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United States v. Currens

May 1, 1961

UNITED STATES OF AMERICA,
v.
DONALD KENNETH CURRENS, APPELLANT.



Author: Biggs

Before BIGGS, Chief Judge, and HASTIE and FORMAN, Circuit Judges.

BIGGS, Chief Judge.

Currens, the appellant, was convicted by a jury of a violation of Section 2312, Title 18 U.S.C., the National Motor Vehicle Theft Act, the so-called "Dyer" Act, and was committed as a young adult offender to the custody of the Attorney General for treatment and supervision pursuant to Section 5010(b) of the Youth Corrections Act, 18 U.S.C. ยง 5010(b), until discharged by the Federal Youth Correction Division pursuant to law. The facts relating to his crime briefly stated, are as follows:

On September 16, 1958, Currens, then approximately 22 years of age and living with his grandparents in Mansfield, Ohio, went to an automobile salesman in that city. He told the salesman that he desired to buy a designated automobile and a price of $3,800 was tentatively agreed upon. Currens then requested permission to drive the car for a brief period, saying that he desired to show it to his wife. The salesman agreed to let him have the use of the car for several hours but Currens drove the car to Waterford, West Virginia, taking with him a young woman who was not his wife. Accompanied by his female companion he later drove the car to the Pittsburgh airport where he abandoned it. Currens was arrested in Las Vegas, Nevada, and was interviewed there by Agent Parker of the Federal Bureau of Investigation on November 1, 1958. He wrote out and signed a statement, really a confession, which was introduced in evidence at his trial as Government's Exhibit No. 2. In this statement he admitted that he had obtained the car by "pretense" and stated that he was not sure where he had left it, suggesting that perhaps he had driven it to New York City. He stated that he recalled driving the car to Wheeling, West Virginia, but that he could not remember clearly what had transpired after that. When interviewed by Agent Parker for the second time on November 14, Currens stated that he did not recall "too clearly" talking with the F.B.I. agent only two weeks before. He asserted also that he had consumed large quantities of liquor prior to his leaving Mansfield.

Currens was returned to Pittsburgh and was confined in the Allegheny County Jail for want of bail. On February 19, 1959, he was examined by Dr. Maurice H. Bowers, a qualified neuropsychiatrist of Pittsburgh. Dr. Bowers prepared a report, dated February 19, 1959, addressed to the Department of Justice and the United States Attorney, introduced at the trial as Defendant's Exhibit C, in which he stated that he found that Currens was "able to understand the proceedings against him so as to assist in his own defense.", that he believed Currens to be "competent mentally * * * and that he knows right from wrong but has not adhered to the right." The indictment against Currens was handed down on March 20, 1959. On June 1, 1959, however, the United States Attorney filed a petition in which he referred to Dr. Bowers' findings quoted above in part, but went on to say: "However, the conduct of * * * [Currens] while confined in the Allegheny County Jail was such that he was transferred to the United States Penitentiary at Lewisburg, Pennsylvania, for emergency hospitalization", that a report of May 25, 1959, by Dr. Manly B. Root, Chief of the Psychiatric Service of the Lewisburg Penitentiary, stated that Currens had a "mental disease, namely hysteria" and that a further psychiatric examination would be necessary to determine whether he was able to understand the proceedings against him and properly to assist in his own defense.*fn1 The United States Attorney prayed that Currens be examined again by Dr. Bowers pursuant to Sections 4244-4247, Title 18 U.S.C. The court below entered the order requested.

On June 4, 1959, Dr. Bowers again examined Currens and on June 8 again rendered a report, introduced at the trial as Defendant's Exhibit B [sic] to the Department of Justice and to the United States Attorney. He concluded, among other things, that as of that time Currens was not "able to understand the proceedings against him so as to assist in his own defense", and that "The Instability of Emotions is believed to cause his Anxiety to reach such proportions that his judgment is impaired as well as his ability to concentrate; [and] at such times he would therefore be unable to understand proceedings." On June 11, 1959, a hearing was held to determine the mental competency of Currens. The court found him mentally incompetent and pursuant to Section 4246, Title 18 U.S.C., ordered him committed to the custody of the Attorney General until he was "restored to mental competency sufficiently to stand trial. * * *"

