Kane v. United States

• Decision Date: 20 January 1969
• Docket Number: No. 22168.,22168.
• Parties: Coe KANE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

399 F.2d 730 (1968)

Coe KANE, Appellant, v. UNITED STATES of America, Appellee.

No. 22168.

United States Court of Appeals Ninth Circuit.

August 19, 1968.

Certiorari Denied January 20, 1969.

COPYRIGHT MATERIAL OMITTED

Robert J. Hirsh (argued), Tucson, Ariz., for appellant.

Jo Ann D. Diamos (argued), Asst. U. S. Atty., Edward E. Davis, U. S. Atty., Tucson, Ariz., for appellee.

Before HAMLEY and DUNIWAY, Circuit Judges, and TAYLOR,^* District Judge.

Certiorari Denied January 20, 1969. See 89 S.Ct. 698.

HAMLEY, Circuit Judge:

On November 26, 1966, Coe Kane, an enrolled member of the White Mountain Apache Tribe of Indians, shot and killed his wife, an enrolled member of the Hualapai Tribe of Indians, at their residence within the Fort Apache Indian Reservation at Canyon Day, Arizona. He was indicted and tried before a jury in the United States District Court for the District of Arizona on a charge of murder committed by an Indian within Indian country (18 U.S.C. §§ 1111, 1151 and 1153 (1964)).¹

The jury found Kane guilty of the included crime of voluntary manslaughter. See 18 U.S.C. § 1112(a) (1964). He was sentenced to imprisonment for ten years with the provision that he may be eligible for parole at the discretion of the board of parole pursuant to 18 U.S.C. § 4208(a) (2) (1964). Kane then took this appeal.

Kane's principal defenses at the trial were insanity arising from a chronic undifferentiated schizophrenic disorder, and temporary insanity by reason of pathological intoxication.² At the close of the trial counsel for Kane, proceeding under Rule 29, Federal Rules of Criminal Procedure, moved for judgment of acquittal. He did so on the ground that, under the evidence, Kane established the defense of insanity as a matter of law. Kane here argues that the trial court erred in denying this motion.

Except for minor discrepancies, the relevant evidence is undisputed. Kane had suffered three head injuries prior to the shooting on November 26, 1966. In 1954 he sustained a skull fracture and was unconscious for a couple of months. In 1960 he was hospitalized with a head injury. In May or June of 1966 Kane was knocked temporarily unconscious in a collision with a steer.

Following his 1960 injury, Kane began to experience an unusual reaction to alcohol. He testified that, following this injury he would lose consciousness after six or seven beers. After the most recent injury in 1966, however, the blackout periods became more frequent. Apparently this was caused by a further decreased tolerance to alcohol. Kane made it clear in his testimony that he was aware that consumption of alcohol was causing the loss of consciousness.

In the early afternoon of the day the shooting occurred, Kane had shared three half-gallon pitchers of beer with an old friend, Eddy Edwards, at Pinky's Tavern, near Globe, Arizona. Kane testified that when he began drinking he had no intention of injuring anyone. He also testified that midway through the second pitcher he blacked out and does not remember anything until later in the afternoon when he found himself walking to a house with two strangers to obtain oil for his car.

The two strangers were Louis and Jimmy Luttrell, hitchhikers Kane had picked up about 4:00 or 5:00 p. m. on that day while Kane was driving to his house at Canyon Day. The Luttrells testified that during the three and one-half hour journey Kane drove quite fast and sometimes went over the double line. During this drive the oil gauge warning light on the vehicle went on. Kane stopped the car and the three of them walked a mile or two to where Kane obtained oil from a friend, after which they returned to the car and resumed the drive.

At a point about a twenty-five minute drive from Kane's home, he stopped again at a service station for more oil. At this station Kane purchased a six-pack of beer stubbies and drank two of these during the remainder of the drive to his home. The Luttrells each drank one stubby. Kane told the Luttrells that they could sleep in his car that night at his home and the next morning he would take them to a place where they could catch another ride on their way to U. S. Highway 66.

Kane's wife, Ethel, was apparently afraid to have the hitchhikers around the home. After she and her husband invited them inside, Ethel picked up the Kanes' baby and went into the bedroom. Kane went into the bedroom with her and came out with a gun.³

Ethel came out of the bedroom, picked up the two remaining stubbies of beer and started out the front door. Up to this time Kane did not appear to be angry and had not raised his voice. However, when Ethel started out the door with the beer, Kane did raise his voice, and said, "Where are you going?" She replied, "I'll be back." He said, "Where are you going with my beer? Come back or I'll shoot you."

