# Appendix — Burks v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2119%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 437 U.S. 1 ## Text inns ow ir ssenscsesss: A.159 Order of the Sixth Cireuit Court of Appeals denying petition for rehearing filed by the plaintiff-appellee, February 8, SOUT. cccccceccecsesegtescaccersesedecsccecsenesees A.160 Order of the Supreme Court of the United States granting motion for leave to proceed in forma pauperis and granting petition for writ of COTtIOTATL ... 6c ee cee eee rere eee eeeeee A.161 In the Supreme Court of the Anited States Ocropen Term, 1977 No. 76-6528 Daviy Wayne BuRKS, PETITIONER v. Unirep Sratres or AMERICA, RESPONDENT ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT (1) Iw roe Unitrep States District Court Mripp.e Districr or TENNESSEE NasuVvILue Division Unrrep States oF AMERICA v. No. 75-246-NA-CR Davin Wayne Burks 1975 Nov. 19 Dee, 2 Dec. 9 1976 Jan. 30 Feb. 12 Feb, 12 Feb. 19 Feb. 25 RELEVANT DOCKET ENTRIES Indictment filed. BOD Papers included in file. December 1, 1975. Entered. Defendant plea of not guilty. Ordered defendant allowed ten days from this date time within which to file pre-trial motions. Ordered case reset for trial January 15, 1976. Copy to USA. USP. USM. defendant and Attorney Durham. Order for Psychiatrie Examination entered. Defendant to report to Dr. Farrer December 8, 1975 at 3:00 p.m. Ordered report be made to this Court, with copies to the U.S.A. and Attor- ney Durham. Att. copy USA. USP. USM. de- fendant and Attorney Durham and Dr, Farrer. Filed: Government's request for reciprocal dis- closure by AUSA Windsor, C/S Renewal of Government's Request for Recipro- cal Disclosure filed by AUSA Windsor. C/S Affidavit ‘in Support of Renewal of Govern- ment’s Request for Reciprocal Disclosure filed by AUSA Windsor. Filed: Note received by Court from jury as follows: ‘‘The law that constitutes mental ill- ness that Judge Gray read to us.’’ Judgment and Commitment Order of 2/25/76 entered. Plea of not guilty; verdict guilty; im- prisonment 20 years; sentence imposed under 18:4208(a)(2), under which defendant may be- come eligible for parole at such time as Board of Parole may determine. 1 Certified copy to A.2 March March 3 March 12 Apr. 16 Dee. 30 1977 Feb. 8 Feb. 8 A.3 USA, USP, Attorneys Durham and Moon and defendant; 2 certified copies to USM, 2/25/76. Motion for New Trial filed by Thomas W. Moon for defendant. C/S Notice of Appeal filed by Attorney Moon on behalf of defendant. C/S Order entered: Defendant’s Motion for New Trial DENIED. Copies USA, USM, USP, De- fendant and Attorney Durham 3/15/76. Excerpts from official transcript of proceedings on February 17-19, 1976. Opinion of the Sixth Cireuit Court of Appeals. Order of the Sixth Cireuit Court of Appeals denying petition for rehearing filed by the de- fendant-appellant. Order of the Sixth Cireuit Court of Appeals denying petition for rehearing filed by the plain- tiff-appellee. Unirep States District Court ror THE Mippie District or TENNESSEE NasuviLLe Division {Title omitted in printing] Filed November 19, 1975. Frank E. Williams Clerk by Sherry Williams Deputy Clerk INDICTMENT COUNT ONE The Grand Jury charges: On or about October 23, 1975, in the Middle District of Tennessee, DAVID WAYNE BURKS did by foree and violence and intimidation take from the person and pres- ence of employees money belonging to and in the care, custody, control, management and possession of the Com- merce Union Bank, Nolensville Road Branch, Nashville, Tennessee, the deposits of which were then insured by the Federal Deposit Insurance Corporation, and in committing this offense, the aforesaid DAVID WAYNE BURKS, did assault the said employees of the said Commerce Union Bank, and did put in jeopardy the lives of said employees by the use of a dangerous weapon. In violation of Title 18, United States Code, Section 2113(d). COUNT TWO The Grand Jury further charges: On or about October 23, 1975, in the Middle District of Tennessee, DAVID WAYNE BURKS, in committing the offense charged in Count One of this indictment and in avoiding and attempting to avoid apprehension, forced Ernest Staggs to accompany him without the consent of the aforesaid Ernest Staggs. AA Ad In violation of Title 18, United States Code, Section 2113(e). A TRUE BILL: /s/ Robert P. Alvisder Rosert P. ALVIsvpER Foreman /s/ Joe B. Brown Jor B. Brown Acting United States Attorney Unrtep States District Court FOR THE MippLe District or TENNESSEE NASHVILLE Drvision [Title omitted in printing] Frank E. Williams Clerk by Sherry Williams Deputy Clerk Came the Assistant United States Attorney and also came the defendant David Wayne Burks, in person, and by his attorney Bart Durham III, and upon being solemnly ar- raigned upon an indictment charging in one count violation of 18 U.S.C. §§ 2113(d) and 2113(e), said defendant pleaded not guilty by reason of insanity to the one-count indictment. It is ORDERED that the defendant herein be allowed ten (10) days from this date time within which to file pretrial motions. It is further ORDERED that this case be reset for trial at 9:00 A.M., Thursday, January 15, 1976, in Umied States District Courtroom Annex-1, United States Court House, 801 Broadway, Nashville, Tennessee. ENTER: /s/ Frank Gray, Jr. Frank Gray, JR. Chief Judge {Approved by counsel] A.6 Unitep States District Court FOR THE Mippie District oF TENNESSEE NASHVILLE Division [Title omitted in printing] Frank E. Williams Clerk by Sherry Williams Deputy Clerk ORDER FOR PSYCHIATRIC EXAMINATION Upon motion of the United States of America for psychi- atric examination of the defendant ; It is hereby ORDERED pursuant to Title 18, United States Code, Section 4244, and the inherent powers of this Court, that the defendant be examined by a qualified psy- chiatrist at the expense of the United States in order to determine his present medical condition as to his ability to understand the proceedings against him and to assist his attorney in his own defense, and further to determine (1) whether the defendant was suffering from mental illness at the time of the alleged commission of the crime; (2) whether that illness was such as to prevent his knowing the wrong- fulness of his act; (3) whether the mental illness was such as to render him substantially incapable of conforming his conduct to the requirements of the law he is charged with violating. It is further ORDERED that the defendant shall report to the office of Dr. R. James Farrer, 1 Park Plaza, Nash- ville, Tennessee, at 3:00 p.m., Monday, December 8, 1975, and at such other times as Dr. Farrer shall designate for the purpose of examination. Failure by the defendant to so appear will be considered by the Court as a violation of the conditions of the defendant’s bond. It is further ORDERED that such psychiatric report be made to this Court, with copies te the United States Attor- ney and Bart Durham, Esq., 1104 Parkway Towers, Nash- ville, Tennessee, attorney for the defendant. ENTER: /s/ L. Clure Morton L. Cuure Morton Judge [Approved by counsel } A.7 Unirep States District Court FoR THE Mippie District or TENNESSEE NASHVILLE Division (Title omitted in printing] Filed January 30, 1976 GOVERNMENT’S REQUEST FOR RECIPROCAL DISCLOSURE The Court having ordered the defendant examined by a qualified psychiatrist upon the motion of and at the expense of the United States, and having further ordered a copy of the resulting psychiatric report disclosed to defense counsel in the cause, and defense counsel having requested said psychiatric report, the United States Attorney requests dis- closure of evidence by the defendant pursuant to Rule 16(b)(1)(B) of the Federal Rules of Criminal Procedure, and permission to inspect or photograph any results or reports of physical or mental examinations or tests admin- ‘stered to the defendant in connection with the cause and within the possession or control of the defendant. Cares H. ANDERSON United States Attorney for the Middle District of Tennessee /s/ Richard L. Windsor Ricuarp L. Wrnpsor Assistant U.S. Attorney 879 U.S. Courthouse P.O. Box 800 Nashville, Tennessee 37202 Telephone: (615) 749-5151 {Certificate of Service omitted | a 2 sai “TAS Sate Unirep States District Court ror THE MippLe District OF TEN NESSEE NasHVILLE Division [Title omitted in printing] Filed February 12, 1976 RENEWAL OF GOVERNMENT'S REQUEST FOR RECIPROCAL DISCLOSURE The Court having ordered the defendant examined by a qualified psychiatrist upon the motion of and at the expense of the United States, and having further ordered a copy of the resulting psychiatric report disclosed to defense counsel in the cause, and defense counsel having requested said psychiatric report, the United States Attorney requests dis- closure of evidence by the defendant pursuant to Rule 16(b)(1)(B) of the Federal Rules of Criminal Procedure, and permission to inspect or photograph any results or reports of physical or mental examinations or tests admin- istered to the defendant in connection with the cause and within the possession or control of the defendant. Crarues H. ANDERSON United States Attorney for the Middle District of Tennessee /s/ Richard L. Windsor Ricuarp L, WInDsor Assistant U.S, Attorney 879 U.S. Courthouse P.O. Box 800 Nashville, Tennessee 37202 Telephone : (615) 749-5151 [Certificate of Service omitted] Unitep States Disrricr Court FOR THE Mipp.e District or TENNESSEE NASHVILLE Division [Title omitted in printing] Filed February 12, 1976 AFFIDAVIT IN SUPPORT OF RENEWAL OF GOVERNMENT’S REQUEST FOR RECIPROCAL DISCLOSURE Upon the oath and affidavit of the undersigned Assistant United States Attorney, the following facts are presented to the Court: 1. The attorney for the defendant made a personal tele- phonic request of the attorney for the Government, on behalf of the defendant, for the results and reports of a psychiatric examination of the defendant, David Burks, by a psychiatrist and, pursuant to the Government’s motion for the examination. 9. At the time of the telephonic request, no copy of the requested results of reports of said examination was in the possession or custody of the Government. 3. The attorney for the Government immediately con- tacted the psychiatrist. 4. No report or result had then been prepared although the examination of David Burks had been completed. 5. The attorney for the Government requested the exam- ining psychiatrist to expeditiously prepare the result or report in typed form and provide it to the attorney for the defendant, and this in fact was done. 6. Furthermore, attached to this affidavit as Exhibit A thereto is a photocopy of a letter from the attorney for the defendant specifically requesting disclosure under Rule 16 of the Federal Rules of Criminal Procedure. 7. The attorney for the defendant has refused to comply with the Government’s request for reciprocal disclosure of information within the possession or control of the defendant concerning mental or physical examinations. /s/ Richard L. Windsor Ricuarp L, Wrnpsor Assistant U.S. Attorney [Jurat Omitted] A.10 EXHIBIT A Moon & DurRHAM ATTORNEYS-AT-LAW Tom Moon Suite 1104—Parkway Towers Bart Durham Nashville, Tennessee 37219 Telephone 615/254-5016 November 25, 1975 Received December 1, 1975 U.S. Attorney’s Office Nashville, Tennessee Mr. Rick Windsor Assistant U.S. Attorney U.S. Courthouse - 800 Broadway Nashville, Tn. 37203 Re: United States of America v. David Wayne Burks, No. 75-246-NA-CR Dear Mr. Windsor: I am writing to request informally from the Office of the United States Attorney the discovery allowed under Rule 16 of the Federal Rules of Criminal Procedure. I would like to inspect the confession made by the defend- ant and the results of any scientific tests made in connection with the case including pictures taken at the bank if the government plans to use them. I would also respectfully request those items under Rule 16b; namely, books, papers, documents, tangible objects and other matters which are in the possession, custody or control of the government. These items will be material to the preparation of our defense. If you have any question as to whether or not a display of these would be reasonable, I would be glad to make arrangements to view them in such a manner as to make my request reasonable. I would also like to make this a continuing request for disclosure under Rule 16g. Respectfully yours, Bari Durham A.11 Filed February 19, 1976 Frank E. Williams Clerk by A. C, Beech Deputy Clerk Note received by court from jury at 5:45 p.m., Feb. 19, 1976. The law that constitutes mental illness that the Judge Gray read to us, A.12 Unirep States District Courr ror THE Mippie District or Ten NESSER NasuvILLE Division Unrrep Srares or AMERICA V. Daviw Wayne Burks, Defendant Docket No. 75-246-NA-CR JUDGMENT AND PROBATION/COMMITMENT ORDER In the presence of the attorney for the government the defendant appeared in person on this date, February 25, 1976. Counsel; With counsel, Bart Durham II and Thomas Moon. Plea: Not guilty. Finding & Judgment: There being a verdict of guilty. Defendant has been convicted as charged of the offense(s) of violation of 18 U.S.C. § 2113(d) as charged in count one of the two-count indictment. (Count two of the two-count indictment was heretofore dismissed by the Court upon motion of the Assistant United States Attorney.) Sentence or Probation Order: The court asked whether defendant had anything to say why judgment should not be pronounced. Because no sufficient cause to the contrary was shown, or appeared to the court, the court adjudged the defendant guilty as charged and convicted and ordered that : The defendant be hereby commi the ciistody of the Attorney General or his authorized representative for im- prisonment for a period of TWENTY YE . It is ORDERED that the Sentence be imposed under the provi- A.13 _ — A.14 . 6 » ® t i of 18 U.S.C. § 4208(a) (2), under which the defendan oan bane eligible for parole at such time as the Board of Parole may determine. Received for Entry 2:00 P.M. Feb, 25, 1976 Frank EK. Williams, Clerk by Andrea C, Beech Deputy Clerk Certified as a True Copy on this date February 25, 1976. A.C, Beech, Deputy. /s/ Frank Gray, Jr. Frank Gray, JR. U.S. District Judge Unrrep States District Court ror THE Mrippie District or TENNESSEE NasHviILie Division [Title omitted in printing] Filed March 3, 1976 Frank K. Williams Clerk by A. C. Beech Deputy Clerk MOTION FOR NEW TRIAL The defendant, David Wayne Burks, would respectfully PRAY for a new trial and would assign as grounds the following errors: 1. The evidence was insufficient to support the verdict. 2. The eyewitness identification of all bank employees should have been suppressed because of the failure of the Government, upon notice, to affirmatively advise the lay witnesses they had the permission of the Government to talk to defense attorneys. The Government let stand a known wrong. 