IN THE SUPREME COURT OF IOWA
SUPREME COURT NO. 10-631
FILED
WAR 2 4 2011
CLERK SUPREME COUfi
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK DARYL BECKER,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT
OF BUTLER COUNTY
THE HONORABLE STEPHEN P. CARROLL, JUDGE
APPELLEE'S BRIEF AND
CONDITIONAL NOTICE OF ORAL ARGUMENT
THOMAS J. MILLER
Attorney General of Iowa
DARREL MULLINS
Assistant Attorney General
Hoover State Office Building, 2 Floor
Des Moines, Iowa 50319
Ph: 515/281-5976
Fax: 515/281-4902
e-mail: dmullin@ag.state.ia.us
nd
GREGORY M. LIEVENS
Butler County Attorney
SCOTT A. BROWN & ANDREW PROSSER
Assistant Attorney Generals
ATTORNEYS FOR PLAINTIFF-APPELLEE
FINAL
PROOF OF SERVICE
On March 24, 2011,1, the undersigned, did serve the within
Appellee's Brief and Argument on all other parties to this appeal by
e-mailing one copy thereof to the respective counsel for said
parties:
Martha J. Lucey
Appellate Defender's Office
AppellateDefender@spd.state.
ia.us
DARREL MULLINS
Assistant Attorney General
Hoover State Office Building
Des Moines, Iowa 50319
Telephone: 515/281-5976
Fax: 515/281-4902
-i-
TABLE OF CONTENTS
Table of Authorities
.
ii
Statement of the Issues Presented for Review
1
Routing Statement
6
Statement of the Case
7
Argument
17
Conclusion
49
Conditional Notice of Oral Argument
49
Cost Certificate
49
Certificate of Compliance
50
TABLE OF AUTHORITIES
FEDERAL CASES
Alexander v. United States, 380 F.2d 33 (8th Cir. 1967)
Lyles v. United States, 254 F.2d 725 (D.C. Cir. 1957)
28
36,43
Northern Securities Co. v. U.S., 193 U.S. 197, 24 S. Ct. 436
(1904)
43
Pope v. United States, 372 F.2d 710 (8th Cir. 1967)
28
Shannon v. United States, 512 U.S. 573,114 S. Ct. 2419,
129 L. Ed. 2d459 (1994)
•
-ii-
36,41,42
State v. Kehoe, S. Ct. No. 09-1896
34
rd
United States v. Fisher, 10 F.3d 115 (3 Cir. 1993)
41
STATE CASES
Commonwealth v. Mulgrew, 380 A.2d 349 (Pa. 1977)
39
Commonwealth v. Mutina, 323 N.E.2d 294 (Mass. 1975)
39
Daniel M'Naghten's Case, 10 CI. & F. 200, 8 E.R.718 (1843) ... 23,27
Erdman v. State, 553 A.2d 244 (Md. Ct. App. 1989)
39
Hill v. State, 251 N.E.2d 429 (Ind. 1969)
28
Kuk v. State, 392 P.2d 630 (Nev. 1964)
"..
40
Maghe v. State, 620 P.2d 433 (Okla. Ct. Crim. App. 1980)
29
Morgan v. State, 512 P.2d 904 (Alaska 1973)
28
Patten v. State, 467 So. 2d 975 (Fla. 1985)
28
People v. Skinner, 704 P.2d 752 (Cal. 1985)
28
Roberts v. State, 335 So. 2d 285 (Fla. 1976)
.39
Sanders v. Ghrist, 421 N.W.2d 520 (Iowa 1988)
...
19
Smith v. Commonwealth, 1 Duv. 224 (Ky. 1864)
22
State v. Allen, 690 N.W.2d 684 (Iowa 2005)
38
State v. Arthur, 160 N.W.2d 470 (Iowa 1968)
21
-iii-
State v. Booth, 169 N.W.2d 869 (Iowa 1969)
21
State v. Buck, 219 N.W.2d 17 (Iowa 1928)
21,22
State v. Carstens, 182 N.W.2d 119 (Iowa 1970)
21,23
State v. Cline, 617 N.W.2d 277 (Iowa 2000)
38
State v. Collins, 305 N.W.2d 434 (Iowa 1981)
20,22
State v. Couser, 567 N.W.2d 657 (Iowa 1997)
27
State v. Cox, 781 N.W.2d 757 (Iowa 2010)
37
State v. Donelson, 302 N.W.2d 125 (Iowa 1981)
27
State v. Dudley, 766 N.W.2d 606 (Iowa 2009)
47
State v. Effler, 769 N.W.2d 880 (Iowa 2009)
38
State v. Felter, 25 Iowa 67 (1868)
21
State v. Fetters, 562 N.W.2d 770 (Iowa Ct. App. 1997)
35,44
State v. Fintel, 689 N.W.2d 95 (Iowa 2004)
20
State v. Gansz, 376 N.W.2d 887 (Iowa 1985)
18
State v. Hamann, 285 N.W.2d 180 (Iowa 1979)
20,35,36,39,40
State v. Hanes, 790 N.W.2d 545 (Iowa 2010)
34,43
State v. Harkness, 160 N.W.2d 324 (Iowa 1968)
22,23
State v. Heemstra, 721 N.W.2d 549 (Iowa 2006)
-iv-
18
State v. Hotter, 383 N.W.2d 543 (Iowa 1986) .
45
State v. Johnson, 534 N.W.2d 118 (Iowa Ct. App. 1995)
19
State v. Liggins, 557 N.W.2d 263 (Iowa 1996)
20
State v. Magnuson, 308 N.W.2d 83 (Iowa 1981)
27
State v. Marin, 788 N.W.2d 833 (Iowa 2010)
18,19
State v. Marsh, 392 N.W.2d 132 (Iowa 1986)
19
State v. Mitchell, 568 N.W.2d 493 (Iowa 1997)
19
State v. Monk, 514 N.W.2d 448 (Iowa 1994)
19
State v. Moses, 320 N.W.2d 581 (Iowa 1982)
22,27
State v. O'Meara, 190 Iowa 613,177 N.W. 563 (1920)
35
State v. Ochoa, 792 N.W.2d 260 (Iowa 2010)
37
State v. Oppelt, 329 N.W.2d 17 (Iowa 1983)
•
•
35
State v. Piper, 663 N.W.2d 894 (Iowa 2003)
19
State v. Purcell, 195 Iowa 272,191 N;W. 849 (1923)
34
State v. Rohm, 609 N.W.2d 504 (Iowa 2000)
18
State v. Scott, 21 So. 271 (La. 1897)
28
State v. Shipley, 259 Iowa 952,146 N.W.2d 266 (1966)
45
-v-
State v. Spates, 779 N.W.2d 770 (Iowa 2010)
18
State v. Stallings, 541 N.W.2d 855 (Iowa 1995)
19
State v. Stark, 550 N.W.2d 467 (Iowa 1996)
44
State v. Thompson, 570 N.W.2d 765 (Iowa 1997)
19
State v. Veal, 564 N.W.2d 797 (Iowa 1997)
20
State v. Watts, 223 N.W.2d 234 (Iowa 1974)
19
State v. Weaver, 405 N.W.2d 852 (Iowa 1987)
20
Summy v. City of Des Moines, 708 N.W.2d 333 (Iowa 2006)
18
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
37
STATE STATUTES
Iowa Code § i3B.4(4)(a)
46,48
Iowa Code § 701.4
17,18,20,21,22,27,3145
Iowa Code § 815.4
47
Iowa Code § 815.9(3)
46
Iowa Code § 910.2
46
STATE RULES
Iowa Administrative Code rule 493-12.6(1)
48
Iowa Adminstrative Code rule 493-12.7(1)
48
-vi-
Iowa Crim. Jury Instr. No. 200.10
25
Iowa Crim. Jury Instr. No. 200.11
26
Iowa R. App. P. 6.907
18
Idwa-R. Crim. P. 2.20(4)
•
Iowa R. Crim. P. 2.22(8)
•
47
44
MISCELLANEOUS
1 Blair Lord, Debates ofthe Constitutional Convention
119 (1857)
