Argued May 1, 2012.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Deborah Persico, for appellant.
Stratton C. Strand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed,
and Denise M. Clark, Assistant United States Attorney, were on the brief, for appellee.
Before GLICKMAN and BECKWITH, Associate Judges, and FERREN, Senior Judge.
BECKWITH, Associate Judge:
A jury found appellant Otis Jackson Jr. guilty of murdering his brother, threatening their father, and setting fire to their house. Then, in the second part of a two-phase trial, the same jury rejected Mr. Jackson's claim that he was not responsible for the crimes by reason of insanity. Mr. Jackson now challenges various decisions the judge made in conducting his bifurcated trial, and he argues that some of his convictions on related weapons offenses ought to be reversed on Second Amendment grounds. While we remand for further proceedings on Mr. Jackson's convictions for carrying a pistol without a license and possession of an unregistered handgun, we affirm all of his other convictions.
I. Facts and Procedural History
Mr. Jackson's family members and others who visited the Jackson home throughout 2003 noticed that he and his brother Carlton were not getting along. The two men argued and fought over various things, including the care of their elderly father, Otis Jackson Sr., with whom they lived in a two-story row house in northeast Washington, D.C. Police were called to the house numerous times in 2003. That fall, after the fights had turned physical and after family members had heard Mr. Jackson make threats to kill Carlton, Mr. Jackson and his brother filed for protective orders against one another.
On November 20, 2003, the day before a court hearing on one of the protective orders, Mr. Jackson killed his brother in their home, hitting him with a hammer and shooting him thirteen times with a shotgun and pistol. Otis Jackson Sr. testified that during the fight, Carlton called downstairs to his father, who came upstairs but left the house for a neighbor's after Mr. Jackson pointed a gun at him and told him to leave or get shot. Evidence from the crime scene suggested that Mr. Jackson gathered the hammer, guns, and empty shotgun shells, placed them in his room, and then locked the door before spreading gasoline in various parts of the house and setting fire to it.
Mr. Jackson's trial took place in two phases, one to decide his factual guilt (the merits phase) and the other to decide whether he was not guilty by reason of insanity (the criminal responsibility phase). In the first phase, Mr. Jackson took the stand to claim that he killed his brother because of his belief that his brother was possessed by a demon trying to kill him. He began by saying that from an early age he had believed in supernatural entities and performed rituals invoking their help to succeed in life. It was through one of these rituals in 2002 that Mr. Jackson accidentally summoned a demon that immediately possessed his brother, he said.
The demon's influence, according to Mr. Jackson, caused his brother to become increasingly antagonistic to him over the next year, during which the two men fought over control of their father's care
and finances. This tense situation reached a breaking point on the morning of November 20, 2003, Mr. Jackson said, when his brother confronted him, demanded that he call off the court hearing for the following day, and then attacked him with a shotgun. In his testimony, Mr. Jackson described a protracted struggle to survive his demon-possessed brother's assault, including a firefight in his brother's bedroom that resulted in Mr. Jackson shooting his brother repeatedly because his brother " kept coming and coming and coming."
Mr. Jackson attempted to explain away much of the testimony and physical evidence against him. He denied threatening his father and said it was he who called downstairs for help, not his brother. He also claimed the demon forced his brother to call 911 that morning and lie to the operator by saying Mr. Jackson was in the middle of attacking him. Mr. Jackson said he did not set fire to the house or spread gasoline anywhere, and while he knew nothing about the fire, he said his brother smelled like gasoline after going downstairs during a break in the fight. Mr. Jackson denied ever threatening his brother's life. He insisted that his brother had threatened his life because of the demon possession, adding: " I knew I was acting in self-defense. All of what my brother had told me had finally come to pass that day: He was trying to kill me."
