense, claiming that he suffered from an adjustment disorder which caused him temporarily to lose the capacity to control his behavior. The district court reasonably concluded that delays overwhelmingly attributable to the defense already had postponed trial for almost a year.

Moreover, Knight's final trial attorney had represented him for nine months by the time the trial commenced. Knight's attorney should have investigated the case and questioned him to ascertain if any factual basis for an insanity defense existed. If he had, he would have discovered earlier that Knight had seen a psychiatrist. If he did make this inquiry and Knight denied having seen a psychiatrist or instructed his attorney not to pursue an insanity defense, then no cause existed for the tardy assertion of insanity. . .

Because we conclude that Knight failed to provide an adequate explanation for his last-minute assertion of sanity, we need not decide whether, consistent with the two-prong analysis in Duggan, evidence existed to support the proffered insanity defense. We note, however, that the Diagnostic and Statistical Manual of Mental Disorders reveals that although adjustment disorders are common, the disturbance does not meet the criteria for any specific disorder. . . Although we cannot say that an adjustment disorder can never be sufficiently severe to qualify a person as legally insane, it is unclear whether Virgin Islands law recognizes this psychiatric disorder as an excuse for criminal conduct.

The continuous dilatory tactics of the defense and the public's interest in the speedy disposition of a trial that had been pending for almost a year amply support the district court's finding that no cause existed to justify Knight's belated filing.

III. EXCLUSION OF LAY OPINION TESTIMONY

Knight argues that it was reversible error to exclude an eyewitness' and an investigating officer's testimony that the firing of the gun was an accident. We review the district court's exclusion of lay opinion testimony for abuse of discretion. . . . Although we agree that the district court committed error by excluding the eyewitness' lay opinion, this error did not prejudice the defendant and therefore does not warrant a reversal of his conviction.

Federal Rule of Evidence 701 states:

"If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue."

The requirement that a lay opinion be rationally based on the witness' perception requires that the witness have firsthand knowledge of the factual predicates that form the basis for the opinion. . . . The district court properly excluded the investigating police officer's opinion because he did not observe the assault. In contrast, the eyewitness obviously had first-hand knowledge of the facts from which his opinion was formed.

Having met the firsthand knowledge requirement of Rule 701(a), the eyewitness' opinion was admissible if it would help the jury to resolve a disputed fact. The “modern trend favors admissibility of opinion testimony.” . . . The relaxation of the standards governing the admissibility of opinion testimony relies on cross-examination to reveal any weaknesses in the witness' conclusions. . . . If circumstances can be presented with greater clarity by stating an opinion, then that opinion is helpful to the trier of fact. . . . Allowing witnesses to state their opinions instead of describing all of their observations has the further benefit of leaving witnesses free to speak in ordinary language. . .

In this case, an eyewitness' testimony that Knight fired the gun accidentally would be helpful to the jury. The eyewitness described the circumstances that led to his opinion. It is difficult, however, to articulate all of the factors that lead one to conclude a person did not intend to fire a gun. Therefore, the witness' opinion that the gunshot was accidental would have permitted him to relate the facts with greater clarity, and hence would have aided the jury. Based on an assessment of the witness' credibility, the jury then could attach an appropriate weight to this lay opinion.

Although the district court should not have excluded this opinion, the exclusion of the opinion was harmless error as it did not prejudice Knight. . . To find an error harmless, a court must be able to say that it is highly probable that the error did not contribute to the jury's judgment of conviction. . . . The eyewitness was permitted to describe fully the circumstances that led to his opinion-he stated that Knight never pointed the gun at the victim and never threatened to shoot the victim. Further, Knight himself testified that although he intended to assault Miller, the discharge of the gun was accidental, and defense counsel argued this theory to the jury. The jury could infer from these circumstances that the shooting was accidental.

The opinion of an unbiased eye-witness certainly may be viewed by a jury as more credible than the opinion of a criminal defendant. In this case, however, only a modicum of evidence was necessary to prove the accident theory of the defense because the prosecution barely disputed that the shooting was an accident. Indeed, the government all but conceded this point. During the government's closing argument, the prosecutor himself stated, “[The gunshot] may have been an accident.... [The beating] resulted in an unintentional, perhaps-probably unintentional and perhaps accidental discharge of that gun.” . . . Under these circumstances, the trial court's ruling could not have significantly prejudiced Knight and a reversal of the conviction is not warranted.

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