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Full Opinion
Robert Brian FULCHER, Appellant (Defendant),
v.
STATE of Wyoming, Appellee (Plaintiff).
Supreme Court of Wyoming.
*143 Robert T. Moxley, Wheatland, for appellant.
Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Senior Asst. Atty. Gen., and Randal R. Arp, Asst. Atty. Gen. (argued), for appellee.
Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
BROWN, Justice.
Appellant-defendant was found guilty of aggravated assault without dangerous weapon in violation of § 6-4-506(a), W.S. 1977,[1] by the district court sitting without a jury. While appellant characterizes the issues on appeal differently, we believe the issues to be:
1) Is it necessary for a defendant to plead "not guilty by reason of mental illness or deficiency" before evidence of unconsciousness can be presented?
2) Was there sufficient evidence to sustain appellant's conviction?
We will affirm.
On November 17, 1979, the appellant consumed seven or eight shots of whiskey over a period of four hours in a Torrington bar, and had previously had a drink at home.
Appellant claims he got in a fight in the bar restroom, then left the bar to find a friend. According to his testimony, the last thing he remembers until awakening in jail, is going out of the door at the bar.
Appellant and his friend were found lying in the alley behind the bar by a police officer who noted abrasions on their fists and faces. Appellant and his friend swore, were uncooperative, and combative. They were subsequently booked for public intoxication and disturbing the peace. During booking appellant continued to swear, and said he and his friend were jumped by a "bunch of Mexicans." Although his speech was slurred, he was able to verbally count his money, roughly $500 to $600 in increments of $20, and was able to walk to his cell without assistance.
Appellant was placed in a cell with one Martin Hernandez who was lying unconscious on the floor of the cell. After the jailer left the cell, he heard something that sounded like someone being kicked. He ran back to the cell and saw appellant standing by Hernandez. When the jailer started to leave again, the kicking sound resumed, and he observed appellant kicking and stomping on Hernandez's head. Appellant told the officer Hernandez had fallen out of bed. Hernandez was bleeding profusely and was taken to the hospital for some 52 stitches in his head and mouth. He had lost two or three teeth as a result of the kicking.
Appellant was released later in the day, November 18, 1979, and went home. He went back to Torrington on November 22, 1979, to see a doctor. Appellant testified that the doctor diagnosed he had a concussion, although there is no evidence in the record of medical treatment.
At his arraignment in district court, appellant first entered a plea of "not guilty by reason of temporary mental illness." Upon being advised by the trial judge that he would have to be committed for examination pursuant to § 7-11-304, W.S. 1977, he withdrew that plea and entered a plea of not guilty.
In preparation for trial, appellant was examined by Dr. Breck LeBegue, a forensic *144 psychiatrist. The doctor reviewed the police report and conducted a number of tests.
At the trial Dr. LeBegue testified that in his expert medical opinion appellant suffered brain injury and was in a state of traumatic automatism at the time of his attack on Hernandez. Dr. LeBegue defined traumatic automatism as the state of mind in which a person does not have conscious and willful control over his actions, and lacks the ability to be aware of and to perceive his external environment. Dr. LeBegue further testified that another possible symptom is an inability to remember what occurred while in a state of traumatic automatism.
Dr. LeBegue was unable to state positively whether or not appellant had the requisite mental state for aggravated assault and battery, but thought appellant did not because of his altered state of mind. He could not state, however, that the character of an act is devoid of criminal intent because of mind alteration.
After the record on appeal had been filed in this court, defense counsel and the prosecuting attorney for Goshen County attempted to supplement the record by entering into a stipulation.[2] We hold that the stipulation was an improper attempt to supplement the record.
The Attorney General refused to approve the stipulation prior to its execution. He may not be bypassed, for once a case is in this court the Attorney General has complete charge of the State's case. Section 9-2-205(a), W.S. 1977.[3] The county and prosecuting attorney is not the attorney of record for the State in this appeal. The stipulation, therefore, will not be considered by this Court. See also, Hayes v. State, Wyo., 599 P.2d 569 (1979) and Tobin v. Purcel, Wyo., 539 P.2d 361 (1975).