•
•
38
1 LaFave, Criminal Law § 8.3(d) .
39
,
1 LaFave, Substantive Criminal Law § 8.3(d)
36
23A C.J.S. Criminal Law § 1836 (2010)
40
4 John L. Yeager and Ronald L. Carlson, Iowa Practice: Criminal
Law and Procedure (1979)
20
A.L.I. Model Penal Code and Commentaries § 4.01 (1985)
30
Thomas M . Fleming, Annotation, Instructions in State Criminal
Case In Which Defendant Pleads Insanity As to Hospital
Confinement In Event of Acquittal, 81 A.L.R. 4th 659 (1990).. 39,40
Masha Bach, Note, The Not Guilty By Reason of Insanity Verdict:
Should Juries Be Informed Of Its Consequences, 16 Whittier 645
(1995)
•
36
-vii-
STATEMENT OF THE ISSUES
PRESENTED FOR REVIEW
I. WHETHER THE COURT PROPERLY INSTRUCTED
THE JURY ON MENTAL CAPACITY -- THE CORE OF THE
M'NAGHTEN RULE AS CODIFIED BY IOWA CODE
SECTION 701.4 - AND THAT THE CONSEQUENCES OF
AN INSANITY VERDICT IS NOT WITHIN THE JURY'S
FUNCTION.
Authorities
State v. Heemslra, 721 N.W.2d 549 (Iowa 2006)
State v. Rohm, 6@9 N.W.2d 504 (Iowa 2000)
Iowa R.App. P. 6.907
Summy v. City of Des Moines, 708 N.W.2d 333 (Iowa 2006)
State v. Spates, 779 N.W.2d 770 (Iowa 2010)
State v. Gansz, 376 N.W.2d 887 (Iowa 1985).
State v. Marin, 788 N.W.2d 833 (Iowa 2010)
Iowa Code § 701.4
State v. Thompson, 570 N.W.2d 765 (Iowa 1997)
State v. Stallings, 541 N.W.2d 855 (Iowa 1995)
State v. Watts, 223 N.W.2d 234 (Iowa 1974)
State v. Marsh, 392 N.W.2d 132 (Iowa 1986)
State v. Johnson, 534 N.W.2d 118 (Iowa Ct. App. 1995)
Sanders v. Ghrist, 421 N.W.2d 520 (Iowa 1988)
State v. Piper, 663 N.W.2d 894 (Iowa 2003)
State v. Mitchell, 568 N.W.2d 493 (Iowa 1997)
State v. Monk, 514 N.W.2d 448 (Iowa 1994)
State v. Weaver, 405 N.W.2d 852 (Iowa 1987)
State v. Liggins, 557 N.W.2d 263 (Iowa 1996)
State v. Fintel, 689 N.W.2d 95 (Iowa 2004)
State v. Veal, 564 N.W.2d 797 (Iowa 1997)
State v. Collins, 305 N.W.2d 434 (Iowa 1981)
State v. Hamann, 285 N.W.2d 180 (Iowa 1979)
4 John L. Yeager and Ronald L. Carlson, Iowa Practice:
Criminal Law and Procedure (1979)
State v. Arthur, 160 N.W.2d 470 (Iowa 1968)
State v. Felter, 25 Iowa 67 (1868)
State v. Buck, 219 N.W.2d 17 (Iowa 1928)
State v. Carstens, 182 N.W.2d 119 (Iowa 1970)
State v. Booth, 169 N.W.2d 869 (Iowa 1969)
-2-
State v. Harkness, 160 N.W.2d 324 (Iowa 1968)
State v. Moses, 320 N.W.2d 581 (Iowa 1982)
Smith v. Commonwealth, 1 Duv. 224 (Ky. 1864)
DanielM'Naghten's Case, 10 CI. & F. 200, 8 E.R. 718 (1843)
Iowa Crim. Jury Instr. No. 200.10
Iowa Crim. Jury Instr. No. 200.11
State v. Couser, 567 N.W.2d 657 (Iowa 1997)
State v. Moses, 320 N.W.2d 581 (Iowa 1982)
State v. Donelson, 302 N.W.2d 125 (Iowa 1981)
State v. Magnuson, 308 N.W.2d 83 (Iowa 1981)
th
Alexander v. United States, 380 F.2d 33 (8 Cir. 1967)
th
Pope v. United States, 372 F.2d 710 (8 Cir. 1967)
Morgan v. State, 512 P.2d 904 (Alaska 1973)
People v. Skinner, 704 P.2d 752 (Cal. 1985)
Hill v. State, 251 N.E.2d 429 (Ind. 1969)
Patten v. State, 467 So.2d 975 (Fla. 1985)
State v. Scott, 21 So. 271 (La. 1897)
Maghe v. State, 620 P.2d 433 (Okla. Ct. Crim. App. 1980)
-3-
l Wayne R. LaFave, Substantive Criminal Law § 7-5(a)
(2003)
A.L.I. Model Penal Code and Commentaries § 4.01 (1985)
State v. Hanes, 790 N.W.2d 545 (Iowa 2010)
State v. Purcell, 195 Iowa 272,191 N.W. 849 (1923)
State v. OMeara, 190 Iowa 613,177 N.W. 563 (1920)
State v. Oppelt, 329 N.W.2d 17 (Iowa 1983)
State v. Fetters, 562 N.W.2d 770 (Iowa Ct. App. 1997)
Shannon v. United States, 512 U.S. 573,114 S.Ct. 2419,129
L.Ed.2d 459 (1994)
1 LaFave, Substantive Criminal Law § 8.3(d)
Masha Bach, Note, The Not Guilty By Reason of Insanity
Verdict: Should Juries Be Informed Of Its Consequences, 16
Whittier 645 (1995)
Lyles v. United States^ 254 F.2d 725 (D.C. Cir. 1957)
Stare v. Ochoa, 792 N.W.2d 260 (Iowa 2010)
. State v. Cox, 781 N.W.2d 757 (Iowa 2010)
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009)
State v. Allen, 690 N.W.2d 684 (Iowa 2005)
State v. Cline, 617 N.W.2d 277 (Iowa 2000)
1 Blair Lord, Debates ofthe Constitutional Convention 119
(1857)
State v. Effler, 769 N.W.2d 880 (Iowa 2009)
Thomas M. Fleming, Annotation, Instructions in State
Criminal Case In Which Defendant Pleads Insanity As to
Hospital Confinement In Event ofAcquittal, 81 A.L.R.4th 659
(1990)
Erdman v. State, 553 A.2d 244, 251 Appendix (Md. Ct. App.
1989)
Roberts v. State, 335 So.2d 285 (Fla. 1976)
Commonwealth v. Mutina, 323 N.E.2d 294 (Mass. 1975)
Commonwealth v. Mulgrew, 380 A.2d 349 (Pa. 1977)
Kuk v. State, 392 P.2d 630 (Nev. 1964)
23A C.J.S. Criminal Law § 1836 (2010)
United States v. Fisher, 10 F.3d 115 (Third Cir. 1993)
Iowa Rule of Criminal Procedure 2.22(8)
Northern Securities Co. v. U.S., 193 U.S. 197, 24 S.Ct. 436
(1904)
State v. Stark, 550 N.W.2d 467 (Iowa 1996)
-5-
Sfafe v.. Hotter, 383 N.W.2d 543 (Iowa 1986)
State v. Shipley, 259 Iowa 952,146 N.W.2d 266 (1966)
II. WHETHER THE COURT PROPERLY ASSESSED
THE COSTS OF BECKER'S REPRESENTATION TO HIM.
