37 F.3d 1319 (8th Cir. 1994), 93-3509, United States v. Long Crow

Docket Nº:93-3509.
Citation:37 F.3d 1319
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Alvin Reed LONG CROW, Defendant-Appellant.
Case Date:October 13, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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37 F.3d 1319 (8th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Alvin Reed LONG CROW, Defendant-Appellant.

No. 93-3509.

United States Court of Appeals, Eighth Circuit

October 13, 1994

Submitted May 13, 1994.

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[Copyrighted Material Omitted]

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Clifford Barnard, Boulder, CO, argued, for appellant.

Dennis Holmes, Asst. U.S. Atty., Pierre, SD, argued, for appellee.

Before LOKEN, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Alvin Reed Long Crow appeals the district court's 1 judgment of conviction on charges of assault resulting in serious bodily injury, use of a firearm during a crime of violence, and first-degree burglary, in violation of 18 U.S.C. Secs. 113(f), 924(c), and 1153. Long Crow contends that the district court erred by refusing to instruct the jury on the defense of insanity, by denying his request for appointment of new counsel, and by failing to conduct a hearing to determine his competency to stand trial. We affirm.


The testimony at trial shows that after attending a birthday party for his son on November 7, 1992, Long Crow and about seven other adults gathered at the Travis Comes Flying residence where they consumed large amounts of alcohol. Long Crow drank eight or more beers along with other liquor. (Trial Tr. at 378.) Later in the evening, Long Crow and Al Drapeau began to argue. Gary Ross intervened and punched Long Crow in the eye, causing a cut that began to bleed. Long Crow then went home and got a metal baseball bat. He told his daughter that he had been "jumped" by "Gary and Al" and that he wanted to fight them "one-on-one." (Trial Tr. at 283-84.) Long Crow then found his son at another house. He repeated what he had told his daughter and asked his son for his son's rifle. (Id. at 332, 329-30.) His son gave him the rifle and watched him load it. (Id. at 330-31.) Long Crow said that he was going back to scare Al and Gary. (Id. at 329-30.)

Long Crow returned to the Comes Flying home in possession of the loaded .22 caliber rifle. He knocked on the front door and started shooting after Gary Ross opened and quickly closed the door. Long Crow then went around the house, shooting into the windows. He kicked in the side door and

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entered the house still shooting until he ran out of ammunition. Travis Comes Flying wrestled the gun away from Long Crow, and others restrained Long Crow until the police arrived. As a result of the shooting spree, four persons were injured, including Gary Ross whose injuries were serious.

At the hospital the following morning, Long Crow signed a waiver of his rights and recounted details of the entire evening, including the shooting incident, to Special Agent Paul Pritchard of the Federal Bureau of Investigation. Long Crow told Agent Pritchard that he was mad about being struck by Ross and that "[i]f I had more shells, I probably would have killed somebody." (Id. at 486.) Agent Pritchard found Long Crow to be sober, alert, and cooperative. Long Crow agreed to a second interview later in the day, after which he signed a written statement detailing the events leading up to and including the shootings, including the fact that he had loaded the rifle with 13 rounds of ammunition. (See Appellee's Addend. at 1-5.)

A five-count indictment charged Long Crow with (I) assaulting Gary Ross with a dangerous weapon with intent to do bodily harm, see 18 U.S.C. Sec. 1153, 113(c); (II) assault resulting in serious bodily injury to Gary Ross, see 18 U.S.C. Sec. 1153, 113(f); (III) assaulting Al Drapeau with a dangerous weapon with intent to do bodily harm, see 18 U.S.C. Sec. 1153, 113(c); (IV) first-degree burglary, see 18 U.S.C. Sec. 1153, S.D.Codified Laws Ann. Sec. 22-32-1 (Michie Supp.1994); and (V) using a firearm during a crime of violence; see 18 U.S.C. Sec. 924(c). Long Crow gave notice of an insanity defense. At the request of both Long Crow and the government, the district court 2 ordered a psychiatric evaluation of Long Crow to determine whether he was insane at the time of the alleged offense and whether he was presently competent to stand trial. See 18 U.S.C. Secs. 4241, 4242. William T. Bickart, Ph.D., a licensed clinical psychologist, evaluated Long Crow at the Federal Correctional Institution at Milan, Michigan, and he filed his report with the court on March 9, 1993. Dr. Bickart diagnosed Long Crow with mild severity Post Traumatic Stress Disorder (PTSD), episodic alcohol abuse, mixed personality disorder, and headaches "probably due to tension." (Supp.App. at 5.) Dr. Bickart concluded that Long Crow was competent to stand trial and that he was not insane at the time of the offense. (Id. at 5-7.)