I
We hold that the trial court properly received and considered evidence of unconsciousness absent a plea of "not guilty by reason of mental illness or deficiency."[4]
*145 The defense of unconsciousness perhaps should be more precisely denominated as the defense of automatism. Automatism is the state of a person who, though capable of action, is not conscious of what he is doing. While in an automatistic state, an individual performs complex actions without an exercise of will. Because these actions are performed in a state of unconsciousness, they are involuntary. Automatistic behavior may be followed by complete or partial inability to recall the actions performed while unconscious. Thus, a person who acts automatically does so without intent, exercise of free will, or knowledge of the act.
Automatism may be caused by an abnormal condition of the mind capable of being designated a mental illness or deficiency. Automatism may also be manifest in a person with a perfectly healthy mind. In this opinion we are only concerned with the defense of automatism occurring in a person with a healthy mind. To further narrow the issue to be decided in this case, we are concerned with alleged automatism caused by concussion.
The defense of automatism, while not an entirely new development in the criminal law, has been discussed in relatively few decisions by American appellate courts, most of these being in California where the defense is statutory. Some courts have held that insanity and automatism are separate and distinct defenses, and that evidence of automatism may be presented under a plea of not guilty. Some states have made this distinction by statute. In other states the distinction is made by case law. People v. Hardy, 33 Cal.2d 52, 198 P.2d 865 (1948); People v. Martin, 87 Cal. App.2d 581, 197 P.2d 379 (1948); People v. Taylor, 31 Cal. App.2d 723, 88 P.2d 942 (1939); People v. Grant, 46 Ill. App.3d 125, 4 Ill.Dec. 696, 360 N.E.2d 809 (1977); Carter v. State, Okl. Cr., 376 P.2d 351 (1962); 21 Am.Jur.2d § 29, Criminal Law, p. 115 (1965).
"A defense related to but different from the defense of insanity is that of unconsciousness, often referred to as automatism: one who engages in what would otherwise be criminal conduct is not guilty of a crime if he does so in a state of unconsciousness or semi-consciousness. * * *" LaFave & Scott, Criminal Law, § 44, p. 337 (1972).
"The defenses of insanity and unconsciousness are not the same in nature, for unconsciousness at the time of the alleged criminal act need not be the result of a disease or defect of the mind. As a consequence, the two defenses are not the same in effect, for a defendant found not guilty by reason of unconsciousness, as distinct from insanity, is not subject to commitment to a hospital for the mentally ill." State v. Caddell, 287 N.C. 266, 215 S.E.2d 348, 360 (1975).
The principal reason for making a distinction between the defense of unconsciousness and insanity is that the consequences which follow an acquittal will differ. The defense of unconsciousness is usually a complete defense.[5]State v. Mercer, 275 N.C. 108, 165 S.E.2d 328, 334 (1969). State v. Caddell, supra; 21 Am.Jur.2d, Criminal Law, § 29, p. 115 (1965). That is, there are no follow-up consequences after an acquittal; all action against a defendant is concluded.
However, in the case of a finding of not guilty by reason of insanity, the defendant is ordinarily committed to a mental institution.
*146 "* * * [O]ne of the purposes served by the insanity defense is that it makes possible the commitment of some persons, not as an alternative to conviction and imprisonment, but rather as an alternative to outright acquittal. That is, if the defendant did not commit the acts with the mental state required for conviction of the crime charged, but this is because he was suffering from a mental disease or defect, the result is likely to be a finding of not guilty by reason of insanity followed by commitment rather than a mere finding of not guilty followed by release * * *." LaFave and Scott, supra, at 338.
In some states the commitment is automatic after a finding of not guilty by reason of insanity. In Wyoming the trial judge may commit a defendant based on evidence produced at trial or the commitment may be by separate proceedings.[6]
The mental illness or deficiency plea does not adequately cover automatic behavior. Unless the plea of automatism, separate and apart from the plea of mental illness or deficiency is allowed, certain anomalies will result. For example, if the court determines that the automatistic defendant is sane, but refuses to recognize automatism, the defendant has no defense to the crime with which he is charged. If found guilty, he faces a prison term. The rehabilitative value of imprisonment for the automatistic offender who has committed the offense unconsciously is nonexistent. The cause of the act was an uncontrollable physical disorder that may never recur and is not a moral deficiency.
