Bosel v. State

• Decision Date: 30 January 1965
• Docket Number: No. 32,32
• Parties: Gunter Johannas BOSEL, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 651

398 P.2d 651

Gunter Johannas BOSEL, Appellant, v. STATE of Alaska, Appellee.

No. 32.

Supreme Court of Alaska.

Jan. 30, 1965.

Lester W. Miller, of Kay & Miller, Anchorage, for appellant.

James N. Wanamaker, Dist. Atty., and Dorothy Awes Haaland, Asst Dist. Atty., Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

AREND, Justice.

In January of 1960, Gunter Bosel, defendant below, was tried by jury in the District Court for the Territory of Alaska ¹ on two charges of shooting with intent to kill and convicted. It was alleged in the two counts of the indictment that he had shot his two small children in the head with a .32 caliber automatic pistol on August 6, 1959. Immediately after the alleged shooting of his children, he shot himself in the head with the same pistol in an attempt at suicide. The scene of the shooting was alongside Sand Lake Road near Anchorage, where the defendant had taken the children in his car and parked. Judgment was pronounced by the court on January 20, 1960, sentencing the defendant to imprisonment for twenty years.

On August 7, 1963, the United States District Court for the District of Kansas granted a writ of habeas corpus to the defendant on the ground that as an indigent he had not been afforded an adequate appellate review of his conviction. ² Operation of the writ was suspended by the Kansas court pending the present review on appeal which we have granted in forma pauperis.

The defendant presents five questions for review, grounded upon a like number of specifications of error, the first question being whether the trial court erred in refusing to grant defendant's motion for the appointment of a psychiatrist to examine him as to his mental competence to stand trial.

The trial of the case had been set to commence on December 2, 1959, but a week before that date defendant's court-appointed counsel, Neil Mackay, filed a motion for a continuance to enable him 'to acquire additional medical information as to defendant's mental capacity, together with the fact of organic and inorganic problems which would be relative to the present competency of the defendant.' This was supplemented by another motion filed the day on which the trial was to have commenced, asking the court to order an examination as to the mental competency of the defendant pursuant to title 18 U.S.C.A. § 4244. ³

At this time we interpolate that after the defendant had been treated for his gunshot wound in Providence Hospital at Anchorage, he was admitted to the military hospital at the Air Force Base adjacent to Anchorage for definitive neurosurgical treatment and on August 14, 1959, transferred to the psychiatric service of the hospital for further evaluation. Here he was observed by Dr. Cheatham, a major in the Air Force and chief of the neuropsychiatric service of the hospital.

In his clinical report of August 21, 1959, the doctor stated that an encephalogram (x-ray of the brain) revealed no evidence of convulsive disorder in the defendant and that studies of certain psychometric and psychological examinations given him confirmed the existence of a severe character disorder but otherwise showed no evidence of any gross intellectual deterioration or of any severe mental disease. The doctor also reported that the defendant had been observed by the clinical staff to have occasional black-out spells but which did not conform with grand mal type of seizures--a pronounced form of epilepsy. The following is the doctor's diagnosis of the defendant made on August 21, 1959:

'Emotional instability reaction, chronic, severe; Manifested by--impulsive, aggressive and destructive acting out behavior, antisocial psychopathic personality traits, fluctuating emotional attitudes, environmental manipulation and pathological lying; Stress--unknown; Predisposition--severe, previous history of detailed psychiatric and neurological evaluations; ⁴ Impairment--moderate for social and vocational adaptation.'

In the 'Recommendation' portion of his report the doctor wrote:

'On the basis of the present period of study and evaluation, it is the opinion of the undersigned that this individual is essentially free of any severe mental disease, defect or derangement. He does suffer from a very severe character and behavior defect and would generally be classified as an individual possessing a severe psychopathic personality structure. * * * He is regarded as being entirely competent in a legal sense and responsible for his actions and behavior. With respect to the incidents which took place on 6 August 1959 and resulted in the injury of the patient's two children and himself, there is no evidence available to substantiate a claim that he was suffering from the effects of an epileptic seizure at that time or that he was at that time in any way deprived of his mental faculties to the extent that he was unable to distinguish right from wrong or adhere to the right. It is, however, to be anticipated that he will make many claims of being unable to recount the events of the date in question or any awareness of his actions and behavior on the above date in question and also that he will make a concerted effort to convince others that he is suffering from a severe mental or neurological condition.' [Emphasis supplied.]

