U.S. v. Shuckahosee, 78-1284

• Decision Date: 09 January 1980
• Docket Number: No. 78-1284,78-1284
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lewis SHUCKAHOSEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1351

609 F.2d 1351

UNITED STATES of America, Plaintiff-Appellee, v. Lewis SHUCKAHOSEE, Defendant-Appellant.

No. 78-1284.

United States Court of Appeals, Tenth Circuit.

Argued May 18, 1979.

Decided Nov. 15, 1979.

Rehearing Denied Jan. 9, 1980.

Leonard D. Munker, Wichita, Kan., for defendant-appellant.

Roger M. Theis, Asst. U. S. Atty., Topeka, Kan. (with James P. Buchele, U. S. Atty., Topeka, Kan., on brief), for plaintiff-appellee.

Before HOLLOWAY, BARRETT and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Lewis Shuckahosee appeals from his conviction of two counts of premeditated murder. ¹ He raises a number of issues for our consideration. He believes that there was no probable cause for his arrest and that a confession obtained immediately thereafter should have been excluded from his trial. He argues that the district court erred in refusing to give instructions on a posited insanity defense, on the credibility of accomplice testimony, on the limited credibility of intoxicated eyewitnesses, and on a "defense of another" defense. Finally, Shuckahosee believes the court erred in admitting as evidence, to his prejudice, various photographs of the murder victims. ² Although the appellant has raised a number of significant issues, we must, on the record before us, affirm his conviction.

I.

It is conceded that Shuckahosee fired the shots that resulted in two deaths. At issue is whether those actions constitute murder and, in particular, premeditated murder. The following factual outline provides the background necessary for understanding the issues on appeal.

Appellant Lewis Shuckahosee and his brother, Reginald, were drinking alcoholic beverages together on April 30, 1977. Reginald was involved in two altercations, one involving a weapon, at two different taverns. At about midnight, the two drove to a site known as Strawberry Hill where approximately two dozen people had gathered. All, or nearly all, were drinking. Shortly after his arrival at Strawberry Hill, Reginald entered into an argument with Norman Wishteyah. The argument escalated into a fight in which Reginald was knocked to the ground and his shoulder painfully injured. Reginald called for help to Lewis, who was sitting in a nearby car. Responding, Lewis fired a pistol at Wishteyah, wounding him in the arm, as Wishteyah ran from the scene. Lewis shot two more persons with the pistol Norris McKinney and Eric Hosie neither of whom had been involved initially in the fight but who, Lewis testified, were advancing toward him after he shot Wishteyah. Reginald testified that Lewis then took a rifle from him, walked to McKinney and Hosie, and shot each in the face.

Lewis drove Reginald to a Topeka hospital to have the injured shoulder attended to, and Lewis then began flight. Reginald was arrested for the crimes as a principal under Kansas law. On May 23, 1977, the Brown County Attorney received a letter from Lewis confessing to the two homicides and absolving his brother of blame. At trial the letter was admitted as evidence and its authenticity stipulated. Despite the letter from Lewis, Reginald was released from state custody for the murders only after Kansas authorities determined that the federal government had jurisdiction. Although Reginald was convicted in state court for assault based on one of the tavern incidents, he was not federally indicted for the murders.

On June 10, 1977, Lewis was apprehended in Salt Lake City and advised of his Miranda rights. Three days later while being interviewed, he confessed to both killings. The confession was admitted at trial, after an unsuccessful suppression attempt. In addition to the two confessions, the prosecution relied primarily on the testimony of Reginald and other persons who had been present at Strawberry Hill. In defense Shuckahosee called a psychiatrist and a clinical psychologist and took the stand himself.

II.

Shuckahosee was apprehended after a Salt Lake City blood bank had submitted a list of its patrons' names and social security numbers, including Shuckahosee's, to the F.B.I. That information, fed into the Bureau's National Crime Information Center computer, alerted local officials to the presence of a fugitive from justice. Shuckahosee argues that the blood bank-F.B.I. relationship evidences an "overreaching of federal executive authority" and an invasion of his privacy. Brief for Appellant at 38. These defects allegedly tainted his arrest and the resulting confession. ³ We must reject this contention.