The jury found Mr. Jackson guilty of all the charges against him, and the trial proceeded before the same jury to the criminal responsibility phase. Mr. Jackson testified again, expanding on his beliefs in demons and " fallen angels." The government confronted him with the fact that he had been interviewed multiple times by two different psychiatric examiners before he said anything about his beliefs or his brother's demon possession. Mr. Jackson presented a psychiatrist, Dr. Wayne Blackmon, who testified that Mr. Jackson's behavior when he killed his brother was affected by schizotypal personality disorder and an " underlying diffuse brain disorder," constructional apraxia, the latter of which caused him to be inconsistent when explaining the event. Based on Dr. Blackmon's testimony that people with schizotypal personality disorder may suffer psychoses when under extreme stress, Mr. Jackson argued that he had a break with reality on November 20, 2003, due to stress in his personal life and the attack from his brother. Counsel argued that Mr. Jackson, who had no criminal history, " believed he was taking his brother's life so that he could live ... [He] did not appreciate the wrongfulness of his conduct."
The government called three experts in the trial's second phase: two experts from St. Elizabeths Hospital who examined Mr. Jackson during two stays there while in pretrial custody, and a hired forensic psychiatrist, Dr. Raymond Patterson. These experts agreed that Mr. Jackson had a personality disorder— Dr. Patterson distinguished personality disorders from full mental illness— but that the disorder had no effect on his behavior when he killed his brother. Two of them also agreed that Dr. Blackmon's methods in diagnosing diffuse brain disorder in Mr. Jackson were inadequate, and they instead believed the inconsistencies between his story and the other evidence in the case showed that Mr. Jackson was " malingering," or faking his symptoms of mental illness. During closing argument in the merits phase, the government had argued that the physical evidence and his family's testimony significantly impeached Mr. Jackson's version of events, and prosecutors continued this line of argument in the next phase. In opening and closing statements, prosecutors argued that the evidence from the merits phase showed that Mr. Jackson was able to control his behavior and comply with
the law on the day he killed his brother, and in combination with the expert testimony the evidence showed Mr. Jackson was not legally insane at the time of the crime. At the end of the criminal responsibility phase, the jury again found Mr. Jackson guilty on all of the charges against him.
Mr. Jackson raises several claims on appeal. He challenges: (1) the denial of his motion to have the trial bifurcated in front of two separate juries and other procedures used during the trial, which he says prejudiced both defenses, (2) the denial of his request to present expert testimony during the merits phase on the issue of his mental state, (3) the court's handling of expert testimony, during the trial's second phase, on the ultimate issue of criminal responsibility, (4) the denial of his request to put on expert rebuttal testimony in the criminal responsibility phase, and (5) his convictions on weapons charges, in light of recent United States Supreme Court rulings interpreting the Second Amendment.
A. Bifurcated Trial Procedures
Mr. Jackson first argues that the trial court abused its discretion by denying his request for each of the trial's two phases to be presented to a different jury. He claims prejudice in several respects. We conclude that the trial court did not abuse its discretion in denying a bifurcated trial before separate juries fundamentally because his merits and insanity defenses were not inconsistent.
Before trial, Mr. Jackson gave notice of his intent to claim that he was not guilty by reason of insanity because at the time he killed his brother he believed his brother was possessed by a demon trying to kill him. Mr. Jackson asked the court to split the proceedings into two phases, arguing that he " would be the essential witness" on each issue because he was putting forth a self-defense claim and an insanity claim, and thus it would be unfairly prejudicial to have a single trial in which a jury was asked to decide both things simultaneously. He asked for a different jury to decide the issues in each phase.
As the lineup of experts involved in the case changed in the months leading up to his trial, Mr. Jackson's defense theories and plan for trial evolved, as did the trial judge's thinking on his motions. The first expert hired by the defense to examine Mr. Jackson concluded that while he experienced delusions, they did not cause him to kill his brother. The trial court denied his motion for a bifurcated trial because neither his proffered self-defense claim nor his proffered insanity defense was " substantial" enough to make a unitary trial prejudicial. The following month, however, Mr. Jackson argued that his defense on the merits was essentially one of imperfect self-defense— that because of his delusion, he unreasonably believed his brother was trying to kill him. Due to this shift, the judge indicated he might reconsider his ruling on bifurcation, while the government argued that the two defenses were now " essentially the same."