Currens was then sent to the Medical Center for Federal Prisoners at Springfield, Missouri for examination and treatment. The reports of the Medical Center were admitted in evidence at Currens' trial as part of Defendant's Exhibit D. The earliest date with which they are concerned is June 16, 1959; the latest, September 22, 1959. The second sheet of the reports gives Currens' "Previous Criminal History". It lists eight criminal offenses or charges, most of them of a petty nature. The most serious of these was the passing of worthless or forged checks. The offenses, while small, cover a wide range both geographically and by categories. As examples we point out that Currens served two years in the Federal Reformatory at El Reno for impersonating an Air Force officer in New Orleans and later received a comparatively light sentence at Tempe, Arizona for petty thievery. The doctors at the Springfield Medical Center observed that some paralysis, unparticularized as to location in the report, was observable on his arrival at the hospital at the Lewisburg prison in March 1959 and that he claimed he had suffered injuries several years before when thrown by a horse and that his back had been reinjured in a jump from an upper bunk while in jail. At the Medical Center Currens was thought to be hysterical in asserting that he was suffering from these back injuries but an actual test showed that the protein in his spinal fluid was abnormally elevated. The Medical Center report also asserts that Currens resented his commitment for examination under Section 4246, Title 18 U.S.C. and complained because he was not allowed to plead guilty and receive sentence, apparently fearing that he might be held in custody indefinitely. His record, at least as disclosed by the Medical Center authorities, indicates that he is a person of somewhat better than average intelligence, ordinarily somewhat affable, but subject to occasional explosive and irrational courses of conduct. He is shown as a consistent minor violator of institutional regulations, with "borderline" behavior. The following sentence from one of the Medical Center reports, Exhibit D, is suggestive: "He [Currens] has appeared to be a somewhat disturbed person with hypochondriacal and hysterical tendencies, yet he has not been sufficiently disturbed to warrant a psychotic diagnosis." Currens asserted that he could not remember the offense with which he was charged. The examining psychiatrists expressed doubts as to whether Currens was a pathological liar or was actually subject to amnesiac periods which caused memory blanks which he attempts to fill with confabulation.*fn2

That portion of the Medical Center reports, also part of Exhibit D, indicated as dictated by "EHM, 9-11-59", headed "Present Situation" is, we think, illuminating. It is as follows: "Currens was assigned to an open ward for older patients on arrival * * *. He also had approximately two weeks on an acute treatment ward when he, in anger, made statements which sounded as though he might take his own life. He has not received any formal behavior reports but neither has his adjustment been particularly commendable. He had no work assignment for the first two months but has recently been placed in the Food Service. He has asked to be assigned to Industries so that he might earn some money. He appears to have sufficient judgment not to get into outright difficulties, but the problem of being unable to recall his offense remains with him. He is essentially unperturbed with his mode of adjustment to living and it would appear that he finds an institutional atmosphere a fairly compatible one, including its value as a focus of hostility. It would appear also that whatever physical difficulties he has also serve the purpose of removing him one step further from an active and responsible life."

The Psychological Examination of Currens at the Medical Center was quite complete. A battery of tests was employed on June 18 and July 9, 1959, and the results are set out in detail in the report of August 3, 1959 of Dr. George A. Geil, a Clinical Psychologist of the United States Public Health Service which also is included in Exhibit D. These tests included the Color Sensitivity Personality Test, the Rorschach Test and the Multiple Approach Personality Inventory. All of these tests tend to show that Currens possessed and possesses an extremely disturbed and possibly disintegrating personality and that his contacts with reality have been "seriously weakened". Phrases like "Weak reality contact, withdrawn emotions," are not infrequent in Dr. Geil's report. Currens is said to be "Depressed or excited in a way not understood. * * * Frightened by the hearing of strange or frightening voices". Dr. Geil gives his "Psycho-diagnostic Impression as follows: "(1) Basic sociopathic personality disturbance and (2) major emotional disturbance (schizophrenic reaction, undifferentiated type). In view of patent's claimed head injury in 1958 and subsequent symptomatic complaints, an EEG [electroencephalogram] study is recommended to help clarify the likely presence or absence of a chronic brain syndrome associated with brain trauma."

A Report of a Neuropsychiatric Examination follows as a portion of Exhibit D. This states in part: "He [Currens] is oriented as to time, place and person; emotionally, judgment and insight are superficial. He showed a degree of concretism*fn3 in his responses to the abstractions test. Psychological test findings indicate intellectual functioning within average range. The psycho-diagnostic impression was of a major emotional disturbance, schizophrenic reaction, undifferentiated type in an individual with a basic sociopathic personality disturbance."

The diagnosis of the Classification Study of the Medical Center, part of Exhibit D, was that Currens was subject "to a sociopathic personality disturbance, [an] antisocial reaction in an individual who tends to become schizophrenic under stressful circumstances, as manifested by a history of antisocial behavior, superficiality of affect and judgment, affability and psychological test evidence suggestive of schizophrenia."

