United States v. Frazier

• Decision Date: 17 April 1972
• Docket Number: No. 71-1520.,71-1520.
• Parties: UNITED STATES of America, Appellee, v. Ernest Leonard FRAZIER, a/k/a "Dutch" Frazier, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

458 F.2d 911 (1972)

UNITED STATES of America, Appellee, v. Ernest Leonard FRAZIER, a/k/a "Dutch" Frazier, Appellant.

No. 71-1520.

United States Court of Appeals, Eighth Circuit.

Submitted February 17, 1972.

Decided April 17, 1972.

A. P. Fuller, Kellar, Kellar & Driscoll, Lead, S. D., for appellant.

Richard D. Hurd, Asst. U. S. Atty., William F. Clayton, U. S. Atty., Sioux Falls, S. D., for appellee.

Before MATTHES, Chief Judge, and LAY and ROSS, Circuit Judges.^*

LAY, Circuit Judge.

This is an appeal from convictions involving willful assault on three counts in violation of South Dakota criminal statutes, SDCL §§ 22-18-11 and 12 (1967). Defendant is an Indian and the offenses occurred within the boundaries of the Cheyenne River Indian Reservation. Jurisdiction of the United States District Court is vested under 18 U.S.C. § 1153. The convictions are attacked on the alleged bases (1) that the government failed to show beyond a reasonable doubt that the defendant could form the necessary guilty intent despite his alleged mental incompetency and (2) that defendant should have been granted a continuance during the trial because he was not capable of aiding in defense of his case. Defendant's sentencing is also attacked on the basis that at the time he could not comprehend the proceedings. We reverse and remand for a new trial.

On April 18, 1970, there had been a bad blizzard in the White Horse, South Dakota area. The following morning Raymond Olson, an employee of the County Highway Department, was operating a grader clearing the snow. He saw the defendant walking along the road and assumed that he had had car trouble. Olson stopped the road grader and the defendant climbed inside. According to the government's testimony the defendant immediately assaulted Olson and called him several names. Olson jumped out of the grader and ran. Frazier pursued him a short distance but then went back to the grader. Olson got into a nearby pickup truck occupied by two other men. The defendant then smashed the road grader into the pickup. The three men in the pickup jumped clear just in time.

The defendant then proceeded to drive the grader into White Horse. There he met J. D. Kessling, a 63 year old mortician. Kessling had known the defendant since the latter was a little boy. They were both seated in Kessling's car visiting, when Mr. Kessling inquired as to the defendant's father. The defendant became quite agitated, telling Kessling that he hated Germans and Catholics and that the Pope was trying to take over the country. He complained about morticians because they drained blood out of Indians. Kessling's car had a Citizens Band Radio. Frazier pointed to the mike and asked him if he had squealed on him to the sheriff. Frazier then pulled the mike out of the car and began beating Kessling with it. Frazier said he was going to kill him. Several witnesses saw the defendant pull Kessling from his car and observed the defendant wildly kicking him on the ground. Kessling was seriously injured.

The defendant took the stand and testified that the assaults had been provoked. He stated that Olson had originally swore and kicked at him and that he was acting in self defense. He stated the assault on Kessling was brought on by Kessling questioning him about his father. Frazier testified, "I thought he (Kessling) was trying to steal my power."

Expert testimony was elicited by both the government and the defendant relating to the defense of insanity. Dr. T. B. McManus testified that in his opinion the defendant did not know right from wrong; that he was driven by his emotions and that the nature of his acts and consequences were of no import to him. The government offered rebuttal testimony by Dr. Frederick M. Stark, a psychiatrist in Sioux City, Iowa. In an earlier written report following examination of the defendant, Dr. Stark had reported that he was uncertain whether the defendant could distinguish right from wrong. At trial, however, he said he thought there was a probability that the defendant knew right from wrong. He added that he did not think the defendant at the time of the assaults was acting by reason of an irresistible or uncontrollable impulse. He testified, however, that because the defendant acted in such a state of anger at the time of the assaults that he probably did not consider the consequences. Both psychiatrists made a diagnosis of schizophrenic reaction, paranoid type. Some lay testimony was adduced that after the assaults the defendant helped people out of the snow with the grader. Other witnesses established that on the evening before he had acted normally.

