James R. Greider v. Jack Duckworth , 701 F.2d 1228 ( 1983 )

BAUER, Circuit Judge.

Greider appeals the denial of his petition for writ of habeas corpus, 28 U.S.C. § 2254, challenging the sufficiency of the evidence that he was sane at the time the crime was committed. The district court found that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Greider was sane at the time of committing the crime. We affirm.

I.

Greider testified that on January 31, 1977, while under the influence of drugs, he took a taxi to the apartment of Richard Dingman. Greider carried wrapped in a jacket a sawed-off shotgun which he intended to give Dingman to trade for drugs. Greider was also armed with an automatic pistol, housed in.his belt, which he described as a Garcia, 380 caliber semi-automatic. Greider recalled that Dingman picked up the shotgun, aimed the gun and released the safety. In the statement given police, Greider recalled that “[he] pulled [his] gun out, that was in [his] belt and shot him. As [Dingman] started to slump down, [Greider] shot him again.” At trial, Greider described the scene as he “recalled hearing two loud explosions.” When Paula Luciente, the second victim, walked toward Greider, she was shot in the face. In Greider’s statement to the police, he said “when she came at me, I just pointed the gun at her and shot her. It was in the front part of the face.” When Greider testified at trial, he said that “when Luciente walked toward [him, he] heard another explosion.” Greider stated that Luciente was standing about four feet away from him. However, powder marks were detected around the entry wound on Luciente’s head. Greider recalled checking Dingman for vital signs. He did not check Luciente because she lay in a large pool of blood.

After the shooting, Greider walked to the apartment of some friends. The friends were not at home. Greider returned to Dingman’s apartment, retrieved the shotgun and automatic pistol, and walked to his home. There, he unloaded the guns and placed them under a mattress.

Later that evening, he talked to his fiancee, Sandra Dockstader, told her what he had done, and said that he had no right to live. Greider slashed his arm. He went next door and asked a neighbor, Theodore Jurick, to drive him to the hospital. Jurick drove Greider to the emergency room of St. Catherine’s Hospital and remained during Greider’s treatment.

The following day, February 1, 1977, Greider drove to South Bend to purchase drugs, but could not make a buy. On February 2, 1977, Greider’s fiancee, Sandra Dockstader, drove him to Indianapolis to enroll in Cognition House, a drug rehabilitation center. It was from this center that Greider phoned the Hammond police to report the murders. Greider never denied committing the murders. He interposed as a defense that from Friday, January 28, through Monday, January 31, he ingested an excessive amount of heroin and valium and as a result he was insane at the time the crimes were committed. The court appointed three psychiatrists to examine Greider.

Each physician testified that after examining Greider they were of the opinion that Greider was suffering from a toxic psychosis due to the drugs ingested, and that Greider was unable to appreciate the wrongfulness of his conduct. A clinical psychologist testified that Greider was an “explosive personality” as exemplified by his three or more suicide attempts. The state offered no expert testimony.

A jury found Greider guilty of two counts of murder. He was sentenced to life imprisonment. On appeal, he challenged his conviction charging that the state failed to present evidence sufficient to rebut his defense that he was insane at the time the crime was committed. The Indiana Supreme Court affirmed the conviction finding that all the facts and circumstances surrounding the shootings were sufficient evidence to sustain the jury’s conclusion that Greider was sane at the time he fired the gun. Greider v. State, 385 N.E.2d 424 (Ind.1979).

Greider filed the instant petition for writ of habeas corpus, 28 U.S.C. § 2254, challenging the sufficiency of the evidence that he was sane at the time the crime was committed. The district court reviewed the trial transcript and determined that the state of Indiana’s summation of the evidence was an accurate statement of the relevant facts. The district court concluded that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Greider was sane at the time of committing the crime. The writ was denied. Greider appealed.

II.

A.

Greider argues that the evidence at trial was constitutionally insufficient to support his conviction given the unrebutted testimony of three court-appointed psychiatrists as well as that of lay witnesses that Greider was legally insane at the time the offense was committed. Our standard of review in a federal habeas corpus proceeding where the claim is that the petitioner has been convicted upon insufficient evidence was articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in which the Court described the inquiry as “whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... This ... standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. at 319, 99 S.Ct. at 2789.¹

B.

