Bradley v. United States

• Citation: 447 F.2d 264
• Decision Date: 31 August 1971
• Docket Number: No. 20037.,20037.
• Parties: George M. BRADLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

447 F.2d 264 (1971)

George M. BRADLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 20037.

United States Court of Appeals, Eighth Circuit.

August 31, 1971.

Thomas M. Dawson, Leavenworth, Kan., for appellant.

Claude H. Freeman, Asst. U. S. Atty., Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.

Before ALDRICH,^* LAY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

This case arises from an order of this court approving a stipulated delayed appeal. Bradley was convicted in March 1963 under 18 U.S.C.A. §§ 2113(a) and (d) for aggravated bank robbery and given concurrent sentences of 20 and 25 years, respectively. His attorney did not appeal the conviction. In the past Bradley has filed several 28 U.S.C.A. § 2255 motions, all of which have been denied by the district courts. Two of these denials were affirmed on appeal. Bradley v. United States, 347 F.2d 121 (8 Cir. 1965), and Bradley v. Ciccone, 409 F.2d 217 (8 Cir. 1969). On a third appeal from a denial of a § 2255 motion, a panel of this court entertained defendant's contention that he had not waived his right to appeal and that he had not been informed of his right to appeal by either the trial court or his counsel. Under the authority of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and Williams v. United States, 402 F.2d 548 (8 Cir. 1968), the government conceded that counsel should be appointed¹ and that the defendant be given a delayed appeal on the merits of his case. This court approved the procedures stipulated by order dated July 13, 1970. We ordered a new briefing schedule and assumed jurisdiction of the appeal on the merits. The present appeal is the culmination of this procedure. We affirm the judgment of conviction under § 2113(a); on the other hand, we find a threat to use a simulated bomb insufficient to sustain defendant's conviction for robbery and assault under § 2113(d).

Although defendant complains of many errors, his basic claims are: (1) that the government failed to prove beyond a reasonable doubt that the defendant was competent at the time of the commission of the offense; (2) that he was not afforded a proper arraignment in that he was arraigned and determined to be incompetent to stand trial in the same proceeding; (3) that he was denied due process in the district court's refusal to allow discovery of defendant's Veterans Administration hospital records, which were in the hands of the prosecution; (4) that the trial court erred in admitting into evidence testimony which related to his participation in another robbery occurring four months before in the State of Florida; (5) that there was error in the instruction on the burden of proof of insanity; and (6) that his conviction and sentence under § 2113(d) was improper. We discuss these contentions seriatum.

The robbery attempt took place on May 1, 1961, in Davenport, Iowa. The defendant approached an officer of a savings and loan company during business hours, handed him a note and demanded $60,000 or he would blow up the place with dynamite that he carried in a brown paper bag. The defendant also told the bank official that he had a gun. The official looked in the sack and observed what appeared to be a clock, wires and dynamite. He pulled the sack away from the defendant and threw it across the room and the defendant ran. Shortly thereafter the defendant was apprehended by a police officer within a block of the bank and taken to county jail. It was discovered that the sack contained only paper and other harmless items assembled so as to simulate a bomb.

On July 28, 1961, a two count indictment was returned. Court appointed counsel moved for a pretrial determination of defendant's competency. Examinations were begun by a psychiatrist at the Federal Medical Center in Springfield, Missouri, in September of 1961. The Medical Center's diagnosis was "Schizophrenic Reaction, Paranoid Type, chronic, severe." In December 1961 the trial court certified the defendant to be legally incompetent to stand trial and ordered him temporarily committed to the custody of the Attorney General. The defendant was returned to Springfield for treatment. In December 1962 the Medical Center certified the defendant competent to understand the nature of the charges against him and to properly assist his counsel in the preparation of a defense. The trial court determined defendant competent to proceed; trial was then had in March 1963.

Although the government must prove the defendant to be sane beyond a reasonable doubt, it may generally rely on the presumption of sanity to carry its legal burden unless evidence is adduced which refutes it. Once the defense produces evidence to rebut the presumption, the proof of sanity beyond a reasonable doubt is at equipoise and the government must come forth with additional evidence to sustain its burden. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). To analyze the government's burden in the proper perspective, we first view the defendant's evidence which rebutted the presumption of sanity.