We have likewise considered the defendant's medical history, most of which, for reasons not made clear by the record, was not placed in evidence before the jury. However, since the issues on appeal relate to motions by the defense as to the defendant's overall competency to aid his counsel and to understand the proceedings, and this additional evidence was before the trial court, we highlight some of these historical facts.

The defendant was born June 20, 1928. He is a veteran, having served in Korea. Since 1967 he had been confined to the Yankton State Hospital in Yankton, South Dakota, on three different occasions, varying from one to four months duration. His diagnosis was always the same: Schizophrenic Reaction, Paranoid Type. He was generally admitted following some abnormal emotional behavior. On different occasions during these confinements he referred to himself as God. Before the trial the defendant continually wrote to the court making similar references. He had burned two marks on both of his feet which signified to him evidence of crucifixion. He harbored thoughts of grandeur. When last discharged, July 28, 1970, the staff psychiatrist at Yankton recommended:

"Since he is a veteran and possibly entitled to treatment in Fort Meade, that long-term hospitalization in Fort Meade or any other Veterans Administration Hospital be seriously considered for this individual\'s psychotic condition.

"That while he is out of the hospital he be continuously under the effects of medication of a major tranquilizer in doses similar to that given while he has been here."

On the day of his discharge, he was transferred to the Veterans Administration Hospital at St. Cloud, Minnesota. On September 10, 1970, he was there found to be "psychiatrically competent" to stand trial. Immediately thereafter the federal district court sent the defendant to Springfield Medical center for a pretrial commitment examination under 18 U.S.C. § 4246. On January 6, 1971, the Springfield staff recommended that he be adjudicated "competent on medication" for purposes of trial. After more than seven months observation the staff said that "without medication the Staff would not know if he would regress to a state of incompetency or not . . ."; that he needed medication for an indefinite time in the future; that he is paranoid and should be considered a chronic schizophrenic. Subsequently, on July 9, 1971, the Springfield doctors observed he had the capacity to stand trial. The trial commenced on August 10, 1971.

The trial court gave the instruction on insanity which has been traditionally used and approved in this circuit. The basic elements of this instruction are threefold:

"First, that at the time of the commission of the offense charged, the defendant had the mental capacity and reason to distinguish between right and wrong as to each of the three offenses charged.

"Second, that at the time of the commission of the offense charged, the defendant had sufficient mental capacity and reason to understand the nature and character thereof, and the consequences of such offense.

"Third, that he did not commit the offense charged by reason of uncontrollable or irrestible impulse."

In essence this instruction is nothing more than the traditional M'Naghten rule supplemented by the volitional or irresistible impulse test. Under the M'Naghten rule the emphasis was on the defendant's cognitive ability to distinguish right and wrong and to appreciate the nature of his acts. As has been generally recognized, the fallacy of this approach emphasizes that behavior is exclusively within the domain of intellectual capacity.¹ In Pope v. United States, 372 F.2d 710 (8 Cir. 1967), vacated on other grounds 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), this court refused to find similar instructions reversible error since it was felt the rules embodied the essentials of an insanity test: cognition, volition and will. However, we invited the trial court to be "imaginative in his charge" and not be "content with the bare bones of a traditional charge." 372 F.2d at 736. In affirming this position we noted by appendix that the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits were still following variations of M'Naghten and the irresistible impulse rule. The First Circuit had not taken a position, although it had recommended the use of the instruction adopted by the Third Circuit in United States v. Currens, 290 F.2d 751, 774 (3 Cir. 1961), incorporating a portion of the American Law Institute Model Penal Code test. See Amador Beltran v. United States, 302 F.2d 48, 52 (1 Cir. 1962).² In 1966 we had available for consideration the Second Circuit's opinion in United States v. Freeman, 357 F.2d 606, 622 (2 Cir. 1966), which had adopted the ALI's alternative proposed in § 4.01 of the Model Penal Code:

"A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law."

Likewise we were aware of what is called the Durham-McDonald rule from the District of Columbia Circuit:

"What psychiatrists may consider a `mental disease or defect\' for clinical purposes, where their concern is

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