United States v. Westerhausen, 12908.

• Decision Date: 09 December 1960
• Docket Number: No. 12908.,12908.
• Citation: 283 F.2d 844
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert WESTERHAUSEN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

283 F.2d 844 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. Robert WESTERHAUSEN, Jr., Defendant-Appellant.

No. 12908.

United States Court of Appeals Seventh Circuit.

November 18, 1960.

Rehearing Denied December 9, 1960.

Melvin B. Lewis, Frank W. Oliver, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Charles R. Purcell, Jr., Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Burton Berkley, D. Arthur Connelly, Asst. U. S. Attys., Chicago, Ill., of counsel, for appellee.

Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and MERCER, District Judge.

HASTINGS, Chief Judge.

This is an appeal by defendant Robert Westerhausen from a judgment of conviction of armed robbery of a federally-insured bank. The September, 1952 grand jury indicted appellant and three others, charging them with armed robbery on August 1, 1952, of a federally-insured bank in Lyons, Illinois, in violation of 18 U.S.C.A. § 2113. One of the co-defendants was tried and convicted in December, 1952; the other two, in March, 1953. Appellant's trial commenced November 4, 1959 after the trial court refused to suppress appellant's confession; on November 16, 1959, he was found guilty by a jury and was sentenced to imprisonment for a period of fifteen years.

Appellant's defense centered on his alleged insanity on August 1, 1952, the day of the robbery. Appellant here does not question that the evidence shows he participated in the robbery of a federally-insured bank, but he reaffirms his contention that the Government failed to discharge its burden to introduce sufficient evidence to establish his sanity at the time of the offense and that the trial court erred in denying his motion for acquittal. Additional issues raised need not be considered here in the light of our determination of this appeal.

Because our disposition of the case turns on the issue of appellant's capacity to form the requisite mens rea on August 1, 1952, a chronological history of appellant's mental condition from 1950 to 1959, drawn from the record, becomes necessary even at the risk of unduly prolonging this opinion.

In preface, at the trial both appellant and the Government offered expert and lay witnesses to testify relative to appellant's sanity. The Government offered one expert, Dr. Haines; three FBI agents, Stefanak, Spencer, and DuMaine; and a psychiatric social worker at the Illinois Security Hospital, Zeidler. Appellant called his sister-in-law as a lay witness and six medical expert witnesses, Doctors Hoffman, Hanni, Skorodin, Kruglik, Groves Smith, and Charles E. Smith. In addition, the testimony of Dr. Dowell before the DuPage County (Illinois) Circuit Court was read to the jury. Appellant did not testify.

1936-1950

During this period, appellant, who was born in 1920, was placed in various mental, correctional, and penal institutions, commencing at the time he was 9 or 10 years of age. Dr. Hoffman, a defense expert, testified appellant failed to make an adjustment in any institution in which he was placed. While incarcerated, he attempted suicide two or three times.

1950-1951

In 1950, appellant, then an inmate of the Illinois State Penitentiary, was examined by defense witness, Dr. Meyer Kruglik, an expert in psychiatry. Dr. Kruglik testified that after appellant had made an attempt at suicide, he was asked to evaluate appellant's mental condition. His diagnosis was that appellant should be detained in a special ward for further observation of possible mental illness and not returned to the general population of inmates.

In June, 1950, appellant was examined by defense witness, Dr. Groves B. Smith, a psychiatric expert, incident to appellant's transfer from the Statesville Unit of the penitentiary to the Psychiatric Division. Dr. Smith assumed supervision of appellant's care and treatment during the time he was in the latter institution. His examinations commenced in June, 1950 and continued until March 5, 1952, at which time appellant was released from the custody of the State of Illinois because of the expiration of his prison sentence.

The June, 1950 examination by Dr. Smith included a complete review of appellant's history from his admission into the Illinois correctional system in 1936. Dr. Smith concluded that appellant was then suffering "from an acute schizophrenic disassociation with a background of depression"; that he was mentally ill; that "in ordinary legal terminology * * * he was suffering from an active psychosis in which there had been an emotional block in his thinking"; and that he was not then capable of distinguishing and making a deliberate and intelligent choice between right and wrong.

