U.S. v. Medved, 89-3658
| Decision Date | 27 September 1990 |
| Docket Number | No. 89-3658,89-3658 |
| Citation | 905 F.2d 935 |
| Parties | 30 Fed. R. Evid. Serv. 470 UNITED STATES of America, Plaintiff-Appellee, v. John Edward MEDVED, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William J. Edwards, Asst. U.S. Atty., Samuel A. Yannucci (argued), Office of the U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.
Donald Krosin (argued), Office of the Federal Public Defender, Cleveland, Ohio, for defendant-appellant.
Before WELLFORD and NELSON, Circuit Judges; and ZATKOFF, District Judge. *
This is a bank robbery case. The defendant admitted having committed the robbery and admitted the use of a toy gun in doing so. Rejecting an insanity defense, the jury found the defendant guilty of robbing a federally insured bank, a violation of 18 U.S.C. Sec. 2113(a), and of putting lives in jeopardy during the offense by use of a dangerous weapon, a violation of 18 U.S.C. Sec. 2113(d). The district court sentenced the defendant to imprisonment for 96 months. The sentence represented an upward departure from the range indicated by the sentencing guidelines.
On appeal, the defendant contends that the district court erred in (1) not sua sponte putting a stop to cross-examination of the defendant and his girlfriend about their conversations and thoughts on robberies the defendant might have committed in the past and on bank robberies generally; (2) allowing the jury to treat the toy gun as a "dangerous weapon;" (3) instructing the jury--in language proposed by the defendant's own counsel--that the affirmative defense of insanity should be determined from all the evidence, rather than from the opinions of experts alone; and (4) misapplying the sentencing guidelines. We find none of these contentions persuasive, and we shall affirm the conviction and sentence.
The defendant, John Edward Medved, robbed the New Waterford Bank in Boardman, Ohio, on the afternoon of October 11, 1988. Testimony subsequently presented at his trial established that Mr. Medved was not working regularly and had run out of money; that on the morning of the robbery he and his girlfriend, Darlene Drokin, tried unsuccessfully to get financial help from a soldiers' relief organization; that they then drove to a toy store where they stole a toy handgun and a black Magic Marker that was used to make the toy gun look more like a real weapon; that they subsequently drove to the bank, which Mr. Medved entered alone; that pointing the toy gun at a teller and demanding "tens and twenties, Honey," Mr. Medved relieved her of approximately $2,470; that in like manner he obtained an additional $1,010 from a second teller; that after leaving the bank, Mr. Medved was driven away by Ms. Drokin; and that they were apprehended by the police later that afternoon with most of the money still in their possession.
A week after the robbery a grand jury handed up a two count indictment. Count one charged both Mr. Medved and Ms. Drokin with armed bank robbery. Count two, which was later dismissed by the government, charged Mr. Medved with violating the laws against possession of firearms by convicted felons.
Ms. Drokin pleaded guilty pursuant to a plea bargain. The armed bank robbery charge against Mr. Medved was tried in the courtroom of the Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio.
Mr. Medved's counsel put on an extensive defense, designed primarily to convince the jury that Mr. Medved suffered from a serious mental defect that affected every part of his life. In addition to presenting expert psychological and psychiatric testimony on this subject, the defense brought out the facts that Mr. Medved spent 10 years in prison following a 1976 conviction for three other bank robberies; that he claimed to believe the mafia had made numerous attempts on his life following his release from prison in 1986; that he and his girlfriend had frequently talked about the prior bank robbery case, and about how he feared for his life because of the earlier case; that he said he never wanted to go back to prison, but still exhibited a fascination with banks; that he found it hard to pass by a bank without going inside; that he failed to take simple precautions to avoid capture after the October 11 robbery; and that, as the girlfriend put it, he
The case was submitted to the jury under a comprehensive and balanced set of instructions. After the jury returned its verdict of guilty, a probation officer prepared a presentence report giving his thoughts on the proper way to make the calculations called for by the United States Sentencing Commission's Guidelines Manual. The report assigned the crime a total offense level of 21 and placed the defendant in Criminal History Category III, producing an indicated sentence of imprisonment in the range of 46 to 57 months.