3. Physical evidence connecting the defendant with the crime was wrongfully introduced. The defendant told an FBI agent he wanted to talk to a lawyer. This agent failed to convey the defendant’s wishes to a second FBI agent who proceeded to obtain the signature of the defendant to a consent to search form. The first agent had a duty to advise the second agent of the defendant’s desire to speak to an attorney. 4. The U.S. Attorney on cross examination elicited the fact that the defendant was released on bond in custody of his parole or probation officer. The Court held this gave the U.S. Attorney the right to go directly into a previous con- viction of the defendant for an earlier bank robbery in Ohio. 5. The. U.S. Attorney prejudiced the jury by stressing on direct and cross examination the ‘‘right-wrong’’ or “‘irre- sistible impulse’’ test of mental disease rather than the Smith rule of the Sixth Cireuit. (United States v. Smith, 404 F. 2d 720 (1968) ). 6. The court restricted examination of one of the chief defense witness to 45 minutes, putting an arbitrary time limit on the defendant, knowing that defense counsel had A.15 A.16 given the expert witness, a psychiatrist, his word that he would not be held overnight. 7. The Government failed to observe a reciprocal dis- covery order and only furnished the defense the results of test data of Dr. Buchanan on the morning of the trial. The Government never furnished the most significant test of all, the Minnesota Multiphasic Personality Inventory Test, and until Dr. Buchanan had testified never furnished the under- lying psychological tests upon which his conclusions were based. The defendant was prejudiced because of lack of opportunity for rebuttal. &. The U.S, Attorney told the jury his personal opinion on the ultimate issue in the case, insanity, when he said, in substance, ‘‘ Who do you think is crazy, the mother or the defendant? I know it is not the defendant.’’ 9 The term ‘‘insanity’’ used in the charge without an explanation is misleading. The charge failed to stress the rule of this cireuit in Smith. The charge gave an inadequate definition of a substantial inability to conform ones conduct with the law one is accused of violating. 10. The court refused to allow the defense in closing argument to use a visual aide which would have emphasized the rule of the Smith case. The questions, in substance, were: (1) whether the defendant was suffering from mental illness at the time of the alleged commission of the crime; (2) whether that illness was such as to prevent his knowing the wrongfulness of his act; (3) whether the mental illness was such as to render him substan- tially ineapable of conforming his conduct to the re- quirements of the law he is charged with violating. 11. The sentence was excessive in view of all the circum- stances and the testimony concerning the defendant. Respectfully submitted, MOON & DURHAM By: /s/ Thomas W. Moon Tromas W. Moon 1104 Parkway Towers Nashville, Tennessee 37219 Phone : 254-5016 | Certificate of Service omitted} — Unrrep Sratres Distrraicr Court ror THE MippLe District or TENNESSEE NasuviLue Division [Title omitted in printing] Filed March 3, 1976 NOTICE OF APPEAL The defendant, David Wayne Burks, hereby respectfully files this his notice of appeal and appeals the judgment and sentence of the Court convicting him of bank robbery in this case to the U.S. Court of Appeals in the Sixth Cireuit. Respectfully submitted, MOON & DURHAM By: /s/ Thomas W. Moon Tuomas W. Moon 1104 Parkway Towers Nashville, Tennessee 37219 Phone : 254-5016 [Certificate of Service omitted ] A.l7 lw Tue Unrrep States District Court FOR THE Mippie District or TENNESSEE Co.tumsBia Division [Title omitted in printing] Frank E. Williams Clerk by Judy C. Olive Deputy Clerk ORDER The defendant has filed a motion for new trial. The first asserted ground is that the evidence was insuffi- cient to support the verdict. This allegation is utterly without merit. The second ground is the allegation that the eyewitness identification of the defendant by bank employees should have been suppressed because the Government did not affirmatively advise the witnesses that they could talk to defense attorneys. There was no showing that the Govern- ment told the witnesses they could not talk with defense attorneys. This ground is also without merit. The third ground is that the physical evidence connecting the defendant with the crime should have been suppressed because the first F.B.1. agent to talk with the defendant was told by the defendant that he wanted a lawyer and had refused to give his name. The record showed that, subse- quently, another F.B.1. agent explained to defendant, in detail, his Constitutional rights, obtained his signature to a consent to search form, and then conducted the search of the automobile in which the defendant was riding when he was apprehended after a high speed chase. The court is of the opinion that no rights of the defendant were violated in this procedure. The defendant was fully advised of his rights, and the fact that he originally refused to make a statement was not a bar to subsequent advice to him of his rights. Hill v. Whealon, 490 F.2d 629 (6 Cir. 1974). The fourth ground is the allegation that the United States Attorney, on cross examination, elicited from a witness that the defendant had been released on bond in custody of his parole or probation officer, thus opening up the matter of a previous conviction of the defendant of another bank rob- * A.18 eet A.19 bery. The record clearly shows that there was no improper cross examination by the United States Attorney, and the witness, defendant’s father, volunteered the information. This ground is without merit. The fifth ground of the motion is an allegation that the United States Attorney in some way prejudiced the jury in his examination of witnesses on the matter of insanity. The record shows that this ground is without merit. The sixth ground of the motion is: ‘‘The court restricted examination of one of the chief defense witness [sic] to 45 minutes, putting an arbitrary time limit on the defendant, knowing that defense counsel had given the expert witness, a psychiatrist, his word that he would not be held over- night.’’ This is a misstatement of fact. The witness in question had been subpoenaed at Government expense on application of the defendant, an indigent. The court did not limit the time of his examination, and, before the examina- tion began, advised defense counsel and the witness that, if the examination was not completed on the day in which it began, it would be continued on the following morning. The allegation that a defense lawyer had told the witness that he would not be held overnight for testimony on the following day is irrelevant. In addition to the foregoing comments, the record shows that the particular witness was fully examined by defense counsel. This ground is without merit also. The seventh ground of the motion. relative to the furnish- ing to the defendant of test data of a psychiatrist who testified on behalf of the Government, is without merit. The court has noted that the motion asserts that the most signifi- cant test conducted was the Minnesota Multiphasic Person- ality Inventory Test. This assertion is contrary to the testimony of the chief defense expert witness to the effect that this test was relatively unimportant. This ground is without merit. The eighth ground of the motion is the assertion that the prosecuting attorney, in his argument to the jury, advised the jury his personal opinion on the issue of whether or not the defendant was insane. The record shows that the prosecuting attorney commented on the fact that the mother of the defendant, when testifying about the defendant’s association with a doll, referred to the doll as ‘‘he.’’ He then said, in substance, ‘‘ Who do you think is crazy—not the A.20 defendant.’’ Assuming that this was an improper state- ment, the court is of the opinion that it was not so prejudi- cial to the defendant as to require any action by the court at this time. Defense counsel did not object to the argu- ment when it was made. This ground is without merit. The ninth ground of the motion is that the court failed to charge the jury properly on the subject of insanity. No objection was made to the charge, and the court is of the opinion that the charge given was accurate and adequate. This ground is without merit. The tenth ground of the motion is that the court erred in refusing to allow defense counsel, in closing argument, to use a visual aid to emphasize the questions to be decided by the jury on the subject of insanity. The court 1s of the opinion that this was a matter entirely within its discretion and that its action was not an abuse of that discretion. The eleventh ground of the motion is that the sentence was excessive. The sentence of twenty years, imposed under the provisions of 18 U.S.C. § 4208(a) (2) was well within the limits provided by the statute, and, in the opinion of the court, very lenient in view of the evidence in the record. The motion for a new trial is DENIED. /s/ Frank Gray, Jr. Frank Gray, JR. Chief Judge A.21 [63] DIRECT EXAMINATION OF WILMA JEANE RILING By Mr. Winpsor: Q. Miss Riling, what is your occupation, please? A. Lama bank teller. Q. Where? A. At Commerce Union Bank, Nolensville Road Branch. Q. Did you work there on October 23rd of last year? A. Yes, I did. Q. Were you present when the bank was robbed? A. Yes, I was. Q. When did you first become aware that something was happening? A. I became aware—do you want me to go—— Tue Court: Just tell us what happened. You say the bank robbery occurred. Why do you know that? What happened? A. We were—the bank wasn’t very busy that day. When this man came into the bank instead of coming to the win- dow to be waited on, he walked across the lobby and as he was walking across the lobby my eyes followed him and I thought, well, we were expecting the bank examiners and I thought, well, maybe [64] is the bank examiner. I thought, gosh, he is coming early, because they usually come late in the day about the time for the bank to close. Q. Where did the man go? A. So, I followed him with my eyes and he came all the way through the gate and all the way around and then I turned around like this and that is when I saw the gun. Q. Where was the gun? A. He was holding it in his hand and he had gone up to— the assistant manager was standing directly behind me and he had gone up to the assistant manager and had the gun on the assistant manager. As I looked like this, well, he saw that I saw him. So, he stepped on over to where I was. He gave the assistant manager a plastic bag and then he gave me a plastic bag. Q. Let me stop you and ask you a question, Did you watch him as he walked all the way across the lobby? A. I watched him all the way. Q. Describe his dress, please. A.22 A. Well, you mean his suit and everything? He was very dressed, very nice. Q. That is what I wanted to know. Tell me something else. Did he falter or seem unsteady [65] where he was going in the bank? A. No. (. How did he walk? A. Just walked straight in and straight on around. Q. Straight on around? A. He didn’t stop. Around through the gate. Q. Now, are customers supposed to come through that gate? A. No, they are not. Q. So, you didn’t think he was a customer, did you? A. No. I thought he was going to come over so I could wait on him and then when he didn’t, of course, I naturally followed him, thinking he was a bank examiner. They usually always come at the end of the day. He must be early because it was around, a little after 11:00. Q. Were you ever in fear? A. Well, after I turned and saw that he had a gun, well, naturally I was. It frightened me. Q. What happened when you received the plastic bag? A. He gave me a plastic bag and I was trying to find the opening in the bag. Q. Was the bag folded up together? A. It was a little—no. It was a little white plastic bag like you would put in a bathroom wastebasket, one of those little plastic liners. He gave me that and I was trying to find the opening. [66] THe Court: Did he say anything to you when he handed you the plastic bag? Tue Witness: He gave me the plastic bag. I was fum- bling with it, and I was getting very, very nervous and try- ing to find the opening and he said—he had the gun on me and he said, I am not going to hurt you. I only want your money. At that point he started helping me find the opening in the bag and he found the opening and opened up the drawer and he started putting the money into the bag. Q. Did he put some of the bank money in the bag? A. Yes. A.23 Q. Did he say anything else? A. As he was scooping across all my money, he came to one part of it. He said, is this the bomb? Is this the bomb? He said, is this the bomb, and I didn’t answer. He said, is this your bomb? And I nodded yes, you know. Q. Why didn’t you speak to him? A. I was frightened and I didn’t speak a word to him. Q. What did he do with the bomb? A. He picked it up as he was questioning, when he asked me the first time. He had it in his hand and picked it up and he asked me the second time, and I nodded, yes, and he fumbled with it, you know, to see if it was real money. He put it back in the drawer. He just sort of put it [67] back on an angle in the drawer. Q. Tell the jury what that bomb is and what it does, please. A. It is a little block. It looks like real money. If you pick it up and after it has been off from the pin for three or four minutes it will go off and it is a dye. It is sort of a pink dye. It is tear gas, it stings your eyes and makes everything pink. Q. Did the man ever ask you anything about marked money, Mrs. Riling? A. He said something else to me but I was just so ner- vous I just don’t remember exactly what he did say to me when he passed back of me. He did say another thing when he passed in back of my money, but I can’t remember exactly what it was he said. Something about the marked money. He had already had my marked money. He had already picked it up. So, the back part wasn’t my marked money, it was an- other little device we have. Q. Did the man act like he knew what he was doing? Mr. Moon: Objection. That is a conclusion. Tue Court: She can make a conclusion to the best of her ability. A. What was your question again? Q. Did this man act like he knew what he was doing? [68] A. Yes, he did. He was very calm. Q. Did you see anything from him that would suggest to you in your knowledge or your experience that he was not in touch with reality? A.24 Mr. Moon: How is she prepared to answer that? That assumes a definition of reality—assumes what is a part from reality and that is what