Dr. Keith, then the Acting Chief of the Neuropsychiatric Service at Springfield, Missouri, was appointed by the court to make an independent medical examination of the defendant. Based on a three month study of the defendant, the examination of past records, and evaluation tests by psychological and psychiatric examinations, a five member psychiatric staff at Springfield jointly concluded that the defendant was suffering from a severe mental illness diagnosed as "schizophrenic reaction, paranoid type." Dr. Keith described this as a form of psychosis in which the defendant at times was separated from reality and suffering from delusions. The illness was "manifested by excessive brooding and paranoid ruminations — that is thinking, thoughts, preoccupation with thoughts of revenge against some object or person, feelings of hopelessness and despair and anxiety." Dr. Keith was called as an expert witness by the trial court. He examined the defendant again before testifying. He testified that the defendant was suffering from the same mental illness on May 1, 1961, the date of the offense, and that he was controlled and governed by subconscious factors which caused him to attempt the bank robbery. He opined that defendant had a "strong unconscious need to be caught and placed in an institution because he felt he was becoming psychotic." Also included in Dr. Keith's testimony was the report of a Veterans Administration examination of defendant in 1956. In that report three psychiatrists concluded that the correct diagnosis of Bradley at that time was "schizophrenic reaction, paranoid type, partial remission."

The defendant's mother testified she had last been with the defendant in late 1960 and that he appeared to her to be mentally ill at that time. She related that the defendant had been discharged from the service in 1944 with a 60 percent disability suffering from "shell shock," resulting in "anxiety neurosis." This disability was later reduced to 30 percent.

Defendant's evidence was clearly sufficient to overcome the presumption of sanity. The question before us is whether the government has adduced sufficient credible proof that it may be said that reasonable men may find that on May 1, 1961, the defendant was sane beyond a reasonable doubt. In determining the legal sufficiency of the government's proof as to guilt beyond a reasonable doubt, a court must view the government's evidence as to whether it excludes every other hypothesis of guilt. See United States v. Edwards, 443 F.2d 1286 (8 Cir. 1971); United States v. Jones, 418 F.2d 818, 826 (8 Cir. 1969), and cases cited therein.² When assessing whether the government has carried its burden of proof, it is well settled the evidence must always be reviewed in the light most favorable to the government. United States v. Edwards, supra. This does not mean, however, that the burden has been sustained where equivocal inferences may be drawn from the government's proof. Cf. Lerma v. United States, 387 F.2d 187 (8 Cir. 1968), cert. denied 391 U.S. 907, 88 S.Ct. 1658, 20 L.Ed.2d 421 (1968).

After a thorough review of the record, we are satisfied that the government has sustained its legal burden. The government's medical testimony came from Dr. Smith, a psychiatrist who had examined the defendant on three occasions over a two year period between 1956 and 1958. In 1956 Dr. Smith concluded that Bradley was without active psychosis. Although evidence before or after the time of the commission of the offense may be relevant in the overall consideration of the sanity issue, Dr. Smith's testimony does not rebut Dr. Keith's hypothesis that the defendant lacked control and volition on May 1, 1961. On cross-examination it was brought out that the Veterans Administration board referred to in Dr. Keith's testimony rejected Dr. Smith's 1956 evaluation. Both Drs. Smith and Keith verified that a person suffering from schizophrenic paranoia may move in and out of psychosis depending upon treatment and existing stress. If we were viewing the record solely in terms of the medical testimony as to defendant's sanity on May 1, 1961, we would have to conclude that the government's evidence does not supplant a reasonable doubt.

There is additional proof from lay witnesses to be considered, however. An F.B.I. agent testified that he visited the defendant on four different occasions between May 1 and May 12 while defendant was in the county jail. On the basis of his observations at these interviews he concluded that defendant was a sane person. An additional witness was the sheriff in Davenport. Defendant was in the county jail in Davenport from May until September, 1961. The sheriff testified that Bradley acted ordinary to him and did not appear to be suffering from any illness.

In Dusky v. United States, 295 F.2d 743 (8 Cir. 1961), cert. denied 368 U.S. 998, 82 S.Ct. 625, 7...