If, however, the court treats automatism as insanity and then determines that the defendant is insane, he will be found not guilty. He then will be committed to a mental institution for an indefinite period. The commitment of an automatistic individual to a mental institution for rehabilitation has absolutely no value. Mental hospitals generally treat people with psychiatric or psychological problems. This form of treatment is not suited to unconscious behavior resulting from a bump on the head.
It may be argued that evidence of unconsciousness cannot be received unless a plea of not guilty by reason of mental illness or deficiency is made pursuant to Rule 15, W.R.Cr.P. We believe this approach to be illogical.
"* * * Insanity is incapacity from disease of the mind, to know the nature and quality of one's act or to distinguish between right and wrong in relation thereto. In contrast, a person who is completely unconscious when he commits an act otherwise punishable as a crime cannot know the nature and quality thereof or whether it is right or wrong. * * *" State v. Mercer, supra, 165 S.E.2d at 335.
It does not seem that the definition of "mental deficiency" in § 7-11-301(a)(iii),[7] W.S. 1977, which includes "brain damage," encompasses simple brain trauma with no permanent aftereffects. It is our view that the "brain damage" contemplated in the statute is some serious and irreversible condition having an impact upon the ability of the person to function. It is undoubtedly something far more significant than a temporary and transitory condition. The two defenses are merged, in effect, if a plea of "not guilty by reason of mental illness or deficiency" is a prerequisite for using the defense of unconsciousness.
The committee that drafted Wyoming Pattern Jury Instructions Criminal, apparently recognized mental illness or deficiency and unconsciousness as separate and distinct defenses. See § 4.301, Wyo. P.J.I.Cr. A copy is attached hereto as Appendix A. *147 Admittedly the instructions in Wyo. P.J.I.Cr. are not authoritative, because they were not approved by the Wyoming Supreme Court, and this was a matter of design. Still they are the product of a distinguished group of legal scholars, including judges, attorneys and teachers of the law. The comment to this pattern jury instruction notes that it is limited to persons of sound mind, and the comment distinguishes persons suffering from "mental deficiency or illness." In this respect, it tracks the case law from other jurisdictions, which authorities hold that unconsciousness and insanity are completely separate grounds of exemption from criminal responsibility. People v. Conley, 64 Cal.2d 310, 49 Cal. Rptr. 815, 411 P.2d 911 (1966); Carter v. State, supra; State v. Mercer, supra.
Although courts hold that unconsciousness and insanity are separate and distinct defenses, there has been some uncertainty concerning the burden of proof. We believe the better rule to be that stated in State v. Caddell, supra, 215 S.E.2d at 363:[8]
"We now hold that, under the law of this state, unconsciousness, or automatism, is a complete defense to the criminal charge, separate and apart from the defense of insanity; that it is an affirmative defense; and that the burden rests upon the defendant to establish this defense, unless it arises out of the State's own evidence, to the satisfaction of the jury." (Emphasis added.)
The rationale for this rule is that the defendant is the only person who knows his actual state of consciousness. Hill v. Baxter 1 All E.R. 193 (1958), 1 Q.B. 277.
Our ruling on the facts of this case is that the defense of unconsciousness resulting from a concussion with no permanent brain damage is an affirmative defense and is a defense separate from the defense of not guilty by reason of mental illness or deficiency.
II
The appellant's conviction must, nevertheless, be affirmed. Dr. LeBegue was unable to state positively whether or not appellant had the requisite mental state for aggravated assault. He could not state that the character of the act was devoid of criminal intent because of the mind alteration. The presumption of mental competency was never overcome by appellant and the evidence presented formed a reasonable basis on which the trial judge could find and did find that the State had met the required burden of proof.
Further, the trial judge was not bound to follow Dr. LeBegue's opinion. The trier of the facts is not bound to accept expert opinion evidence in the face of other substantial and credible evidence to the contrary. State v. Peterson, 24 N.C. App. 404, 210 S.E.2d 883 (1975). Cf., Reilly v. State, Wyo., 496 P.2d 899 (1972), reh. denied, 498 P.2d 1236 (1972). There was an abundance of other credible evidence that appellant was not unconscious at the time of the assault and battery for which he was convicted.