I have been studying. Tue Court: Why don’t you ask a simple question? (). Did the man seem to recognize the surroundings and know what money was and bombs were? o a 16 (). Did he seem to know what he wanted to do with the money? A. Yes. He seemed to know what he was doing. . Was there anything unusual about his speech? Did it slur or waiver? A. No. Q. Did he stagger or reel about? A. He did not. Q. Did he seem to be in control of his body? A. He was. Q. What was the last thing you saw him do? A. The last thing I saw him do was walk out of the bank, and I ran across the lobby to see where he was going, which car he was getting in. [69] Q. You testified you ran across the lobby. He walked? A. Well, I waited until he got out of the bank, of course. I watched him. I didn’t move until he was out of the bank and he was already going up the walk. And then I went out the lobby to look out the window. The manager told me to stay away from the window, he might shoot. So, I ran back over to the drive-in so I could get his license number. Q. Were youable toseehimthere? A. Yes. I saw him pass by the drive-in. Q. How did he pass by? A. Just drove right by and got down at the end of the street and made a right-hand turn right on out. Q. What was he driving? A. He was driving a Yellow Cab. Mr. Winpsor: Counsel may inquire. ° e oe a [98] DIRECT EXAMINATION OF ERNEST STAGGS By Mr. Wrypsor: Q. Mr. Staggs, what is your job, please? A.25 A. Idrive a Yellow Cab. Q. Please speak loudly in the direction of the jury so they and His Honor can hear you. A. Idrive a Yellow Cab. Q. Was that your job in October, 1975? A. It was. [99] Q. Do you remember a particular Thursday near the end of the month? Very well. What happened? I had my cab taken. What time of day? Roughly around 11 :00. How did it happen? Tell us about the encounter you is OE >OPROPOPOD From the start? Please. . I got a call at the Big Star Super Market out at the rlane Shopping Center. . Approximately what time was it, sir? A. I guess ten minutes of 11 :00. Q. Go ahead. A. And a man said he wanted to go by his girlfriend’s to pick up some luggage and then go to the airport. Q. What did the man look like? A. Well, what do you mean? He was a male, heavy set. Q. What age was he? What was his age, please? A. I guess—well, I know what his age was. He was twenty-four. Q. How do you know that? A. I read it in the paper. I don’t know. Q. You don’t know then? [100] A. No. Q. How was he dressed? A. Well dressed. Q. How did he speak to you? Was his speech coherent, Mr. Staggs? A. I could understand everything he said. Q. Did it make sense to you? A. Well, yes. Q. Was it the kind of thing that cab fares usually say to you? — A. Well, yes, weather, this and that. Q. How did he get into your taxicab? Fai A.26 A. Well, he started to get in the front seat. He said, oh, I will go ahead and ride here. He got in the back seat. Q. Had he begun to get in the front seat before he said that? A. Well, he had the door open. Q. Where did he tell you to go? A. He gave me the street address and I told him I didn’t know where it was. He told me he would give me directions. Q. Did he give you directions? A. He did. Q. Where did you go? A. We went down Nolensville Road to Old Hickory Blvd. and made a right. I don’t know the name of the street there. {101] It is the first street this side of Edmondson Pike, off Old Hickory Blvd. He told me to make a left and as soon as we made my left, whe weren't but fifteen feet and he said, make a right. Q. What sort of neighborhood is it? A. It isn’t a neighborhood. It is streets that have been paved out there, most of them. No homes were ever built close by. Q. Did you have any conversation with this young man on the way out there? A. Yes. Q. What about? A. The weather more than anything else. Q. Did he make sense? A. Yes. Q. Did he ever say anything about there not being any houses there? A. Yes. He said his girlfriend, he didn’t know what made her move way out there, no homes being around there. Q. When did he say that? A. To the best of my knowledge when I made the turn off Old Hickory Blvd. Q. Did he make it at the time when you could see with your eyes there weren’t any homes there? A. Right. [102] Q. What happened then, please? A. As soon as I made a right I saw it was a dead end and I thought, oh, and by that time I heard a click and looked around and a big revolver staring me in the face. Q. Who was holding the revolver? A.27 A. The passenger. Q. What did he say to you? A. He said, it’s just not your day and I said, no, I guess it’s not. Q. What else did he say then? A. He said, I am not going to hurt you as long as you do what I say. He said, I don’t want your money. I just want to use your cab a little while. Q. Now, was he still in the back seat? A. Yes. Q. Were you still in the front seat? A. Yes. Q. What happened then? Did he give you any explanation? A. He told me to pull up to the dead end up there and told me exactly what was about to take place. Q. What did he tell you? A. He told me, I am coming around your sid, we are going across the road, you are going to sit down with your feet in the ditch and I am going to tie you up or tape you up. I don’t [103] remember his words. Q. Did you follow his instructions? A. I did. Q. Did you drive the car down to the dead end? A. Right. Q. What did he do? A. He did just what he said he was going to do, came down and marched me across the road. Q. Now, going slowly and remember as best you can before he marched you across the road, did anything hap- pen? A. Well, I pulled a foolish trick. I reached for my ciga- rettes and trip sheet out of force of habit, I guess. Q. Where were you when you reached for those things? A. I was opening the door and getting out. Q. Indicate for the jury, pretend you are sitting in your cab there on the witness stand and tell the jury where the man was standing in relationship to you. You can use your hands if you would like. A. I would say about straight out from the door there. Q. Who opened the door, you or him? A. I really can’t remember that. I am pretty sure I A.28 opened my own door. I am pretty sure I reached and opened it. Q. After the door was opened, what did you do? A. Well, I started to reach for the cigarettes and trip sheet. [104] Q. Where were they, Mr. Staggs? A. Well, the trip sheet I am positive was on the seat of the car and the cigarettes might have been up on the dash. Q. To your right there? A. To my right there, yes. Q. So the man is on your left and you turned around and reached down for something at your right hip? Yes. What did the man do when you did that? He sort of waved the pistol in. He said, Huh-uh. How close was the pistol to you? It was right beside me. Were you scared? Certainly. Did you go across the road with the man? I did. Did he have the gun all the time? Yes. What happened when you got over there? . He handed me a roli of tape and told me to tape my ankles. Q. Did you do that? A. I was attempting to and I broke the tape twice. He said, never mind. He taped my hands behind my back and came around and finished the job up on my legs. [105] Q. Now, when the man was finishing the job up on your legs, did he say anything to you? A. Yes. He said when he came around, he said, no kick- ing. He said for me to stay there I think thirty minutes. Q. Did he say what might happen to you? A. No. He said if I didn’t—don’t worry, I wouldn’t be left there. There would be somebody there within an hour or two to release me if I hadn’t gotten untied myself. Q. Did he say how somebody would get there within an hour or so? A. He said he would notify somebody. Q. Then what happened? A. I sat there a good ten minutes, I guess. Q. How long did he stay there before he left? POPOPOPOPOPe> A.29 A. Well, when he went back to get in the cab he said— that was another time I was more scared—he sat there about two or three minutes before he pulled off. How did he pull off? How? Yes, sir. What do you mean, fast, slow, or what? Fast, slow or normal. Just normally. Then what did you do? . I got my feet loose and walked across the field there [106] until I came to a house. Q. Did the words the man spoke to you on that day make sense to you, sir? A. Yes. He talked with plenty of intelligence to me now. Q. Did he seem calm? A. Yes. Mr. Winpsor: May the witness be shown the map, please. POPO>OPS Q. Mr. Staggs, do you have a problem with your eyesight, close work? A. Yes, I do. Q. Will you please look at this map and tell us if—you don’t have any glasses, do you, sir? A. No. Q. Look at the map and tell us if you can find the area where you drove this man to that day. A. This print is a little fine. I can tell you exactly where the street is on here. Q. If someone shows you Old Hickory Blvd. and Nolens- ville Road A. Iecan show them from there. Mr. Winpsor: Without a defense objection, Your Honor, may I do that? Tue Court: Sure. Q. Here is Old Hickory Blvd., Mr. Staggs, and here is [107] Nolensville Road. Do you see the red? A. Yes. This is Edmondson Pike, coming in here. Q. Edmondson Pike is right here, sir? A. It would be the last street on the left before you get to Edmondson Pike off Old Hickory Blvd. It really isn’t listed on here. A.30 Q. Thank you. Mr. Staggs, did you ever take an FBI agent back out there where you were taped up and show him the place? A. I did. Q. Did you find anything there? A. Found the tape and stuff. Q. Will you please look at the items I am handing to the Marshal, package of used tape and tin rolls. Were you present when they were recovered? A. Yes, I was. Q. Where were they found? A. Part of them were found right at the scene and another part was found down to the home I went to where the lady took and untaped my wrists. Q. She helped you get loose? A. Right. Mr. Winpsor: I would like to offer them into evidence as a Government Exhibit. Tue Court: Let them be made part of the record. [108] Tue Crerk: Marked Plaintiff’s Exhibit No. 5. Mr. Winpsor: May the witness be shown the gun at this time. Q. Look at this gun the Marshal is showing you and tell us whether or not it represents the one you were telling us about? A. Yes. It was about the same caliber and it was a re- volver. Q. All right. On October 23rd could you tell whether or not the gun was loaded that was pointed at you? Yes. > Q. How could you tell? A. You could see the bullets out the end of it. Q. In the cylinder? A. Yes. Q. Did you see them with your own eyes? A. I saw the bullets sticking out the end of it. Mr. Winpsor: Counsel may inquire. eer Oe A.31 [192] DIRECT EXAMINATION OF L. D. HUTT By Mr. DurHam: Q. Dr. Hutt, will you state your educational background, lease. . A. I received the Ph.D. in psychology from the Univer- sity of Arkansas in 1968 and then did roughly a year’s work at the Topeka Medical State Hospital under the Men- ninger Foundation in Topeka, Kansas. Q. Tell us your work at Menninger in Topeka, Kansas. A. I was involved in evaluating and treating individuals with various types of mental disorders including psychosis, neurosis, personality disorders, and so forth. Q. What is your present appointments? a A. I am presently Director of Psychology Training at Tennessee Psychiatric Hospital an Institute in Memphis. I am also an assistant clinical professor in the Department of Psychiatry, Tennessee University Medical School, Diag- nostic Coordinator, Shelby County Penal Farm and as- sociate professor of psychology at Memphis State Univer- sity. 0. Do you have any connection with Tennessee Univer- sity Medical School? [193] A. Yes. Tue Court: He just stated it. Mr. DurHam: | am sorry. Tue Court: Okay. Go ahead. Q. At Dr. Munden’s request, a physician, did you exam- ine David Wayne Burks? A. Yes, sir, I did. Q. Have you prepared a psychological report on Mr. Burks? A. Yes, I did. Q. What did you find in your evaluation of David? Mr. Winpsor: Objection. May we have the time and place? Q. When did you examine him and where? Tae Court: Just ask him when he conducted the study. Q. When did you do this and where? A.32 A. This was done in my private office at Memphis, Ten- nessee. I saw him for a total of six and a half hours on November 15th, on November 22nd, 1975. Q. What tests did you perform on David? A. The evaluation techniques used included a Clinical Interview in which we looked at his mental status, Human Figure drawings, Bender-Gestalt Test, Wechsler Adult Intelligence Seale, Rorschach Psychodiagnostie Technique, Thematic Apperception Test and the Minnesota Multiphasic Personality Inventory. [194] Q. Whois Dr. Kenneth Munden? A. lam sorry. (). Who is Dr. Kenneth Munden? A. He is a psychiatrist in Memphis with whom I have worked fairly often in the past. Q. Is he a trained psychiatrist? A. Yes, he is. Q. Referring to your report, if you wish, give your inter- view and observations and impressions of David. A. When David came to the office I noted that he was a shorter than average, stockily built twenty-four year old white male. He arrived punctually for the sessions. I also noted that he had a receding hair-line and conservative style of dress and grooming that made him look somewhat older than his stated age. I noted that David made quite an effort to present him- self as a self-assured, poised and self-confident person but there were indications, namely closely bitten nails and visi- bly moist palms that lead me to suspect a good deal of underlying anxiety. Further contact lead me to verify that impression. I also noted that David’s emotional state during the interview was rather what one might say high spirits, eu- phoric, which I thought was particularly unusual consider- ing the circumstances of his referral, circumstances of why I saw him. [195] Q. This was after the bank robbery you saw David, is that right? A. That’s correc. Tue Court: And he seemed to be in high spirits out- wardly, is that it? Tue Witness: Outwardly, yes. A.33 Q. Continue, Doctor. A. I noted he smiled, laughed and joked at describing the robbery; his subsequent apprehension by the police and the possible years of imprisonment he faces. He voiced no regret about his actions and stated he does not fear imprisonment. In fact, he seemed to look forward to it, based on my interview with him. It was my distinct impression that he views his actions as verifying that he is a ‘‘tough guy’’ and finds that per- ception of himself a reassurance against fears that he is essentially passive and vulnerable. Q. Go ahead and continue with your report, please. A. We talked a little bit about David and his history. He made every effort in these discussions to present himself as a hypernormal, super-rational, purposeful and controlled individual. I asked him about his nerves and he disclaimed any diff- culties past or present. ~ Quite to the contrary, he continued to characterize [196] himself as in control