United States v. Mills

• Decision Date: 22 February 1971
• Docket Number: No. 19947.,19947.
• Citation: 434 F.2d 266
• Parties: UNITED STATES of America, Appellee, v. George Albert MILLS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

434 F.2d 266 (1970)

UNITED STATES of America, Appellee, v. George Albert MILLS, Appellant.

No. 19947.

United States Court of Appeals, Eighth Circuit.

October 16, 1970.

Certiorari Denied February 22, 1971.

COPYRIGHT MATERIAL OMITTED

Don N. Kersten, Fort Dodge, Iowa, for appellant, and filed briefs.

Gene R. Krekel, Asst. U. S. Atty., Sioux City, Iowa, for appellee, and filed brief; Evan L. Hultman, U. S. Atty., and Dennis D. Meredith, Asst. U. S. Atty., Sioux City, Iowa, were on the brief with Gene R. Krekel.

Before VOGEL, HEANEY and BRIGHT, Circuit Judges.

Certiorari Denied February 22, 1971. See 91 S.Ct. 908.

BRIGHT, Circuit Judge.

On August 20, 1958, George Albert Mills and an accomplice robbed the Corn Belt State Bank of Correctionville, Iowa, a federally-insured institution. Police apprehended Mills and his cohort Darwin Evert Coon after the crime and placed them in the Woodbury County Jail at Sioux City, Iowa, under federal custody. A few days later, Mills attempted escape. As a consequence of these activities, the government prosecuted Mills for bank robbery as well as on escape charges. Mills waived indictment and the government proceeded by information. On September 30, 1958, Mills appeared in court with appointed counsel and pleaded guilty to four charges relating to bank robbery and two charges relating to escape. Judge Graven sentenced the petitioner to serve a term of twenty years for robbery and, in addition, two five-year consecutive terms on the escape charges to be served consecutively with the sentence for robbery. In 1962, however, Judge Graven vacated the bank robbery conviction. He ruled that conviction invalid because one of the bank robbery charges under 18 U.S.C. § 2113(e) called for a possible death penalty, and, therefore, Rule 7(a) of the Federal Rules of Criminal Procedure required the government to prosecute by indictment rather than by information. Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959).

A grand jury, thereafter, indicted Mills in August, 1962, for the same bank robbery charges. However, Mills' mental illness prevented an immediate trial on this indictment. Instead, the court (Judge Hanson) committed Mills to the Federal Medical Center at Springfield, Missouri, for a determination of his competency to stand trial. The Medical Center advised the court on several occasions that Mills lacked competency to assist in his defense. Judge Hanson specifically found Mills incompetent to stand trial at formal hearings held in 1963 and 1966. Finally, in August of 1969, the trial court determined that Mills could be tried. The case was submitted to a jury, which returned a verdict of guilty. The trial court on September 19, 1969, again sentenced Mills to a term of twenty-years imprisonment, but granted him specified credits for all periods of incarceration since August 21, 1958.¹ Mills, in fact, benefitted substantially from his second trial. Whereas Judge Graven had initially sentenced him to a total of thirty years on all counts, Judge Hanson's sentence, by providing credit for prior incarceration, resulted in concurrent service on the escape charges.

Another panel of this court considered the substantive facts relating to the bank robbery in connection with the trial of Mills' accomplice. Coon v. United States, 360 F.2d 550 (8th Cir.), cert. denied, 385 U.S. 873, 87 S.Ct. 145, 17 L.Ed.2d 100 (1966). More recently, we affirmed Judge Hanson's determination that Mills possessed mental competency on September 30, 1958, when he initially entered guilty pleas to criminal charges flowing from the escape attempt. Mills v. United States (Mills I), 430 F.2d 526 (8th Cir., No. 20013, August 14, 1970).

On this appeal, Mills urges the following grounds for reversal: (1) That the government denied him a speedy trial in violation of the Sixth Amendment, and that the district court should have dismissed the indictment pursuant to Fed. R.Crim.P. 48(b) for unnecessary delay in bringing Mills to trial; (2) That the trial court erred in admitting the following evidence: Mills' confession, items seized from his automobile, identification testimony allegedly tainted by an illegal lineup, and opinion evidence on the issue of insanity allegedly without proper foundation; and (3) That the trial court erred in instructing the jury concerning criminal responsibility. For reasons stated below, we reject these contentions and affirm the conviction.