Authorities
Iowa Code § 815.9(3)
Iowa Code § 910.2
Iowa Code § i3B.4(4)(a)
Iowa Admin Code r. 493-12.6(1)
Iowa Code § 815.4
Iowa R. Crim. P. 2.20(4)
Stare v. Dudley, 766 N.W.2d 606 (Iowa 2009)
Iowa Code § i3B.4(4)(a)
Iowa Adminstrative Code rule 493-12.7(1)
ROUTING STATEMENT
The issues Becker raises are controlled by and are contrary to
established authority. The Supreme Court should transfer this
matter to the Court of Appeals. Iowa R. App. P. 6.noi(3)(a).
-6-
STATEMENT OF THE CASE
Nature ofthe Case:
Mark Becker was convicted by jury in Butler County District
Court of first-degree murder. See Iowa Code § 707.2 (2009). He
challenges the adequacy of the uniform jury instruction on insanity,
the instruction that disposition upon acquittal by reason of insanity
is not for the jury to consider, and the assessment of legal
assistance provided to him. The Honorable Stephen P. Carroll
presided.
Course of Proceedings
and
Disposition:
Becker adequately states the procedural history of the case.
Facts:
Mark Becker shot Applington-Parkersburg Football Coach Ed
Thomas on the morning of June 24, 2009. The issue below was
whether Becker - who had paranoid schizophrenia - was legally
insane.
Becker correctly recites the evidence. The State mentions the
following facts to sharpen the issues on appeal.
-7-
Becker's mother described his behavior, which she called
"episodes" and which could last hours or days. TT p. 727,1. 7 - p.
735,1- 6, p. 748,1. 5 - 25; App. 208-17, 227-28. Becker was
involuntarily committed twice in 2008, the second involving
"intense" psychotic symptoms. Id. 727,1. 7 - p. 732,1. 25, p. 795,1.
!5 - P- 796,1.13; App. 208-15, 252-53. Following an Easter 2009
"episode," he began to receive mental health services. Id. 733,1. 1 p. 735,1- 6, p. 856,11. 2 - 21, p. 859,1.13 - p. 86o,-l. 18; App. 215-17,
281-82, 283-84. Becker "seemed" happy to get this help, but the
case worker recognized clients do not always comply. .Id. 883,1. 20
- 884,1.18, p. 900,11. 20 - 22; App. 303-04, 320.
Becker's compliance with medication was not good and, at
one point, he tested positive for amphetamines. Id. 796,11. 5 - 13,
p. 798,11. 6-14, p. 799,11.14 - 25, p. 802,11. 3 - 8; App. 252-53, 255,
257. Schizophrenics have a very high non-compliance rate with
medication and often self-medicate with illicit drugs. Id. 800,11.18
- 21, p. 802,1. 3 - p. 804,1. 20; App. 256, 257-59.
-8-
On June 20, 2009 another episode occurred where Becker
confronted Dwight Rogers, a man he did not know. Id. 827,1. 23 p. 830,1. 25; App. 274-78. When police sirens became audible,
Becker left. Id. 833,11. 8 -11; App. 280. Following a chase and
apprehension, Becker identified Rogers as Satan. See Def. Ex. A
(video).
Becker was hospitalized, but released upon his reports that he
was hallucinating less. Id. 925,11. 20-25, p. 927,1.13 - p. 929,1.15,
P. 930,1. 5 - P- 932,1.16; App. 345, 346-48, 349-51. He had been
medicated, was calm, and was cooperative. Id. 938,11. 6 - 21; App.
356-57A caseworker took him to his apartment, but Becker soon
called his parents claiming he was locked out and asked to come
home with them. Id. 873,11. 5 -21, p. 891,1. 2 - p. 894,1.14; App.
296-91, 310-14His mother thought he appeared better than he had in a long
time. Id. 747,1. 8 - p. 749,1. 4; App. 226-28. Once his parents left,
he broke into a gun locker and practiced shooting at a birdhouse.
-9-
When he missed, he realized he would need to get very close to Ed
Thomas. See id. 1106,1. 6 - p. 1107,1. 2; App. 478-79Becker drove to one house and asked the owner if Thomas
lived there. Id. 626,1. 20-25; App. 159. Becker left without
incident and encountered a jogger, Brian Buseman, and asked him
if he had seen Thomas. Id. 635,1. 5 - p. 641,1. 21; App. 162-70.
When Buseman asked why, Becker said he was helping Thomas
with tornado relief. Id.; App. 168. Becker left without incident and
spoke to two maintenance workers at the Parkersburg elementary
school.
Becker claimed to these people he had work to do with Ed
Thomas. Id. 652,1.17 - p. 655,1.10; App. 176-80. He showed no
"odd" or "bizarre" behavior. Id. 656,-11. 5 - 16; App. 180-81. During
these interactions, he left the weapon he brought in the car.
Becker found Thomas at the school's temporary weight room,
peeked in once, then went in. See, e.g., id. 420,1. 2 - p. 421,1.15;
App. 26-28. He drew his weapon and pointed it at one student,
before coming up to Thomas and shooting him six times. See id.
-10-
400,1.1 - p. 402,1. 25, p. 701,11. 9 - 25; App. 15-19,192-93. He
stomped on Thomas, shouting, "fuck you, old man" or "you stupid
son of a bitch." See id. 422,1. 24 - p. 423,1. 25, p. 438,1. 3 - 8; App.
29-30, 38.
Out in the parking lot, Becker ranted. See id. 960,11. 5 - 8, p.
962,11. 2 -10; App. 369. Becker referred to the popular coach by
name, saying he was not God, but Satan. Id. 983,1. 24 -1. 984,1. 5,
p. 1042,1. 3 - p. 1046,1. 3; App. 384, 418-21. He drove away
normally, but accelerated when a person started to give chase. Id.
494,1. 2 - p. 495,1. 8; App. 72-73.
Becker was met at his parent's home by the sheriff. Id. 521,1.
6 - p. 525,1. 23; App. 94-100. Becker held the weapon out by the
trigger guard. Id. 527,1. 5 - p. 529,1. 21; App. 100-03. He said,
"I'm done." Id. 529,1. 7; App. 103. He said later, "I knew I was
caught." Id. 1122,1. 6 - p. 1123,1.16; App. 497-99.
Becker said he "stomped him for you cops." Id. 533,11.1-5;
App. 106. He also offered to work for law enforcement, something
-11-
suspects seeking a deal have been known to do. Id. 531,11. 2 - 17, p.
545,1.12 - 18; App. 104-05,117.
Special Agent Chris Calloway conducted a recorded interview
with Becker. See St. Ex. 61, Def. Ex. B; App. 677. Becker's brief
relates many of the bizarre things Becker said. See Appellant's Pr.
Br. 33 - 43. His brief also describes the abnormal behavior he
showed after the interview concluded. Id. 43 - 44, TT p. 824,1. 3 p. 826,1. 5; App. 271-74. Calloway described Becker as "never
happy" during the interview, but rather sad and tearful. Id. 557,11.
2 - 6, p. 562,-11. 4 - 18; App. 121,126-27. Becker sobbed at points
and thought he would vomit. Id. 569,1. 2 - p. 570,1.12; App. 13436.
Although Becker offered to work for police (see Ex. 61,11.1383
- 1398,11.1483 -1487), he later told a psychiatrist that if there had
been a policeman nearby the gym, he would have put the gun back
in his pocket and gone home. TT p. 1278,1. 21 - p. 1279,1.14; App.
309-10.