Last among the Reports of the Medical Center, included in Exhibit D, is a report of a Neuropsychiatric Staff Examination, dated September 17, 1959. This states that "Medical evaluation led to the conclusion that his [Currens'] symptoms arose from a psychoneurotic hysterical state." This report goes on to say that, "Following his [Currens'] admission to the Medical Center he experienced severe entractable headaches and after becoming agitated threatened to commit suicide. Under tranquilizing medications he underwent a remission from his symptoms and since then has made a very good ward adjustment and an excellent adjustment at his job assignment as a clerk in the culinary service. After initial psychiatric evaluation at the Medical Center he was given the diagnosis of sociopathic personality disturbance, antisocial reaction in an individual who tends to become schizophrenic under stressful circumstances as manifested by a history of antisocial behaviors, superficiality of affect and judgment, affability and psychological test evidence suggestive of schizophrenia." There follows the statement that as of the day of the staff meeting, September 17, 1959, Currens was rational and coherent, and that in answers to questions concerning his prospective role in his forthcoming trial, he manifested "a realistic attitude and an adequate degree of understanding of his situation." The report concludes with the Staff's Recommendation that he was in remission from his previous episode of severe emotional disturbance and that he was able to understand the proceedings against him and to assist in his own defense.

On October 19, 1959, the court below, having before it the Report of the Medical Center last referred to, ordered the United States Marshal to take Currens back into custody, and on December 1, 1959, ordered him to stand trial. He pleaded not guilty and was tried by a jury. The trial commenced on December 2 and was concluded on December 4, 1959. All of the medical reports which we have referred to were introduced in evidence save that of Dr. Root which apparently was not available. See note 1, supra. Immediately after the noon recess on the first day of the trial Currens through his counsel*fn4 stated that he, as then advised, pleaded "'not guilty' because of insanity"*fn5 This plea was accepted by the court without objection by the United States.

Dr. Bowers testified for the appellant at the trial. He reiterated his diagnoses of Currens' illness in substance as set out in his two reports which we have referred to previously. He described Currens again as a sociopathic personality possessing an emotional instability reaction but that he knew the difference between right and wrong but would not adhere to the right. Dr. Bowers would not say that Currens was subject to irresistible impulses which caused his criminal behavior but rather that he reacted without due regard for consequences and that his illegal and antisocial conduct was repetitive and an outgrowth of his type of personality. Dr. Bowers testified that it was his opinion that Currens' theft of the car, as charged in the indictment and as proved by the evidence, was the result of Currens' sociopathic personality and that a person with such a personality cannot be considered to be "a mentally healthy person". Asked if the "sociopathic condition" was itself a mental disease, Dr. Bowers replied, "[We] consider it under the classification of mental illness, but we do not consider them [persons possessing sociopathic personalities] in the legal sense to be 'insane'." The Doctor also said that Currens was not "insane" in the sense that that legal, non-medical, term is employed, that the term "sociopathic personality" is not a term precisely indicating a mental illness but that it does have "mental implications". He stated also that: "It is a very fine line, as I pointed out before, between the psychopathic type of personality and a true mental psychotic personality.", and that "We do not use the word 'sane' or 'insane' in medicine." Dr. Bowers would not say that Currens was schizophrenic but indicated that he might be schizoid*fn6 and that he had symptoms, as shown by the Medical Center tests, that would fit "the schizophrenia tendency". He stated, nonetheless, that the schizoid personality and the sociopathic personality are closely related.

There is evidence to support a finding that there has been no substantial fundamental change in Currens' mental illness or disorder between September 16, 1958 when Currens committed the Dyer Act violation and the occasions referred to in this opinion when he was examined by the doctors, whom we have named, and his condition on the day of his trial.*fn7

Currens took the witness stand but his testimony need not be referred to in detail here. He stated in substance that the charge laid against him in the indictment was true. Some of his evidence was bizarre in the extreme. For example, he testified that he "just jumped in [the stolen automobile] to get out of the rain."*fn8 He seemed to be lacking in insight as to the nature of his difficulties and those he had brought on others.

At the close of the testimony offered by Currens, his counsel moved for a "directed verdict of acquittal" on the ground that Currens was not guilty by reason of his insanity or unsound mind or, apparently alternatively, that because his crime was a product of a mental disease, defect or illness" he was not responsible criminally for his conduct. The proper motion would have been one for a judgment of acquittal under Rule 29(a), Fed.R.Crim.Proc., 18 U.S.C., motions for directed verdicts having been abolished by the Federal Rules of Criminal Procedure. But in any event, treating the motion for a directed verdict as the equivalent of a motion for a judgment of acquittal, as the court below treated it, no error was committed by the court below because Currens' mental condition at the time of the commission of the offense clearly was a question for the jury.