Affirmed.
APPENDIX A
4.301 UNCONSCIOUS ACTS
Where a person commits an act without being conscious thereof, such act is not criminal even though, if committed by a person who was conscious, it would be a crime.
This rule of law applies only to cases of the unconsciousness of person of sound mind, in which there is no functioning of the conscious mind.
Use Note
Specific examples of where this instruction would apply include: sleep walkers or persons suffering from the delirium of fever, epilepsy, a blow on the head or the involuntary taking of drugs or intoxicating liquor.
*148 Comment
CALJIC 4.30.
Unconsciousness is a complete, not a partial, defense to a criminal charge. People v. Wilson, [66 Cal.2d 749, 59 Cal. Rptr. 156,] 427 P.2d 820, 828 (Cal. 1967).
There can be no criminality in the absence of criminal intention, and one who acts while unconscious lacks criminal intention. Fair v. Commonwealth, 78 Ky. 183 [39 Am.Rep. 213] (1879).
Wyoming has no statutory or case law in this area. Two theories have been used to support this defense in jurisdictions recognizing it. The first is that unconsciousness or semi-consciousness is a defense because one who acts while in such a condition does not have the requisite mental state for commission of a crime. The second, which is the rationale used by the Model Penal Code, § 2.01 (1962), and favored by LaFave and Scott, Criminal Law, § 44 (1972), is that commission of a crime requires a voluntary act or omission, and one who acts while in a state of unconsciousness or semi-consciousness has not engaged in a voluntary act.
The above instruction does not favor either of these theories because California's unconsciousness defense, from which this instruction is taken, is statutorily based. When a case involving an unconsciousness defense arises, either rationale can be adopted under the instruction as it is written.
The second paragraph of the instruction limits the availability of the unconsciousness defense to persons of sound mind. People who commit similar acts but are of unsound mind are suffering from mental illness or deficiency and are covered by the laws and instructions concerning the insanity defense.
RAPER, Justice, specially concurring, with whom ROONEY, Justice, joins.
I concur only in the result reached by the majority, except to the extent I otherwise herein indicate.[1]
The reasoning of the majority with respect to the defense of unconsciousness in this case is contrary to clear legislative will and has judicially amended the statutes of this state pertaining to mental illness or deficiency excluding criminal responsibility.
I
Dr. LeBegue's testimony was inadmissible in its entirety. "`Mental deficiency' means a defect attributable to mental retardation, brain damage and learning disabilities." Section 7-11-301, W.S. 1977. "A person is not responsible for criminal conduct if at the time of the criminal conduct, as a result of mental illness or deficiency, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." Section 7-11-304(a), W.S. 1977. This was appellant's defense.
Section 7-11-304(c), W.S. 1977 provides that, "[e]vidence that a person is not responsible for criminal conduct by reason of mental illness or deficiency is not admissible at the trial of the defendant unless a plea of `not guilty by reason of mental illness or deficiency' is made. * * *" No such plea was entered.
The appellant apparently does not dispute the fact that he did in fact commit the assault on his victim as charged. While the appellant argued to the trial judge by way of a written brief that the plea of unconsciousness was not mental deficiency as contemplated by § 7-11-301 et seq., W.S. 1977, the testimony of Dr. LeBegue makes it clear that appellant's condition, which he opines to have existed at the time of the crime, involved a head injury. He testified specifically:
"In my opinion he did suffer a brain injury, in my opinion did suffer brain damage. He suffered a concussion which is essentially a brain bruise." (Emphasis added.)
*149 This, according to the doctor's testimony, translated into "traumatic automatism" as well as explained the appellant's amnesia, his inability to remember kicking and stomping the victim, Hernandez. Appellant cannot avoid the effects of the statute by use of the clinical language of traumatic automatism.
