United States v. Greene

• Decision Date: 04 June 1974
• Docket Number: No. 72-1939.,72-1939.
• Citation: 497 F.2d 1068
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Herbert GREENE, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

497 F.2d 1068 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. William Herbert GREENE, III, Defendant-Appellant.

No. 72-1939.

United States Court of Appeals, Seventh Circuit.

Argued September 10, 1973.

Decided June 4, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mildred G. Peters, Northfield, Ill., Robert S. Bailey, Chicago, Ill., for defendant-appellant.

James R. Thompson, U. S. Atty., Glynna W. Freeman, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, PELL, and STEVENS, Circuit Judges.

PELL, Circuit Judge.

Defendant William Herbert Greene, III appeals from his conviction for air piracy. The basic facts involved in the incident are not disputed by defendant. On April 17, 1972, Greene boarded a Delta Airlines airplane¹ en route from West Palm Beach, Florida to Chicago, Illinois. When the airplane was in flight, defendant passed a stewardess a note reading:

"I have a gun When we land in Chicago want $500,000.00 cash small bills Refuel plane for enough to go to Nassau Bahamas Act normal! Bring money before anyone gets off plane"

The copilot, Boyd, spent the remainder of the flight talking to Greene about these demands. Boyd explained to Greene the time that would be necessary to unload the passengers, refuel, and obtain the $500,000. The defendant agreed to allow the stewardesses as well as the passengers to disembark in Chicago and keep on the plane only the male crew members. Greene permitted Boyd to return to the cockpit to assist in the landing of the plane. As soon as the plane was on the ground, Boyd returned to sit next to defendant. Boyd told Greene that he had two choices: to go to Nassau or to give up now. Greene agreed to give up, whereupon the two men left the plane and defendant was arrested.²

The defendant was indicted on two counts: (1) aircraft piracy and (2) interference with a flight crew.³ At the trial, the defendant did not dispute the above facts relating to the skyjacking. The sole defense raised was one of insanity. The defendant was found guilty by a jury of air piracy but found not guilty of interference with a flight crew.

Greene raises numerous issues on appeal, including: whether the evidence was sufficient to prove sanity beyond a reasonable doubt; whether the jury should have been required to make a special finding on insanity and instructed that such a finding of insanity would result in commitment of a defendant to a mental hospital pursuant to 24 U.S.C. § 211; whether the Government suppressed evidence or, alternatively, whether a subpoena pursuant to Rule 17(b), Fed.R. Crim.P. (indigent subpoena), should have been issued for a psychiatrist whose works were referred to by the prosecutor in cross-examination; whether the testimony of a Government psychiatrist violated defendant's Fifth or Sixth Amendment rights; whether the prosecutor's closing argument was prejudicial; whether the alleged inconsistency of the verdicts requires a reversal; and whether the trial court should have instructed the jury on diminished capacity.

I. SUFFICIENCY OF THE EVIDENCE.

Greene initially contends that the evidence presented at the trial was insufficient to prove his sanity beyond a reasonable doubt. To succeed in this argument, the defense must demonstrate that all reasonable men must necessarily possess a reasonable doubt as to defendant's sanity. United States v. Velasco, 471 F.2d 112, 113 (7th Cir. 1972); United States v. Westerhausen, 283 F.2d 844, 852 (7th Cir. 1960).

Defense counsel produced substantial evidence that Greene was mentally ill at the time of the skyjacking. Five psychiatric experts, testifying on behalf of defendant, generally agreed that Greene was suffering from some form of paranoid schizophrenia. Three of the experts testified that defendant was incapable of conforming his conduct to the requirements of the law. The defendant also produced numerous lay witnesses who testified to his bizarre conduct and feelings of persecution in the year preceding the skyjacking.

There was, however, a significant amount of testimony presented by the Government to rebut the defendant's evidence of insanity. Two experts who had examined Greene testified on behalf of the Government. One psychiatrist, Dr. Feinerman, had interviewed Greene on 10 to 12 occasions, significantly more often than any defense expert. Dr. Feinerman testified to defendant's prolonged use of drugs and alcohol and analyzed Greene's condition as one of "toxic psychosis." Dr. Tuteur, the second Government psychiatrist, testified that defendant had an "inadequate personality," which Dr. Tuteur explained as a person who is unable to cope with the demands of life in a rational and practical manner and who may therefore escape by using alcohol and drugs. Both Government psychiatrists agreed that Greene was not a paranoid and that he could conform his conduct to the law.