Without challenging the probation officer's calculations, the government moved for an upward departure. The views of both sides were fully explored at a sentencing hearing conducted on July 5, 1989. Judge Dowd then announced, for reasons explained on the record, that he would proceed as if the offense level were 23 instead of 21 and the criminal history category VI instead of III. The Sentencing Table in the Guidelines Manual shows a range of 92-115 months at the intersection of level 23 and Category VI. The court imposed a sentence--96 months--within that range. The defendant has perfected a timely appeal.
At trial, the opening statement of defendant Medved's counsel disclosed to the jury not only that Mr. Medved did in fact take the money from the Boardman bank on October 11, 1988, but also that he had been released from prison in 1986. The government, for its part, made no mention of any prior crimes in its opening statement or during its case-in-chief.
When Mr. Medved took the stand to testify on his own behalf, his counsel promptly elicited from him the information that he had been convicted of three counts of bank robbery in 1976, after which he served 10 years in a federal prison. This factual background helped set the stage for subsequent testimony designed to show that Mr. Medved had "delusions" about the mafia trying to kill him because of the earlier case. Mr. Medved testified at length about his fears that people were trying to do away with him. Although a government psychiatrist called by the defense expressed the opinion that Mr. Medved was "malingering," the defendant's own expert witnesses were to testify that he suffered from a paranoid or delusional disorder. The government's theory was that Mr. Medved robbed the bank in Boardman because he enjoyed the excitement and needed the money; the theory of the defense--disclosed to the jury in opening statement--was that he did it because he was insane.
Notwithstanding that Mr. Medved had placed his mental condition directly in issue, it is contended on appeal that the district court committed reversible error in failing to put a stop to a line of cross-examination that began when the government put the following questions to Mr. Medved:
"Q. Mr. Medved, in August of 1988 did you begin talking to any individual about robbing banks again?
A. No.
Q. Do you recall making any statement in August of 1988 to the effect of what a great feeling it is to jump over the counter at a bank?
A. No.
Q. Do you recall making any statement to an individual expressing the exhilaration that you felt in robbing banks?
A. No.
Q. Did you tell any individual that your MO in the bank record was jumping over the counters?"
Defense counsel interposed an objection before the last question was answered, requesting that the prosecutor "be a little more specific." Judge Dowd then asked the prosecutor about the predicate for these questions. The prosecutor replied that "Darlene Drokin is going to testify that Medved made those statements to her." Taking defense counsel's point, the Judge said "I think in fairness to the witness, you should identify the person rather than leave it in the abstract."
The prosecutor did as he was told, and Ms. Drokin was specifically identified when the cross-examination of Mr. Medved resumed:
"Q. Mr. Medved, did you in August of 1988 indicate to Darlene Drokin that you will have changed your MO in robbing banks?
A. No, I haven't. I'd like to indicate something.
THE COURT: Well, just respond to his questions now, Mr. Medved.
Q. Do you recall in August of 1988 telling Darlene Drokin that you didn't want to go back to prison?
A. Well, I've indicated that, yes."
We have now quoted in its entirety the only part of Mr. Medved's cross-examination to which exception is taken on appeal.
The defendant's next witness was Darlene Drokin. The cross-examination of Ms. Drokin showed that the prosecutor did, as he claimed, have a basis for the questions he had put to Mr. Medved earlier. After reminding Ms. Drokin of her testimony about conversations with Mr. Medved concerning the 1976 conviction (a conviction that Mr. Medved felt was "illegal," according to Ms. Drokin), the prosecutor elicited this testimony:
"Q. Now, in August of '88, did he talk to you at all about bank robberies in general?
A. For as much as he will say about bank robberies and the thrill of doing it and going in and how he done it and vaulting the counter and whatever, the next conversation was that he could never go back, never do it again. It was one extreme to the other.
Q. But he indicated that there was a certain exhilaration in jumping over the counter?
A. Yes, absolutely.
Q. Did he indicate to you that he could never utilize that same procedure in any bank robbery because the FBI would know immediately who did it?
A. Yes, he felt if there were any banks robbed that, of course, he will be the first one looked at.
Q. Did...
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