I prefer to believe, from the incomplete record before us, that the district court disregarded the testimony of Dr. LeBegue, it being inadmissible by statute under the defendant's plea of not guilty. It is not unusual for a trial judge in a court-tried case to listen to inadmissible evidence presented by a criminal defendant, but that does not mean that he must consider it in disposition of the case. This court presumes that in a trial before the court without a jury a judge disregarded inadmissible evidence and his judgment was based only on competent evidence. X v. Y, Wyo., 482 P.2d 688 (1971); 76 Am.Jur.2d, Trial § 1242, p. 194; Anno., Reception of incompetent evidence in criminal case tried to court without jury as ground of reversal, 116 A.L.R. 558.
Appellant was fully informed by the trial judge at arraignment of his right to enter a plea of not guilty by reason of mental deficiency but appellant elected not to in order to avoid commitment for examination. He cannot now complain, nor should he be excused for failure to do so.
I am not concerned with the fact that unconsciousness may be a defense in this case but am distressed that the procedure for taking advantage of it has been cast aside. In order to reach the conclusion of the majority that it is not necessary to plead mental deficiency as a defense in the case of unconsciousness, it is indispensable that it be pretended that § 7-11-301, supra, does not exist. The appellant's disorder, if it existed, was caused by "brain damage" according to the appellant's own testimony. That is "mental deficiency" by statutory definition. The majority has feebly attempted to jump the hurdle of a statutory definition by saying "unconsciousness" is not "insanity," but we no longer use that term. It must be pointed out that under the old statutes[2] and before adoption of the current law pertaining to mental deficiency[3], "insanity" was not legislatively defined. The majority is attempting to adopt the law of an era gone by-by, rather than what the authors of the new legislation considered a more informed and modern concept.
When the legislature amends a statute, it must be presumed that some change in existing law was intended and courts should endeavor to make such amendment effective. State ex rel. Albany County Weed and Pest District v. Board of County Commissioners of County of Albany, Wyo., 592 P.2d 1154 (1979); Brown v. State, Wyo., 590 P.2d 1312 (1979). It is not reasonable that the legislature would enact a law to declare what is already the law. DeHerrera v. Herrera, Wyo., 565 P.2d 479 (1977). The legislature will not be presumed to intend futile things. Yeik v. Department of Revenue and Taxation, Wyo., 595 P.2d 965 (1979); DeHerrera v. Herrera, supra. When the legislature declared that mental deficiency was a defect attributable to brain damage (§ 7-11-301), that was a definition it had never before undertaken. That was then collated by the legislature with a declaration that a person is not responsible for his criminal conduct when, because of mental deficiency (which includes brain damage), he lacked the capacity to conform his conduct to the requirements of the law (§ 7-11-304(a)). Appellant's position is that being unconscious because of a blow on the head causing brain damage rendered him not responsible for kicking his victim around. We, then, now have before us a defense of mental deficiency defined by the legislature as including brain damage, not insanity which was never defined by the legislature nor this court to either include or exclude brain damage.
*150 Contrary to the assumption of the majority, insanity and mental illness or deficiency do not have the same meaning and cannot be used interchangeably because mental illness and deficiency embrace a greater span of defects of the mind and are intended to reach all defenses of irresponsibility arising because of some condition of the human brain affecting conduct. Nowhere in the rewriting of the law pertaining to mental responsibility appears the word "insane" or "insanity," except in the heading to the chapter and that was probably supplied by someone unacquainted with the term. The proper heading should have been "RESPONSIBILITY." The title supplied by the legislature says nothing about insanity.[4] The term "deficiency" means "defect." Defect means the want or absence of something necessary for completeness, perfection or adequacy in form or function. Webster. It is this shortcoming in appellant's mind that brought him within the sweep of § 7-11-304(a), supra. The only exception to mental deficiency not to be considered was that covered by § 7-11-304(b):
"As used in this section, the terms `mental illness or deficiency' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct."
It follows that damage to the brain causing a defect in its function would bring the appellant within the statute requiring conformity with all its provisions, i.e., commitment for examination and necessity of plea of "not guilty by reason of mental illness or deficiency."
II
The Wyoming statute adopts the ALI Model Penal Code in principle but provides a different procedure for giving the State and court notice that mental disease or deficiency will be relied upon.[5] The Wyoming version requires the defendant to enter a plea of "not guilty by reason of mental illness or deficiency." Section 7-11-304(c), W.S. 1977.