Later, however, a second defense expert (Dr. Blackmon), authorized by the trial court just weeks before the trial date, disagreed with the first expert and found Mr. Jackson not criminally responsible because of personality and brain disorders. In light of this change, the defense moved for
reconsideration of the bifurcation issue and argued that a jury in a single trial would not be able to consider each of the issues fairly in isolation. In other words, if Mr. Jackson's testimony about his state of mind— an issue crucial to the imperfect self-defense claim— were followed by a government witness on the insanity issue claiming Mr. Jackson was faking his mental difficulties, the jury would not be able to fairly consider whether Mr. Jackson's testimony on the merits was credible. The government, meanwhile, argued that a bifurcated trial was not warranted because the defenses were not inconsistent and, if each phase had its own jury, they would be forced to present all over again the same evidence contradicting Mr. Jackson's version of events. The judge, noting that he was attempting to craft a procedure to address each side's argument for prejudice, ruled that the trial would be bifurcated but conducted in front of a single jury. The judge did not change his mind that bifurcation was unwarranted because the two defenses were not inconsistent, but rather ruled based on the defense's " very legitimate concern that at a unitary trial, the jury might very well consider the government's psychiatric experts ... essentially as expert witnesses testifying about the defendant's credibility."
As to the need for two juries, the judge made his thinking clear in discussions before his ruling on bifurcation. It would be difficult, he said, for a single jury, even in a bifurcated trial, to sort out an insanity claim— involving the defendant admitting guilt but claiming he acted irrationally— after hearing from the defendant during the merits phase either that he did not commit the crime at all or that the killing was justified because he rationally believed that it was necessary to avoid his own death. But in Mr. Jackson's case, " where the defense essentially is [that] because of the defendant's mental condition ... he didn't have the specific intent to kill ... [and] didn't act with malice ... [and] didn't premeditate and deliberate ... that to me does not seem inconsistent with what would then be the second part."  While months earlier, at the time of her original bifurcation motion, counsel maintained that there would have to be separate juries for bifurcation to make sense, she did not renew, at the time of the judge's final ruling, any objection to having a single jury preside over a bifurcated trial and did not articulate any additional prejudice that would result from conducting the trial that way.
This jurisdiction long ago settled that bifurcation may be necessary in some, but not all, insanity cases to avoid the " substantial prejudice [that] may result from the simultaneous trial on the pleas of insanity and ‘ not guilty.’ " Holmes v. United States, 363 F.2d 281, 282 (D.C.Cir.1966)
(citations omitted); see also Lucas v. United States, 497 A.2d 1070, 1073 (D.C.1985) (" The presence of a substantial insanity defense does not, of itself, require bifurcation." ). The trial judge here was careful to assess Mr. Jackson's proffers on both his merits and insanity defenses, and to weigh potential prejudice in both stages of the trial.
This court has explained that " [t]he aim of a bifurcated trial is to mitigate the possibility of such prejudice by separating as much as possible the issue of mental responsibility from the factual elements of the accused's conduct." Jackson v. United States, 404 A.2d 911, 925 (D.C.1979) (citing United States v. Taylor, 510 F.2d 1283 (D.C.Cir.1975)). As substantial as the potential prejudice in a unitary trial may be, the decision whether to bifurcate " rests within the sole discretion of the trial judge, and no abuse of discretion will be found in denying the bifurcation, unless the defendant proffers a ‘ substantial claim’ for the necessity thereof." Id. (citation omitted). The defendant bears the burden of demonstrating the need for a bifurcated trial " by making a ‘ substantial proffer both on the merits and the issue of responsibility,’ " Lucas, 497 A.2d at 1073 (quoting Kleinbart v. United States, 426 A.2d 343, 354 (D.C.1981)), and by showing that these two defenses are incompatible. See United States v. Duran, 96 F.3d 1495, 1499 (D.C.Cir.1996) (citing Holmes, supra ).