of my nerves and anxieties at all times, which I thought is rather unusual. Most of us do have occasions on which our nerves and anxieties do get out of control. By his report, he indicated that emotion played no part in my life. He went on to describe periods in which he feels that he has a heightened ability to concentrates, attend and think clearly. He feels at those times, as if all senses are finely attuned and total mental alertness, and his reflexes are ready for any circumstances. I noted in all this there was definitely a grandiose quality and as well as to statements about his football abilities and his stature in the peer group during his high school years and so on. He attempted to view himself as a rather cunning, calcu- lating, computer-like fellow who observes and manipulates the actions and reactions of others from a vantage point of bemused detachment. Q. Will you state that again in different words, rephrase that? A. The last sentence? Tue Court: Like in a little more layman’s language, is what he is telling us. A.34 A. David presented himself I think when I was inter- viewing [197] him as a person who in his day to day life, he has what we might call a superman mind, superman mentality. He is extraordinary in this regard, that his is not like the rest of us, so to speak, that he is sort of a master mind. Q. Well, is he in fact bright? A. Oh, yes, he is definitely bright. In the intellectual evaluation I found him to be overall and above average. Q. He elicited actions of others from a vantage point of bemused detachment. What do you mean by that? A. I mean that David sees himself as cut off from others, as not being part of other people, for example, groups. He mentioned that back during his high school years although he was very popular, and so forth, with his peer group he never really felt he was part of the peer group, that he, himself, distanced himself from the group. Q. You took a history of David, did you not? A. Fairly extensive history. Q. Would you relate what that was in relation to his condition going back to high school days, for example, his football and bringing up through his military service. A. I don’t recall all those details sufficiently to do that. Q. Go ahead and continue with your report. A. I asked him specifically about symptoms of mental illness such as hallucinations, thought control, the idea that [198] he could read people’s minds or other people could read his mind. He denied all those things as stated but he went on to brag that he could hallucinate if he so desired, which I thought was another indication of the feeling of himself as totally in control of everything about himself. He indicated he is not depressed. He indicated that feel- ings of estrangement, perceptual distortions were not without normal limits. He indicated that a depersonalization experience—that is where a person feels he is outside of himself looking at himself—after a brain concussion sustained in a high school football game. That was the only depersonalization exper- ience that he mentioned. Q. All right. Continue. A. My impression of David during the interview is that ordinarily he is able to converse very logically and his thoughts appear to be coherent. There is no evidence of any A.35 sort of frank and well crystallized delusions. In other words, David is the sort of fellow that if you only talked with him for say a half hour or forty-five minutes, you would get the impression that there is absolutely nothing wrong with him, that there is no psychopathology. His facade in that re- gard I think is very good. It was only after I had talked with him for probably a half hour or forty-five minutes that I began to pickup some [199] of the underlying pathology. There are times even in the interview where David will lapse into kind of a pe- culiar way of saying things. For example, he talked at one point,about an older brother as having been quote married out of wedlock. What he intended to communicate was that his brother got a girl pregnant and then married her. He described this as being married out of wedlock. There are times which his logic breaks down and his reasoning ability breaks down and this is even more ap- parent on the tests that I did. To summarize—— Q. Let’s not leave that point right there. Elaborate on that. When you say there are times that his logic breaks down, elaborate. A. ‘There are instances in which David simply can’t think, use his mind in the way that most of us can understand the majority of the circumstances. I would say David is very excellent at this. But if he is under stress, anxiety, that type thing, he loses the capacity to reason in his mind. Q. Continue with your report, Doctor. A. Just to summarize, based on the interview, I described David as an extremely anxious, insecure, vulnerable and socially isolated young man who has erected a paranoid, superman view of himself as a cunning and calculating mastermind. Q. Can you say that in more lay terms, paranoid super- man [200] view. A. By paranoid, we mean particularly chis is a psychotic condition in which the person feels that he is better than others, he feels that he is somehow above and beyond other human beings. This is often characterized by suspiciousness and that sort of thing. Q. You said he has a paranoid superman view of himself as a cunning and calculating mastermind. A.36 A. Yes. The feeling on David’s part is that he is quote a superman, that he is above most of the rest of us in terms of intelligence. Q. That is true, isn’t it? A. Well, in one sense that is true. It is true that he is a very bright young man. Q. He is above one hundred, above the rest? A. Yes. This is more of David’s perception of himself than his actual IQ indicates. He is definitely a bright young man. Q. All right. Continue. A. My feeling was that he was not floridly psychotic but his thought disorder emerges periodically in autistic logic and primary process. By floridly, it is apparent to the ordinary person but his thought disorder, that is the underlying mental illness [201] does come out periodically in the interview and even more so in the psychological tests. Q. You say here he comes out in autistic logic and primary process. What does that mean? A. Autistic logic is a logic, reasonable processes that is not shared by the rest of us, a very personal way of reason- ing and thinking. Q. Is that also with primary process? A. Right. Q. Continue. A. On the psychological testing I did, intellectually David earned a Verbal IQ-—— Q. Before you get to that, read the last sentence. A. His psychopathology is denied and appears to be thoroughly ego-syntonic. Q. What do you mean? A. By that I mean David completely denies the possi- bilities that he is ill and the term ego-syntonic means he perfectly accepts his psychopathology as being normal. Q. So, are you able to say whether or not he was trying to convince you whether he had a mental illness one way or the other? A. David in my contact with him attempted to convince me he was not mentally ill. Q. Continue. [202] Let’s take up the question of intellectual evaluation. A. On the Wechsler Adult Intelligence Scale, which is A.37 standardized and used to measure the intelligence, David earned a Verbal IQ of 127. 100 is normal or average, 127 is in the superior range. His Performance IQ is 115. That would be in the bright- normal or bright-average. And his Full Scale or overall scale IQ was 122, which puts him in the superior range of overall intelligence. I indicated that these scores were considered to be ac- curate and reliable estimates of his intelligence and placed him in the superior classification of general intelligence. His verbal skills, that is Verbal IQ are considerably advanced, according to his intelligence. It points to the sort of person who is particularly what we call overidea- tional, he spends a lot of time thinking, the wheels of his mind are working constantly, which is often associated with hgh anxiety or the kind of paranoid process that we talked about. Looking at the individual subtests—— Q. Could you relate that also to organic involvement? A. Pardon me? Q. Is there any relation to organic involvement? Mr. Wrinpsor: I would object at this time. I don’t believe this witness has been qualified on organic matters—— Tue Court: Well, he can testify on that concerning his experience—— [203] Mr. Durnam: Excuse me. Tue Court: I want you to qualify him, if you are going to ask him about organic disorders. Q. These tests, Rorschach and all, do some of them bring out organic involvement? A. Yes. Mr. Winpsor: Same objection, may it please the Court. Tue Court: Wait a minute. Let him ask the questions. Go ahead. Q. Is it within the realm of psychological knowledge as opposed to medical knowledge to note where there are fluc- tuations of IQ between Verbal IQ and other forms of IQ, would that be in the realm of the compentancy of psycholo- gist, organic brain damage? A. Yes. Q. Does that apply to David in any manner? A.38 A. I don’t feel that this twelve point difference is defini- tive by any stretch of the imagination but it does raise a question of some organic involvement, particularly consid- ering he does have a history of brain concussion. Q. All right. Continue, please. A. The various subtests on the WAIS I administered re- flected relative weaknesses in judgment, that is common sense and his ability to comprehend and his understanding of social interpersonal relations and situations. [204] The interesting thing about his judgmental impairment, it isn’t across-the-board type thing. Under most circumstances David’s judgment is good. His common sense is good but under certain circumstances and under certain conditions there will be lapses in his judgment. I noted on the report that while he generally can size up situations accurately and respond appropriately he occa- sionally reacts on inappropriate, impulsive and panicked manner which is potentially dangerous to himself and other people. His relative strengths generally were noted in remote memory, concentration ability, his immediate recall or im- mediate memory, his general word uses, his ability to abstract and his attention to detail. I noted in the report—— Q. Let’s take those one at a time, please. Relative strengths are seen in remote memory. Give us an example of that. A. This would be the ability to recall things of his dis- tant past. It would also be the ability to remember things that most of us learn fairly early in life, things like how many weeks are in a year, basic kinds of information like that. Q. You said concentration. Go ahead and continue but explain them a little more in lay terms. A. Concentration would be the ability to focus on work- ing [205] out a problem. For example, an arithmetic prob- lem. If you are given a fairly complex arithmetic problem it requires you to concentrate and keep the numbers in mind and work it through. Immediate recall, this is the immediate kind of memory, that is if I tell you something now and ask you two minutes from now what I said, you would be able to recall it. A.39 Word fluency means his general level of vocabulary, his ability to use words. The ability to think abstractly is generally what we mean by reasoning ability or thinking ability. Attention to visualized detail would be the act to focus in on the details of any given kind of situation and pay attention to those details. Q. What do the relative strengths in these categories suggest to you, if anything? A. They are suggestive of a person who is pretty much on guard, vigilant, overly alert to things going on around him, particularly overly alert to indications of threat, dan- ger, that type of thing, which is, of course, consistent with a paranoid personality. Q. Continue. A. I indicated in the report that his thought processes as reflected by the intelligence tests are typically logical and reality oriented. When thinking breaks down, however, the break down is complete, resulting in a type of logic and [206] type of thinking that is definitely not normal, autistic and arbitrary logic. Q. Autistic is what? A. This is a personal, peculiar way of thinking. Q. Can you give an example of that? A. One example was on the test I had administered. The question is, in what way are a fly and a tree alike. Most people will say they are alike because the are living things. David’s answer was that they are both related to a kite. When I asked him to explain, he said you fly a kite and one obstacle is a tree. This is an off the wall autistic thought process. Q. What is your personality evaluation? A. I indicated in the personality evaluation that the Rorschach test, which is the ink blot test, corroborates the interview and the evidence of a schizophrenic thought dis- order, several responses reflecting grossly arbitrary and autistic logic. Q. Could you tell us this in more laymen terms? Ror- schach is what test? A. The Rorschach is the so called ink blot test. This is a test in which a person is shown a standard set of ink blots and asked to describe what he sees in the test or in the card. Based on that test we were able to evaluate the person’s thinking and whether his thinking agrees with most of the A.40 rest of our thinking and how he sees things around himself compared [207] to other people. Q. Go ahead. Continue with the intelligence test. A. Both the Rorschach and WAIS gave evidence of schizophrenic thought disorder, that is a disorder of think- ing, disorder of reasoning ability reflecting arbitrary logic and autistic logic. One thing I noted on the Rorschach is that he is prone to making sweeping generalizations based on insignificant bits of information and his thought processes in making these generalizations become very convoluted and very cir- cumstantial, extremely arbitrary. Q. Say that in lay terms about convoluted. A. He kind of takes off on a path of his own, should we say, when thinking. Well, he simply doesn’t think in the way that the rest of us do. Q. Continue. A. I have indicaied that this style, style of thinking where you take very small, trivial bits of information and blow it completely out of proportion is classically that as- sociated with paranoid thinking and sort of the thinking where a person can take a real but trivial bit of information and make a paranoid delusional system out of it. A good example of this would be if someone notices a blue car parked out in front of the house, they might assume that this means that there is a conspiracy of some [208] people after them. The fact that the blue car is there is real but the interpretation of what they put on it is not warranted. Q. What is ego defenses? What does that mean? What are they and what does that term mean? A. It means the types of things that we do in controlling anxiety, keeping anxiety, nervousness, depression