U.S. v. Salava

• Decision Date: 23 October 1992
• Docket Number: No. 92-1303,92-1303
• Citation: 978 F.2d 320
• Parties: , 37 Fed. R. Evid. Serv. 49 UNITED STATES of America, Plaintiff-Appellee, v. Alex J. SALAVA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 320

978 F.2d 320

118 A.L.R.Fed. 689, 37 Fed. R. Evid. Serv. 49

UNITED STATES of America, Plaintiff-Appellee, v. Alex J. SALAVA, Defendant-Appellant.

No. 92-1303.

United States Court of Appeals Seventh Circuit.

Argued May 29, 1992.

Decided Oct. 23, 1992.

John W. Vaudreuil, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Madison, Wis., for U.S.

Peter L. Steinberg (argued), King Street Alternative Law Office, Inc., Madison, Wis., for Salava.

Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

On November 13, 1991, a jury convicted Alex J. Salava of possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Under the enhanced punishment provision of 18 U.S.C. § 924(e)(1), Salava was sentenced to 262 months imprisonment. Salava appeals both his conviction and his sentence on several grounds. We reverse.

I.

On the evening of March 3, 1991, Michael Heath called the Pierce County Sheriff's Department (Pierce County) and told them that he had given a ride to a person who was covered with blood and who said he had killed someone. Heath also reported that this individual was in possession of a sawed-off shotgun. Heath told the Pierce County authorities that he had dropped this person off at a trailer park in Roberts, Wisconsin (the Roberts trailer park).

At approximately 6:30 p.m., Pierce County relayed this information to Captain Max Ihrke, the Chief Deputy Sheriff for St. Croix County, Wisconsin, in which Roberts is located. Ihrke immediately drove to the Roberts trailer park, arriving at approximately 6:45 p.m. Three or four deputy sheriffs and two officers from the Roberts Police Department were already on the scene. Shortly after Ihrke's arrival, the officers learned from the manager of the trailer park that the trailer at which Heath had dropped off his passenger was leased to Alex Salava, whom Ihrke knew from Salava's prior felony convictions.

The officers then prepared to enter Salava's trailer in order to look for a dead or injured person. As it later turned out, Salava had not in fact shot anyone, but instead had fought with an imaginary opponent, wounding himself in the process. At the time, however, the police did not know this. Therefore, they took a number of steps in preparation for entering Salava's trailer, which they considered to be a high-risk operation. Ihrke directed the evacuation of the trailers surrounding Salava's. He contacted Pierce County authorities and asked them to bring to the trailer court their canine unit, tear gas and the witnesses who had provided the initial tip. He also sent officers to look for Salava at a residence near the trailer park where Salava apparently had been earlier in the afternoon and in the taverns and other public places in the area.

At approximately 8 p.m., just as the officers were ready to enter the trailer, a car pulled into the driveway. Salava jumped out on the passenger side of the car and tried to run around the end of the trailer, where he was apprehended by police officers. The driver of the car, Christine Vasfaret, was arrested while still in the car. Using Salava's keys, the officers then entered the trailer in order to search for an injured person.

The first officer to enter the trailer, Deputy Sheriff David Niederer, made a quick scan with his flashlight and immediately saw the barrel of a shotgun on the couch, pointing toward the door. Ihrke, who stood outside the door while the officers searched the trailer, could also see the muzzle of what he believed to be a shotgun on the couch. Niederer picked up the gun to secure it while the other officers searched the trailer, but returned it to the couch once the search was completed, approximately one minute later.

Ihrke then secured the trailer and left to contact the district attorney in order to get a search warrant. In the meantime, Earl Clark, an investigator with the St. Croix Sheriff's Department, obtained a consent to search from Vasfaret, who was a co-lessee of the trailer. Clark and Vasfaret drove to the trailer court, followed by other law enforcement officers in another car. Vasfaret led the officers into the trailer, where Clark immediately saw the barrel of a shotgun sticking out from under two pillows on the couch. Clark seized the shotgun along with two shells, one live and one spent.

On May 8, 1991, a federal grand jury returned a one-count indictment against Salava charging him with possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Salava pleaded not guilty and moved to dismiss the indictment on the ground that the authorities (specifically, Clark) had intentionally destroyed exculpatory evidence by wiping any fingerprints off the shotgun. Salava also filed a motion to suppress the evidence seized during the search of his trailer on the ground that the search had violated his rights under the Fourth and Fourteenth Amendments. The district court denied both these motions on August 21, 1991. On the date of the final pretrial conference Salava filed another motion to dismiss the indictment, arguing that his federal prosecution violated the Fifth Amendment's prohibition against double jeopardy because he had already been prosecuted in state court for the same conduct. The district court also denied that motion.