She turned around, walked towards him and said, "You wouldn't." Kane picked up a heavy rifle but threw it back down. Then he picked up another rifle, levered and aimed it, and shot his wife in the side of the head.

Kane testifed that after finding himself walking up a road with the two hitchhikers, to obtain oil, he was conscious for only a brief period before again blacking out after drinking the stubbies of beer in his car. According to Kane, he did not recover from this second blackout until he arrived home. He testified that he remembers his wife was concerned about the hitchhikers. He stated that he remembers going into the bedroom with her and then coming out with a gun. The next thing he remembers, Kane testified, is that his wife was lying dead on the floor. He stated that he remembers sending his daughter for help, but does not remember anything after that until sometime after his arrest.

A few minutes after Kane shot his wife, three neighbors came to the house to investigate the shooting. They found Ethel bleeding on the floor with Kane crying over her.⁴ One of these men testified that he did not smell alcohol on Kane's breath, nor did he believe that Kane's eyes appeared glassy. However, another stated that he thought that Kane looked like he was in a state of shock. This witness testified that after Kane was placed in a police car he said, "What am I doing here?" A third witness testified, under cross-examination by the Government, that Kane was incoherent shortly after the police and neighbors arrived at the Kane residence.

Four qualified psychiatrists testified at the trial. Two of them, Dr. Hubert Estes and Dr. Marshall Jones, had been appointed by the trial court to examine Kane. The other two, Dr. Robert Cutts and Dr. Willard Shankel, were produced by Kane.

Dr. Shankel was the only expert to express the opinion that, at the time of the shooting (and at the time of the trial), Kane was suffering from a chronic and undifferentiated schizophrenic disorder.⁵ He expressed the view that Kane was "psychotic," meaning "insane," at the time he shot his wife.

Dr. Shankel's opinion as to Kane's mental condition at the time of the shooting was not, however, disassociated from the factor of intoxication. He testified that Kane suffered hallucinations and delusions even when he was not drinking and in July of 1966 underwent an attack of delirium tremens as a result of excessive drinking. In addition, Dr. Shankel described Kane's condition when he shot his wife as a "dissociative episode," brought on by the stress of the moment plus the drinking.⁶

Dr. Shankel further testified that, in his opinion, Kane was, at the time in question, by reason of mental illness, unable to understand the nature of his acts and unable to distinguish right from wrong and to adhere to the right.

Dr. Shankel's testimony was sufficient to give application to the principle that where an accused produces substantial evidence tending to support the defense of insanity, the burden is then upon the Government to prove to the satisfaction of the jury beyond a reasonable doubt that he was sane at the time the act was committed. See Davis v. United States, 165 U.S. 373, 378, 17 S. St. 360, 41 L.Ed. 750; Buatte v. United States, 9 Cir., 330 F.2d 342, 344-345; Buatte v. United States, 9 Cir., 350 F.2d 389, 391. The trial court so instructed the jury.⁷

The testimony of the other three psychiatrists does not support Dr. Shankel's opinion as to the nature of Kane's mental illness but, in fact, rebuts it. They each expressed the view that Kane had a mental disease known as "pathological intoxication." They described pathological reaction to alcohol as a latent mental condition caused by head injuries or brain damage. This condition lowers the tolerance level to alcohol so that not only does intoxication occur more readily but the results of intoxication are far more drastic than would normally be the case. Among such drastic reactions which may result from consumption of a relatively small amount of alcohol are confusion, amnesia, loss of perception to reality, and violent conduct.⁸

Doctors Cutts, Estes and Jones each expressed the view that at the time of the shooting Kane was essentially unaware of what he was doing, did not know the nature and quality of his action, and was in an uncontrolled state. But none of them associated this opinion in any way with any mental disorder other than pathological intoxication.

The purport of their testimony was that Kane was sane only when he was sober. Dr. Cutts described him as "sane but vulnerable." Dr. Jones testified that he did not believe hallucinating was part of Kane's reaction to alcohol. Doctors Cutts and Estes did not mention any hallucinating by Kane and Dr. Estes testified that, in his opinion, Kane was not a paranoid schizophrenic.

In view of the testimony of Doctors Cutts, Estes and Jones, summarized above, we are convinced that, insofar as a schizophrenic disorder is concerned, the jury was entitled to find, beyond a reasonable doubt, that Kane was sane and therefore criminally responsible for shooting his wife.

Kane proceeded...