The requirement of examination upon entry of such a plea serves a valuable purpose, as explained in what has been described as the leading case on the subject, Jessner v. State, 202 Wis. 184, 231 N.W. 634 (1930), 71 A.L.R. 1005:
"The assault thus made upon this statute is highly important. Its enactment was in response to a well-settled conviction that, in criminal cases at least, where the interests of society were involved, there should be some technical evidence from unprejudiced and reliable sources. This conviction grew out of the belief that under the then existing procedure there was a striking tendency on the part of experts to accommodate their opinions to the necessities of that side of the case upon which they were testifying, and *151 that such opinions were to a very large extent prejudicial and unreliable. To secure the reliable and unprejudiced opinions of the ablest experts in such cases, to the end that the purest degree of justice might be promoted, the board of circuit judges sponsored the enactment of this statute. If this statute must be condemned as unconstitutional, it will require retracement of most significant forward steps in judicial procedure, and bring regret to all who believe in steady progress towards the attainment of a more perfect justice.
* * * * * *
"By the statute under consideration the Legislature has deliberately attempted to regulate the subject of expert evidence in criminal trials, to the end that there may be some evidence in the case, not bought and paid for, coming from impartial witnesses who owe no duty or allegiance to either side of the controversy, and that the fact of their impartiality shall be made known to the jury. Whether the sponsoring of any witness by the court is good public policy is no longer a matter of judicial opinion. The dominant opinion of the Legislature upon that subject has received expression, and its expression upon matters of public policy prevails, unless it contravenes constitutional provisions. We find no constitutional provision relating to jury trials which prohibits the practice thus prescribed by the Legislature.
* * * * * *
"The function of these experts is to aid in the administration of justice by furnishing reliable and unprejudiced opinions upon a technical subject. The whole purpose of their creation and appointment is to promote the accomplishment of the very purposes for which courts are established. This is accomplished not independently of, but within and under the direction of, the court, and in conformity with the practices of the court. For the purposes of that particular trial they are a part of the machinery of the court. They render assistance to the court. These considerations lead to the conclusion that their appointment is a most appropriate judicial function. The statute cannot be condemned on this ground."
This procedure has likewise been upheld in this state. State v. Riggle, 76 Wyo. 63, 298 P.2d 349, 300 P.2d 567 (1956), cert. denied 352 U.S. 981, 77 S.Ct. 384, 1 L.Ed.2d 366; State v. Spears, 76 Wyo. 82, 300 P.2d 551 (1956).
In the case before us and in other cases of mental deficiency caused by blows on the head, if the defendant claims automatism, society and the State have been and will be deprived of this preliminary examination without notice of the defense of unconsciousness and without the opportunity for an adequate impartial examination. All defendants will be claiming unconsciousness when in fact they should have entered pleas of "not guilty by reason of mental illness or deficiency." That the appellant utilized the aid of a psychiatrist to establish unconsciousness because of brain damage, within the definition of the statute, indicates the need for the pretrial procedures of commitment for mental examination. It may have established that appellant's condition was not of a temporary nature, that there were underlying psychoses aggravated by the blow, if true, and that defendant needed continuing commitment for treatment. Society's rights have been and will be usurped by the majority opinion. The preliminary psychiatric examination is a good point to wash out the phony claims of mental illness or deficiency and identify the legitimate as well.
III
The majority has taken the mistaken view that a little old bump on the head is not serious. We do not know from the record how much of a blow on the head causing concussion and brain damage was received by appellant. X-rays were taken but they did not appear in the record nor was there any testimony other than that it was enough to create unconsciousness. While maybe not serious in this case, if true *152 at all, a concussion is no matter with which to so lightly deal. The superficial treatment of brain damage by the majority requires more comprehensive attention to dispel such a myopic approach. The authors of the Attorneys' Textbook of Medicine, Gordy-Gray, point out that a blow on the head is not trifling:
¶ 88.31, p. 80-20, in pertinent part:
"As a result of diffuse destruction of functioning nerve cells there may be what is known as `brain damage' with general, more or less non-specific, effects on intellectual functions, behavior and personality. These may be superimposed on more localized residual neurological deficits, or may occur without neurological disability of a localized kind."