Psychiatrists gave conflicting testimony whether Becker was
insane. Dr. Phillip Resnick, testified Becker was insane and gave
-12-
his reasons for so concluding. Id. 1084,1.1 - p. 1098,1.18; App.
453-70- (The court allowed his testimony to proceed to establish
the degree of Becker's mental illness to incapacitate him. Id. 1078,
1. 25 - p. 1085,1. 23; App. 446-55-)
Dr. Resnick acknowledged Becker had practiced shooting
Thomas that morning, and because he missed, knew he would have
to get close. Id. 1106,1. 6 - p. 1107,1. 2; App. 478-79. Dr. Resnick
recognized that Becker, in speaking with others, referred to
Thomas by name (as opposed to Satan) and had the mental
capacity to do certain things, such as keep his reasons for wanting
to see Thomas that morning to himself. Id. 1107,11. 8-10, p. 1108,1.
19 - p. 1109,1.14, p. 1111,1. 23 - 25, p. 1112,1.1 - 4; App. 479,48182,485. He did not warn the kids in the gym they were near Satan.
Id. 1113,1. 21 - p. 1114,1.4; App. 487.
Psychologist Dan Rogers also opined Becker was legally
insane. Id. 1159,1. 20 - p. 1160,1.17; App. 525-26. He
acknowledged Becker had used some deception to get near Thomas,
but nevertheless he felt Becker's delusions and hallucinations left
-13-
him insane. Id. 1166,1. 6 - p. 1172,1.18; App. 533-40. He suggested
a thought that if others were in league with Satan, that may explain
why Becker did not reveal his intentions. See, e.g., 1168,1. 6 - 22;
App. 535-36. (The doctor could not put his finger on where Becker
expressed thinking this, however. Id. 1200,1. 6 - p. 1202,1. 4; App.
560-63.)
The doctor also acknowledged Becker may have been trying to
seem less culpable, such as by claiming he had not gotten the
weapon to kill Thomas, but because he was scared. Id. 1184,1.15 p. 1187,1.12, p. 1194,1. 7 - 19; App. 545-48, 554- Becker suggested,
likewise, he had gone to Thomas for help in silencing the voices and
only decided to shoot him later. Id. 1187,1.13 - p. 1191,1.17; App.
549-53On redirect, Dr. Rogers testified nevertheless that Becker was
not "capable" of knowing the nature and quality of his acts or know
the difference between right and wrong. Id. 1210,1. 3 - 22; App.
563-64. (Dr. Rogers acknowledged, though he had not seen it
before, it was possible to have delusions but still know the nature
-14-
and quality of one's acts or know right from wrong. Id. 1211,1. 22 p. 1212,1. 4; App. 565.)
Dr. Michael Spodak, for the State, agreed Becker was
schizophrenic but not that he was insane. Id. 1221,1. 9 - p. 1222,1.
21; App. 570-72. He concluded Becker retained the capacity to
know the nature and quality of his acts as well as whether what he
was doing was wrong. Id. 1224,1.1 - p. 1233,1.1; App. 572-83.
Some facts on which he relied included: Becker's capacity to sign
his discharge from the hospital, to prepare for the shooting by
practicing, to make several efforts to avoid being stopped, to
surrendering, to his consistent reference to Thomas by name when
speaking with others before the shooting. Id.; App. 572-83.
Additionally, the eight people who saw him that morning - three
who knew him well - did not think he appeared strange. Id. 1248,
1.15 - p. 1249,1.16; App. 587-88.
Dr. Michael Taylor, also for the State, testified Becker was
sane. Id. 1267,1. 6 - p. 1270,1.10; App. 596-600. His reasons
included several of Becker's statements to him, such as that he
-15-
drank coffee to steady his nerves, thought of killing Thomas' family
but decided against it (i.e. weighing consequences), chose clothing
that would conceal his weapon, practiced his shooting, and never
referred to Thomas as anything other than Ed. Id. 1270,1.10 1275,1.11; App. 600-05. Also, Becker drove to clear his head, did
not want to get caught without a license or with a gun, left the gun
in the car initially, and behaved calmly. Id.; App. 600-05.
Dr. Taylor believed if Becker had insufficient mental capacity,
he would have shown more disorganized thinking. Id. 1275,1.12 p. 1276,1. 24; App. 606-07. Becker knew what he was doing was
wrong because he knew he would be arrested for it. Id. 1279,1.15 p. 1281,1. 20; App. 610-13. Also, Becker reported the voices had
subsided when he drove up to the temporary gym. Id. 1277,1. 3 - p.
1278,1.1; App. 607-09. And, lastly, Becker revealed that he would
not have shot Ed Thomas if a policeman had been near. Id. 1278,1.
21 - 1279,1.14; App. 609-10.
ARGUMENT
I. The district court properly instructed jury on the
M'Naghten test and definition of insanity as codified in
Iowa Code section 701.4. It also correctly declined
Becker's invitation to inform the jury that if it acquitted
him by reason of insanity he would be committed for a
psychiatric evaluation.
Preservation
of Error:
The State does not contest error preservation. Defendant's
Requested Instruction (filed Feb. 1, 2010); (Defendant's) Proposed
Jury Instruction (filed Feb. 19, 2010); Jury Instruction Nos. 10, 34,
35; Answer to Jury Instruction (filed Feb. 26, 2010), TT p. 1292,1.
10 - p. 1294,1.14 (defense seeking instruction on commitment and
arguing against uniform instruction on insanity), id. 1297,1.15 - p.
1304,1.1, p. 1398,1.10 -1399,1.10; App. 5, 717-18, 720, 723, 724,
726, 617-19, 623-31, 672-73.
-17-
Scope and Standard
of
Review:
We review challenges to jury instructions for correction of
errors at law. State v. Heemstra, 721 N.W.2d 549, 553 (Iowa
2006); State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000);
see also Iowa R.App. P. 6.907. "We review the related claim
that the trial court should have given the defendant's
requested instructions for an abuse of discretion." Summy v.
City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006). Error
in giving or refusing to give a particular instruction warrants
reversal unless the record shows the absence of prejudice.
State v. Spates, 779 N.W.2d 770, 775 (Iowa 2010). "When the
error is not of constitutional magnitude, the test of prejudice
is whether it sufficiently appears that the rights of the
complaining party have been injuriously affected or that the
party has suffered a miscarriage of justice." State v. Gansz,
376 N.W.2d 887, 891 (Iowa 1985).
State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010).
Discussion:
The district court correctly instructed the jury on the core of
the M'Naghten rule for insanity, as codified by Iowa Code section
701.4. It properly declined to allow the jury to let the consequences
of its decision influence its decision by instructing on the possibility
of a commitment for an evaluation upon a finding of insanity.
-18-
The trial court must fully and fairly instruct on all issues for
which substantial evidence exists. State v. Thompson, 570 N.W.2d
765, 767 (Iowa 1997); Stare v. Stallings, 541 N.W.2d 855, 857 (Iowa
1995); see State v. Watts, 223 N.W.2d 234, 237 (Iowa 1974) (trial
court must instruct on all elements of the offense). The instructions
should state the applicable rule of law but not marshal the evidence
or give some of it undue prominence. State v. Marsh, 392 N.W.2d
!32,133 (Iowa 1986); State v. Johnson, 534 N.W.2d 118,124 (Iowa
Ct. App. 1995). The instructions are not read in isolation, but
together to ensure they sufficiently convey the law. Marin, 788
N.W.2d at 837-38; Sanders v. Ghrist, 421 N.W.2d 520, 522 (Iowa
1988). The language of the instruction is left to the court's
discretion. State v. Piper, 663 N.W.2d 894, 915 (Iowa 2003).
