filed: March 15, 1993; As Corrected March 17, 1993. As Amended April 8, 1993.
On Appeal from the District Court of the Virgin Islands. D.C. Crim. No. 90-00131.
Before: Becker, Cowen And Roth, Circuit Judges.
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. Fed. R. Crim. P. 12.2(a). An insanity defense may be presented at trial despite a belated notification to the government "for cause shown." Id. 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, pursuant to V.I. Code Ann. tit. 14, § 61 (Supp. 1990), as amended by 1991 V.I. Sess. Laws 5759, 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. V.I. Code Ann. tit. 14, § 61. 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.
Although a criminal defendant initially is presumed sane, see Government of the Virgin Islands v. Webbe, 821 F.2d 187, 189 (3d Cir. 1987), he has the right to raise the defense of insanity, see Lynch v. Overholser, 369 U.S. 705, 713-14, 82 S. Ct. 1063, 1069, 8 L. Ed. 2d 211 (1962). 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. See Webbe, 821 F.2d at 189. 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. Fed. R. Crim. P. 12.2(a). 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 ...