On May 26 and June 9, 1993, a little over a month before trial, Long Crow submitted two letters to the court seeking to have new counsel appointed to represent him. The district court, Judge Battey presiding, held a hearing after which he denied the request for new counsel. The district court found that although there was "not a meaningful relationship" between Long Crow and counsel, there was "not a justifiable reason for dissatisfaction" with his counsel. (App., Tab F at 23.) Thus, the district court denied the request for substitute counsel.

At trial, Long Crow testified that he "blacked out" after he fired the first shot and remembered nothing more until he was wrestling with Travis Comes Flying. (Trial Tr. at 379, 383-84.) Long Crow also offered the testimony of Frank Dame, Ph.D., a licensed clinical psychologist. Dr. Dame did not clinically examine Long Crow but testified solely on the basis of his general expertise and his observations of Long Crow at trial. Dr. Dame testified that he would consider a diagnosis of PTSD if he were treating Long Crow and that Long Crow appeared to have been suffering a PTSD episode at the time of the offense. (Id. at 447.) Long Crow requested an insanity instruction based upon this evidence. The district court refused to submit the insanity defense to the jury and instead instructed the jury that the PTSD evidence could be considered on the issue of specific intent for counts I, III, and IV.

The jury returned guilty verdicts on counts II, IV, and V, and acquitted Long Crow on counts I and III. The district court sentenced Long Crow to ten years of imprisonment to be followed by three years of supervised

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release. Long Crow appeals his conviction.


Long Crow first argues that the district court erred by refusing to instruct the jury on the affirmative defense of insanity. He also contends that we should apply de novo review to determine whether the district court committed error.

"[T]his Court has long held that 'a defendant is entitled to an instruction on his theory of the case if there is evidence to support it and a proper request has been entered.' " United States v. Bartlett, 856 F.2d 1071, 1082 (8th Cir.1988) (quoting United States v. Brown, 540 F.2d 364, 380 (8th Cir.1976)). We generally review the district court's refusal to give the defendant's requested jury instructions only for an abuse of discretion. United States v. House, 939 F.2d 659, 663 (8th Cir.1991). A question of law, however, is entitled to de novo review, and we conclude that whether there is sufficient evidence to submit an affirmative defense of insanity to the jury is a question of law for the court. See United States v. Denny-Shaffer, 2 F.3d 999, 1015 & n. 16, 1016 (10th Cir.1993). Therefore, de novo review is appropriate.

Insanity is an affirmative defense to a federal charge. 18 U.S.C. Sec. 17. To establish an insanity defense, the defendant must prove "(1) that he was suffering from a severe mental disease or defect at the time [of] the charged offenses and (2) that his disease or defect rendered him unable to appreciate the nature and quality or the wrongfulness of his acts." United States v. Hiebert, 30 F.3d 1005, 1007 (8th Cir.1994) (to be reported at 30 F.3d 1005); 18 U.S.C. Sec. 17(a). Generally, "the evidence to support a theory of defense need not be overwhelming; a defendant is entitled to an instruction on a theory of defense even though the evidentiary basis for that theory is 'weak, inconsistent, or of doubtful credibility.' " Closs v. Leapley, 18 F.3d 574, 580 (8th Cir.1994) (quoting United States v. Casperson, 773 F.2d 216, 223 n. 12 (8th Cir.1985)). Under 18 U.S.C. Sec. 17(b), however, the defendant bears the burden of proof to establish the insanity defense "by clear and convincing evidence." See United States v. Byrd, 834 F.2d 145, 146 (8th Cir.1987) (quoting 18 U.S.C. Sec. 17(b)).

We believe that this statutorily imposed higher burden of proof calls for a correlating higher standard for...

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