The Court encourages the use of the Bar Association's
uniform jury instructions. State v. Mitchell, 568 N.W.2d 493, 501
(Iowa 1997). Not surprisingly, the Court is reluctant to reverse a
trial court for using them, but may do so when the instruction is
faulty and caused the defendant prejudice. Stare v. Monk, 514
-19-
N.W.2d 448, 450 (Iowa 1994); State v. Weaver, 405 N.W.2d 852,
855 (Iowa 1987).
An instruction need not follow the wording of a statute. The
court can phrase instructions to fully and fairly advise the jury of
the issues it is to decide and the law which is applicable. State v.
Liggins, 557 N.W.2d 263, 267 (Iowa 1996). Jury instructions are
to be read and construed together, not piecemeal. See State v.
Fintel, 689 N.W.2d 95,104 (Iowa 2004). So, if the subject
challenged is adequately covered by the instructions together, no
particular words must be used. State v. Veal, 564 N.W.2d 797, 812
(Iowa 1997).
A. The M'Naghten Rule, Iowa Code section 701.4, the
Uniform Jury Instructions, and mental capacity.
Iowa codified the M'Naghten test for legal insanity in Iowa
Code section 701.4. State v. Collins, 305 N.W 2d 434,436 (Iowa
1981); State v. Hamann, 285 N.W.2d 180,182 (Iowa 1979); 4 John
L. Yeager and Ronald L. Carlson, Iowa Practice § 1, p. 2 (1979).
Section 701.4 provides, in relevant part,
-20-
A person shall not be convicted of a crime if at the time the
crime is committed the person suffers from such a diseased or
deranged condition of the mind as to render the person
incapable of knowing the nature and quality of the act the
person is committing or of distinguishing between right and
wrong.
Iowa Code § 701.4. The defendant bears the burden to prove this
by a preponderance of the evidence. Id.
Prior to the Code revision, Iowa courts "were free to develop
the insanity concept." 4 Yeager and Carlson, Iowa Practice:
Criminal Law and Procedure § 5, p. 3; see State v. Arthur, 160
N.W.2d 470,473-79 (Iowa 1968) (summarizing various insanity
formulations and adhering to M'Naghten). The earliest cases on
the subject in Iowa employed a M'Naghten standard, first with an
"irresistible impulse," State v. Felter, 25 Iowa 67, 83-84 (1868), but
later without it, Stare v. Buck, 219 N.W.2d 17, 21 (Iowa 1928).
Otherwise, Iowa courts held fast to the M'Naghten rule until the
Legislature codified it as section 701.4. See, e.g., State v. Carstens,
182 N.W.2d 119,120 (Iowa 1970); State v. Booth, 169 N.W.2d 869,
-21-
870 (Iowa 1969); State v. Harkness, 160 N.W.2d 324, 337 (Iowa
1968).
In short, the law under section 701.4 "remains as it was prior
to the statute." State v. Moses, 320 N.W.2d 581,588 (Iowa 1982).
Section 701.4 codified the M'Naghten rule. Collins, 305 N.W.2d at
436.
Under M'Naghten, "the true test of responsibility is[] whether
the accused had sufficient reason to know right from wrong" Buck,
205 Iowa at 1035-36, 219 N.W. at 20 (emphasis added) quoting
Smith v. Commonwealth, 1 Duv. 224 (Ky. 1864). Indeed, the core
of M'Naghten provided:
[W]e have to submit our opinion to be that the jurors ought
to be told in all cases that every man is presumed to be sane,
and to possess a sufficient degree of reason to be responsible
for his crimes, until the contrary be proved to their
satisfaction; and that to establish a defense on the ground of
insanity, it must be clearly proved that, at the time of
committing the act, the party accused was labouring under
such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing; or, if he
did know it, that he did not know he was doing what was
wrong.
-22-
Daniel M'Naghten's Case, 10 CI. & F. 200, 210, 8 E.R. 718, 723
(1843) (emphasis added). The "usual course," M'Naghten
explained, "has been to leave to the jury, whether the party accused
had sufficient degree of reason . . . this course we think is correct."
Id. 10 CI. & F. at 210-11, 8 E.R. at 724 (emphasis added).
Accordingly, Iowa courts employed jury instructions which
provided insanity,
means a diseased or deranged condition of the mind which
renders a person incapable of knowing or understanding the
nature and quality of [his or her] act, or unable to distinguish
right or wrong in relation to that act.
The test of insanity is this: First, did the defendant have such
mental capacity to know and understand that it was wrong
and a violation of the rights of another? To be sane and thus
responsible under the law for the act committed, the
defendant must be able to know and understand the nature
and quality of the act and to distinguish between right and
wrong at the time of the commission of the offense.
Carstens, 182 N.W.2d at 120; State v. Harkness, 160 N.W.2d 324,
329 (Iowa 1968). "[T]his is in substance the M'Naghten rule."
Harkness, 160 N.W.2d at 329.
-23-
The trial court here used the uniform instructions in its
Instructions 34 and 35. Thefirstof these provided,
The Defendant claims he is not criminally accountable
for his conduct by reason of insanity. A person is
presumed sane and responsible for his acts.
Not every kind or degree of mental illness or
mental disorder will excuse a criminal act. "Insane" or
"insanity" means such a diseased or deranged condition
of the mind as to make a person either incapable of
knowing or understanding the nature and quality of his
acts, or incapable of distinguishing right and wrong in
relation to the acts.
A person is "sane" if, at the time he committed the
criminal act, he had sufficient mental capacity to know
and understand the nature and quality ofthe act and
had sufficient mental capacity and reason to distinguish
right from wrong as to the particular act.
To know and understand the nature and quality of
one's act means a person is mentally aware of the
particular acts being done and the ordinary and
probable consequences of them.
Concerning mental capacity of the defendant to
distinguish between right and wrong, you are not
interested in his knowledge of moral judgments, as
such, or the Tightness or wrongness of things in general.
Rather, you must determine the Defendant's knowledge
of wrongness so far as the acts charged are concerned.
-24-
This means the mental capacity to know the acts were
wrong when he committed them.
The Defendant must prove by a "preponderance of
the evidence" that he was insane at the time of the of
the commission of the crime.
Preponderance of the evidence is evidence that is
more convincing than opposing evidence.
Preponderance of the evidence does not depend
upon the number of witnesses testifying on one side or
the other.
Insanity need not exist for any length of time.
Jury Instr. No. 34; App. 722-23; accord Iowa Crim. Jury Instr. No.
200.10.
And, the elements of the defense were explained in
Instruction 35 as,
If the State has proved all of the elements of a
crime, you should then determine if the defendant has
proved he was insane.
In order for the Defendant to establish he was
insane, he must prove by a preponderance of the
evidence either of the following:
-25-
1. At the time the crime was committed, the
Defendant did not have sufficient mental capacity
to know and understand the nature and quality of
the acts he is accused of; or
2. At the time the crime was committed, the
Defendant did not have the mental capacity to tell
the difference between right and wrong as to the
acts he is accused of.
If the Defendant has failed to prove either of the
elements by a preponderance of the evidence, then the
Defendant is guilty.
Jury Instr. No. 35; App. 724; accord Iowa Crim. Jury Instr. No.
200.11.
Becker did not object to Instruction 34, but did object to
Instruction 35. TT p. 1293,1. 4 - p. 1294,1.14; App. 618-19. Becker
proposed an instruction that provided, in relevant part that he
should be found insane if the jury believed by a preponderance of
the evidence that "[a]t the time the crime was committed, the
defendant suffered from such a deranged condition of the mind as
to render him incapable of" knowing the nature and quality of his
-26-
acts or distinguishing between right and wrong. Requested Jury
Instr.; App. 5.
The State disagrees with Becker that Instructions 34 and 35 particularly when read together - fail to convey what section 701.4
requires. First, section 701.4 is very much about sufficient mental
capacity. The insanity definition tests for "mental incapacity."