In addition to his various motions, Salava filed notice of his intent to rely on an insanity defense. The court appointed Dr. Albert Lorenz, a psychiatric expert, to assist in that defense. On November 8, 1991, the government filed a motion in limine seeking to preclude Salava from introducing the testimony of Dr. Lorenz in support of his insanity defense. The government also sought to exclude the testimony of another psychiatrist, Dr. Ronald Diamond, who had treated Salava while he was in prison awaiting trial. After reviewing the proffered report of Dr. Lorenz and hearing the voir dire of Diamond, the district court granted the government's motion and excluded the testimony of both witnesses. Salava presented no defense at trial. He was found guilty on November 13, 1991, and sentenced to 262 months imprisonment. Salava appeals the district court's rulings on his various motions and the exclusion of the testimony of Drs. Lorenz and Diamond. He also challenges his sentence as a violation of the Eighth Amendment's prohibition on cruel and unusual punishment.

II.

Under federal law, a defendant's mental disorder constitutes an affirmative defense to prosecution if "(1) it is 'severe' and (2) as a result of it the defendant was unable at the time of the crime 'to appreciate the nature and quality or the wrongfulness of his acts.' " United States v. West, 962 F.2d 1243, 1245 (7th Cir.1992) (quoting 18 U.S.C. § 17(a) (1988)). The district court granted the government's motion to exclude Dr. Lorenz's testimony because it concluded, based on Dr. Lorenz's report, that his testimony would not "allow a jury to ... draw a reasonable inference that the defendant was unable to appreciate the nature and quality of or wrongfulness of his acts as a result of a severe mental disease." Tr.Vol. 2 at 38. As the court explained:

I certainly accept Dr. Lorenz's statements that the defendant has a severe disorder and that he is or it is something to be dealt with very seriously. But I cannot find anything that will make the second prong of the argument, which is that he was unable to appreciate the nature and quality of or wrongfulness of his acts. And that I think is crucial, and without that it's not evidence that would be useful to the Jury or helpful to them in making its [sic] decision.

Id. Salava argued strenuously that Dr. Lorenz's testimony need not establish that Salava could not appreciate the wrongfulness of his acts in order to be admissible. Indeed, Salava noted that Federal Rule of Evidence 704(b) explicitly prohibits a psychiatric expert from testifying on that point. Therefore, he contended, Dr. Lorenz's testimony should be admitted because it "establish[es] the severity of [Salava's] mental disorder. The fact that Dr. Lorenz might not establish the other prong of the defense by his testimony alone is not a good enough reason to keep it out." Tr.Vol. 2 at 21. Salava renews this argument on appeal. Given our recent decision in West, we must agree.

In West, the defendant, Peter West, sought to introduce the testimony of a court-appointed psychiatrist, Dr. Lawrence L. Jeckel, in support of his insanity defense to charges of bank robbery. In response to questioning on voir dire, Dr. Jeckel stated that West "suffer[ed] from a severe mental disease or defect, specifically a schizoaffective disorder," and that he "was suffering from that disorder on the day he robbed the bank." 962 F.2d at 1245. Dr. Jeckel also stated, however, that in spite of his mental condition West "knew he was robbing a bank and understood that robbing banks is wrong." Id. The district court granted the government's motion to exclude Dr. Jeckel's testimony based on Dr. Jeckel's opinion that West understood the nature and quality of his acts. As the court put it: "[I]t is outrageous to say that a psychiatrist whose opinion is that the defendant knew what he did was wrong and knew what he was doing should testify in support of an insanity defense when the physician says that under the definition of the statute ... there is no insanity...." Id.

We reversed, holding that Dr. Jeckel's testimony was admissible to prove that the defendant suffered from a severe mental disease--the first element of the insanity defense--despite the fact that his opinion tended strongly to disprove the second element. Id. at 1248. We think it clear that, if a psychiatrist's testimony that a defendant has a severe mental disease cannot be excluded on the basis that his opinion as to the second prong of the defense tends to disprove the defense, then, a fortiori, that same testimony cannot be excluded...