down. The way David handles these sorts of things is he com- pletely denies it, that he has anything wrong with him. There is nothing wrong with me, nothing wrong with the way I think, with the way I feel, the way I act, this is per- fectly normal behavior. Another way that he has of dealing with his anxiety is to say there is nothing wrong with me but rather there is something wrong with you or the system or with other people. He also avoids getting close to people, that is he tends A4l to remain very distant, very isolated from other people in order to keep down anxiety and nervousness and this type thing. Q. Is he able to have close and personal relationships? A. Not in any real sense. Dave can associate with people, he can go through the motions, I should say, of associating with people but it is not likely he is able to form any deep, emotional attachment with people, closely emotional at- tachment. Q. Go ahead. [209] A. I found that these defenses are ways of handling his anxiety is pretty brittle. By brittle, once they break down they really break down, they kind of crumble. When the defense crumbles, he tends to become psychotic. Psychotic episodes of varying durations. It is not David under most conditions but under certain conditions, prolonged stress or anxiety, that sort of thing, he can develop psychotic thinking. I found that his anxiety level, his characteristic level of anxiety is very high such as he has to spend a lot of time maintaining his anxiety and doesn’t have a lot of energy left over for more productive kinds of pursuits. He is psychologically a strained person, his defenses are strained. Q. Just continue, Doctor. A. It seems because he is so strained, he doesn’t have the kind of psychological and emotional reserves that most of us have to draw on when we find ourselves under stress or pressure. So that when he finds himself under pressure or anxiety or stress, he tends to break down. I have indicated that the projective test data—— Q. Excuse me. Let me go back. When does he break down? A. Under prolonged stress, anxiety, fatigue, pressure, tension. Under any of those conditions. [210] Q. What do you mean by break down? A. By break down, I mean he lapses into a psychotic level of functioning over which he doesn’t have conscious control. Q. Go ahead, sir. A. The personality testing data indicates that David tends to see things around him as rather dangerous and he sees himself as rather weak and unable to handle things. A.42 In talking in terms of weaknesses, he doesn’t perceive himself weak at the conscious level but at a deeper level, unconscious level he fears that he is a pretty weak kind of fellow. Q. Explain that to the jury, how a man at a conscious level can see himself as very strong and at an unconscious level would see himself as a weak person. A. Well, I think we have to talk about first the difference between conscious attitudes or feelings. It is entirely possi- ble or very often characteristic of people that the way we see ourselves consciously, we would perceive ourselves consciously is not necessarily our underlying unadmitted perception of ourselves. In other words, a conscious day to day level David does all kinds of things to demonstrate to himself that he is in fact a strong, adequate kind of person. For example, his military career and that type of [211] thing, his football playing. But an unconscious level, a level which he is not aware which these personality tests tap into, the indication is that he does not see himself that way. Q. All right. Go ahead. A. I have indicated that he feels like he has to kind of always be on the alert and always be vigilant to ward off psychological threat. His conscious defense is to bolster his confidence by convincing himself that he is without fear or trepedation and possessed of unique and special abilities. It is kind of like whistling in the dark to kind of reassure yourself psychologically that everything is okay. It was my impression based on everything | looked at that his criminal activities and his attraction for rough and tough kinds of pursuits such as football and combat appear to be a way of demonstrating to himself that he is a tough guy rather than admitting to himself he feels somewhat vulnerable and puny underneath this. Q. What about taking a gun and robbing a bank, how does that fit in? A. I would see that as a manifestation of exactly what we talked about. That is, taking a gun and robbing a bank I think proves to David that he is in fact a tough guy, that he is a bad guy. Q. What is your diagnosis of David? A. My diagnosis was paranoid schizophrenia. [212] Q. All right. Now, Dr. Hutt, these things that you A.43 testified to about David’s personality, is that based just on conversations with David or do you as a psychologist have a long battery of tests that you give? A. This is based partly on conversations with David but most of the evaluation and diagnostic work is based on psychological tests, rather extensive battery. Q. Have you brought the raw tests that you gave to David? A. Yes. Q. You administered all these tests personally? A. Yes. Q. Have you brought them to the courtroom today? A. Yes, I have. Q. All right. Let’s start with the (Spelling) WAIS test. Mr. DurHam: I have copies for each member of the jury. They are lengthy and I also have one for the Court. May I pass it to His Honor? Tue Court: Let me see it. Mr. Duruam: I intend to go through each page line by line as long as Your Honor will permit me. Tue Court: What do you want me to do about it? Mr. Duruam: I have copies for each member of the jury. The witness has the original copy and Mr. Windsor [213] has his copy and I have my copy. ~ I want to discuss it page by page. Tue Court: Do you have any objection, Mr. Windsor? Pag Winpsor: No, Your Honor, if they are returned after this. Tue Court: Oh, yes, they will be returned. Let them have them for reference. Mr. Durnam: Your Honor, we are a little short. We may have to ask the alternate to look on. Tue Court: All right. The alternate can share it. Mr. Winpsor: Before he begins, may I just examine one of the pages the jury has so I will be following along? Tue Court: Sure. Mr. DurHam: May I proceed, Your Honor? Tue Court: Go ahead. Q. Dr. Hutt, let’s start with the WAIS Record Form, David Burks on the left-hand corner. A. Yes. A.44 Q. Go through that. As much as you can without my questioning you, just explain it. Tue Court: First tell us whose panSoriing this is, if it’s yours or Mr. Burks or what. Tse Witness: Yes, sir. This is my own handwriting. [214] Tse Court: All right. A. What I have done is—— Q. You did these tests on those two dates you testified to earlier, is that correct? A. That’s correct, the 15th and 22nd. On the face sheet there, the very first sheet this is just a description or labeling of the different subtests that are involved in this WAIS, (Spelling) WAIS. If you notice under subtests it has information comprehension, arithme- tic, similarity, digit span, vocabulary, picture completion, abbreviated, picture arrangements, block design, object as- sembly and digit symbols. These handwritten scores under the column labeled raw and weighted, these are simply scores that we use in com- puting the IQ or intelligence quotient. It really has no meaning to a non-psychologist. Q. It might have some meaning to us. Can you make the subtests have meaning to us in relation to David’s mental problem? A. The information subtests as I said before, this is a test getting at remote memory. Q. You didn’t get that one, did you? A. Information? Q. Yes. A. Yes, I did. [215] Q. Maybe I am confused. I don’t see any mark by that. A. Iam referring to these right down here. Q. Isee. Okay. A. On the information subtests he got a raw score of twenty-three and weighted score scale of fourteen which mean that he did a pretty good job. Q. That is the next page, isn’t it? A. The information subtests, actual items administered and his responses. Tue Court: This top page is just a summary sheet? Tue Witness: Yes, sir. Ped A.45 Tue Court: Why don’t we get away from that. Mr. Winpsor: Something was omitted on that top sum- mary sheet. Tue Court: Well, you can get to it later. Mr. Duruam: If you tell me what it is, we will get to it now. Mr. Winpsor: Later will be fine. Q. Go ahead with the information and correlate the two, the front sheet with the questions. A. These questions listed on Pages 2 and 3 make up the information subtests referring back over to the face sheet which would be abbreviated down in the lower left-hand corner, information. [216] As I have indicated on the information, we asked questions you might say beginning at least on common knowledge, facts most all of us would know or have picked up. For example, what are the colors of the American flag, what is the shape of a ball— Tue Court: Wait a minute. Mine doesn’t have anything except the typed word flag. Tue Witness: Yes, sir. This is just kind of a cue to us to help us remember exactly what phrase the questions is. Q. Go ahead, Dr. Hutt. A. So, we started out with very simple kinds of items like that, how many months are in a year, Number 4, what is a thermometer, that type thing. Tue Court: I don’t see anything on here except the ‘.ords. I don’t see the answers there. I see answers further down, apparently. Tue Wirness: Yes, sir. The first four items on this test are not administered except when we suspect that a person is mentally retarded. The standard procedure for administering this test-—— Tue Court: You don’t put any entry there if he says, red white and blue? Is that right? Tue Wirness: Yes. [217] Te Court: Okay. Now, we are getting somewhere. Go ahead. Q. Go to Number 5. A. Where does rubber come from? David’s response was, trees, which is a perfectly good answer. A.46 Q. You have given him a score of one if he gets it right? A. A score of one. Each correct answer on this subtest gets a score of one. The sixth item is, name four men that have been president of the United States since 1900. David did quite well on that. An interesting thing was that he tended to get a little bit pertinacious, a little bit inflated on this. For example, Dwight Eisenhower, Lyndon Baines John- son, Richard M. Nixon. Most people would just say Ken- nedy, Eisenhower, Johnson, Nixon, and so forth. Q. What does that mean, if anything? A. It kind of suggests a kind of pertinacious quality that goes along with David’s inflated view of himself and his actions. Item Number 7, Longfellow was a famous man. What was he? David answered correctly, a writer. Item Number 8, how many weeks are there in a year? David answered cor- rectly, 52. Item 9, in what direction would you be traveling if you went from Chicago to Panama? David answered correctly, South, [218] which I have abbreviated with an 66Qo? Item 10, where is Brazil? David answered correctly, South America, which I have abbreviated with ‘‘S. A.”’ I would say between Items 7, 8, 9, 10 there is nothing particularly of note there. Q. Skip over those things that don’t have any significance. A. Item Number 11, the question is, how tall is the aver- age American woman? David becomes very indecisive and kind of hedges around back and forth on this item. Item Number 12—— Q. Does that mean anything? A. Yes. I think it is pant of his difficulty of thinking and making a decision. Q. Go ahead. A. Item Number 12, what is the capital of Italy? He smiles and he says the capital of Italy is Rome and then he said, no, that doesn’t seem right but I will go with it. Its probably some off the wall place like Palermo or Bologna which is kind of David’s far fetched way of thinking, his inability to accept the obvious. He looks beyond the obvious and apparently again is very suspicious, paranoid way of thinking. Item Number 13—— A.47 Q. Let me ask you, how many people with 127 IQ would know the capital of Italy? Tue Court: He wouldn’t know. [219] Mr. Winpsor: Objection. Tue Court: I just stated the objection before it was made. How would he know, how many people with 127 IQ would know what the capital of Italy was? Let’s go. Q. Go down to 13. A. I don’t think anything particularly was significant there. Number 14, I think this is perhaps the best insight on this particular subtest and to David’s way of thinking. The question is, when is Washington’s birthday? 99% of the people, I say 99% of the people I have administered this to assume we are talking about George Washington and they always assume I mean the month and day. David says, are you talking about George Washington, which again I think reflects his tendency not to accept the obvious, to be kind of suspicious, to really pin you down. Then he says, I would say 1726. He say, do you want to know why I made that guess? He says because in 1776 he was the president of the United States. The Constitution and Declaration of Independence and since youths were younger then when they achieved things it was probably about fifty years old, he was about fifty years old. I stated at this point I realized he was getting way off base. I said, what about the month and day? He said, do you want me to guess? I said, yes, take a guess. He said, [220] August, but I couldn’t say as to the day. He says, do you want me to give you the reason why I guessed Au- gust? I said, yes. He said, well, he believed before the advent of the birth control, most conceptions of babies occurred in the winter and most births occurred in August. Really an arbitrary kind of logic. From one standpoint— Tue Court: I thought one is when he answered correctly? Everything he said was wrong from the year to date and month. Why did you give him a one? Tue Witness: This was a scoring error. This was a clerical error. Tue Court: You should have zero then? Tue Wrrness: Right. A.48 Tue Court: That is what I thought. Go ahead. A. Again I think that response there pretty much indi- cates how David on occasion can get totally out in left field and kind of get caught up in his own arbitrary logic. Item 17, nothing particular. Q. We skipped 15. A. Item 15, nothing significant there. He answered to Shakespeare. 