State v. Couser, 567 N.W.2d 657, 661 (Iowa 1997). Experts testify
to "sufficient mental capacity." State v. Moses, 320 N.W.2d 581,
587 (Iowa 1982). The defense is not available without evidence
"from some source . . . ofthe accused's incapacity to commit the
crime under the M'Naghten rule." State v. Donelson, 302 N.W.2d
125,136 (Iowa 1981). A conviction will stand upon a trial court's
findings that "at the time of the killing defendant had sufficient
mental capacity." State v. Magnuson, 308 N.W.2d 83, 88 (Iowa
1981). These principles advance M'Naghten's central holding that
proof turns on whether the defendant had "sufficient degree of
reason" and that question is properly submitted to the jury.
M'Naghten's Case, 10 Cl. & F. at 210-11, 8 E.R. at 724.
-27-
Second, while instructions under the M'Naghten test vary, the
instructions used here contain a common encapsulation of the
M'Naghten test. Instructions 34 and 35 are substantially similar to
M'Naghten instructions used in Alexander v. United States, 380
th
F.2d 33, 39 n.4 (8 Cir. 1967) and Pope v. United States, 372 F.2d
th
710, 732 n.6 (8 Cir. 1967), for example.
And, the "sufficient mental capacity" language is not foreign
to MNaghten instructions used elsewhere. See, e.g., Morgan v.
State, 512 P.2d 904, 906 (Alaska 1973) ("as a result of mental
disease or defect... lacks substantial capacity"); People v. Skinner,
704 P.2d 752, 762 (Cal. 1985) (discussing "sufficient mental
capacity" in history of M'Naghten's "knowledge" test in California);
Hill v. State, 251 N.E.2d 429, 432 (Ind. 1969) (instruction stating
defendant might have "sufficient mental capacity" to know right
from wrong and comprehend acts, but suffer "irresistible
impulse"); Patten v. State, 467 So.2d 975, 978 (Fla. 1985) ("A
person is sane and responsible for his crime if he has sufficient
mental capacity
"); State v. Scott, 21 So. 271, 264 (La. 1897)
-28-
("The burden is on the defendant... that he had not sufficient
capacity to know right from wrong"); Maghe v. State, 620 P.2d
433,437 n.3 (Okla. Ct. Crim. App. 1980) (instructing defendant
must have" sufficient mental capacity and reason"). In the main,
the test's embrace of "sufficient mental capacity" to know right
from wrong or understand the nature of an act is a fairly wellaccepted part of what it means to be legally sane.
Third, a jury reading Instruction 35 would see the defendant
must "establish he was insane" and Instruction 34 provides what
"insane" means: "a diseased or deranged condition ofthe mind"
that robs him of the ability to know what he is doing is wrong or
the nature and quality of his acts.
Fourth, Instruction 34 sets out the two sides of sanity. One
who is insane may be said to lack sufficient mental capacity to
know right from wrong or understand his acts. One who is sane
may have a mental disease but it does not deprive him of the ability
to know right from wrong and appreciate the nature and
consequences of his acts.
-29-
Instructions 34 and 35 complement one another and
sufficiently express the requirements of the M'Naghten rule as
codified by section 701.4.
Taking Instruction 35 in isolation does not prejudice Becker.
Read alone, it allowed Becker to prevail on proof he merely lacked
"sufficient" mental capacity, as opposed to showing a total
incapacity. One criticism of M'Naghten was that it required a
"complete impairment of cognitive capacity." 1 Wayne R. LaFave,
Substantive Criminal Law § 7.5(a), p. 558 (2003). In response,
some jurisdictions adopted the Model Penal Code which "only
requires a lack of 'substantial capacity.'" Id.; A.L.I. Model Penal
Code and Commentaries § 4.01, p. 163 (1985). Becker's proposed
instruction required proof he was "incapable" of knowledge of right
and wrong or an understanding of his acts, a harder task than
merely a lack of sufficient capacity to do so. See Requested Jury
Instruction; App. 5-6.
And, if Instruction 35 viewed in isolation fails to require
Becker to prove a "deranged condition of the mind as to render him
-30-
incapable," that is a fault that does him little harm. In fact, it may
help. Becker would need only show a lack of "sufficient mental
capacity," irrespective of its cause.
Reading Instruction 34 and 35 together shows no reversible
error occurred here. Instruction 34 conveys section 701.4's
definition of insanity: "such a diseased or deranged condition of the
mind as to make a person either incapable of knowing or
understanding the nature and quality of his acts, or incapable of
distinguishing right and wrong in relation to the acts." Instr. No.
34; App. 722-23. Then, Instruction 35 required Becker to prove by
a preponderance of the evidence his "insanity," a "sufficient lack of
mental capacity" to understand what he was doing or know it was
wrong. Instr. No. 35; App. 724. This has been the understanding
of what section 701.4 and the M'Naghten require.
-31-
B. Allowing the jury to consider the consequences of
finding the defendant not guilty by reason of
insanity.
Juries find the facts, without regard to the consequences. The
trial court properly informed the jury that the consequences of an
insanity verdict "are issues for the Court, not the jury." See Answer
(filed Feb. 26, 2010); TT p. 1396,11.15-24, p. 1398,1.10 - p. 1399,1.
10; App. 726, 672, 672-73.
Becker initially proposed the following instruction:
Punishment not for Jury. The duty of the jury is
to determine if the defendant is guilty or not guilty.
In the event of a guilty verdict, you have nothing to
do with punishment.
If you find a verdict of not guilty by reason of
insanity, the defendant shall be immediately ordered
committed to a state mental health institute or other
appropriate facility for a complete psychiatric
evaluation.
Proposed Jury Instruction, TT p. 1292,1.10 - p. 1294,1.14; App.
717-18, 617-19.
The trial court, however, decided to give the following:
-32-
The duty of the jury is to determine if the
Defendant is guilty or not guilty.
In the event of a guilty verdict, you have nothing to
do with punishment.
Instr. No. 10, TT p. 1294,1.16 - p. 1304,1.1; App. 720, 620-31.
After the jury began deliberations, it sent a question: "What
would happen to Mark Becker if we find him insane?" Question
(filed Feb. 26, 2010,12:28pm); App. 725.
The trial court then issued the following supplemental
instruction in answer, which states in relevant part:
Answer: you need not concern yourself with the
potential consequences of a verdict of not guilty by
reason of insanity.
Please refer to Instruction Number 10. You must
decide whether he is guilty or not guilty, and, if you
decide he is guilty, you must then decide the issue of
insanity.
In the event of a guilty verdict or a verdict of not
guilty by reason of insanity, you have nothing to do with
the consequences. Those are issues for the Court, not
the jury.
Answer (filed Feb. 26, 2010,12:34 pm); App. 726.
-33-
Becker asserts, however, Iowa Constitution, Article I, section
9 requires the jury be informed of the consequences of a not guilty
1
be reason of insanity verdict. See Appellant's Proof Br. p. 65, et
seq.; Proposed Jury Instr.; App. 5-6. The weight of authority goes
against this assertion and none support it as a matter of state
constitutional law.
As recently as November 2010, the Iowa Supreme Court
reaffirmed its long-held view that a jury has but one function: to
seek the truth. State v. Hanes, 790 N.W.2d 545,549 (Iowa 2010).
The jury has nothing to do with punishment, and instructing on the
consequences of a particular jury verdict would only serve to
distract the jury from its proper function. Id. citing State v.
Purcell, 195 Iowa 272, 274,191 N.W. 849, 850 (1923) ("The trial
court should in all criminal cases refrain from instructing the jury
with regard to the punishment provided by statute for the crime
1
Michelle Kehoe makes a related argument in her appeal from
convictions for murder, attempted murder, and child endangerment.
