Apgar v. United States

• Decision Date: 12 April 1971
• Docket Number: No. 20287.,20287.
• Citation: 440 F.2d 733
• Parties: Richard Curtis APGAR, also Known as James Edwin Hallidy, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

440 F.2d 733 (1971)

Richard Curtis APGAR, also Known as James Edwin Hallidy, Appellant, v. UNITED STATES of America, Appellee.

No. 20287.

United States Court of Appeals, Eighth Circuit.

April 12, 1971.

Joseph P. Stevens, Minot, N. D., for appellant.

Gary Annear, Asst. U.S. Atty., Harold O. Bullis, U.S. Atty., Fargo, N.D., for appellee.

Before VAN OOSTERHOUT and HEANEY, Circuit Judges, and HANSON, District Judge.

HANSON, District Judge.

This is an appeal in forma pauperis from a judgment and sentence based upon a jury verdict finding Richard Curtis Apgar guilty under an information charging him and two co-defendants with armed robbery of a federally insured bank in Velva, North Dakota, in violation of 18 U.S.C., Sections 2113(a) and (d).¹ Apgar's motion for acquittal made at the close of all the evidence was denied by the District Court.² The only issue which we consider on appeal is whether the Government sustained its burden to introduce sufficient evidence on the question of Apgar's sanity to preclude a judgment of acquittal. In addition to this issue raised by defendant's counsel, Apgar (hereafter referred to as defendant) has filed pro se a "Supplemental Brief" raising six additional "Points" which he urges upon us as grounds for reversal. We affirm the conviction.

Apgar and his co-defendants were arrested within two hours of the commission of the crime on the morning of October 11, 1969. At his arraignment on November 4, 1969, Apgar's court-appointed counsel requested that the defendant be examined by a local psychiatrist to determine his competency to stand trial. Pursuant to the District Court's order, the defendant was examined in Grand Forks, North Dakota on November 11, 1969. The District Court subsequently held a hearing pursuant to 18 U.S.C., Section 4244, determined the defendant incompetent to stand trial, and committed him to the custody of the Attorney General pursuant to 18 U.S.C., Section 4246. Defendant was admitted to the Medical Center for Federal Prisoners at Springfield, Missouri, on or about November 19, 1969, and discharged after 75 days on February 2, 1970. A further hearing to determine his competency to stand trial was held in Minot, North Dakota on March 31, 1970, at which time the District Court adjudged Apgar competent to stand trial. The trial commenced on April 14, 1970, and required four days.

I.

At the trial, Apgar admitted his participation in the robbery. His sole defense was his alleged insanity on the day of the crime, and the defense was properly raised. Therefore, the Government was under the necessity of establishing to the satisfaction of the jury beyond a reasonable doubt that defendant's participation was not a result of his insanity. Mason v. United States, 402 F.2d 732, 736-737 (8 Cir. 1968); Dusky v. United States, 295 F.2d 743, 754 (8 Cir. 1961); Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L. Ed. 499 (1895). At the close of all the evidence, the defendant moved for a directed verdict of acquittal which was denied, and the question of sanity was submitted to the jury under instructions which are not challenged here by counsel.³ Thus, when the defense asserts that the court erred in denying its motion for acquittal, its position necessarily is that the evidence was such that reasonable men must agree that there was reasonable doubt as to Apgar's sanity on October 11, 1969. This Court has entertained a similar question on several occasions. Mason v. United States, supra; Kaufman v. United States, 350 F. 2d 408 (8 Cir. 1965); Dusky v. United States, 271 F.2d 385 (8 Cir. 1959), rev'd on other grounds, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Dusky v. United States, 295 F.2d 743 (8 Cir. 1961), cert. denied, 368 U.S. 998, 82 S. Ct. 625, 7 L.Ed.2d 536.

The defendant testified in his own behalf. Without detailed elaboration of his lengthy narrative, we feel compelled to say that Richard Apgar's life, particularly since the age of thirteen, demonstrates the tragically inadequate response of our institutions — mental, penal and judicial — to an individual whose acts, time and again, constituted a plea for assistance to overcome severe personal inadequacies. His first serious encounter with the law occurred at the age of fifteen when he was sentenced to thirty days on a chain gang. At seventeen, he enlisted in the United States Marine Corps, during which service he was absent without leave, apparently attempted suicide, and had his first contact with psychiatric evaluation. After discharge from the service, a marriage and employment ended in failure, and Apgar began cashing forged checks in Ohio during 1962. During the ensuing seven years, defendant appears to have been gainfully employed a total of some nine months, of which six were in conjunction with out-patient treatment at a psychiatric clinic. He was committed to mental institutions in New Jersey and Florida for some twenty-three months where he engaged in several escapes and attempted escapes; he was incarcerated in reformatories for a total of two years and some additional time in local jails awaiting proceedings — during much of which he was confined to maximum security facilities. It is of some interest to note that during defendant's final hospitalization in Florida, he was prescribed medication which continued successfully through six months of out-patient treatment until he was extradited to New Jersey, at which time the medication was discontinued and never resumed. During the remaining time totalling some two and one-half years, Apgar was unable to manage his life within the law and appears to admit to the commission of hundreds of larcenies, burglaries, check forgeries and breaking and entering. These activities culminated in the robbery of the bank at Velva, North Dakota on October 11, 1969. The defendant was then twenty-eight years of age. Following his arrest and incarceration, Apgar attempted to burn the jail in Minot, North Dakota, where he was awaiting proceedings. He was then transferred to Grand Forks where he was examined by a psychiatrist, Dr. B. E. McLaughlin, on November 11, and subsequently committed to Springfield.

On cross-examination, defendant conceded that on occasion he had considered his occupation to be that of a professional thief, that he had not been employed since November 1968, and that he had lived in Minot for approximately one month prior to the Velva bank robbery. Apgar stated that he and David Poole, another co-defendant, had discussed robbing the bank about one week in advance of actual commission of the crime. On October 10, Apgar and Poole drove to Velva to look over the bank and that same night Apgar drove the road between Velva and Minot several times to "test" it. The defendant further testified that upon making the decision to rob the bank he felt no emotion nor excitement, that he was not nervous during the actual commission of the robbery, and that he had no difficulty remembering the events that occurred in the bank that morning or what happened after he left the bank.

Dr. Alfred Sand, Clinic Director for the North Central Mental Health and Retardation Center at Minot, testified in behalf of defendant. Dr. Sand had conducted a psychiatric evaluation of defendant during the trial. Prior to this examination, he had spent some three hours studying psychiatric reports on Apgar received from the Greystone Hospital in New Jersey; from the University of Florida; from Dr. Grismere at Sand Point, Idaho; from Dr. McLaughlin at Grand Forks, and from the Federal Hospital at Springfield, Missouri. Dr. Sand gave three concurrent diagnoses of defendant: the first two were sociopathic disorders classed respectively as schizoid personality and antisocial personality with the latter being the "main diagnosis."⁴ The witness stated that a person would not be considered to be psychotic as a sociopath, and consequently not insane under present legal standards.

Dr. Sand's third diagnosis was that of "schizophrenia, paranoid type" in remission at the time of examination. According to defendant's medical records he had previously been determined to be schizophrenic in 1962, meaning that the schizophrenia had developed into psychotic breaks or episodes which would constitute insanity. But Dr. Sand was unable to form any conclusion as to whether defendant was psychotic on October 11, 1969, when the robbery was committed.

Defendant's final witness was one of the arresting officers who testified that at the time of defendant's arrest, Apgar appeared to be talking to...