The general rule at common law and in Indiana was that voluntary intoxication was not a defense in a criminal proceeding. In order for intoxication to relieve a defendant from responsibility, the crime charged must have involved specific intent, and the defendant must have been so intoxicated as to be incapable of entertaining the required specific intent. Bates v. State, 409 N.E.2d 623, 625 (Ind.1980), citing Larkin v. State, 393 N.E.2d 180 (Ind.1979); Snipes v. State, 261 Ind. 581, 307 N.E.2d 470 (1974). See also James v. State, 265 Ind. 384, 354 N.E.2d 236 (1976).

The court in Carter v. State, 408 N.E.2d 790, 799 (Ind.App.1980), noted that the defense of voluntary intoxication has been applied to the classic specific intent cases, (1) offenses wherein the crime depended on the intent, purpose, aim, or goal with which an act was done, and (2) those offenses wherein the knowledge of an attendant circumstance is a material element of the crime. In such applications the defense of voluntary intoxication may be a factor for reducing an offense from first degree murder to second degree murder. See Aszman v. State, 123 Ind. 347, 24 N.E. 123 (1890).²

Specific intent is an element of first degree murder, and, as an element of the offense must be independently proven. See Hooker v. State, 387 N.E.2d 1354 (Ind. App.1979) quoting from 22 C.J.S. Criminal Law § 32 (1961). Although Indiana decisions have not defined specific intent, Carter v. State, 408 N.E.2d at 794, the courts have held that the existence of the requisite intent is a question of fact for the jury. Greider, 385 N.E.2d at 426; citing Preston v. State, 259 Ind. 353, 287 N.E.2d 347 (1972). See also Horton v. State, 265 Ind. 393, 354 N.E.2d 242 (1976); Norris v. State, 419 N.E.2d 129 (Ind.1981): “The trier of fact must resort to reasonable inferences based upon examination of the surrounding circumstances to infer the existence of knowing or intentional conduct.” Id. at 132. Consequently, the jury is permitted to infer malice from the intentional use of a deadly weapon in a manner likely to cause death. Oates v. State, 429 N.E.2d 949, 951 (Ind.1982); Bond v. State, 403 N.E.2d 812, 820 (Ind.1980); Zickefoose v. State, 270 Ind. 618, 388 N.E.2d 507, 509 (Ind.1979).³ And, the jury may infer purpose to kill in the act of killing. Bond v. State, 403 N.E.2d at 820, citing Kerns v. State, 265 Ind. 39, 349 N.E.2d 701 (1976) and cases cited therein.⁴

The Greider court, however, did not rely on these inferences but instead applied the common law view whereby when one voluntarily becomes intoxicated, guilt is attached to the intoxication itself, and is then transferred to the criminal act, supplying the required culpability. Greider, 385 N.E.2d at 426. See also Snipes v. State, 261 Ind. 581, 307 N.E.2d 470 (1974); Emler v. State, 259 Ind. 241, 286 N.E.2d 408 (1972).⁵

C.

The second prong of the volun-. tary intoxication defense is that the defendant must have been so intoxicated as to be incapable of entertaining the required specific intent.⁶ In application, this defense raises questions of mental disease and goes to the degree of abuse of alcohol or drugs. See Anderson v. State, 177 Ind.App. 603, 380 N.E.2d 606 (Ind.App.1978). While temporary mental incapacity induced by voluntary intoxication is generally not a defense, the law will not hold an accused responsible for his acts where the ingestion of intoxicants has been abused to the point that it has produced mental disease such that the accused is unable to appreciate the wrongfulness of his conduct or is unable to conform his conduct to the requirements of the law. Jackson v. State, 402 N.E.2d 947, 949 (Ind.1980).

Initially, in Indiana the defendant has the burden of proving his intoxication defense. Bates v. State, 409 N.E.2d 623, 625 (Ind.1980); Myers v. State, 422 N.E.2d 745, 751 (Ind.App.1982). After defendant has raised the issue of sanity, the state has the burden of proving sanity beyond a reasonable doubt. Coonan v. State, 269 Ind. 578, 382 N.E.2d 157 (1978), cert. denied, 440 U.S. 984, 99 S.Ct. 1798, 60 L.Ed.2d 246.⁷ The state’s burden can be met by sufficient evidence that the accused was not suffering from a mental disease or defect at the time of the offense, or that if so suffering, he was nevertheless possessed of a substantial capacity to appreciate the wrongfulness of such conduct and to conform his conduct to the requirements of the law. Williams v. State, 393 N.E.2d 183,187 (Ind.1979). However, it is for the jury to determine whether the accused’s conduct was the result of a diseased mind — regardless of the source of the disease — or was the result of voluntary intoxication. Jackson v. State, 402 N.E.2d 947, 949 (Ind.1980).⁸