16 he answered in an acceptable manner, nothing particular there. Item 17, the question is, how far is it from New York to Paris? He gives an accer*sble response there, nothing [221] particularly signific Item 18 the question i cre is Egypt? He first of all says, I don’t know what you are looking for. He said, do you mean geographically where is it? Again, I think that reflects a suspicious bit on David’s part. Most people would automatically assume if you ask where is Egypt, you would be talking about geographically. He misses that and says it is on the European Continent. I don’t believe there is anything else of particular signifi- cance on the information subtest. Q. All right. Let’s go to the next test, comprehension, is that right? A. Right. The comprehension subtest is essentially a test of common sense, reasoning, judgment, ability to know what you should do in certain situations. Again Items 1 and 2, these are automatically given credit if we don’t suspect the person is mentally retarded. They are not even administered. Item Number 3, the question is, if you found an envelope on the street that is sealed, addressed and has a used stamp on it, what should you do? David’s response is, what should you do? As to imply that there may be a difference between what you should do and what he would do. I replied, yes. He said, you should mail it. Then I inquired, what would you do? He said, well, I might be tempted to look inside it. [222] _ However, most things on the street are not really significant anyway So, he says he would go on and mail it. This I think kind of reflects the impulsive antisocial kind of orientation on David’s part. Itme Number 4 is why should we stay away from bad company? His response there is, what do you mean by bad company? Again this reflects the kind of suspicious flavor A.49 of David’s thinking and his inability to respond to things in terms of the obvious. Then when I tell him by company I mean the conventional definition of bad company. He says the simple reason is that they could cause trouble for you, that you might not want. I say, cause trouble and he says, they could do something you wouldn’t do and since you are there you are part of it. Which is not a full credit answer. The best credit answer would be that you would be likely to be influenced by that company in the way you are acting. Now, I meitioned in the report that certain circumstances David reacts impulsively and in a kind of panicked and ill thought out manner. Q. In what, ill thought out? A. Panicked and ill thought out manner. I think the next item gets better at that. The question here is, if you were in a crowded movie theatre and smelled smoke or say fire, what would you do? Of course, most people would say I would [223] go to the usher or manager and notify him and he could evacuate the movie house in an orderly fashion. David says rather immediately, I would yell fire. In my report I alluded to the fact that his judgment could some- times be impaired to the point it would be harmful to him- self and other people. This is an example of what I was talking about, where he simply comes up with a very impulsive way of handling a situation, where it is not thought out. Q. Do you know why David just might have given you that answer? If he is found incompetent it would be to his advantage. A. I don’t think so. In general he did a very good job on this test. So, my feeling would be if he were trying to fool me, if he were trying to present himself as incompetent he would have picked up errors on down in this test, and he did not do that. Q. You stated earlier you felt he would like for you to find him incompetent and was trying to fool you, if I under- stood your testimony corectly. A. No. I said I felt David was trying to convince me he is competent, not incompetent. Q. Isee. Go ahead. A. The other items he does very well on. Item Number 9 A.50 I think perhaps is worthy of comment. The question there, [224] Item Number 9 is, if you are lost in the forest in the daytime, how do you go about finding your way out? Well, the obvious way, of course, is to check the moss or follow a stream or look at the sun. David very much—he gets a cor- rect answer here but he very much over complicates that. He first of all says, well, it depends on how thick the forest is. If you can’t see the sun and you have a watch—if you can see the sun and you have a watch, you can determine the direction and walk in the direction that you know is the closest exit to the forest. In other words, he gets the right idea but he uses’a much more complicated way of expressing it than he would need to. Again, reflecting the kind of over complicated thought style he has. Q. All right. What is the next one? You talked about death or whatever the next one is that is significant to you. A. Item 10 I don’t think is significant. Item 11 I don’t think is significant. Item 12 is not particularly significant. Item 13 is not particularly significant. Item 14, the question is, what is the meaning of this state- ment, one swallow doesn’t make a summer? David mis- understands summer to be supper and I corrected him and said, no, summer. He said, is there a bird named a swallow? I said, yes, there is. Then he says, when you see birds come out it doesn’t necessarily mean that summer is here. That is [225] stupid. Then he says, I never heard that before. For all I know birds could come out in the fall of the year. Again he kind of takes off with a very personal, arbitrary interpretation of a very simple question and as a result gets no credit on that item. The main thing I would say that the comprehensive sub- test indicates that in general David’s judgment is pretty good but under certain conditions his judgment is very much impaired. He is likely to be impulsive and react in kind of a panicky way. Q. Before we leave this, let me go to the question of David trying to fool you. Are there controls built into this test so you can tell whether or not he is trying to fool you? A. Well, there isn’t a lie scale or malingering scale. However, as part of our training and part of our clinical A51 experience in practice, we become pretty good at picking up that kind of thing. For example, a malingerer, someone trying to fool you, will give you responses that are very nearly accurate but they are off just a little bit. For example, if you ask a malingerer how many weeks are in a year he might say 53 or if you ask him how many months are in a year he might say eleven, almost but not quite. This is a very consistent pattern with malingerers. [226] In my opinion David was not malingering, attempt- ing to fool me on these tests. {229} Q. If he got more right answers, for example, with respect to similarities say, what effect would that have? Is that the intelligence part or pathological disturbance part? A. Similarities? Q. Yes. A. Well, it is both. Similarities, the ability to handle similarities, reflection, intelligence. But psychopathology, thought disorder did also creep into the similarity subtest. There can be evidence of thought disorder in the similarity test which is exactly what we have here in this case. For example, Item 12 the question is, in what way are praise and punishment alike? Most people there would say these are ways of disciplining or influencing other people. David said, these are both means of gaining recognition of some sort, some act or action, which may have some im- plication in terms of the act he perpetrated, namely the robbery. Perhaps this was some way of gaining recognition for himself. Item 13, this is the item I alluded to in my report. The question is, in what way are a fly and tree alike? The typical answer is that they are both living things or both are part of nature, or something like this. David says that they are both related to a kite. He says, you fly a kite and one obstacle is a tree, which is really out in left field. [230] This makes no sense in terms of handling that item. This is what I mean when I said that ordinarily David’s thinking is very good but on occasions he really breaks down. A.52 Q. Let’s skip Number 5 and go forward. A. Digit span. The task here is to give the patient some numbers. You call them out to him and the patient’s task is to listen carefully and repeat these numbers back to you. Of course, you give him two or three examples so he is able to follow you, and so forth and so on. David did quite well on that. He got eight digits forward and after you determine how many digits forward the per- son can remember then you go back and say now, I am going to give you some numbers and I want you to give them to me in reverse order. I will say it forward and you say it backwards. He did exceptionally well on that. He was able to reverse eight digits, which is something in my experience very few people are able to do. Generally six or seven is about the highest. Q. What is significant of that, if anything? A. I think the significance is that it reflects the sort of hypervigilant, hyperalert, hyperattentive type of relation- ship that David has with things going on around him. He also saw that as a challenge of proving himself and very much rallying to the occasion, which again is David’s [231] personality makeup. Q What is the story you called— A. That is a test that is given when we suspect impair- ment of memory and there is no reason to suspect any kind of memory impairment in David. So, I didn’t administer that test. Q. What is Number 6, picture application? A. Picture application is a subtest in which we present the patient with twenty-one different little pictures and they are roughly two and a half inches by two and a half inches, the cards are. In each one of these pictures there will be some significant detail missing, some significant detail left out. For example, the first item, there is a picture of a door and one thing that is missing there is the door knob. The patient’s task is to pick up the detail that is missing in each of these pictures. David dees extremely well on that. He only misses two items out of the entire twenty-one, which is in my experience very typical of a person who is paranoid, who is very atten- tive to minute kinds of thing in the environment. [235] Q. Okay. Going back to the cover sheet, do you want to sum up the WAIS for us now? A. The WAIS is a test of intelligence. On the WAIS David came out with an overall IQ, full scale IQ of 122 which is in the superior range. He seems to be generally better in dealing with words and ideas in working with his hands or putting his ideas, and so forth, in practice. In general I found his thinking, his judgment, his common sense, that sort of thing unimpaired. In other words, no across-the- board general kind of impairment but under certain cireum- stances the impairment and judgment do come through. The impairment in thinking does come through. Basically that is it as far as the WAIS goes. Q. Doctor, we have four more tests. You look at these and tell me chronologically, or tell me which one we should take up next. A. You might take a look at the Human Figure Drawings next. Q. Hold it up so the jury can see it to make sure we all have the same one. Okay. A. In this test, which is a test of personality and per- sonality functions, we instruct the patient to draw first of [236] all a human figure. We tell him to make a full body figure, not just stickmen and that sort of thing. The patient at this point can either draw a male or female, black, white, any type of figure he chooses to draw. Then after he draws his first figure then we ask him to draw a figure of the opposite sex. In other words, if he drew a male the first time the second time he draws a female. If he draws a female first, he draws a male second. And then over on Page 3 we ask the patient to draw a »icture of a person in a rainstorm. Now, again he can draw a male, female, child, adult, any- thing of that sort. Now, we might start here with his first drawing, that is the drawing of the male figure. Some things that are interesting here is the heavy choice of shading and kind of sketchy, uneven quality of the draw- ing. Q. What page are you talking about? A. I am talking about Page 1. This kind of sketchiness is typically associated with high levels of anxiety. The treatment of the eyes on this figure is particularly char- A.54 acteristic of the eye treatment of a paranoid person, that is the way David drew the eyes, particular characteristic of a paranoid individual. Notice that he draws the person kind of as a bum, very disheveled dress and that sort of thing where David himself [237] appeared before the session very well dressed, very well groomed. Generally the interpretation of the human figure draw- ings is that people draw when they are asked to draw a human figure, they put a lot of themselves, perhaps an un- conscious view of themselves into the human figure. So, if we assume that is true then David apparently sees himself not quite as the strong, capable sort of fellow that he presents himself consciously to be. On the second page— Q. Excuse me. Before we leave that, what about these comments you made? Is this your handwriting again? A. This is my handwriting. I asked him to tell me some- thing about the person he drew. He said he is sixty years old, he should appear contented with hair and beard. I con- veyed that although he is conventional he didn’t care what people think. He could easily dress in a suit and tie. I say contented because I don’t want him to have worries—this I think is very interesting. I say contented because I don’t want him to have worries about security or where his next meal is coming from. He says that picture is me. I feel about like this fellow. I think there he is saying I can’t allow myself to feel any insecurity or any worries because I can’t incorporate that into the views of myself. [238] Q. Explain that, the left bottom corner. A. He commented to me that the last time he took the Human Figures Drawing he drew a Vietnamese girl and he said, quote, the psychiatrist or psychologist, one made snide remarks about it. I don’t know what those snide remarks were supposed to be but again I think it pointed to the para- noid suspicious, guarded view. Then we will move to the second page, the drawing of the female. This figure— Q. Let me interrupt you. Why would it be suspicious and paranoid if you drew a picture of a Vietnamese girl and the doctor made a remark? A. The drawing of the Vietnamese girl would not be and the doctor making a remark would not be but using the word A.55 snide would be. David, he thought it was attacking or criti- cizing his efforts. From the drawing of the human female, this drawing comes across as a very anxious sort of person. The facial expression seems to be very glum, sour. The human figure is situated sort of hinged over like this on a stool. Note that the arms are up like this in a very protected kind of position. The interesting thing is that this figure drawing has the characteristics of an older woman. I would say a very old woman. David says, no, sir, she is about twenty-six and he goes on to say she is also a [239] secure individual, no outside worries and no worries about growing old, no worries about money, and so forth. Then he says she is not on a bar stool, she is on the kitchen stool. Her back is to the kitchen looking at the TV or fire- places, or fireplace. He himself says that the arms aren’t folded to protect or security. If the drawing was better—if my drawing was bet- ter she would be