Dusky v. United States

• Decision Date: 03 November 1961
• Docket Number: No. 16607.,16607.
• Citation: 295 F.2d 743
• Parties: Milton R. DUSKY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

295 F.2d 743 (1961)

Milton R. DUSKY, Appellant, v. UNITED STATES of America, Appellee.

No. 16607.

United States Court of Appeals Eighth Circuit.

November 3, 1961.

James W. Benjamin, Kansas City, Mo., on brief, for appellant.

Edward L. Scheufler, U. S. Atty., and J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., on brief, for appellee.

Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.

BLACKMUN, Circuit Judge.

This in forma pauperis criminal case, before us for the second time after the defendant's conviction upon a plea of not guilty and a defense of insanity, now poses a precise but narrow and naked issue: With "some proof" bearing on insanity of the defendant having been introduced, Davis v. United States, 1895, 160 U.S. 469, 488, 16 S.Ct. 353, 40 L.Ed. 499, was the evidence as a whole sufficient to justify the jury's conclusion, as a necessary factor in the conviction, that the defendant was legally sane at the time of the offense, or, in alternate words, did the government sustain its burden on the sanity issue?

Because of the case's nature, because of the apparent sensitiveness in these days of the issue involved, and because the case already has once been in the Supreme Court of the United States, we review its history and its facts in detail:

The history of the case. The defendant, Milton Richard Dusky, then 33 years of age, was charged by an indictment filed September 10, 1958, with having unlawfully transported and caused to be transported, in interstate commerce from Johnson County, Kansas, to Ruskin Heights, Missouri, on or about August 19, 1958, a certain girl who had been unlawfully kidnapped and carried away and not liberated unharmed, all in violation of 18 U.S.C. § 1201. When the defendant was unable to employ counsel, the district court appointed Mr. James W. Benjamin of the Bar of Kansas City, Missouri, to represent him.¹

At arraignment a plea of not guilty was entered. Upon the defense's suggestion that there might be some question as to the defendant's competency to stand trial, the district court, on its own motion and pursuant to 18 U.S.C. § 4244, committed the defendant to the United States Medical Center for Federal Prisoners at Springfield, Missouri, for examination. The ensuing psychiatric reports indicated mental illness with a diagnosis of schizophrenia. As a result the court (The Honorable R. Jasper Smith) held the hearing required by § 4244. The evidence presented at that hearing is set forth in detail by Judge Sanborn in this court's first opinion in this case. Dusky v. United States, 8 Cir., 1959, 271 F.2d 385, 387-389. Judge Smith concluded that the defendant then had sufficient mental competency to stand trial.

The first trial took place in March 1959. The principal defense was insanity.² The evidence at that trial, including the defendant's own testimony, is also reviewed at length in this court's first opinion, pages 390-394 of 271 F.2d. The trial resulted in a judgment of conviction and a 45 year sentence.

On the defendant's first in forma pauperis appeal here error was asserted, among other things, as to the trial court's finding that the defendant was competent to stand trial, as to its submission to the jury, over the motion for judgment of acquittal, of the issue of insanity at the time of the alleged crime, and as to the court's instructions on that issue. This court held (1) that under 18 U.S. C. § 4244, the duty and responsibility of determining competency to stand trial is that of the trial court; (2) that the court's "determination in that regard cannot be set aside on review unless clearly arbitrary or unwarranted"; (3) that the question of such competency is one of fact for the court; (4) that expert opinion rises no higher than the reasons upon which it is based and is not binding upon the trier of fact; (5) that the court did not err in requiring the defendant to go to trial despite the then contrary opinion of the psychiatric staff of the Medical Center; (6) that "the evidence unquestionably was sufficient to place the burden of proving the defendant's sanity upon the Government"; (7) that under the evidence the sanity defense issue was one of fact for the jury; (8) that the court did not err in refusing to grant the motion for judgment of acquittal; (9) that the court did not err in refusing to instruct the jury on the basis of the test of insanity enunciated by the Court of Appeals of the District of Columbia in Durham v. United States, 1954, 94 U.S. App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430; (10) that instructions embracing the "right and wrong" test of insanity which issued from M'Naghten's Case, 1843, 10 Cl. & Fin. 200, 8 Eng.Rep. 718, were not improper, and (11) that "it was for the jury to decide whether, under the evidence, there was a reasonable doubt as to the defendant's sanity at the time the offense was committed". The conviction was therefore affirmed. The panel of this court sitting on that appeal (including none of us constituting the present panel) concluded its opinion with the following observation, pages 401-402 of 271 F.2d:

