Appeal from the Superior Court of the District of Columbia (F-7233-01) (Hon. Russell F. Canan, Trial Judge).
The opinion of the court was delivered by: Pryor, Senior Judge
Before REID and GLICKMAN, Associate Judges, and PRYOR, Senior Judge.
After a jury trial, appellant was convicted of felony murder while armed*fn1 and other related offenses. In response to evidence that appellant inflicted fatal injuries upon her child, a toddler, appellant asserted the insanity defense. When appellant was arrested shortly after the killing, she chose to remain silent and not answer any questions.
During trial, the prosecution presented evidence of appellant's silence and argued the deliberative nature of appellant's behavior to rebut her defense of insanity. Given existing judicial precedent on this question, we agree with appellant that in this instance, where the central issue of the trial was appellant's state of mind at the time of the killing, the admission of evidence of appellant's silence when arrested and allowance of the accompanying argument was constitutional error which was not harmless beyond a reasonable doubt. Appellant is therefore entitled to a new trial.*fn2
The evidence at trial focused largely on alternative theories of the insanity defense. At the close of all the evidence the judge instructed the jury regarding traditional concepts of the insanity defense, but declined to allow a second theory of insanity -- drug-induced insanity (settled insanity) -- to be considered by the jury. Appellant also asserts this ruling was error. Because we remand this case for a new trial where the issue may arise again, we consider and discuss this question.
On the evening of November 13, 2001, appellant and her three youngest daughters -- a nine-year-old, a six-year-old, and the fifteen-month-old decedent -- were at their home in Southeast, Washington when appellant entered the room in which the girls were playing and announced, while holding a knife, that she had to kill the girls "because Satan told her to do it." When appellant attempted to cut the nine year old, that child and the six year old ran out of the house without shoes or coats and called their grandmother, using a friend's telephone. Shortly thereafter, appellant's brother, Lawrence, and his wife Sheila, arrived to pick up the children. The girls got into Lawrence's car, and he saw appellant walking out of the house toward her own car and asked her, "Where is the baby"? Appellant appeared slow and jittery, but did not respond to the question. Appellant instead gestured toward herself and stated in a slow, exaggerated tone of voice, "Come with me." Lawrence and Sheila declined, and appellant entered her car and drove away from the scene.
Appellant's sister-in-law, Sheila, entered the house, discovered the body of appellant's fifteen-month-old child on a bed in an upstairs bedroom, and called the police. The responding police officers located the decedent's body and observed at the same time two bloody knives -- one in appellant's bedroom and one in the kitchen -- as well as an open Bible on a chair in the living room. The medical examiner concluded that the decedent died from multiple cutting wounds to the neck.*fn3
Appellant, meanwhile, drove her car to a neighborhood church and participated in a Bible-study class after receiving food and clothing from church members who described her as "not really responsive" and appearing "distant" and possibly "sick or high." The police located appellant at the church after a brief investigation; she identified herself, asked the officers several times whether she was going to be arrested, and appeared nervous, with her eyes darting from side to side.
Appellant was arrested and transported to a nearby police station, where she was advised of her Miranda*fn4 rights and indicated she did not wish to answer any questions. She also pleaded with the detective to pray with her and to help her, and stated she did not want to go to jail: she said she was afraid, and did not want to die. A detective, who spent several hours with appellant later testified that she did not appear to be under the influence of drugs at that time.
At trial, the government presented evidence establishing the circumstances of the death. The defense then presented its case asserting an affirmative defense of insanity. The government presented a rebuttal case asserting that any psychosis appellant may have experienced was the result of voluntary phencyclidine (PCP) intoxication. Finally, the defense presented a surrebuttal case to counter the assertion that appellant had been intoxicated. Ultimately, experts from both sides agreed that at the time of the murder, appellant was in a psychotic state that interfered with her ability to control her actions; the major disagreement was over the cause of the psychosis.
The government's theory was that appellant killed her daughter while in a psychotic state due to PCP intoxication from recent PCP use. In the government's case-in-chief, appellant's sister-in-law testified that when she entered the house and discovered the decedent's body, the house was "very misty, cloudy" with a "chemical" odor like that of "PCP and bleach." In the government's rebuttal case, appellant's neighbor, Antonio, testified that he smoked PCP with appellant "about two weeks" before the decedent's death, as he had on a previous occasion about five or five-and-a-half months before the death. Statements of appellant's boyfriend, Tyrone, were admitted without objection, revealing that appellant bought a $500 vial of PCP in late September or early October and that appellant had been "regularly using, regularly dipping" at that time. A forensic toxicologist, Dr. Fiona Couper, explained that the effects of PCP can last longer than the period in which PCP can be detected in one's blood.
