U.S. v. Kimes

• Decision Date: 06 December 2000
• Docket Number: PLAINTIFF-APPELLEE,No. 00-5144,DEFENDANT-APPELLANT,00-5144
• Parties: (6th Cir. 2001) UNITED STATES OF AMERICA,, v. JAMES A. KIMES, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 800

246 F.3d 800 (6th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JAMES A. KIMES, DEFENDANT-APPELLANT.

No. 00-5144

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 6, 2000

Decided and Filed: April 13, 2001

Appeal from the United States District Court for the Eastern District of Tennessee at Greeneville. No. 99-00029--Thomas G. Hull, District Judge.

Argued: Nikki C. Pierce, Federal Defender Services OF Eastern Tennessee, Greeneville, TN, for Appellant.

Sarah R. Shults (argued and briefed), Assistant United States Attorney, Greeneville, TN, for Appellee.

Nikki C. Pierce, Federal Community Defender, Federal Defender Services of Eastern Tennessee, Greeneville, TN, for Appellant.

Before: Merritt, Nelson, and Batchelder, Circuit Judges.

NELSON, J., delivered the opinion of the court, in which BATCHELDER, J., joined. MERRITT, J. (pp. 810-11), delivered a separate dissenting opinion.

OPINION

David A. Nelson, Circuit Judge.

This is an appeal from criminal convictions for an assault on officers of the Department of Veterans Affairs (a violation of 18 U.S.C. § 111(a)(1)) and possession on V.A. property of a knife with a blade length exceeding three inches. (Such possession violates a rule set forth in 38 C.F.R. § 1.218(b)(39), and violation of that rule is a crime under 38 U.S.C. § 901(c).)

The defendant presents four assignments of error: (1) that the district court erred in failing to suppress evidence consisting of two knives found in the defendant's vehicle; (2) that the district court abused its discretion in excluding proffered expert testimony concerning the defendant's mental condition; (3) that the evidence presented at trial was insufficient to sustain a conviction; and (4) that the district court abused its discretion in denying requests for a special verdict form and a jury instruction on unanimity.

Perhaps the most significant issue is the second, which turns on the question whether assaulting a federal officer is a "general intent crime" or a "specific intent crime." This has heretofore been an open question in our circuit.

Joining the majority of circuits that have expressed an opinion on the matter, we conclude, as did the district court, that assault on a federal officer is a general intent crime. Diminished mental capacity is not a defense to such a crime, so the district court did not err in declining to receive evidence of the defendant's allegedly diminished capacity. Accordingly, and because we find none of the defendant's remaining assignments of error persuasive, we shall affirm the convictions.

I.

The defendant, James Kimes, is a veteran of the war in Vietnam. In July of 1998, after experiencing symptoms of depression and post-traumatic stress disorder, he sought treatment at the V.A. Medical Center at Mountain Home, Tennessee.

A psychology intern at the Medical Center, a woman named Christine Gerety, conducted counseling sessions with Mr. Kimes on a weekly basis. At a session held on March 25, 1999, Mr. Kimes acknowledged thoughts of suicide. Ms. Gerety concluded that he did not pose an immediate danger to himself or others, so rather than having him admitted to the hospital she proposed a "verbal safety contract." Mr. Kimes accepted, promising that if he were about to hurt himself or others he would immediately call Ms. Gerety or come to the V.A. Medical Center emergency room.

Following the March 25 session Mr. Kimes apparently moved out of his home and began living in his truck. At approximately noon on March 28, 1999, two V.A. police officers, Craig Dougherty and Pamela Ensor, observed the defendant's truck, with a blanket over the windshield, parked in a back corner of the Medical Center parking lot. Seeing movement inside the truck, Officer Dougherty knocked on the window, asked Mr. Kimes what he was doing, and offered assistance.

Mr. Kimes got out of the truck and slammed the door. He then began yelling at the officers, screaming that he had done nothing wrong and that he wanted to go to the emergency room.

Officer Dougherty approached the defendant and placed an open hand on his shoulder in an attempt to calm him. An altercation ensued, and both Mr. Kimes and the two officers fell to the ground. During the struggle Mr. Kimes attempted to remove Officer Dougherty's gun from its holster. Mr. Kimes was then handcuffed and taken to the V.A. police station.