sitting like this, and he demonstrates lean- ing back on the bar stool very comfortably. Again I think David’s side comments here, he points out time and time again that this is a very secure person who does not need protection, which the ordinary person would not feel compeled to do. That much emphasis on protection and security I think reflects that this is definitely a problem with him. The overall quality of the figure drawing there reflects a lot of anxiety, a lot of personality difficulty. The fact that the figure is drawn of a profile is also sug- gestive of a person who is rather guarded, evasive, doesn’t really want to reveal himself completely and again would be consistent with a suspicious, paranoid person. Q. How do the comments given get on the paper? Does David tell you about the picture or do you ask him specific questions? A. I routinely ask the person to tell me something about [240] the individual that you have drawn. Ordinarily the person will say, well, specific age, maybe occupation, that sort of thing. It is somewhat rare for a person to go into the kind of detail that David did, particularly about this busi- ness of security and not needing protection and that type of thing. A.56 Q Is there any significance in the fact that he drew the stool and hips first and breast area last? A. Generally people will start out with the head area when they start drawing. Nothing particularly is significant except to say that it is pretty unusual for a person to start out in the manner that David did. (). Are we finished with that one? A. Yes. Q. Let’s go to the next one. A. In the third figure drawing we ask the person to draw a picture of a person in a rainstorm and the reason we do this is that the rainstorm symbolizes psychologically out- side stress and outside pressure, anxiety, tension, that sort of thing. By comparing the overall quality of the figure on this drawing in the rainstorm vs. the overall quality of the figures in the other two drawings, we get an indication of how the person is likely to react psychologically to stress or tension or anxiety or pressure. I would like for you to note that the figure on the [241] third drawing is very, very small. Note how tiny and insignificant the figure is in relationship to the size of the figures on the first two drawings, indicating that when he gets under stress he tends to regress psychologically and to somewhat be compensated psychologically. The first two figure drawings were not that great but much better than the third one. Q. Is there a comment that the rainstorm is not included? A. Right. He indicated he did not include the rainstorm in his drawing, which is what we talked about, denial, his choice of denial of any problems. For a person not to tm- clude the rainstorm there could very well reflect that he needs to just deny that anything is going on outside, that there is any kind of stress or pressure or anxiety. Q. Are we finished with that one? A. Yes. Q. Is there anything else on that? A. No, I think not. * * * + . [244] A. This is the Rorschach Psychodiagnostic Tech- nique, ink blot test. What this test is is a series of ten standard ink blots that A.57 are prepared on cardboard cards and they are presented to the person in a standard kind of way and he is asked to de- scribe [245] what he sees in the ink blots as he looks at it. Q. Are they on the back sheet ? A. These are not exactly reproductions but they are similar to form. The original of these, some of them have color. The color is not reproduced. Q. Except for the color these are the ones used? A. Except for the color and size. The original ones are considerably larger than these. These are reduced in size. Tue Court: Let me see. You asked what does the first look like and he says something? THe Witness: Yes. Tue Court: Allright. Let’s move. A. He says on Number 1, I would have to say a bat. He says that simply because of these two protrusions, referring to the location chart these meaning these two little things up in the center that kind of look like hands. Mr. Wrnpsor: Objection. How can he say what they mean. Tue Court: If he pointed it out, he can. Mr. Winpsor: He didn’t testify to that. Tue Court: Okay. Is that what he told you? Tae Witness: Yes. Tue Court: Go ahead. A. Simply because of these two protrusions, and I said, anything else? He says after about forty-five seconds studying, [246] I would have to say, no. I asked him what area of the card looked like the bat and he says the whole thing, and asked him what makes it look like a bat. He says, wings, structure and antennas and feelers, protrusion of the feet. He says, incidentally the bat is laid back in flight. That is a very common, ordinary, popular kind of response, nothing at all significant there in terms of content. The fact that he focused in on the two little protrusions and said looks like a bat because of those two little protru- sions, is very similar to paranoid tendencies, to take very small bits of truth and blow it completely out of proportion. The second card he says looks like a pelvic bone. It even A.58 has a pretty good picture of a Coccyx or tail bone and says it doesn’t matter. He turns it around a little bit and says it doesn’t matter what direction it is in. I would say nothing particularly significant about that response, fairly good in terms of form level, somewhat unusual to focus in on that part of the human anatomy. Nothing really mentally disturbed about that response. Q. What about the 11 and 9? A. That is eleven seconds, nine seconds. This is the time between when I presented the card to him and the time he responded. Card three, this is where David’s thinking really [247] takes off and this is where his impairment and judgment and impairment in thinking, his kind of autistic thought process really comes through. On card three after he has six seconds he says, I would have to say these are two ladies. It looks like they are do- ing something together, maybe establishing some type of conversation. Now, so far so good. That is an excellent response to that card, typical response to the card. It is only on the inquiry when he really takes off and demonstrates his dis- turbed thinking. I asked him why does it look like two women and he says, well, the heads, the rears, the legs, they have shoes down here, it looks like they are doing something with their hands and looks like they are engaged eyeball to eyeball in con- versation. So far so good. Now, David begins to really—his thinking begins to fall apart. They are both pregnant and that is what they are talking about. These are their hearts and they are joined. That is the area in between the two things that look like kind of human figures. These are the hearts and they are joined. It is not like they are one but it implies contact. It sym- bolizes the closeness of the two and then the two little funny looking things up on the top, he says these look like fetuses up here, they are close to the head. Since they are [248] close to the head that means they are in their thoughts. He says they are ugly as fetuses are and I would say in pretty good shape. I questioned him and he said fetuses are ugly. The women A.59 whe like birds. They are bird people and fetuses look like birds. I said you mean a human being with bird like features, or exactly what do you mean? He said a human being with a bird like feature or a bird with human features but it has high heels on. Now, this type of response is highly indicative of mental illness, that is the labeling of something as both human and animal, part dog—as an example, part dog, part human, that type thing. That is a very pathological response. I went on to ques- tion about the hearts and he says, well, its the shape. They look like hearts because its the shape and plus it is in the chest area. I asked about the fetus and he said it looked like a fetus because or the fetus and the position. I asked about the conversation and he said the conversation is pleasant and there is uncertainty because neither of them have been pregnant before and they are talking about it. Now, this is an extremely elaborate, detailed, overworked kind of response and I think reflects the type of thinking that David sometimes does and the type of thinking [249] he is capable of. In other words, his thinking, logical thinking breaks down and he takes off arbitrarily—the second response on that card says, could be a lane with two trees marking the en- trance. Q. Still on card Number 3? A. Still on card Number 3. He said a country lane or road in the country. Nothing I would say pathological about that response except in the inquiry he talks about trees guarding the entrance to the lane. Again the idea of guarding, protection, necessity to be protected and also be on guard, which is pretty much con- sistent with a paranoid way of thinking. That was all on card 3. Card 4 he says, I have to say a swamp with overhanging trees, Cypress trees. That is all he says on there. It says you are at the edge of a swamp looking in. Configuration is not important, only the dark coloration and overhanging trees. The emphasis on the darkness of this is highly suggestive of anxiety, and we have seen other indications of anxiety in the testing data. A.60 This I would say is not a highly pathological response but it points to a high level of anxiety. That is all he did on card 4. Card 5, he says, this is a butterfly, and this is very typical, ordinary kind of response. Then he says, can’t [250] help but say it looks like a sheep skin. Again that is a pretty good response. But when he talks about the sheep skin he says it looks like that because it has dark coloration and fringes and edges like a fur, again indicating pretty high level of anxiety. And still on card 5 his third response, it is also on all of them, I see a short line, inlets and peninsulas, but that is characteristic of ink blots. In the inquiry he says this bigger one is from a distance of about two thousand feet and the little one is from a distance of twenty thousand feet, so it is actualiy bigger. To arbitrarily say these are viewed from a particular dis- tance, this is a very unusual kind of response on the Ror- schach. The perception of the island, inlets, peninsula, things seen from the distance is often suggestive of people feeling cut off from other people and distant from other people. Card Number 6 he says this looks like a wolf head or skin that has been laid out—laid down with the head intact. The perception of an animal skin there is nothing unusual but to say it is a wolf skin is somewhat unusual and sort of reflects his perception of other people as being predatory, again reflecting a need for guardedness. His second response on the card, he says shorelines, in- lets, clouds, insect anatomy such as pinchers. Again the shorelines, inlets, clouds reflect pretty [251] high anxiety and feelings of being cut off emotionally. Card Number 7 says this is a well drilling device, head of a well drilling device. He says the way it is shaped, it is encompassed by dirt and soil and he says it doesn’t actually look like dirt and soil but it is encompassing the bit and that for that reason it must be like soil. He says it is an oil well or whatever. Again the anxiety is indicated in that response. Q. Why is that? A. The use of the color on that. He talks about the dirt and soil encompassing the bit, and the use of the shading and dark color will tend to reflect anxiety. A.61 Q. Let me ask you why is that? You answer was to that —your answer speaks of color, the darker the color the greater the anxiety. A. This has been pretty well demonstrated by research on the Rorschach, that people who tend to focus in on shading, shading of black and white tend to be rather anxious kinds of people. There are all kinds of theories as to why that is true but I don’t think that would be necessary to go into. Q. All right. A. The second response to that card turned upside down he says I don’t know how to say this. It is a comic strip called Bode, a little purple fellow. There are two of them [252] and here is the long nose and eyes, and I can’t remem- ber what magazine. It may be Psychology Today. I am not familiar with that comic strip but the quality of the re- sponse was somewhat suspect. Q. Card— A. Card 8 he says, I see two whales. Q. Is there anything significant about the fact that ap- parently David reads a psychological magazine? A. Psychology Today is a popular newsstand kind of psychological magazine that may or may not be significant. I don’t think it necessarily is significant. Tue Court: Allright. You are on 8? A. Card 8 I see two whales but they both have legs and tails. I guess it would have to be more appropriate to say Salamanders. A good response, nothing particularly disturbed about that response. The second response to Card 8, he says this is peculiar. I can see the central nervous system, it’s intact. I see the two hemispheres of the brain, the thoracic region and lower lum- bar region and all has been dissected from the rear and placed on the page in a two dimensional picture. It is accurate except the spinal cord is unprotected. Now, anatomy responses on the Rorschach, which this is, are not highly unusual but this particular response [253] emphasizing the exposed nervous system I think pretty much reflects the kind of condition that David finds himself in. That is that he is underneath this facade a very sensi- tive, very touchy kind of individual. A.62 He has a lot of, metaphorically speaking, a lot of nerves exposed and is a touchy sort of person. Card 9 he says he sees a big bird sitting on top of some- thing. Instead of wings he has two balls which could be fists pointing out towards you. I am really stretching my imagination. I have to grope to come up with anything. This is not a particularly good form level response. It is also an extremely paranoid response. This is the eagle as seen like this and is coming at him. He said, I can see his head and eyes if you are looking directly at him. It looks like he has his arms and fists doubled up. Card 10 he says, I see two trouts. That is a very typical kind of response. I see the shoot of a tree about three inches in diameter, about three feet off the ground that has been cut off. Noth- ing particularly significant about that. He also says that he sees two red blood cells and I believe he said he saw platelets inside of them. Nothing particu- larly pathological that comes through on Card 10. In general I would say the Rorschach is pretty consistent with the other test findings. [254] In most instances David did very well on the Ror- schach but in certain selected instances his thinking very much broke down and got off on a tangent, which suggests in real life although he can function generally from time to time