¶ 88.60, p. 88-53, in pertinent part:
"The most complex general effects of trauma involve the higher integrated activities of the brain (intellectual capacity, memory, speech, consciousness, behavior and personality). These are added to the more localized effects of ruptured blood vessels (hemorrhage and hematoma), fractured bone and contused brain tissue."
¶ 88.68(5), pp. 88-71 through 88-72:
"The classification of `brain syndromes' in the American Psychiatric Association Manual, as acute or chronic, has already been discussed elsewhere (See Chapter 90, ¶ 90.71, ¶ 90.71(1) on acute brain syndromes, ¶¶ 90.71(2) through 90.76 on chronic brain syndromes.) The acute brain syndrome is defined as one which is reversible, while in the chronic brain syndrome the brain changes are irreversible and permanent. Chronic brain syndrome due to trauma is synonymous with traumatic encephalopathy or the `brain-damaged' individual. The brain changes, by definition, are diffuse and encompass all aspects of the higher integrative activities of the brain (orientation, memory, intellectual functions such as comprehension, knowledge, and learning, judgment, and emotional and behavioral reactions). In the acute brain syndrome there is impairment in all of these spheres also, but it is postulated that the condition may be reversed so that recovery takes place.
"In severe head injuries one of the complications which may develop is an `acute brain syndrome,' taking the form either of an acute delirium or an acute psychosis of the toxic type.
* * * * * *
"In the state of delirium there is disorientation, especially in respect to time. There are also disordered perceptions leading to visual illusions and hallucinations. Visual hallucinations are quite characteristic of drug psychoses, as compared with the auditory hallucinations of the acute schizophrenic episode. The delirious patient is usually markedly hyperactive and restless and frequently requires some kind of restraint.
"In toxic states the patient may be hyperactive and restless, disoriented and emotionally unstable, or stuporous, apathetic and retarded.
* * * * * *
¶ 88.72, pp. 88-74 through 88-75, in pertinent part:
"Other deficits and impairments involving the higher integrative functions of the brain are more complex and less easily demonstrable on objective testing. These include disturbances of consciousness, disturbances of memory function, of sleep patterns, and intellectual activities such as comprehension, knowledge, new learning, ability to concentrate, judgment and foresight."
¶ 88.73, pp. 88-75 through 88-76:
"There is only one way to approach a comprehensive evaluation of disability after trauma to the head. [Emphasis added.]
"Each structure (the scalp, skull, brain, cranial nerves and blood vessels) must first be evaluated separately as to the initial local injury, degree of recovery, and possible residual alterations, either structural or physiological, which remain. This kind of more or less `local' survey includes also evaluation of the effects of any specific local complication which occurred, *153 and the degree of recovery or residual impairment which remains.
"Each phase of the higher integrated activities of the brain must then be evaluated to determine whether there is any residual impairment or disability. These higher activities include:
"(1) The state of consciousness, i.e., confusion, prolonged coma, and so on,
"(2) Memory functions, i.e., amnesias or impaired retention and recall,
"(3) Speech and related functions of reading and writing,
"(4) Intellectual capacities, i.e., comprehension, knowledge, new learning, concentration, judgment, foresight,
"(5) Behavioral reactions,
"(6) Personality changes,
"(7) Emotional responses, and finally
"(8) The state of the `psyche' as a whole, i.e., the whole person and his reactions to his injuries.
* * * * * *
¶ 88.75(5), p. 88-86:
"There may be residual impairments of consciousness (confusion, stupor, prolonged coma), of sleep (hypersomnia, narcolepsy), of memory (amnesias and impaired retention and recall), of intellectual capacities (comprehension, concentration, knowledge, new learning, judgment, foresight), of behavior responses and emotional reactions.
"In lesions involving the hippocampal portions of the temporal lobes there is a loss of memory for the past life and inability to lay down new memory patterns, making new learning impossible and seriously impairing retention and recall of recent events.
"Diffuse brain damage causes marked changes of personality. There is a withdrawal into a narrow world of little mental activity and few social contacts. The brain-damaged individual has severe impairment of the ability to respond to rapid fluctuations or changes in the environment, or to respond to ideas or people, especially under pressure or stress."