The primary defense theory was that appellant suffered from a mental illness unrelated to her PCP use that met the legal standard for insanity. In support of this theory, the defense called Dr. Carol Kleinman, a forensic psychiatrist who was qualified as an expert witness.*fn5 Dr. Kleinman testified that in her professional opinion, appellant was a "severely mentally ill psychotic woman" at the time of the murder and continuing at the time of trial, and that appellant's "psychotic disorder or schizoaffective disorder prevented her from conforming her conduct to the requirements of the law on November 13th, 2001." Although appellant admitted past PCP use, Dr. Kleinman concluded that a mental illness was a better explanation for appellant's conduct and symptoms because: (1) appellant's behavior after the murder was not consistent with the usual signs of PCP intoxication; (2) there was no physical evidence that appellant had used PCP; (3) appellant reported, as did her children, that she had not used PCP for six to eight weeks before the decedent's death; (4) appellant needed anti-psychotic medication at the jail and continued to need it at the time of trial; (5) appellant's psychosis lasted much longer than it would have lasted had it been caused by PCP; and (6) in Dr. Kleinman's "clinical judgment," appellant was not malingering. Dr. Kleinman testified that neither PCP intoxication ("absolutely not") nor PCP-induced psychosis ("definitely not") could explain the long-term continuation of appellant's symptoms. Other defense witnesses supported this theory of insanity. A psychiatric nurse, Margo Weaver, and a coordinator of mental health services at the jail, Janna McCargo, each testified, based on their experience with PCP users and observations of appellant shortly after the decedent's death and at various points over the next several months, that they believed appellant had an ongoing mental illness unrelated to PCP. Appellant's family members testified about appellant's unusual behavior in the months preceding the decedent's death.
The government also presented expert testimony about appellant's mental condition. Dr. Stephen Lally, a clinical psychologist, testified that appellant was in an "altered state due to her use of PCP" that caused her actions on the day of the decedent's death.*fn6 Dr. Lally testified that acute PCP intoxication can last several days to a week after use; that a PCP-induced psychotic disorder, or "toxic psychosis," affects one in five PCP users and can last up to a month after use; and that a longer period of psychosis is "less likely" but "possible." In Dr. Lally's expert opinion, appellant was intoxicated and acting under the influence of PCP when she killed her infant daughter.
Dr. Raymond Patterson, a forensic psychiatrist, testified that he believed appellant was intoxicated on PCP when she killed her daughter because: (1) appellant admitted using PCP in September 2001 and other witnesses reported her use "more proximal" to the decedent's death; (2) appellant had not required psychiatric treatment since her prior psychotic episode in 1985, which was triggered by PCP use; (3) appellant's symptoms appeared to begin to decline at the church and the jail and dissipated after a couple of days, whereas a PCP-induced disorder could last up to a month or more; (4) no psychosis was noted during appellant's medical appointment three weeks before the decedent's death; and (5) some staff members at St. Elizabeths concluded that appellant was malingering several months after the death.*fn7 On cross-examination, Dr. Patterson acknowledged that if there was no credible evidence that appellant smoked PCP within a couple of weeks before the murder, then there was a possibility that appellant was suffering from a PCP-induced psychotic disorder rather than intoxication.
Out of the jury's presence, the defense proffered an alternative theory of the case: that appellant was suffering from the effects of a PCP-induced psychotic disorder that outlasted the period of customary PCP intoxication and rose to the level of legal insanity. Although this theory was raised to the court before trial began, the defense presented no expert evidence to support this theory, relying instead on the information that the defense anticipated could be elicited from the prosecution witnesses. The trial judge gave a preliminary instruction to the jury on the theory of settled insanity alongside the instruction on intoxication. However, after several discussions with counsel, the judge ultimately concluded that the theory of settled insanity was not supported by sufficient evidence and refused to instruct the jury as to this theory in the final instructions. Appellant was convicted of five of the seven indicted counts and timely noted this appeal.*fn8
While this case raises new questions relating to the insanity defense, appellant's contentions premised on her Miranda*fn9 protections are straight forward. Relying expressly on the Supreme Court's decision in Wainwright v. Greenfield, 474 U.S. 284 (1986), appellant urges that the trial judge committed reversible error by permitting the government, over objection, to introduce evidence and to argue that appellant, shortly after arrest, was lucid and clear-headed, when she -- after being warned of her rights -- chose to remain silent.
After her arrest, appellant was taken to a nearby police station where she was interviewed by Detectives George Taylor and Stephanie Ellison. During this interview, in which appellant was described as concentrating and attentive, she was presented with Police Department Form 47 ("PD-47") -- also known as a "rights card." A Miranda warning was printed ...