Currens' counsel then submitted two "Points for Charge". The first was based on the M'Naghten Rules, X Clark & Finnelly, at 208 et seq. 8 English Reports, Reprint, at 722, et seq., as follows: "If, at the time of the commission of the offense for which the defendant stands accused, the defendant was not able to distinguish right from wrong, and if you, members of the jury, find such to be the case in the cause which you are now trying, you must find the defendant not guilty by reason of insanity or unsound mind." The second request for charge was as follows: "If you the jury believe beyond a reasonable doubt that the accused was not suffering from a diseased or defective mental condition or mental illness at the time he committed the criminal act charged, you may find him guilty. If you believe he was suffering from a diseased or defective mental condition or mental illness when he committed the act, but believe beyond a reasonable doubt that the act was not the product of such mental abnormality, you may find him guilty. Unless you believe beyond a reasonable doubt either that he was not suffering from a diseased or defective mental condition or mental illness, or that the act was not the product of such abnormality, you must find the accused not guilty by reason of insanity or unsound mind. Thus your task would not be completed upon finding, if you did find, that the accused suffered from a mental disease or defect or mental illness. He would still be responsible for his unlawful act if there was no causal connection or relation between such mental abnormality and the act or crime for which the defendant stands accused. These questions must be determined by you from the facts which you find to be fairly deducible from the testimony and the evidence in this case." This requested charge is in substance that approved by the Court of Appeals for the District of Columbia Circuit in Durham v. United States, 1954, 94 U.S.App.D.C. 228, 214 F.2d 862, 875, 45 A.L.R.2d 1430.*fn9 The Court stated that it would affirm the first request for instructions, based on the M'Naghten Rules, but would deny the second, based on Durham. The court then proceeded to so charge the jury but added, as an additional test of Currens' criminal responsibility, the so-called irresistible impulse rule. The court also charged as to the applicability of the conception of "temporary insanity".

After the completion of the charge, Currens' counsel objected to it pursuant to Rule 30, Fed.R.Crim.Proc. 18 U.S.C., stating, "* * * I would take exception to that portion of the charge which indicates that if the defendant was suffering from a mental disease at the time he committed the offense, that would be no excuse for committing crime." The court replied: "Very well. Is there anything else?" Currens' counsel then said, "I do not believe there is anything else * * *". After delivering a supplemental charge the court again asked, "Anything else, gentlemen?" Currens' counsel then said: "No, your Honor". The jury then retired and returned with a verdict of guilty. A motion for a judgment of acquittal or in the alternative for a new trial was then made by Currens' counsel under Rule 29, Fed.R.Civ.Proc., 18 U.S.C. The substantial point raised by this motion was the failure of the court below to charge that Currens' offense was the product of mental illness or of unsound mind as required if the Durham formula was applicable. The motion was denied without opinion. The appeal followed.

Rule 30 of the Federal Rules of Criminal Procedure, Title 18 U.S.C., provides in part that, "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." The alleged error assigned by Currens on this appeal is that the court below instructed the jury in accordance with the knowledge of right-and-wrong standard of the M'Naghten Rules when the proper course would have been to charge in accordance with the Durham formula. As is evident from the summary of the proceedings set out above there is some question whether Currens' counsel complied with Rule 30, thus preserving his objection on this appeal. First, in his points for charge he requested both the Durham formula and the right-and-wrong test of the M'Naghten Rules. Second, after the court denied his point for charge on the Durham formula, Currens' counsel objected in a somewhat vague manner. If we were to find that Currens' objection to the court's charge was insufficient for the purposes of Rule 30 we would need to go no further in this case.

Rule 30 embodies a well recognized principle of sound judicial administration, viz., that no party ought to be allowed to assign as error on appeal a ruling by a trial judge that might have been corrected in the first instance had a timely objection been made. The rule encourages counsel to call the possibility of prejudicial error to a trial court's attention before the error irreparably taints the litigation. United States v. Lang, 3 Cir., 1956, 239 F.2d 676. It must be recognized that this rule although sound and fundamental is grounded solely on pragmatic considerations of juridical economy and convenience. It is designed to serve a well defined procedural purpose. Such a rule should not be employed woodenly, but should be applied where its application will serve the ends for which it was designed. If it be applied blindly and without the benefit of analysis of particular fact situations before individual courts in specific cases it will be transformed from a sound principle of judicial administration into a trap for the unwary, a trap reminiscent of the senseless technicalities that characterized common law procedural systems and which made them a source of scorn and anger to many lawyers and to most laymen.

There are several reasons why we conclude that Rule 30 was, in substance, complied with in the instant case. First, Currens made his objections to the application of the M'Naghten Rules standard in three express ways at times when the court could have modified its charge if it had considered itself bound to do so. Immediately before the charge, he asked for a "directed verdict" on the basis of the Durham formula. One of his points for charge was based on the Durham formula and although he coupled this request with a request for the M'Naghten Rules standard it would appear that the request put the trial court on notice of what he was attempting to have the court do. After the court delivered its charge in accordance with the M'Naghten Rules, while omitting a ...


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