The judge's discretion extends further: it also encompasses prescribing a procedure for the bifurcated trial, " even the impaneling of a second jury to hear the second stage if this appears necessary to eliminate prejudice." Holmes, 363 F.2d at 283. A defendant is not, however, " entitled to two juries as a matter of right." Harris v. United States, 377 A.2d 34, 39 (D.C.1977) (citing Parman v. United States, 399 F.2d 559, 562 (D.C.Cir.1968)). Instead, as in demonstrating the need for bifurcation in the first place, the defendant " must proffer a substantial claim to justify a second jury," and the court maintains broad discretion in considering whether this procedure is necessary. Id. (citations and internal quotation marks omitted). In any case, " [t]he procedure adopted ... must effectuate the purpose of bifurcation by guarding against two types of prejudice inherent in a unitary trial involving insanity: (1) prejudice to a defendant's insanity defense arising from the evidence on the merits, and (2) prejudice to a defendant's defense on the merits arising from the insanity evidence." Jackson, 404 A.2d at 925.
Mr. Jackson's claim involves decisions the judge made after the initial one bifurcating the proceedings— decisions that necessarily set the course for the trial and had some effect on the way the case was presented to jurors. Our analysis thus is primarily concerned with those decisions. We are, however, mindful of the circumstances surrounding the trial judge's decision whether to bifurcate in the first place, which he reached despite finding that Mr. Jackson had not made the requisite " substantial proffer both on the merits and the
issue of responsibility." Lucas, 497 A.2d at 1073 (internal quotation marks omitted). This fact is relevant to analyzing whether the trial court abused its discretion in prescribing the bifurcated trial's procedure, but it is not dispositive. We do not agree with the government's contention that because " [h]ere, the trial court would not have abused its discretion in denying bifurcation altogether[,] necessarily ... it cannot have abused its discretion in granting bifurcation before a single jury." Our cases and others demonstrate that many of the decisions concerning bifurcation proceedings are fraught with potential prejudice. See, e.g., Jackson, 404 A.2d at 925-26 (concluding judge abused discretion in refusing to conduct separate voir dire for responsibility phase and in questioning jurors about insanity defense before merits phase); Taylor, 510 F.2d at 1289 (concluding judge abused discretion in refusing to empanel separate juries for each phase where defendant claimed full self-defense on the merits and insanity). It follows that a judge who grants bifurcation, even when it would not be an abuse of discretion to deny it, might through subsequent decisions not only fail to " effectuate the purpose of bifurcation," Jackson, 404 A.2d at 925, but increase prejudice to the defendant beyond what would have existed in a unitary trial.
The trial judge did not abuse his discretion, however, in deciding here that a bifurcated trial in front of a single jury was adequate to eliminate the particular prejudice at issue. By his own admission, the judge was not worried that bifurcation, even with two juries, would waste time or be inefficient. His thorough analysis of the issues here— considered and reconsidered in months of pretrial proceedings— showed significant concern for the defendant's ability to present a strong defense. In the end he found that unfair prejudice lurked in a unitary trial not because he was wary of inconsistent defenses; he instead ruled for bifurcation because he agreed with defense counsel's only argument on the issue of prejudice, that there was a " very legitimate concern that at a unitary trial, the jury might very well consider the government's psychiatric experts ... essentially as expert witnesses testifying about the defendant's credibility." This argument concerned prejudice to the defendant's testimony on the merits, in reference to his claim of imperfect self-defense, see supra note 3, and the procedure the judge prescribed thus addressed that particular prejudice.
Any remedy to this potential prejudice needed only to avoid juxtaposing testimony from experts calling Mr. Jackson a malingerer with testimony from Mr. Jackson on issues, such as his merits defense, for which their opinions would be irrelevant. The judge's ruling accomplished this. It is true, as Mr. Jackson argues, that in a case where a defendant raises a legitimate self-defense claim, one that would result in acquittal if found by the jury, empaneling a new jury for the responsibility phase likely would be necessary to avoid putting defense counsel " in the position of arguing before the same set of jurors that [the defendant] acted reasonably in ... protect[ing] himself, and ... later arguing to them that he was irrational." Taylor, 510 F.2d at 1288-89. But that is not this case. Mr. Jackson did not make a " substantial claim" for two juries, and we cannot say the judge abused his discretion in holding the trial with only one. See ...