302 F.2d 214 (8th Cir. 1962), 16739, Feguer v. United States

Docket Nº:16739.
Citation:302 F.2d 214
Party Name:Victor Harry FEGUER, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 16, 1962
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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302 F.2d 214 (8th Cir. 1962)

Victor Harry FEGUER, Appellant,

v.

UNITED STATES of America, Appellee.

No. 16739.

United States Court of Appeals, Eighth Circuit.

April 16, 1962

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[Copyrighted Material Omitted]

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Paul L. Kildee and Frederick G. White, Waterloo, Iowa, made argument for appellant and were on the brief.

F. E. Van Alstine, Sp. Asst. U.S. Atty., Des Moines, Iowa, made argument for appellee, and Donald E. O'Brien, U.S. Atty., was with him on the brief.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

This is an appeal in forma pauperis from a judgment and sentence of death.

Victor Harry Feguer on August 9, 1960, by indictment returned in the Northern District of Iowa, was charged with a violation of the Kidnapping Act, 18 U.S.C. § 1201(a), in that on or about July 11, 1960, he knowingly transported Edward Roy Bartels in interstate commerce from Iowa to Illinois, after the latter was unlawfully kidnapped and held, and in that the victim was not liberated unharmed. Feguer pleaded not guilty. The defense of insanity was noticed. The jury trial from March 1 to 12, 1961, resulted in a verdict of guilty and, as authorized by § 1201(a), in the jury's recommendation that the defendant be punished by death. Accordingly, and pursuant to 18 U.S.C. § 3566 and to § 792.9 of the Code of Iowa, 1958, I.C.A., a sentence of death by hanging was imposed. This appeal followed.

Edward Roy Bartels, 35 years of age, was a physician engaged in general practice in Dubuque, Iowa. He left his home on Monday evening, July 11, 1960, in response to a telephone request for medical assistance. He did not return. His body was found on the early morning of July 21 in a wooded rural area some 5 miles across the Mississippi River in Illinois. He had been killed by a bullet which entered the back of his head.

After what appears from the record to have been an exhaustively and well tried case, with meticulous attention given it by counsel for both sides and by the trial judge, nine issues emerge on appeal. They are, in substance, that the district court committed reversible error

1. In finding that the defendant was mentally competent to stand trial;

2. In refusing to issue subpoenas for two psychiatrists as defense witnesses at government expense;

3. In asking questions on the insanity issue, embracing the concept of right and wrong plus irresistible impulse, of a court appointed psychiatrist witness, and in permitting similar inquiry, through hypothetical questions, of a psychiatrist called by the government in rebuttal;

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4. In refusing instructions requested by the defense on the insanity issue in line with the Durham rule and the American Law Institute suggestions;

5. In denying defense motions for the suppression and return of evidence seized in Alabama;

6. In denying a defense motion for the suppression of evidence seized in Dubuque;

7. In denying a defense motion to suppress certain statements of the defendant;

8. In foreclosing certain comments on capital punishment in the closing argument for the defense; and

9. In not foreclosing certain comments in the closing arguments for the prosecution.

All these issues, with an exception as to point 9, were preserved by appropriate objection during the trial. In addition, the defense moved for judgment of acquittal, under Rule 29, F.R.Cr.P., 18 U.S.C.A., at the conclusion of the government's case and again at the close of all the evidence. These motions were denied.

It is perhaps unnecessary to say that when a criminal case involving the ultimate penalty which the law can impose comes before an appellate court for review, that court has an obligation, serious and profound, to examine with care every point of substance raised by the defense and to acquaint itself intimately with the details of the record. This is especially so where, as here, the case concerns both an emotionally offensive act and many facets of the criminal law which today are particularly sensitive. We have had this obligation in mind as we worked on this record and the briefs.

We note initially that there is little dispute as to many of the facts or as to the sufficiency of the evidence (including that on the insanity issue), if it was properly admitted, to sustain the jury's verdict of guilty. Specifically, there is now no real dispute that this defendant was the kidnapper of Dr. Bartels and is the person who shot and killed the doctor in Jo Daviess County, Illinois, on the night of July 11, 1960. 1 The real controversy centers around the admissibility of much of the evidence. The nine issues thus narrow and coalesce themselves into general questions having to do with (1) the defendant's competency to stand trial, (2) his defense of insanity or, as is sometimes said, his responsibility for his act, and (3) the fairness of the trial itself.

