812 F.2d 328 (7th Cir. 1987), 85-2458, United States v. Hillsberg

Docket Nº:85-2458.
Citation:812 F.2d 328
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Earl HILLSBERG, Defendant-Appellant.
Case Date:February 17, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 328

812 F.2d 328 (7th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


Earl HILLSBERG, Defendant-Appellant.

No. 85-2458.

United States Court of Appeals, Seventh Circuit

February 17, 1987

Argued Jan. 24, 1986.

Certiorari Denied May 4, 1987.

See 107 S.Ct. 1981.

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[Copyrighted Material Omitted]

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Richard L. Zaffiro, West Allis, Wis., for defendant-appellant.

R. Jeffrey Wagner, Asst. U.S. Atty., U.S. Atty., Joseph P. Stadtmueller, U.S. Atty's Office, Milwaukee, Wis., for plaintiff-appellee.

Before POSNER and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

After a jury trial, Earl Hillsberg was convicted of second degree murder and sentenced to life imprisonment. Because Hillsberg is a member of the Menominee Indian tribe and the killing occurred on the Menominee Indian Reservation in Wisconsin, he was prosecuted under 18 U.S.C. Secs. 1153 and 1111. Hillsberg appeals. We have jurisdiction of the appeal under 28 U.S.C. Sec. 1291. We will affirm.


On April 27, 1985, Earl Hillsberg spent the afternoon drinking with a number of companions at various bars. They adjourned to the home of one of the party, Charla Lyons, at about five in the afternoon. At about seven, Hillsberg left in the company of several others. On the way to the next tavern, the driver pulled over to the side of the road to afford the passengers a chance to relieve themselves. Standing outside the car, Hillsberg drew a .22 caliber semi-automatic pistol from his waistband and fired it twice in the air. The driver of the car took the pistol, unloaded it, and returned the pistol and ammunition to Hillsberg. Hillsberg placed the gun and ammunition in separate pockets.

The group then continued to a saloon, the Morning Side. They became embroiled in a brawl with members of the Stockridge tribe. They retreated to the car, where Hillsberg fired twice in the direction of their pursuers. They next returned to a party at the Lyons home, arriving around midnight.

Hillsberg entered the den of the house, where Marvin Pamonicutt was located with several others. Hillsberg asked for some of Pamonicutt's bottle of malt liquor. Pamonicutt demurred at first, then complied. The two began "acting tough," puffing out their chests. Pamonicutt removed his coat. There were no threats or blows exchanged. There was no pushing, jostling, or argument. Abruptly, Hillsberg said, "Don't fuck with me." He removed the gun from his waistband and pointed it at Pamonicutt's face, at the range of less than a foot.

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The weapon discharged, fatally wounding Pamonicutt.

Hillsberg's memory of the night in question was limited. He testified that beginning with the drive to the Morning Side he felt "like I was just out of my body.... I was real drunk and I was just like on--I don't know. I was just functioning." He did not recall firing the pistol during the impromptu rest stop or at the tavern. He testified that at the Lyons home Pamonicutt made him angry, but he did not know why. He testified that he did not intend to shoot Pamonicutt, that he took the gun out only to scare him. He testified further that the feeling of being out of his body, of being a spectator to his own actions, disappeared after the shooting.

Before trial, Hillsberg filed notice pursuant to Rule 12.2 of the Federal Rules of Criminal Procedure that he would present a defense of insanity. The psychiatrist that subsequently examined him, however, found that he did not suffer from a mental disease or defect. Hillsberg abandoned the insanity defense and the jury was not instructed on the defense at trial. Hillsberg's principal defense at trial was that he did not intend to kill Pamonicutt.

Hillsberg was convicted of second degree murder and sentenced to life imprisonment. On appeal, he attacks his conviction and sentence.

II. Exclusion of Question to Psychiatric Expert

Hillsberg avers that the psychiatrist testifying as an expert for the defense should have been permitted to give his opinion as to whether, at the time of the shooting, Hillsberg had the capacity to conform his actions to the requirements of the law. The trial court sustained the government's objection to the question on the basis of Federal Rule of Evidence 704(b). We affirm the ruling.

Dr. William Crowley, Director of Forensic Services at Milwaukee County Medical Health Complex, testified for the defense. He had considerable experience in performing psychiatric examinations of defendants and testifying as to his findings. Dr. Crowley had twice examined Hillsberg. He testified that Hillsberg was suffering from no mental disease or defect, but did have a "substance abuse disorder with the primary substance of abusing alcohol" and a "schizotypical personality disorder."

After Dr. Crowley testified to the above, Hillsberg's counsel constructed a lengthy hypothetical question, relating to whether Hillsberg had the capacity to form the requisite intent at the time of the killing. He asked Dr. Crowley to assume the circumstances leading to the confrontation and Hillsberg's intoxication. Dr. Crowley was asked his opinion as to whether, under those circumstances, Hillsberg would have had the capacity to conform his conduct to the requirements of the law. The trial court sustained the government's objection that the witness was improperly asked to give his opinion on an ultimate question of mental state under Fed.R.Evid. 704(b):

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

We agree that, under the circumstances of this case, the question called for the witness to say whether Hillsberg had the capacity at the time of the incident to form the specific intent required for a conviction of second degree murder. The trial court correctly instructed the jury that the intent required as an element of second degree murder is the intent willfully to take the life of a human being or the intent to act in callous disregard of the consequences to human life.

Whether the defendant had "the capacity to conform his actions to the requirements of the law" was formerly...

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