There Mr. Kimes was questioned by V.A. Officer Ken Warren. In the course of the questioning Mr. Kimes mentioned that he had some tools in his truck and wanted the vehicle to be secured. Officer Warren was given the keys to the truck so that this could be done.

Officer Warren turned the keys over to Officer Ensor and told her to return to the hospital and conduct a search of the truck. She did so. The search disclosed a bayonet on the floorboard and a filet knife on a seat cushion. Both implements had blades over three inches long. Officer Ensor removed the knives from the truck before the vehicle was impounded and towed away.

Mr. Kimes was indicted a month later, and the case ultimately went to trial. As part of his defense Mr. Kimes sought to introduce medical evidence regarding his treatment for depression and post-traumatic stress disorder. Mr. Kimes' medical experts were prepared to testify that when Officer Dougherty touched him, Mr. Kimes could have experienced a "hyper-startled reaction" that robbed him of the ability to control his actions. The defendant's theory was that this prevented him from forming the necessary mens rea to violate 18 U.S.C. § 111(a)(1).

The district court ruled the proffered testimony inadmissible on two grounds. First, answering a question left open by this court in United States v. Farrow, 198 F.3d 179 (6th Cir. 1999), the district court held that an assault on a federal officer in violation of § 111 is a general intent crime as to which diminished capacity is not a defense.¹ In the alternative, the district court held the proffered testimony inadmissible under Rule 704(b), Fed. R. Evid., insofar as the witnesses proposed to express an opinion that the defendant lacked the requisite mens rea.

Deprived of his diminished capacity defense, Mr. Kimes fell back on a claim of self-defense; he maintained that he was simply responding to a use of excessive force by Officer Dougherty. The jury rejected this claim and found Mr. Kimes guilty on both counts of the indictment. The district court sentenced him to pay a $600 fine and serve two years of probation on the assault count. The court sentenced him to "time served" (the four days he had spent in the local jail) on the weapons count.

II.

A. Motion to Suppress the Knives.

Prior to trial the defendant moved for suppression of the knives on the ground that the warrantless search in which they had been discovered violated the Fourth Amendment. A magistrate judge agreed that there had been a violation of the Fourth Amendment, and this would normally have been sufficient to trigger the exclusionary rule adopted in Mapp v. Ohio, 367 U.S. 643, 655 (1961). The magistrate further concluded, however, that the knives were admissible under the "inevitable discovery" exception to the exclusionary rule. The magistrate's conclusions were adopted by the district judge.

Neither the magistrate nor the district judge addressed the obvious possibility that the search was consensual. This issue has not been briefed or argued on appeal. For purposes of this opinion, then, we shall assume, without so deciding, that a violation of the Fourth Amendment did occur. Such a violation would require suppression of the knives unless they were destined to have been discovered - lawfully - in any event.

"The inevitable discovery doctrine, an exception to the exclusionary rule, allows unlawfully obtained evidence to be admitted at trial if the government can prove by preponderance that the evidence inevitably would have been acquired through lawful means." United States v. Kennedy, 61 F.3d 494, 497 (6th Cir. 1995) (citing Nix v. Williams, 467 U.S. 431, 444 (1984)). Proof of inevitable discovery "involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment..." Nix, 467 U.S. at 444 n. 5. "The exception requires the... court to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred." United States v. Eng, 971 F.2d 854, 861 (2d Cir.1992), cert. denied, 510 U.S. 1045 (1994).

Viewing the situation as it existed just before Officer Ensor's search, we think it clear that the government has met its burden of demonstrating that the evidence would inevitably have been discovered through lawful means. Established policy called for the removal of vehicles parked on V.A. property and not belonging to patients or visitors. That such a policy is consistent with legitimate public safety and community caretaking purposes is beyond question. See South Dakota v. Opperman, 428 U.S. 364, 369 (1976). Here the government has shown without contradiction that the hospital parking lot was not a secure place and that the integrity of the truck could not be ensured there. The government has further shown, again without contradiction, that leaving the truck in the parking space for an undetermined period of time would have meant denial of access to the parking space by other visitors.

Established V.A. policy also prescribed an inventory search prior to removal of a vehicle. Officer Norwood testified that the purpose of conducting such a search was to protect personal property inside the vehicle while it was in police custody and to protect the V.A. from claims of lost or stolen property. Under Opperman, a search conducted for such a purpose meets the constitutional test of reasonableness.

Finally, the magistrate found that the knives were in plain sight when Officer Ensor entered the truck. This...