While the blood bank's reporting practices may injure its capacity to recruit donors, reviewing the wisdom of the practice is not our function. Under the existing case law, the practices of private bodies in voluntarily aiding law enforcement officials do not implicate either the Fourth Amendment's restrictions on searches and seizures or the broader constitutional protections against invasions of privacy. See United States v. Gibbons, No. 77-1965, at 8-9 (10th Cir. Sept. 11, 1979); United States v. Sherwin, 539 F.2d 1, 8 (9th Cir. 1976), Cert. denied, 437 U.S. 909, 98 S.Ct. 3101, 57 L.Ed.2d 1140 (1978); United States v. Jones, 457 F.2d 697, 699 (5th Cir. 1972). Once the F.B.I. learned that Shuckahosee was a fugitive, clear probable cause existed for his arrest. See United States v. Smith, 461 F.2d 246 (10th Cir. 1972).

III.

The most troubling issue raised on appeal is Shuckahosee's claim that the district court erred in not giving properly requested instructions on an insanity defense. This court has consistently stated that, once a criminal defendant has introduced evidence to rebut the presumption of sanity, the government may not remain silent and prevail. If the government rebuts the insanity evidence, a factual question is created that Must be submitted to the jury. If the insanity evidence remains unrebutted, the defendant is entitled to a directed verdict. See United States v. Bettenhausen, 499 F.2d 1223, 1229 (10th Cir. 1974); Fitts v. United States, 284 F.2d 108, 112 (10th Cir. 1960). Since the psychiatrist and the psychologist who testified on Shuckahosee's behalf asserted that the required elements of insanity were present, See United States v. Munz, 504 F.2d 1203, 1208 (10th Cir. 1974); Wion v. United States, 325 F.2d 420, 430 (10th Cir. 1963), Cert. denied, 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309 (1964), ⁴ appellant argues that the district court was obligated, at a minimum, to submit the issue to the jury. Furthermore, since no psychiatrist testified for the government, appellant argues that the trial court should have directed his acquittal. We hold, however, that where the "insanity" evidence was founded wholly on voluntary intoxication, the district court was correct in determining that, as a matter of law, the insanity issue had not been adequately introduced.

This court, and other courts, have been unwilling to treat evidence of alcoholism, standing alone, as sufficient to raise the insanity issue. ⁵ Although both of the defense specialists testified that, in their opinions, alcoholism is a mental disease within the legal insanity definition, See, e. g., Record, vol. 3, at 714, 849, that characterization does not represent the predominant medical opinion. ⁶ See Record, vol. 3, at 750-51. Even if it were the dominant theory, we are not prepared from available evidence to repudiate a long-standing body of law. ⁷ That body of law attaches responsibility to criminal acts following alcoholic ingestion that is, at least initially, voluntary. See United States v. Burnim, 576 F.2d 236, 237-38 (9th Cir. 1978); United States v. Jacobs, 473 F.2d 461, 464-65 (10th Cir.), Cert. denied, 412 U.S. 920, 93 S.Ct. 2740, 37 L.Ed.2d 147 (1973); Kane v. United States, 399 F.2d 730, 736, 736 n. 10 (9th Cir. 1968), Cert. denied, 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699 (1969). For the insanity defense to be available, the mental condition must have been brought about by circumstances beyond the control of the defendant. Kane v. United States, 399 F.2d at 735. If the defendant has the ability to resist the initial drink, the condition is within his control. Particularly when a person has reason to know that his behavior while intoxicated often approaches criminality, we do not wish to remove whatever deterrent effect the criminal law has on such behavior. ⁸

At trial Shuckahosee did not introduce evidence that his decision to begin drinking alcoholic beverages was anything but voluntary. ⁹ Indeed, both the psychiatrist and the psychologist testified that his diminished capacity to resist alcohol arises only after he has begun drinking. See, e. g., Record, vol. 3, at 697, 724, 872. Shuckahosee did not perceive himself as an alcoholic; in fact, he and his wife both testified that his drinking was of the weekend "binge" sort with periods of up to a month between drinking bouts. Id. at 790, 916, 933. Neither of his expert witnesses testified that Shuckahosee suffered from any mental defects or organic brain damage as a result of alcoholism. See, e. g., Record, vol. 3, at 729-32. Finally, Shuckahosee was well aware of the dangers that attend his drinking; he testified that "when I'm drinking I don't know what I'm doing." Record, vol. 3, at 792-93. Under these circumstances, the established rule should apply. The trial judge's characterization of Shuckahosee's evidence "All they said was that once he started drinking he can't stop," Record, vol. 3, at 961 was proper and dispositive of the issue. ¹⁰

We emphasize that we do not question that intoxication, even though quite voluntary, may negate the existence of the specific intent required for conviction of many crimes. While Shuckahosee does suggest on appeal, almost as an aside, that his conviction for premeditated murder was therefore improper, we note that the trial judge's instruction on the point was above reproach. ¹¹ Because the jury did have before it evidence from which it could properly have inferred premeditation...