I. SPEEDY TRIAL

The Sixth Amendment guarantees that "the accused shall enjoy the right to a speedy and public trial, * * *" Appellant cites the eleven-year delay from the date of his apprehension in 1958 to his conviction in 1969 as conclusively establishing a violation of this constitutional right.

In this case, the delay between Mills' arrest and trial may be divided into three general parts. The first period represents the interval between Mills' apprehension in 1958 and February, 1963, when Judge Hanson initially set his case for trial on the bank robbery charge. During this period, Mills commenced serving the sentence following his conviction on the guilty plea, but, as noted above, Judge Graven vacated the sentence in response to a collateral attack thereon. When a defendant, through appeal or collateral attack, succeeds in reversing or annulling an unsatisfied conviction, the law permits him to be retried in the normal course of events notwithstanding delay incident to such legal proceedings. United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966). The double jeopardy clause affords no bar to retrial for an accused who succeeds in reversing his conviction. See United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Houp v. State of Nebraska, 427 F.2d 254 (8th Cir. 1970). Mr. Justice White, speaking for the Court in Ewell, supra, 383 U.S. 116, 86 S.Ct. 773, discussed the relationship between double jeopardy and speedy trial, stating:

The rule of these cases, which dealt with the Double Jeopardy Clause, has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error. United States v. Tateo, supra, 377 U.S., at 466 84 S.Ct. 1587, at 1589. These policies, so carefully preserved in this Court\'s interpretation of the Double Jeopardy Clause, would be seriously undercut by the interpretation given the Speedy Trial Clause by the court below. Indeed, such an interpretation would place a premium upon collateral rather than upon direct attack because of the greater possibility that immunization might attach. 383 U.S. at 121, 86 S.Ct. at 777.

Thus, this initial delay did not abridge Mills' right to a speedy trial.

The second portion of the delay in the instant case consists of the period from February, 1963, to November 19, 1968. Contemplating an early 1963 trial, a pre-arraignment hearing was held on February 19, 1963. At that time, Mills, with his appointed counsel, requested the court to order a complete psychiatric examination at the Federal Medical Center at Springfield, Missouri, to determine his "mental competency at this time." The trial court granted the request and postponed further action pending receipt of the reports from the Medical Center. Upon receiving these reports in June of 1963, Judge Hanson conducted a hearing to determine Mills' competency to stand trial. Following the hearing, he declared Mills incompetent and ordered him committed to the custody of the Attorney General pursuant to the provisions of 18 U.S.C. §§ 4244, 4246.

Mills was returned to the Medical Center and there underwent psychiatric treatment. Mills improved to the extent that the trial court tentatively scheduled a trial for the fall of 1964. His mental condition regressed in September, however, and the court then removed the case from the calendar.

In early 1966, Judge Hanson, again encouraged by Medical Center reports indicating consistent improvement in Mills' mental health, considered a trial that year and ordered a further hearing to reconsider Mills' competency. In the interim between the early 1966 reports and the hearing held in May, 1966, Mills' condition again regressed. After hearing testimony from two psychiatrists, one from the Federal Medical Center and one from Sioux City appointed by the court, Judge Hanson concluded that Mills was not mentally competent to stand trial at that time. Mills returned to the Springfield Medical Center. He again showed improvement and on November 19, 1968, physicians from the Medical Center reported him competent to stand trial.

The third delay, administrative in nature, developed between this date and April 29, 1969, when the trial court ordered that Mills be returned to the district for pretrial proceedings. This additional delay of less than six months resulted from the failure of the Federal Medical Center to forward immediately the latest medical data concerning Mills' condition and the absence of Mills' file from the district court. Mills had applied to the United States Supreme Court for a writ of certiorari to review our order dated December 12, 1968, which denied Mills an appeal from an earlier order of the district court rejecting Mills' mandamus petition to compel an immediate trial.² The Supreme Court denied the writ on April 1, 1969. Mills v. United States, 394 U.S. 954, 89 S.Ct. 1285, 22 L.Ed.2d 490 (1969). In his order of April 29, 1969, calling for Mills' return to Iowa, Judge Hanson recited Mills' improved mental condition as reported by the Medical Center and noted the denial of certiorari. Appellant makes no claim concerning delay subsequent to May 8, 1969, when he was returned to the district. We attach no significance to this third period of delay. The...