We turn to the facts which, perhaps, we cover in too much detail. We do this so that the entire story, with all of its implications, may be apparent.

The defendant's background. Feguer was born in Michigan in 1935 and was 25 years of age at the time of the crime. His mother died after a short illness in 1941 when he was about 6. Although his father was living, he went to stay with his paternal grandparents. They apparently were good to the defendant but they permitted him to do about as he pleased. As he grew older the defendant ran around and at times would stay away from home. His father was addicted to drink; after the death of the defendant's mother he joined the Navy for two years. When the defendant was 11, his uncle (his mother's brother) felt the grandparents' home was not very good for him and asked the boy to live with him. He did so for three weeks. About this time he took money from the grandfather

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and bought a motor scooter. His father was living with a woman elsewhere and the defendant went to stay with them. He was there a few weeks and returned to the grandparents for a short time. He was placed in a juvenile home where he stayed two months. The proprietor suggested that the uncle and his wife provide a home for him but they felt they could not do so because of the size of their own family. He stayed with an aunt who was working in Lansing. He did not attend school and was placed in a home for boys. He apparently came down with tuberculosis and was hospitalized for nine months.

Up to this time, age 16, he had experienced little formal difficulty with the law but he had been involved in minor thefts. However, in May 1951, shortly after his release from the boys' home, he was convicted of burglary and car theft and sentenced to the Michigan State Prison at Jackson. He was there until paroled in August 1955. He went to live with another uncle. The first uncle, during this period, provided him with $50 spending money a week to enable him to buy clothes and get around to seek work; this was paid through the probation officer. The amount, at the suggestion of the officer, was lowered to $40 a week. On one occasion during this period additional money was given the defendant because he said his father had taken funds from him. In late 195 he was again convicted of car theft and was returned to the state prison. He was finally discharged there on April 14, 1960.

The defendant's activities through the afternoon of July 11, 1960. On May 3, 1960, the defendant obtained work as a stock clerk in a Kroger store at Galion, Ohio. He quit or was discharged after five days. Later in May he worked for about two weeks as a kitchen helper in a restaurant in Broadview, Illinois, west of Chicago. He has been referred by an employment agency. He came to Chicago on a truck from Ohio and said that his luggage was stolen when he was let out in a rough neighborhood in the middle of the night. On May 27 the defendant registered with the Milwaukee district office of the Wisconsin State Employment Service. His application contained references to his work at Galion and Broadview but many of his statements as to education and duration of employment were not accurate.

On May 28 he obtained employment with a janitorial service in Milwaukee and was there until June 18. He was eventually discharged because 'it was a case of a lot of standing around, talking, and not applying himself' and 'there were a lot of areas that were never touched'. On June 18 while still working for the janitorial service, he answered an ad for a manager of a Milwaukee rooming house just acquired by a new owner. He was employed. During the last part of June he collected rents, gave receipts and kept stub records. When under supervision he did his work adequately though grudgingly and when not under supervision his work was described as sub-standard. He lived on the premises. He drank on the job. The owner's son did not regard him as highly reliable and would not have given him a job in his accounting firm, but he felt that the defendant was not a danger for the family's interest in the kind of work he was doing. He left without notice about July 8, taking $55 in rent money with him. He was not bonded. He had been given a bond application to fill out about July 6 but left without completing it. Some apartment keys were missing when he left.

During this time the defendant opened a checking account at the First Wisconsin National Bank, Milwaukee, and obtained personalized checks bearing his name 'Victor H. Feguer'. On July 2 he drew one of these checks in favor of Becker's Sporting Goods Store, Waukesha, Wisconsin, in the amount of $37.20. This check was paid. It was used to purchase a Browning designed .380 automatic Czechoslovakian-made hand gun and cartridges for it.

On Thursday, July 7, in the early evening, the defendant arrived by bus in Dubuque, Iowa. He hired a cab to go

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from the bus station to a rooming house at 1004 Bluff Street. That evening the wife of the...

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