The jury could also find, on the basis of the lay testimony presented by the Government, that Greene could so conform his conduct. Various members of the flight crew testified that the defendant appeared normal. In particular, the copilot, Boyd, who had sat next to Greene for most of the flight, testified to defendant's calm and rational behavior. Greene, at one point, discussed detailed matters of photography with the copilot. There was also evidence presented that the defendant was in debt and three witnesses (an FBI agent, a correction officer, and a defense psychiatrist) testified that Greene told each of them on separate occasions that his motive in skyjacking the plane was money. Two factors made the Government's lay testimony particularly credible. First, the jury may have concluded that the witnesses presented by the Government — airline employees, for the most part — were relatively less interested in the outcome of the case than were the lay witnesses of Greene and therefore the Government witnesses on an objectivity basis were more believable.⁴ The defense lay witnesses, by contrast, were mostly friends and relatives of Greene. As noted by this court in United States v. Kissane, 478 F.2d 1098, 1100 (7th Cir. 1973), a jury may tend to discount such testimony from friends and relatives regarding defendant's bizarre conduct due to the witnesses' bias and desire to help. Second, the members of the flight crew testified to Greene's behavior during the skyjacking itself. Many of defendant's lay witnesses, on the other hand, testified to events which had occurred months before the crime. No defense witness testified to Greene's behavior on the day of the skyjacking. The skyjacking note, which was legible and coherent, was also introduced into evidence by the Government.

The evidence from the non-lay witnesses relating to Greene's sanity was voluminous, technical, and complicated. Each side presented distinguished experts who came to learned but opposing conclusions. As we noted in United States v. Kissane, supra at 1100, "in view of the complicated nature of the decision to be made — intertwining moral, legal, and medical judgments — it will require an unusually strong showing to induce us to reverse a conviction . . . ."

Defense counsel argue that the picture derivable from Greene's activities is one of uncontrollable deterioration. However, the jury heard this evidence and apparently reached an opposite conclusion. We cannot say that the total picture was of the apodictical nature it occupies in the view of defense counsel.

The defense expert testimony, and arguments based thereon, when examined with dictionaries, medical and otherwise, in hand, can be construed as supportive of Greene's defense. However, other expert testimony, and arguments based thereon, is supportive of the prosecution. The ultimate resolution of the complex issues was made by the trier of fact which heard and evaluated conflicting evidence under proper instructions and in what appears overall to us to have been a fair trial.

Viewing the evidence, as we must, in the light most favorable to the Government, we are unable to say that a reasonable person must necessarily possess a reasonable doubt as to the defendant's sanity at the pertinent time.

II. SPECIAL FINDING AND JURY INSTRUCTION.

The defense requested that the jury make a special finding on the issue of Greene's sanity. Concomitantly, the defense requested that the court instruct the jury that should they return a verdict of not guilty together with a special finding of insanity, the court would thereupon certify the result to the Secretary of Health, Education and Welfare, who could order the defendant confined to a mental hospital until cured.⁵ Such a procedure, according to the defendant, would eliminate the dilemma in which federal juries are placed, i. e., choosing between finding the defendant guilty or finding him not guilty because insane, with the latter verdict resulting in total freedom. This "gap," caused by the fact that there is no commitment where a defendant is judged not guilty by reason of insanity, the defense notes, has been filled by the vast majority of the States and the District of Columbia.⁶ These jurisdictions all provide for some form of commitment, either mandatory or discretionary, where there is a verdict of not guilty by reason of insanity.

Greene suggests that we plug the federal gap through application of 24 U.S. C. § 211, which provides:

"If any person, charged with crime, be found, in the court before which he is so charged, to be an insane person, such court shall certify the same to the Secretary of Health, Education and Welfare, who may order such person to be confined in Saint Elizabeths Hospital in the District of Columbia . . . ."

According to the defendant, this statute enables any federal court, including those outside the District of Columbia, to commit to St. Elizabeths a defendant found not guilty by reason of insanity. Through the use of a special interrogatory, the determination of insanity would be made⁷...