Three psychiatrists testified that Greider suffered from toxic psychosis and were of the opinion that Greider was unable to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of the law.⁹ A fourth expert, a psychologist, testified that Greider had an explosive personality. The doctors admitted, however, that their estimate of the extent of drug abuse was based on information obtained from Greider. Greider argues that the state did not rebut the diagnosis of toxic psychosis nor did the state present its own expert witnesses. The state was not required to rebut the diagnosis, see Williams v.. State, 393 N.E.2d 183 (Ind.1979), nor was the state required to present expert witnesses. Riggs v. State, 264 Ind. 263, 342 N.E.2d 838, 841 (1976).

As evidence that Greider was capable of “entertaining specific intent,” or that the acts were not acts of a diseased mind, the Indiana court pointed to Greider’s acts of feeling for his victim’s pulse, seeking assistance for his own cut, and insisting upon reading the hospital form before signing as actions of a man capable of entertaining a specific intent. See also Stout v. State, 262 Ind. 538, 319 N.E.2d 123 (1974); Taylor v. State, 260 Ind. 264, 295 N.E.2d 600 (1973), cert. denied, 414 U.S. 1012, 94 S.Ct. 377, 38 L.Ed.2d 250. Moreover, as further evidence that Greider was capable of conceiving a design, the court pointed to his actions of sawing off a shotgun, going armed to the victims’ apartment, firing three separate shots and concealing the weapons.

The Greider court concluded that the facts and circumstances surrounding the shootings, as related by Greider, provided sufficient evidence to sustain the jury’s conclusion that he was sane at the time he fired the gun. Facts which the court found probative were (1) despite Greider’s claims that he did not remember aiming the gun at the victims, the victims were both shot directly in the head; (2) Greider checked to see if Dingman was alive; and (3) Greider admitted unloading and hiding the guns. Other probative evidence were the testimony of lay witnesses Jurick, Greider’s neighbor, who drove him to the hospital; Dr. Bajusz, the emergency room physician who treated Greider’s knife wound; and Camacho, an emergency room orderly, all of whom noticed nothing unusual in Greider’s manner, speech or ambulation.¹⁰ Other lay witnesses who testified about Greider’s drug addiction had not seen him the day of the crime, but they had seen Greider days before or after the crime. Thus, their opinions on Greider’s sanity lacked immediacy.

The jury could credit the testimony of lay witnesses over that of an expert witness. Jacks v. Duckworth, 651 F.2d 480, 487 (7th Cir.1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300. Moore v. Duckworth, 581 F.2d 639, 642 (7th Cir.1978), aff’d 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865. And, the jury may credit the testimony of lay witnesses who observed Greider shortly after commission of the crime, Moore v. Duckworth, 581 F.2d 639. In sum, the jury may “consider expert testimony in light of all other testimony presented . . . and not necessarily accept the ultimate conclusions of the experts as to the defendant’s legal sanity or insanity.” Jackson v. State, 402 N.E.2d 947, 950 (Ind.1980).

D.

Finally, a federal court exercising habeas jurisdiction must accord a “presumption of correctness” to factual determinations of state courts so long as the factual findings are fairly supported by the record. Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). The Indiana Supreme Court determined that there was substantial evidence of probative value to support the jury’s conclusion that Greider was sane at the time of the offense. The district court found the state court opinion an accurate statement of the facts. Greider has not demonstrated to us that this factual finding is erroneous or not supported by the record. Sumner, 449 U.S. at 550, 101 S.Ct. at 771. Thus, we conclude that a rational factfinder could have inferred that Greider was capable of entertaining specific intent on the day he committed the murders, or that his acts were not the acts of one suffering from mental disease such that he was unable to appreciate the wrongfulness of his conduct. See Jackson v. Virginia, 443 U.S. 307, 325, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979).

For the foregoing reasons, the judgment of the district court is affirmed.