In a special paper on post-traumatic psychoses related to head injury, appearing in 3B Attorneys' Textbook of Medicine, Gordy-Gray, its relationship to mental deficiency as a legal proposition is emphasized:
¶ 102.00, p. 102-1, in pertinent part:
"A psychosis is a gross loss of contract with reality. Psychosis is the medical equivalent of the word `insanity.' A post-traumatic psychosis is a psychosis following, and `related' to, injury.
"A psychosis can be `related' to a head injury or, for that matter, to injury elsewhere in the body in one of the following ways: (1) the injury caused the psychosis; (2) the injury precipitated a psychosis out of an unstable personality; (3) the injury made overt a latent psychosis; (4) the injury aggravated pre-existing psychosis; and (5) the injury was not related to the subsequent psychosis."
¶ 102.20, p. 102-7, in pertinent part:
"In standard nomenclature the word `psychosis' means `insanity.' Thus, a traumatic psychosis means an insanity caused or precipitated by injury. However, it is not that simple. In the first place, there are psychoses, like schizophrenia, that are sometimes (though rarely) lighted up by an injury. In one sense this is still schizophrenia; but in another sense, it is a traumatic psychosis because it was precipitated by trauma."
¶ 102.50, p. 102-12:
"The only two specifically traumatic, acute psychoses are delirium and the confabulatory (Korsakoff's) syndrome. Confabulation is the ready production of untrue statements and explanations."
¶ 102.51, p. 102-12:
"Occasionally, a patient develops a true delirium following a head injury. If there is no toxic factor (no alcohol or other drug), this may be considered a traumatic delirium. The usual picture of delirium is disorientation, restlessness, and hallucinosis, which is generally visual, occasionally auditory. Sometimes a patient exhibits a state of mild confusion in which he wanders around, talking and acting as if he knew what the score was, *154 but actually in a state of confusion. This, too, is a form of traumatic delirium."
¶ 102.52, pp. 102-12 through 102-13:
"Some patients invent answers to questions so that the replies have a glibness which would sound plausible, if the listener did not know the facts. The commonest example would be the patient who tells you that he was somewhere else yesterday, when actually he was in the hospital. This is the traditional pattern of `Korsakoff's syndrome' which may occur in any type of traumatic delirium."
¶ 102.60, p. 102-13:
"Brain damage can lead to permanent personality changes, while sometimes brain damage triggers a latent psychosis. When this occurs, the record shows no overt psychotic reaction prior to the injury; and the injury either caused substantial brain tissue damage, or precipitated a serious emotional reaction in which brooding and impairment of self-image were factors.
"Brain damage makes it harder to solve problems. The way in which the patient meets that difficulty is based more on his own personality than on the extent of the damage. He might, for example, retreat into isolation. Or he might engage in a fury of overactivity to prove that he was all right, or to get away from considerations of his defect. The former would be a schizoid, the latter a manic kind of reaction. Chronic irritability is another common way of responding. This irritability applies to all stimuli: the patient is extraordinarily sensitive to light, alcohol, change in posture, noise, and so on. Irascibility, disinterest, apathy, memory defects, and mental deterioration are possible symptoms of chronic post-traumatic brain impairment. Antisocial behavior is a rare sequel to head injury in adults; it is less rare in children."
¶ 102.71, pp. 102-14 through 102-15:
"Since no one knows what causes schizophrenia, no one can assert categorically that any suggested cause is impossible. However, of the 300,000 schizophrenics in American hospitals today, only a minute proportion have ever had any head injury. Sometimes a schizophrenic episode follows immediately after a head injury. Before assuming that this is a cause-and-effect relationship, it is wise to consider the following:
"(1) Whether the patient's confusion or indifference could not have caused the accident, rather than vice versa.
"(2) Whether the current clinical picture could not be a toxic or organic psychosis resembling a schizophrenia.
"(3) Whether the unfortunately high frequency of both conditions does not, inevitably, bring some injuries and some schizophrenias to the same time and place through sheer coincidence.
"(4) Whether a deterioration which seem