See Appellant's Pr. Br. p. 59 - 72, State v. Kehoe, S.Ct. No. 09-1896.
-34-
with which a defendant is charged."); State v. O'Meara, 190 Iowa
613, 625-26,177 N.W. 563, 569 (1920) ("With the penalty to be
imposed, the jury had no concern, and might not take the
punishment to be inflicted into account, in passing on the issue as
to the guilt or innocence of the accused.").
For the same good reason, the Court has held fast to the view
that a jury should not be instructed on the consequences of finding
a defendant not guilty by reason of insanity. State v. Oppelt, 329
N.W.2d 17, 20-21 (Iowa 1983); Hamann, 285 N.W.2d at 185-86;
State v. Fetters, 562 N.W.2d 770, 776 (Iowa Ct. App. 1997). Iowa,
like the majority of jurisdictions, recognizes that 1) such
information is "irrelevant to the jury's proper function, the
determination of the insanity issue" and 2) it would invite a
compromise verdict. Id. It is not error to refuse to give such an
instruction. Oppelt, 329 N.W.2d at 21; Hamann, 285 N.W.2d at
185-86.
More fully, in addition to being irrelevant to whether a person
is insane, providing information on the consequences of finding the
-35-
person not guilty "invites [jurors] to ponder matters that are not
within their province, distracts them from their fact finding
responsibilities, and creates a strong possibility of confusion."
Shannon v. United States, 512 U.S. 573, 579,114 S.Ct. 2419, 2424,
129 L.Ed.2d 459 (1994).
Critics, though, are never hard to find. Law students and no
less than LaFave find this reasoning "questionable." 1 LaFave,
Substantive Criminal Law § 8.3(d) at p. 607; Masha Bach, Note,
The Not Guilty By Reason of Insanity Verdict: Should Juries Be
Informed Of Its Consequences, 16 Whittier 645, 675-83 (1995)
{Bach Note). In short, these and other commentators believe jurors
are keenly interested in the consequences of their verdict, are often
wrong in their assumptions, and it would be a good thing to end
that speculation with a "brief and informative instruction." Bach
Note, 16 Whittier at 683. See also Hamann, 285 N.W.2d at 186
noting Lyles v. United States, 254 F.2d 725, 728 (D.C. Cir. 1957)
(stating "the jury has a right to know the meaning of this possible
-36-
verdict as accurately as it knows by common knowledge the
meaning of the other two possible verdicts").
Becker elevates this criticism to a constitutional level, that
these authorities and Justice Stevens' dissent in Shannon show
Iowa Constitution Article I, section 9 requires the instruction he
desires. See Appellant's Proof Br. p. 66-68.
There can be little debate this Court has the authority to
independently analyze the Iowa Constitution and that federal
authority - like that of other states' - is persuasive, but not
controlling. See, e.g., State v. Ochoa, 792 N.W.2d 260, 267 (Iowa
2010) (concerning search and seizure clause). And, this court has
expressed a willingness to depart from federal principles on state
constitutional grounds. See, e.g., State v. Cox, 781 N.W.2d 757, 772
(Iowa 2010) (due process); Varnum v. Brien, 763 N.W.2d 862, 906
(Iowa 2009) (equal protection).
-37-
However, the Iowa Supreme Court is not "as a general
proposition, 'dedicated to . . . expanding the personal liberties of
Iowans.'" State v. Allen, 690 N.W.2d 684, 689 (Iowa 2005).
Rather, the Court may depart from federal principles when a sturdy
framework exists for doing so. See State v. Cline, 617 N.W.2d 277,
292-93 (Iowa 2000) (rejecting good faith reliance exception to
warrant requirement based on law of this jurisdiction and others).
That framework starts with a comparison of the texts of the
relevant federal and state constitutional provisions for indication
whether they enshrine the same or different rights. See Allen, 690
N.W.2d at 690. Next, the Court may consider any trends among
other jurisdictions adopting or abandoning the federal principle.
Id. The Court may look to its own jurisprudence which might
reveal either continued adherence or an established departure from
federal law. The Court can examine the original intent of the
framers of Iowa's Bill of Rights. See 1 Blair Lord, Debates ofthe
Constitutional Convention 119 (1857) (concerning due process).
Finally, academic literature or dissenting opinions of other courts
-38-
may prove helpful. State v. Effler, 769 N.W.2d 880, 894-95 (Iowa
2009) (Appel, J., specially concurring).
Collapsing these factors somewhat, a number of reasons
suggest there is no constitutional right requiring Becker's
instruction. First, the general rule in other jurisdictions is that
such an instruction is not appropriate. Hamann, 285 N.W.2d at
186; see Thomas M. Fleming, Annotation, Instructions in State
Criminal Case In Which Defendant Pleads Insanity As to Hospital
Confinement In Event ofAcquittal, 81 A.L.R.4th 659, 667 (1990)
(hereinafter Fleming). Some states require a consequence
instruction, but do so by legislation. See 1 LaFave, Criminal Law
§ 8.3(d), p. 607 n.71 (listing five states); Erdman v. State, 553 A.2d
244, 251 Appendix (Md. Ct. App. 1989) (listing seven more). Those
states which require a consequence instruction have not expressed
a state constitutional necessity for doing so. See, e.g., Roberts v.
State, 335 So.2d 285, 289 (Fla. 1976); Commonwealth v. Mutina,
323 N.E.2d 294, 300-01 (Mass. 1975); Commonwealth v. Mulgrew,
380 A.2d 349, 350-50 (Pa. 1977). Possibly, the reason for this may
-39-
be the corollary view that consequence instructions can be given
over defendants' objections. See, e.g., Kuk v. State, 392 P.2d 630,
634-35 (Nev. 1964) ("[T]he propriety of giving the instruction
should not depend upon whether the defendant wants it.").
On the other hand, the dominant line of authority prohibits a
consequence instruction, or at least does not require it. See
Fleming, 81 A.L.R.4th at 686-90 (citing cases). "Generally, the
jurors need not be informed of the consequences of a verdict of not
guilty by reason of insanity, unless they were otherwise given a
misleading impression at trial." 23A C.J.S. Criminal Law § 1836
(2010). Whatever the perceived merits and demerits of a
consequence instruction, the question is not a constitutional one.
C
At least five reasons support continued adherence to
Hamann. First, jurors are presumed to follow the law as
instructed, including that they are only charged with finding the
facts. The jury system holds together on that faith. Without it, no
principled reason stands in the way of informing juries of the range
-40-
of possible punishments upon conviction. See Shannon, 512 U.S. at
586-87,114 S.Ct. at 2428.
Second, the proposed instruction is inadequate to achieve its
aims. The State understands the core of the defense complaint to
be that the jury heard a great deal about his serious mental illness.
With a consequence instruction, "[t]he jury would then be aware
the system manages any danger that an insane person presents
independent of whether that person is convicted." Appellant's Pr.
Br. 82. This is questionable.
If jurors are so concerned about a defendant's dangerousness
as to violate their oath and find him guilty when they believe he is
actually insane, it is questionable they would be reassured by
anything less than a statement the person will be committed for a
long time. Shannon, 512 U.S. at 585-86,114 S.Ct. at 2427 quoting
rd
United States v. Fisher, 10 F.3d 115,122 (3 Cir. 1993). Becker's
instruction that the person will be committed for an evaluation says
nothing about the security of that commitment or its duration.
-41-
Unfortunately, the record of Becker's prior commitments suggest
confinement is short and evaluation fallible.