1 . Indiana has declined to adopt “the rational trier of fact” standard of review when reviewing sufficiency claims. Norris v. State, 419 N.E.2d 129, 134 (Ind.1981). Instead, the standard of review is a reviewing court will neither reweigh the evidence nor judge the credibility of witnesses. Jackson v. State, 402 N.E.2d 947, 948 (Ind.1980). The reviewing court “will look only to that evidence most favorable to the State and all reasonable inferences to be drawn therefrom, to determine whether a reasonable juror could have found the existence of each of the elements of the crime charged beyond a reasonable doubt.” Id. at 948.

2 . The Greider jury was instructed on the lesser included offense of voluntary manslaughter.

3 . Under the current statutory scheme, effective October 1977, malice is not an element of the crime of murder. Palmer v. State, 425 N.E.2d 640 (Ind.1981). The penal statute now reads:

Sec. 1. A person who: (1) knowingly or intentionally kills another human being, or . . . commits murder, a felony.”

Ind.Code 35-42-1-1. Proof of “knowingly or intentionally killing” is sufficient to convict for murder. See Commentary, Ind.Code 35-42-1-1.

However, the Greider jury was instructed “Whoever purposely and with premeditated malice kills any human being is guilty of murder in the first degree, . ... ”

4 . The Carter Court, 408 N.E.2d 790, 794-5 n. 6, described the objective-subjective dichotomy of mens rea required for first degree murder in the following illustration: “One is punished for first degree murder, a specific intent offense, only when the actor’s shooting a gun (i.e., the voluntary act) was done with the subjective desire to kill a human being (i.e., the prohibited result) (perhaps implied in the statutory word ‘premeditation’).”

5 . Moreover, Indiana courts have used the doctrine of transferred intent to establish intent to kill when the defendant has used a weapon in a manner which would cause death. See Norris v. State, 419 N.E.2d 129, 133 (Ind.1981); Jackson v. State, 402 N.E.2d 947 (Ind.1980); Taylor v. State, 260 Ind. 264, 295 N.E.2d 600, 610 (1973), cert. denied, 414 U.S. 1012, 94 S.Ct. 377, 38 L.Ed.2d 250.

6 . This language was used in the Greider opinion. Commentators have criticized this formulation of the rule suggesting that as framed the rule renders the defense illusory, because if literally applied by the trier of fact, one would have to be unconscious before he could avail himself of the defense. Carter v. State, 408 N.E.2d 790, 802 (Ind.App.1980).

7 . States have varied in their treatment of the insanity defense. More than half place the burden of disproving insanity on the prosecution while a minority place the burden of proving insanity on the defendant. Price v. State, 412 N.E.2d 783, 785 (Ind.1980). Jurisdictions placing the burden on the defendant view insanity as an affirmative defense with no relationship between sanity and mens rea while jurisdictions placing the burden on the state view sanity as an element of the offense or as necessary to the formation of the requisite culpable mental state. Price at 785 citing United States v. Greene, 489 F.2d 1145 (D.C.Cir.1973); see also Note, Constitutional Limitations on Allocating the Burden of Proof of Insanity to the Defendant in Murder Cases, 56 Boston U.L. Rev. 499 (1976). Although there are Indiana decisions treating sanity as an element of the offense, most decisions have treated insanity as an affirmative defense.

8 . Although the Constitution is not offended by a state placing the burden of proving an affirmative defense such as insanity on the defendant, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), once the state legislature has allocated the burden of proof, and required the state to prove a fact beyond a reasonable doubt, [see Stacy v. Love, 679 F.2d 1209 (6th Cir.1982)], a federal court may review the historical facts to determine whether the state has met its burden. As the court noted in Walker v. Butterworth, 599 F.2d 1074, 1079 (1st Cir.1979), .. . “the government’s burden of proof and any presumptions that may affect that burden are only constitutionally relevant if they relate to an indispensable ‘ingredient’ of the crime or an ancillary ingredient that the legislature has directed the government to prove.”

9 . For operation of the defense where claim is toxic psychosis or toxic reaction, see Norris v. State, 419 N.E.2d 129 (Ind.1981); Jackson v. State, 402 N.E.2d 947 (Ind.1980); Williams v. State, 393 N.E.2d 183 (Ind.1979); People v. James P. Free, Jr., 94 Ill.2d 378, 402-03, 69 Ill.Dec. 1, 13-15, 447 N.E.2d 218, 230-32 (1983).

10 . Nurse Labascal, the only witness who gave a contrary opinion, testified that Greider’s eyes were watery and speech slurred. She ventured no opinion on whether he knew right from wrong or was able to conform his conduct to the law.