In October, 1950, after treatment and because of his improvement, Dr. Smith reclassified appellant "as a phychosis in remission." Appellant at that time no longer disclosed the active behavior that characterized the earlier diagnosis. At this time, appellant was retained in the Psychiatric Division for further evaluation of his adjustment.

Later, appellant was returned to the General Division. However, after a period of several months, he was again sent back to the Psychiatric Division where he remained until December, 1951.

1952

Appellant was then transferred back to activity within the Menard General Division. In January, 1952, Dr. Groves Smith wrote a release report stating that appellant was no longer actively psychotic, but that he was a psychosis in remission. At this time Dr. Smith testified that appellant had made a satisfactory adjustment on an institutional level, but there was no indication he had recovered in the ordinary sense. It was "extremely problematical" whether appellant could make a satisfactory readjustment outside of an institution of any sort. Nevertheless, Dr. Smith made the recommendation that appellant be given consideration for release at the expiration of his sentence. In this recommendation he was "primarily" influenced by the fact that on his discharge from Menard, appellant was going to be released to the Cook County (Illinois) authorities. Had appellant not been released to those authorities, Dr. Smith stated he would have suggested that prior to discharge a hearing be held under the Illinois Mental Health Code, S.H.A. ch. 91½, § 1-1 et seq., to determine whether appellant was a person, although not mentally ill, nevertheless was in need of medical treatment so that his release back to the community could be accomplished in a supervised manner.

On March 5, 1952, appellant was discharged from Menard; he was described then as being "without psychosis." Dr. Groves Smith testified that appellant could choose between right and wrong on a supervised level but did not have the ability to make independent interpretations in a free community. Dr. Smith indicated that an exposure to a stress situation at that time would cause a return of appellant's active schizophrenic pattern of behavior and that going into a free society would produce such a stress situation.

Upon his discharge, appellant was transferred to the custody of Cook County authorities. However, later in March, 1952, he was released from such custody on a legal technicality.

During the intervening period from April, 1952 to August 1, 1952, appellant lived with his sister-in-law and then with his father. Appellant called the sister-in-law as a lay witness to testify to his behavior. She testified that during this period defendant was insane and on August 1, 1952 was incapable of distinguishing right from wrong.

The Government expert, Dr. William H. Haines, testified at the trial in response to a hypothetical question containing many facts concerning appellant's illness that it was his opinion, based on a reasonable degree of medical certainty, that the hypothetical man was able to distinguish right from wrong and act on that distinction on August 1, 1952, the day of the bank robbery.

Appellant was taken into custody shortly after the robbery. There was testimony that during this period he attempted to drive a nail through his wrist and palm. One expert testified to his seeing scars on appellant's left wrist. On August 19, 1952, appellant gave a detailed explanation and confession of the robbery to three agents of the Federal Bureau of Investigation, including Special Agent Stefanak. Agent Stefanak was called by the Government as a lay witness to testify to appellant's sanity. He recounted the August 19 meeting and conversations with appellant on August 27, September 8 and 20, 1952, at the DuPage County jail in Wheaton, Illinois. The conversation of the 27th had to do with appellant's conduct subsequent to the robbery. That of the 8th had to do with the capture of one co-defendant. At that time, in addition, appellant told Stefanak that he planned to fake insanity in state court proceedings; and if he was able to do that, upon his being turned over to the Government after two or three years and serving a sentence for bank robbery, he felt he would be free of any state court obligation. The conversation of September 20 had to do with the conduct of co-defendants relative to their capture.

Agent Stefanak testified that on each of the above occasions, it was his lay observation that appellant could differentiate between right and wrong and act on that differentiation.

On October 23, 1952, pursuant to an order of the DuPage County Circuit Court, Dr. Raymond Dowell and Dr. Harry Hoffman examined appellant to determine whether appellant at that time had the requisite mental capacity to stand trial in the state court. Dr. Hoffman, defense expert, testified that after examination he found a condition of paranoid schizophrenia in appellant and that he was "insane" within the terms of the Illinois statute so that he could not stand trial. Dr. Hoffman stated appellant then knew the nature of the charges against him but was unable to cooperate fully with counsel. It was his opinion that appellant was not malingering. Dr. Hoffman gave...