In three affidavits in support of the motions for continuance and for an examination as to the mental competency of the defendant, Mr. Mackay stated that he had had numerous conferences with the defendant but had received from him no assistance in the preparation of a defense. Whether this was due to mental incompetency or the perpetration of a hoax on the part of the defendant, Mr. Mackay did not know. In these affidavits Mackay related that he had tried but without success, to get a local psychiatric evaluation of the defendant's condition other than the one given by Dr. Cheatham; and that he had, therefore, taken a trip to Seattle and there consulted with two psychiatrists, one of whom said that he would be available to examine the defendant as to both the organic and inorganic status of the disabilities of which he was complaining. In the last paragraph of the second affidavit, Mr. Mackay stated:

'The prime purpose of this affidavit and the motion for continuance is to establish whether the defendant is presently insane, but is primarily to ascertain if there is anything organically wrong with the defendant which would have made him insane at the time the alleged crimes were committed.'

The court eventually granted a two weeks' continuance in the trial of the case 'to permit defense counsel to consider certain aspects of defense'; but the motion for an examination as to present mental competency was denied. We hold that it was error to deny the motion.

The motion was made pursuant to 18 U.S.C.A. § 4244, which provides, in part, that if one of the parties to a criminal proceeding has reasonable cause to believe that a person charged with an offense against the United States may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, he shall file a motion for a judicial determination of the mental competency of the accused. When such a motion is filed, the court shall cause the accused to be examined as to his mental condition by at least one qualified psychiatrist who has the duty of reporting back to the court. If the report indicates present insanity or the requisite mental incompetency, the court then holds a hearing at which evidence as to the mental condition of the accused may be submitted. The court then makes its findings as to whether the accused is competent to stand trial.

The state points out that the federal statute does not apply in this case because it is made applicable only in the case of persons charged with the commission of offenses against the United States. The defendant here was charged with assault with intent to kill in violation of section 65-4-15, ACLA 1949, which constituted an offense against the Territory of Alaska, not against the United States; so the state is correct in its view. ⁵ However, it was also the rule at common law, as conceded by the state, that an accused should not be subjected to a criminal trial if he is in such a mental condition that he is unable to understand the proceedings against him or to properly assist in his own defense. ⁶ Since Alaska had no statute of its own similar to 18 U.S.C.A. § 4244 at the time the defendant Bosel was tried, ⁷ the common law rule prevailed by virtue of sections 2-1-2 and 65-1-3, ACLA 1949. ⁸

We have painstakingly searched the record in this case and found therein no indication that any examination or judicial determination was ever made of the defendant's mental competency to stand trial. It is quite evident that the trial judge felt that such an examination was called for under the facts and circumstances of the case, because he discussed the matter from the bench three times prior to trial. On November 30, 1959, he inquired of Mr. Mackay whether he had received the psychiatrist's report that the defendant was competent to stand trial, and on the following day, December 1, he remarked from the bench: 'The only thing that concerns the Court at this time is whether or not he [the defendant] is able to aid and assist in his own defense.'

On December 2, after Mr. Mackay had served and filed in open court his motion for an examination of the defendant as to present competency, the following discussion ensued:

'THE COURT: Mr. Anderson, what is the background as to this defendant?

Has he been examined by a psychiatrist?

'MR. ANDERSON [the prosecutor]: Yes, he has been examined by Dr. Cheatham.

'THE COURT: Was there a report filed in this case?

* * *

* * *

'MR. ANDERSON: Not to my knowledge, your Honor.

'THE COURT: Do you intend to call Dr. Cheatham?

'MR. ANDERSON: I will if it is necessary.

'THE...