This jury heard evidence Becker had been committed three
times before and released. See, e.g., TT p. 727,1. 7 - p. 737,1. 24;
App. 208-21. Becker had minimized his symptoms to get out the
hospital. Id. p. 1125,11.14-15; App. 500. There had been "mix-ups"
over Becker's medication (not to mention most schizophrenics do
not take their medication). Id. p. 728,11. 4 - 21; p. 1124,11.14-23;
App. 209-10,499. One doctor who testified recognized what was
probably obvious: there is no predicting what a person will do once
released. Id. p. 807,11.11-13; App. 259. Not to put too fine a point
on it, but treatment for schizophrenics is not always successful. Id.
p. 1157,1. 3 - p. 1158,1.12; App. 522-23. In short, given the
evidence, an instruction on a "complete psychiatric evaluation"
would be cold comfort to a jury already willing to violate its oath.
Third, jurors are not so unfamiliar with the consequences of a
not guilty by reason of insanity verdict. Shannon, 512 U.S. 585
n.10,114 S.Ct. at 2427 n.10. John Hinckley and Andrea Yates have
-42-
2
seen to that. Both were found not guilty by reason of insanity and
have been hospitalized.
Fourth, even if it is true, as Lyles supposed, that jurors believe
they know that conviction means incarceration and acquittal
means release, in any particular case that may be very wrong.
See Hanes, 790 N.W.2d at 549 (noting forcible felony conviction
requires incarceration, but other offenses permit parole). Some
convictions are followed by release on deferred or suspended
sentences. Some acquittals are followed by civil commitments or
incarceration on severed charges. As for an insanity verdict, under
2
The notoriety of these cases, like the present one, bring to
mind Justice Oliver Wendell Holmes' caution,
Great cases, like hard cases, make bad law. For great cases
are called great, not by reason of their real importance in
shaping the law of the future, but because of some accident of
immediate overwhelming interest which appeals to the
feelings and distorts the judgment. These immediate
interests exercise a kind of hydraulic pressure which makes
what previously was clear seem doubtful, and before which
even well settled principles of law will bend.
Northern Securities Co. v. U.S., 193 U.S. 197, 400-01, 24 S.Ct. 436,
468 (1904) (Holmes, J., dissenting).
-43-
Iowa Rule of Criminal Procedure 2.22(8), release could occur
within weeks or days. Even if committal occurs, a court can speed
release of the person by imposing various conditions. See State v.
Stark, 550 N.W.2d 467,470 (Iowa 1996) (concerning woman found
insane who "slit the throats of her two minor children" and holding
district court has authority to impose conditions on person before
terminating her commitment).
Finally, by opening the door to the subject without explaining
all the terms of the of Rule 2.22(8), the instruction Becker proposes
hazards exactly the speculation it aims to prevent. And, even if
Rule 2.22(8) were listed verbatim for the jury, its requirement of
periodic reports on the person's fitness to be released would further
excite the questions, "when will the person be released and what
confidence do we have they are 'cured' and will not hurt again?"
Even were this Court to upend its thinking and allow a jury to
receive a consequences instruction, that does not translate into to a
requirement to do so. See Fetters, 562 N.W.2d at 776 n.2 (noting
Shannon's observation that in limited circumstances a consequence
-44-
instruction might be proper). Even when a jury is allowed to
consider a matter which is not an element of the offense (such as
motive), the law in Iowa is that it is not reversible error to decline
to do so. State v. Hotter, 383 N.W.2d 543,549 (Iowa 1986); State
v. Shipley, 259 Iowa 952, 959,146 N.W.2d 266, 270 (1966).
An absence of constitutional authority mars Becker's claim
under Article I, section 9 to have the jury instructed on the
consequences of an insanity verdict. Instructions 34 and 35
adequately conveyed the requirements of the M'Naghten rule and
Iowa Code section 701.4. Becker is not entitled to a new trial.
II. Becker may be assessed expert witness fees and
expenses.
Scope and Standard
of Review and Preservation
Error:
The State does not contest error preservation or Becker's
statement of the nature of review.
-45-
of
Discussion:
Mark Becker was assessed $16,600 "attorney fees,"
$53,709.82 "expert witness fees," and "'other' expenses in the sum
of $824.80." Judgment and Sentence; App. 756. This was
appropriate.
Iowa Code section 815.9(3) requires an indigent person "to
reimburse the state for the total cost of legal assistance provided to
the person."
"Legal assistance" as used in this section shall include not
only an appointed attorney, but also transcripts, witness fees,
expenses, and any other goods or services require by law to be
privded to an indigent person entitled to an appointed
attorney.
Iowa Code § 815.9(3). This provision makes clear a person must
repay both attorney fees and witness fees. See Iowa Code § 910.2
(requiring restitution according to section 815.9).
Attorney fees for indigent defendants who are represented by
the Public Defender are set according to Iowa Code section
i3B.4(4)(a) generally and Iowa Administrative Code rule
-46-
493-12.6(1) specifically. "[CJombined attorney time and paralegal
time" in Class A felony cases are capped at $18,000. Iowa Admin
Code r. 493-12.6(1). Becker's attorney fees were below the $18,000
cap.
Witness fees for indigent defendants in criminal cases are set
according to Iowa Code section 815.5 and are not capped. The
district court sets reasonable compensation for an indigent person's
expert witnesses. Iowa Code § 815.4, Iowa R. Crim. P. 2.20(4).
Becker's brief draws this Court's attention to Stare v. Dudley,
766 N.W.2d 606 (Iowa 2009). Dudley holds that indigent
defendants represented by contract attorneys may not be made to
pay "attorney fees" in excess of "attorney fees" paid by indigents
represented by the Public Defender. Dudley, 766 N.W.2d at 62021. Dudley relates to "attorney fees," not "witness fees."
Becker's brief argues, "Iowa Code section 815.14 caps the total
expense of the public defender, not only the attorney fees."
Appellant's Proof Br. 88. It doesn't.
-47-
Iowa Code section 815.14 limits the hourly rate of the Public
Defender to no more than provided in Iowa Code section 815.7. It
limits the "expense of public defender" to the "fee" limitations
established in Iowa Code section 13B.4. Section 13B.4 requires the
public defender to set "fee limitations" for particular categories of
cases arid a procedure for submitting costs to the public defender
for reimbursement. Iowa Code § i3B.4(4)(a). Iowa Administrative
Code chapter 12 contains those procedures.
The $18,000 cap Becker refers to relates to attorney and
paralegal "time," not costs. Iowa Admin. Code r. 493-12.6(1).
Expenses for experts are reimbursed according to the next rule,
Iowa Adminstrative Code rule 493-12.7(1). Nothing in the rules
suggest "attorney time" limits expenses.
Becker may be assessed the "total cost of legal assistance":
$16,000 for his attorneys' time (because it is below the cap),
$53,709.32 for expert witness costs, and $824.80 for other costs.
-48-
CONCLUSION
The District Court decision should be affirmed.
CONDITIONAL NOTICE OF ORAL ARGUMENT
Notice is hereby given that upon submission of this cause,
and in the event that appellant is granted oral argument, counsel
for appellee hereby desires to be heard in oral argument.
COST CERTIFICATE
We certify that the cost of printing Appellee's Brief and
Argument was the sum of $72.50.
THOMAS J. MILLER
Attorney General of Iowa
DARREL MULLINS
Assistant Attorney General
-49-
CERTIFICATE OF COMPLIANCE
1.
This brief complies with the type-volume limitation of
Iowa R. App. P. 6.Q03(i)(g)(i) or (2) because:
•
This brief contains 7, 688 words, excluding the
parts of the brief exempted by Iowa R. App. P.
6.Q03(i)(g)(i)
2.
This brief complies with the typeface requirements of
Iowa R. App. P. 6.Q03(iXe) and the type-style
requirements of Iowa R. App. P. 6.903(i)(/) because:
•
This brief has been prepared in a proportionally
spaced typeface using WordPerfect 8.0 in Georgia
font, size 14.
Signature
Date
-50-