"The questions raised are not entirely free from doubt. Our views as to the test of insanity and as to when a defendant who asserts that defense is entitled to a directed verdict do not conform with the more recent views of the Court of Appeals of the District of Columbia Circuit. It would, no doubt, be helpful if the Supreme Court would grant certiorari in this or some similar case and clarify the law relating to the test of insanity, the quantum of evidence required to meet the burden of proof of sanity, and other aspects of the problem."

An ensuing petition for certiorari was indeed filed. The then Solicitor General, however, represented to the Supreme Court that "the record in this case does not sufficiently support the findings of competency to stand trial" and that the trial court, in order to support those findings under § 4244, "would need more information than this record presents." The Supreme Court agreed with these and other suggestions of the Solicitor General, granted the petition, reversed our judgment and remanded the case to the district court "for a new hearing to ascertain petitioner's present competency to stand trial, and for a new trial if petitioner is found competent". Dusky v. United States, 1960, 362 U.S. 402, 403, 80 S.Ct. 788, 4 L.Ed.2d 824.

The present appeal is the culmination of that reversal and remand. The required new hearing to ascertain the defendant's competency to stand trial was held October 3, 1960, this time before the Honorable Albert A. Ridge, then Chief Judge of the United States District Court for the Western District of Missouri. Dr. John Kendall Dickinson, a staff psychiatrist at the Springfield Medical Center, whose testimony at the subsequent trial is hereinafter described, and Dr. Joseph C. Sturgell, chief of the psychiatric staff there, both testified at that hearing. Their testimony and the June 1960 written report of the Center's staff were to the effect, specifically, that the defendant was then oriented as to time, place and person; that he had some recollection of the events surrounding the offense with which he was charged; that he had present ability to consult with his lawyer with a reasonable degree of rational understanding; that he had a rational as well as a factual understanding of the proceedings in court against him; and that, generally, he was competent to stand trial. Defense counsel expressed his confidence in the psychiatrists and acknowledged to the court that he was not then experiencing the difficulty in consulting and working with his client which he had encountered at the time of the first trial. It will be noted that the evidence produced at this hearing was along the exact lines of the test set forth by the Supreme Court at page 402 of 362 U.S., 80 S.Ct. 788, 4 L.Ed. 824. Judge Ridge accordingly found that the defendant was competent to stand trial.

Re-arraignment followed immediately, a plea of not guilty was again entered, and the new trial took place on October 4 and 5, 1960. The court's instructions to the jury embraced the right and wrong test of M'Naghten and the added requirement that the defendant "knowingly, wilfully and feloniously intended so to do and so act in the premises at the time in question". The defendant was again found guilty. This time the sentence imposed was for 20 years with the provision, pursuant to 18 U.S.C. § 4208(a) (1), that the defendant shall become eligible for parole upon the expiration of 5 years.

In contradistinction to the first appeal, the defense now makes no complaint of the trial court's conclusion that the defendant was competent to stand trial. Thus the issue upon which the Supreme Court's reversal was based is not now before us. We are concerned only with the other original major issue, namely, that of the defendant's sanity at the time of the alleged offense. This is the issue which the Supreme Court did not reach when it first took this case and which was the subject of this court's concluding observation, quoted above, in the first opinion.

The facts. While the parties generally characterize the evidence presented at the two trials as the same, there were some differences. The defendant did not take the stand at the second trial. A statement signed by the defendant under circumstances which allegedly raised the issue of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, was not presented this time by the government. And on the second trial Dr. Dickinson, called by the defense, was the only physician who testified. Because the trial, of course, was a new one and because the nature and extent of the evidence constitutes the primary issue now before us, we shall not refer to the evidence outlined in the first opinion but shall, instead, describe and be concerned with only what came forth at the second trial.

There continues to...