There was no discussion, only a comment. There was no indication of prejudice to the defendant, only concern for the witness. Finally, this portion of the events only involved one juror, who could have been readily excused had counsel so requested. In fact, with full knowledge of what had taken place, counsel neither asked for a mistrial nor asked to have Mrs. Plattowski excused. To the contrary, he indicated he wished to have her continue to serve on the jury.
In considering the incident in its totality, I find no merit in the defendant's claim that he should have been granted a mistrial. See United States v. Bamberger, 456 F.2d 1119, 1127-1128 (3rd Cir. 1972); Helmick v. Cupp, 437 F.2d 321, 322 (9th Cir. 1971); Bailey v. United States, 410 F.2d 1209, 1214 (10th Cir. 1969); and Annot., 9 A.L.R. 3d 1275 (1966). Miss Joiner's presence in the courtroom was proper,
the flurry attending her departure was minor, and since the prosecution was not trying to conduct some psychiatric experiment there was no fault on its part. Most important, there was no prejudice to the defendant as to the only issue at trial: his criminal responsibility.
4. Defendant's hearsay testimony. Defendant alleges that the court erred in sustaining the Government's objection to a question which asked Mr. Green to relate the out of court conversations of other individuals concerning the facts of his previous amnesic experience.
This question clearly required hearsay and self-serving testimony by the defendant with the Government having no opportunity to cross-examine those who made the out of court statements. The defendant cites no exception or case by which the testimony may be admitted and none occurs to me. The testimony was properly excluded.
5. Dr. Ross' cross-examination. Defendant claims that the court erred in allowing one of his witnesses, Dr. Mary Eleanor Ross, a clinical psychologist, to be cross-examined by the Government about the defendant's sanity. He alleges that the questioning went beyond the scope of her direct examination. A close examination of the record does not substantiate the defendant's contention.
While the scope of cross-examination is generally limited to matters raised by direct examination, the court has broad discretion to allow further cross-examination if it is relevant and in the interest of justice. United States v. Williams, 478 F.2d 369, 371 (4th Cir. 1973); United States v. Ryan, 455 F.2d 728, 733 (9th Cir. 1972). See also Rule 611(a) of the Proposed Federal Rules of Evidence.
The Government's cross-examination of Dr. Ross did not ask for her opinion concerning the defendant's sanity. Rather it dealt with the actions, memory and type of behavior a person suffering from a "dissociative reaction and primarily in the nature of a fugue state." Since this was a major contention upon which the defendant based his sanity defense, the questions were relevant, material and Dr. Ross well-qualified to answer them.
6. Government psychologist's testimony. Defendant argues that the court erred in allowing the Government psychologist, Albert Levitt, to testify with regard to the defendant's sanity. It is alleged that Mr. Levitt did not possess the necessary qualifications to be able to express an expert opinion about Mr. Green's sanity at the time of the crime citing Jenkins v. United States, 113 U.S. App. D.C. 300, 307 F.2d 637 (D.C. Cir. 1961).
In Jenkins, Judge Bazelon held:
"The determination of a psychologist's competence to render an expert opinion based on his findings as to the presence or absence of mental disease or defect must depend upon the nature and extent of his knowledge. . . . and that determination, after hearing, must be left in each case to the traditional discretion of the trial court subject to appellate review."
Id. at 645. The critical factor is the psychologist's actual experience and the probable probative value of his testimony. Id. at 646. Chief Justice Burger (then Circuit Judge), in a concurring opinion, stated that training and other factors, rather than academic degrees, are important in determining the admissibility of a psychologist's testimony about sanity. Id. at 650. See United States v. Schappel, 144 U.S. App. D.C. 240, 445 F.2d 716, 720 n. 11 (D.C. Cir. 1971) (Bazelon, C.J.); United States v. Riggleman, 411 F.2d 1190 (4th Cir. 1969); Blunt v. United States, 128 U.S. App. D.C. 375, 389 F.2d 545 (D.C. Cir. 1967).
Mr. Levitt is Chief Psychologist for the Philadelphia Court of Common Pleas. He holds a master's degree in psychology and lectures at Temple and Villanova Universities. His specialities are forensic and clinical psychology and he has had considerable post graduate work in these areas. For the last eleven years he has been connected with the criminal justice system in various capacities. (N.T. 2774-78, 2809-13).
The qualifications of Mr. Levitt, as brought out in examination by both counsel, are clearly sufficient to sustain the finding of the court that Mr. Levitt could testify with regard to Mr. Green's sanity.
7. Naval medical records. Defendant contends that the court erred in admitting all of the defendant's naval medical records especially the portion pertaining to the defendant having contracted venereal disease.
The defendant's naval medical records were properly admitted as a business record made in the regular course of business, 28 U.S.C. § 1732. The medical record was relevant to the question of the defendant's prior mental history since it showed he had lived aboard ship and been at sea without suffering any emotional problems. United States v. Bohle, 445 F.2d 54, 61-66 (7th Cir. 1971).
The defendant's particular objection to the introduction of the record of his contracting venereal disease as being prejudicial comes right to the issue of his credibility. Dr. Ross, an expert witness for the defendant, testified Mr. Green told her he liked his service in the navy because of the travel to foreign countries. He said he liked to visit museums and made it a point to visit the birthplace of Hans Christian Andersen in Copenhagen. (N.T. 2661) The inference created by Mr. Green was one of his exemplary conduct as an overseas visitor thirsting for knowledge. His medical records, however, tend to prove that museums were not all Mr. Green visited and went to the issue of his credibility as a patient and a witness. (N.T. 2919)
8. The court's charge. Defendant claims that the court unduly influenced the jury by its summary of the expert testimony in its charge to the jury. He contends the summary was selective, incomplete and more critical of the defendant's than the Government's expert witnesses. He also alleges that the summary of the lay witness testimony was unfairly emphasized and that the court projected its own views about what actions the defendant should have taken while separated from his wife.
In a charge to a jury "the judge is not a mere moderator" but, as the determiner of questions of law is permitted to explain or comment upon the evidence, drawing the jury's attention to portions he thinks are important and even expressing opinions upon the facts. Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 699, 77 L. Ed. 1321 (1933). A judge's comments, however, cannot go beyond permissible limits and unfairly prejudice the defendant. See United States v. Porter, 386 F.2d 270, 275 (6th Cir. 1967); United States v. Chibbaro, 361 F.2d 365, 378-379 (3d Cir. 1966).
In this case, a review of the court's comments reveal they were fair and accurate. The jury was repeatedly instructed that it was the sole determiner of facts (N.T. 3019-30, 3022-23, 3024, 3039, 3044-45, 3059-60, 3061-62, 3063, 3064, 3065, and 3070), and it was to decide the weight to be given the testimony. (N.T. 3042)
Judge Forman has recently stated:
"If the judge exercises restraint in his comments, however, and makes it clear in his charge that the jury remains the sole determiner of credibility and fact, he has not overstepped the permissible limits of comment."