U.S. v. Zink

• Decision Date: 08 January 1980
• Docket Number: No. 78-1770,78-1770
• Citation: 612 F.2d 511
• Parties: 5 Fed. R. Evid. Serv. 1131 UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray ZINK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 511

612 F.2d 511

5 Fed. R. Evid. Serv. 1131

UNITED STATES of America, Plaintiff-Appellee, v. Danny Ray ZINK, Defendant-Appellant.

No. 78-1770.

United States Court of Appeals Tenth Circuit.

Argued Sept. 13, 1980.

Decided Jan. 8, 1980.

William C. Danks, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., on brief), for plaintiff-appellee.

Steven A. Gall, Denver, Colo., for defendant-appellant.

Before SETH, Chief Judge, LOGAN, Circuit Judge, and BOHANON, District Judge. ^*

BOHANON, District Judge.

Appellant Danny Ray Zink was convicted of possessing counterfeit money with intent to defraud, in violation of 18 U.S.C. § 472.

On March 22, 1978, appellant took his car to a business entitled the Dashboard in Denver, Colorado, for installation of a car stereo. Mark Lawless, a Dashboard employee, removed a sack from the glove compartment during installation and tossed it onto the floor of the premises. His assistant, Ronald Barajas, placed the sack into a trash can. When appellant returned for his car, he appeared preoccupied and concerned as to the whereabouts of something he had left in the vehicle. Dashboard employee Larry Vasquez accompanied him to the car, unlocked it, and appellant immediately searched the glove compartment but failed to find the object he sought. He became very upset, commenting that he was looking for something in a brown paper sack. Following further search and some inquiry by Vasquez, defendant revealed that $400 was in the sack and that he needed to recover it immediately. When the sack could not be located, appellant approached employee Lawless, informing him that he had left a bag in his glove compartment containing $400 and that if it were not returned immediately he was going to get very upset. Lawless retrieved the sack from the trash can and gave it to his foreman, Gerald Robinson. Robinson began counting the money and noticed that the serial numbers were identical, that several bills were double printed and that the color was abnormal. Manager Lester Dale Howell entered the office at that time, received the sack and money from Robinson and called the police. Upon their arrival the police advised the appellant of his constitutional rights, whereupon he admitted possessing counterfeit money and identified the bag and its contents as being his.

Appellant seeks reversal of his conviction on grounds that the trial court allegedly erred: (1) by admitting into evidence the money in the brown paper bag, (2) by accepting the government's expert witness as qualified in psychiatry, while denying appellant's expert that recognition, (3) by admitting government evidence as to appellant's sanity, (4) by ruling that the government had not failed as a matter of law to establish appellant's possession of the counterfeit money, (5) by improperly instructing the jury on the issue of the voluntariness of appellant's confession, and (6) by improperly allowing the government's medical expert to testify as to statements made by appellant during a psychiatric examination.

Appellant argues that the government was unable to adequately account for the whereabouts of the counterfeit money from the time it allegedly was removed from his car until it was surrendered to government agents. It was error, appellant concludes, to admit the money into evidence.

An exhibit's identity is satisfied for admissibility purposes where sufficient evidence supports a finding that the matter in question is what its proponent claims. Rule 901(a) Federal Rules of Evidence. The admissibility of demonstrative evidence seized during arrest depends on a showing that the proffered evidence is, in fact, the seized object and that its condition is materially unchanged.

This can be accomplished by showing a "chain of custody," which indirectly establishes the identity and integrity of the evidence by tracing its continuous whereabouts. Johnson v. State, Ind., 370 N.E.2d 892 (1977). Or such evidence may be visually identified by witnesses. State v. Henderson, La. 337 So.2d 204 (1976). The testimony of Dashboard employees detailed the process wherein the brown paper bag was removed from appellant's glove compartment and passed from one employee to the next before its contents were discovered and the police were summoned.

Appellant's own statements also identified the money. Upon finding it missing, appellant informed Dashboard employees that he had placed a brown paper sack containing money in his glove compartment, and that it must have been removed in his absence. Following its retrieval, appellant identified the bag and its contents as his.