he lapses as a phycotic type. [258] Q. The last thing we have is what I take to be the history, is that correct? A. Clinical Interview. Q. Yes, sir, Clinical Interview. Is there anything about that that you want to comment on? Mr. Winpsor: May it be held up so the jury and I will know what one he is talking about? Tue Court: Is that the one that starts out, situation, robbed the bank? Tue Witness: That’s correct. Tue Court: All right. A. These are just very rough notes that I made based on the interview, notes about what David said, what he indi- cated to me about the act and that sort of thing. I don’t A.63 think there is anything in particular that would lead—I think it was pretty well covered this morning when we re- viewed the psychological report itself. Q. Doctor, based upon your evaluation of David, do you have an opinion as to whether or not he was suffering from mental illness at the time of the commission of this crime in [259] October, 1975? A. Yes, I do. Q. What is that? A. I feel that he was suffering a mental illness at that time. Q. Do you think David knew right from wrong? A. In a rational-intellectual sense he knew right from wrong. Q. Assuming that he knew right from wrong, was the mental illness such to render him substantially incapable of conforming his conduct to the requirements of the law that he is charged with violating, namely, the bank robbery? A. Yes. I believe he was not able to control that. Q. Will you explain that answer, please. A. I believe at that time when he was planning the rob- bery and that sort of thing that his behavior was not under his control, that he was not fully capable of controlling that behavior which was kind of an irresistible urge. Q. You do think he knows right from wrong? A. Ina general sense, yes. Q. I believe you testified that you have a diagnosis of paranoid schizophrenia for his illness? A. That’s corect. Mr. DurHam: You may cross examine. [260] CROSS EXAMINATION OF L. D. HUTT By Mr. Winpsor: [264] o * * . * Q. Yes, sir. Let me paraphrase this and if there is any objection or you want to add something, please signify so. The upper half of the first page he described the bank robbery prior to last year and he tells you why he com- mitted it. A. That’s right. Q. What reasons did he give you? A.64 A. He said that he robbed the bank in order to get out of an unsatisfactory military situation. He was having an af- fair with a married girl and felt that that would solve that problem and also in his words put the parental situation on the line. That is where his parents really carried for him or really didn’t. Q. He volunteered that information to you? A. On inquiry, yes. Q. Now, doesn’t that indicate to you, sir, he reasoned this thing out? A. There is no question that he reasoned it out. He is capable of reasoning things through but I think most of us, the opinion would be that that was not a very satisfactory solution or realistic or logical solution to the situation he found himself in. Q. No, sir, it’s not satisfactory but it shows he was cap- able of reasoning, doesn’t it? [265] PO>OPO> A.101 Q. You testified you felt after he robbed the bank he got a feeling of calmness and was satisfied. A. Yes. Q. Why didn’t he stop when the policemen were chasing him and trying to pull him over? ... Iam not sure how that is necessarily connected with the situation to rob the bank. I think at that time it is hard to speculate but we know he was—I understand he was getting shot at. It didn’t seem to be a great concern, his life, for himself at the time. I think it fits in with some of the self destructive aspect. CROSS EXAMINATION OF KENNETH J. MUNDEN By Mr. Durnam: Q. Dr. Munden, is it true that you are a resident member of Tennessee, graduate of St. George’s College in England, went to medical school at St. Bartholomew’s Hospital in London, Graduate Medical School of Medicine in the Uni- versity of Madrid, Spain, did your internship at St. Luke’s Hospital, Chicago, and you have been a Menninger psy- chiatrist? Is that true? A. That’s correct, sir. Q. We are trying to move along here. You have been a member of the Senior Staff at the Men- ninger Foundation at Topeka, Kansas? A. That’s correct. Q. And you have been a consultant for the United States Department of Justice, for the United States Attorney’s office in the City of Memphis? A. That’s correct. [369] Q. Would you read your report. You have a copy of your report dated January 16th in front of you? A. Yes, sir. Q. If so, will you read that into the record, please. A. This report has been prepared at the request of Mr. Bart Durham, Attorney at law, counsel for the above-named defendant charged with bank robbery and kidnapping. The report incorporates the following: psychiatric inter- views with Mr. David Wayne Burks, his father and his A.102 mother, a psychological report—see enclosed copy—pre- pared by L. D. Hutt, Ph. D. In addition, the undersigned has reviewed the documents listed at the end of this report. Mr. David Wayne Burks is a stocky, muscular, neatly- dressed twenty-four year old white, single male who is intelligent, well-educated, alert and cooperative. His ten- dency to be overpolite and ingratiating was immediately apparent. ; With support and encouragement two psychopathological elements became evident: first, the mood was entirely in- appropriate in the light of his realistic situation, inasmuch as his affect expressed humor and at times euphoria and at no time did he express the natural feelings one might ex- pect such [370] as depression, uncertainty, and anxiety. Second, he conceptualizes himself exclusively as a man who can handle anything, a superman in fact. Given en- couragement he becomes grandiose, delusional, paranoid in his thinking. Despite the reams of letters describing Mr. David W. Burks in glowing terms, the fact remains that from a reality point of view his life has been an absolute failure. He has never completed anything. The criminal, antisocial acts certainly do not reflect the mastermind he claims to be, since he was apprehended and charged. Last but not least, as acknowledged by himself, his war experiences simply gratified sadistic, destructive impulses regardless. As a result of these two distinct personality traits, namely his inappropriate feelings and his delusional ideas of grandeur, his judgment can be seriously impaired, pur- ticularly in his perception and level of relationship. Th>* is say he is quite convinced he is very shrewd and can * » and manipulate anyone he wants to. This is correct when the relatienship is very superficial and distant. However, when a measure of closeness is obtained, his shrewdness dis- sipates to reveal an individual who knows little about human beings, hence his judgment fails. It is my considered opinion that we are dealing with [371] an individual who is emotionally very sick and has been disturbed probably from late childhood or early adoles- cence. He has coped with his severe disturbance by using a front that is nonetheless brittle which would disintegrate if A.103 anyone chose to get close to him emotionally. Hence his lonely existence. Moreover, because of his high degree of chronically-con- tained frustration, I consider him potentially dangerous and in need of long-term, inpatient care in appropriate psychiatric setting. It is signed by me. Q. Doctor, as a result of your examination of David, have you reached a conclusion as to whether or not he was suffering from a mental illness at the time of the commis- sion of the crime of bank robbery? A. Yes. Since I considered it has been an illness since either childhood or early adolescence. Q. What is your diagnosis and what is the psychological term, psychiatric term for David? A. I would consider him a paranoid individual as opposed to a paranoid schizophrenic. Q. In your expert opinion was this mental illness such to render him substantially incapable of conforming his conduct to the requirements of the law that he was charged with violating. A. Yes, sir. [372] Q. Would you explain that answer. A. Mr. Burks is of the opinion in terms of his responsibil- ity that applies to others doesn’t apply to himself and hence—may I restate that? Q. Yes. A. Would you ask me the question again because I want to make a point here. Q. You told me his mental illness was such that you answered yes, his mental illness is such to render him substantially incapable of conforming his conduct to the requirements of law that he is charged with violating. A. Yes. Q. Was he substantially able to conform his conduct so he wouldn’t rob that bank? A. No, I don’t think he was capable precisely for that point. Q. I asked why in your opinion can’t he? A. In my opinion what conduct is appropriate for others doesn’t apply to him. This is a typical paranoid trait, by the way. Mr. Durnam : Excuse me just a minute, Your Honor. You may cross examine. A.104 [373] CROSS EXAMINATION OF KENNETH J. MUNDEN By Mr. Wiypsor: Q. Good afternoon, Doctor. You say you don’t think David Burks knew what he did was wrong on that after- noon? A. I think he knew what he was doing was wrong but the point I wanted to make is that by virtue of the fact he is a paranoid individual he always excepts himself from having any particular situation. In other words, anybody else doing this act would be wrong but as far as he is concerned, no. Q. Well then did he think he hadn’t done anything wrong? A. He knew he had done something wrong but the para- noid individual, you see, because of his type of thinking will justify, rationalizing logic. In his case this is wrong but explain why this is a point of view accepted by others but don’t apply to him. Q. I think I understand that. Did you place much em- phasis on your diagnosis concerning his war experience? A. Some. My approach to David was—because I had received quite a bit of information about his background, many reports, one thing that struck me was that there was very little information about his personal, intimate life which I felt was rather important to look into, and this is one area in which I focused on, his own personal life. To that extent we did discuss a little bit about his war experience. [374] Q. Did the little bit you discussed weigh heavily in your diagnosis? A. In one aspect, yes. Q. Please explain. A. According to him this was the best time he had ever had in his life in terms of looking back on your life, what time of your life do you feel was the most enjoyable, the best in your life. Q. When you examined and interviewed David, he told you he was sane—he felt this was the best time in his life. He in so many words told you he was sane, didn’t he? A. Oh, yes, that is what a paranoid claims that they are sane. If you get as close as you can to a paranoid individual A.105 and for a time I think I did get quite close to him, they feel that definitely they are sane, healthy and nothing is wrong with them, it is everybody else that is wrong. Was he psychotic at the time he robbed the bank? No, sir. I am sorry. Would you say that again. Was he psychotic? At the time he saw me? No, sir, at the time he robbed the bank. . Psychotic in the sense he has been a paranoid in- dividual all his life. Q. You say paranoid as opposed to paranoid schizo- phrenic. A. Yes. [375] Q. Doctor, are you familiar with the Diagnostic Manual of the Mental Disorders of the American Psychi- atric Association? A. Yes, lam. Q. Under Section 297 entitled Paranoia the last sentence in the description here says, in spite of a chronic course the condition does not seem to interfer with the rest of the patient’s thinking and personality. A. Yes, that’s correct. Q. Now, the sentence before that—and there are only three sentences—says that the patient considers himself endowed with unique and superior ability. A. That’s correct. Q. That’s correct, isn’t it? A. Very intelligent individuals, very intelligent. Q. Apparently it is the feeling of the American Psychi- atric Association that the condition does not seem to inter- fer with the rest of the patient’s thinking and personality but he does feel unique and superior ability? A. That’s correct. Q. Well then I would have to ask you is the rest of his thinking and personality mean that he does know right from wrong? A. No. As a matter of fact I published three papers on the problem of the paranoid, one which I presented to the International Congress of Psychiatrists because the para- noid individual is very intelligent, very well integrated. [376] The one area that is very disturbed is the affective area, to that extent what you find this is what paranoid re- fers to, so called delusional thinking. This is one area that POPObO A.106 is affected there; the fact that their ideas, beliefs are totally unrealistic. Q. All right. In your report you say twice, once you say with support and encouragement two psychopathological elements became evident. What sort of encouragement? A. I discussed with him the very fact that it seemed like his life had been a very lonely one, a flustrating one, very unhappy one and for a considerable amount of time he was very uneasy about my trying to get close to him. As a matter of fact, it was only in the latter part of the interview that he began to open up a little bit in terms of his own intimate thoughts, his perception including myself. I wouldn’t do this because it is vicious, but with a patient of this type if you are trying to become affectionate with them they can be grossly delusional, very distrustful as opposed to someone else, they get to know you a little bit, show some affection and they will respond. Q. Did he recall in very good detail the events of the robbery? A. Pretty clearly and directly as he did other events in his life. Q. All right, sir. Sir, the Diagnostic Manual says [377] that paranoia is an extremely rare condition. A. Yes. May I add to that? Q. Please. A. It is even being questioned because it is being theo- rized that the state of paranoia is on individuals by virtue of the fact that they are paranoia never involved in courts so it is quite a hypotheical type diagnosis. However, you notice that there are levels, diagnostic levels under the paranoid label. Q. Yes, but I listened closely and you distinguished your paranoia from paranoia schizophrenic. A. I referred to him as a paranoid personality or para- noid individual. Q. This manual of the American Psychiatric Association says that is extremely, extremely rare. A. Not the paranoid personality. Paranoia. Q. Did you write an article entitled Consideration of the Paranoid Problem in the Psychiatric Practice? A. That’s correct. Q. And in the first paragraph did you say, as you know A.107 the paranoia problems is the most common and difficult one encount [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2119%3A2. Public record. Not legal advice.