A trial court's finding that demonstrative evidence was sufficiently identified to be admitted will not be overturned absent a clear abuse of discretion. United States v. Coleman, 524 F.2d 593 (10th Cir. 1975); Reed v. United States, 377 F.2d 891 (10th Cir. 1967). The money's admission into evidence was proper and entailed no such abuse.

Appellant argues that the trial court arbitrarily ruled in favor of appellee's medical expert and against appellant's as to their respective expertise in psychiatry. Appellant's expert, Dr. Kenneth Krause, was allowed to testify as an "expert physician" but was denied recognition as a psychiatry expert because, Inter alia, he had not completed his residency in psychiatry. Appellant made no offer of proof as to any additional testimony Dr. Krause would have given if permitted, and the record reveals no prejudice to appellant due to the court's ruling.

Dr. Dana Cogan, appellee's expert, was a practicing psychiatrist who had completed his residency and had served as staff psychiatrist at the Colorado State Hospital. Previously, he had testified as an expert in psychiatry in numerous other criminal cases.

If scientific, technical, or other specialized knowledge will assist the jury in understanding the evidence or determining a fact issue, a witness qualified by knowledge, skill, experience, training, or education may provide expert testimony thereon. Rule 702, Federal Rules of Evidence. The determination of a witness' expertise is within the trial court's discretion. United States v. Trice, 476 F.2d 89 (9th Cir. 1973). No abuse of discretion appears here.

Appellant also challenges the admissability of certain specific portions of Dr. Cogan's testimony. Based on his psychiatric examination of appellant, Dr. Cogan was allowed to testify as to his assessment of appellant's mental capabilities at the time the offense was committed. Appellant contends that this testimony was prejudicial to him because it led the jury to infer that at some point appellant had attempted to excuse his criminal conduct by "pleading insanity." Appellant similarly objects to the court's instruction to the jury submitting the issue of appellant's sanity. We find no error here. Dr. James A. Lewis, a neurology expert and appellant's witness, testified that subsequent to appellant's involvement in an automobile accident in 1973, he was diagnosed as suffering a "brain contusion, post-traumatic behavior change secondary to the contusion, and alcoholism secondary to the behavior problem." Appellant subsequently testified to various psychiatric problems, including loss of memory, he incurred in the wake of the accident.

In a criminal prosecution, the government must prove beyond a reasonable doubt every essential element of the alleged offense, and the court must so instruct the jury. United States v. King, 521 F.2d 61 (10th Cir. 1975). An essential element of the offense herein is "intent to defraud," and the jury was so instructed. See 18 U.S.C. § 472. Expert testimony may be admitted to establish the absence of a mental state essential to a crime's commission. United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (D.C.Cir. 1972); United States v. Bennett, 539 F.2d 45 (10th Cir. 1976), cert. denied 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293.

Portions of appellant's evidence tended to establish his mental incapacity to form an intent to defraud at the time of the alleged offense. Such proof included descriptions of appellant's alcohol usage. While voluntary drunkenness does not constitute a criminal defense per se, it may prove a mental incapacity to form a specific intent. United States v. Jacobs, 473 F.2d 461 (10th Cir. 1973). Appellant's evidence also involved references to broad and perhaps permanent incapacities from his auto wreck. Given appellant's proof, Dr. Cogan's testimony in rebuttal was appropriate.

Where a criminal defendant's mental capacity is placed in issue on somewhat imprecise grounds, the matter is one for the jury's resolution. United States v. Trujillo, 497 F.2d 408 (10th Cir. 1974). The jury was instructed correctly as to the law. See Coffman v. United States, 290 F.2d 212 (10th Cir. 1961); United States v. Munz, 542 F.2d 1382, 1389 (10th Cir. 1976) cert. denied 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 555. A wide range of discretion necessarily is vested in the trial judge as to jury instructions. Harris v. United States, 367 F.2d 633 (1st Cir. 1966); Dranow v. United States, 307 F.2d 545, 568 (8th Cir. 1962). No abuse of discretion appears herein.

Appellant also challenges the admissibility of a statement made by him to Dr. Cogan during his psychiatric examination, which was repeated in the doctor's testimony. The court-ordered examination was conducted for purposes of determining appellant's mental condition at the time of the alleged offense. Statements made by a defendant as to his guilt, during such an examination,...