Knoch, Senior Circuit Judge, Kiley, Circuit Judge and Campbell, Senior District Judge.*fn* Kiley, Circuit Judge (concurring).
CAMPBELL, Senior District Judge.
On February 12, 1970 a federal grand jury in the Southern District of Indiana, Terre Haute Division, returned an indictment charging the defendant, Calvin Wayne Dow, Jr., with first-degree murder committed at the United States Penitentiary at Terre Haute. The indictment charged that on November 23, 1969 the defendant, then an inmate of the penitentiary, murdered one Edward Louis Knox, also an inmate, by stabbing him with a knife, in violation of 18 U.S.C. § 1111. A jury trial commenced on September 14, 1970 and at the conclusion of the government's case the court withdrew the charge of first-degree murder from the jury. The lesser-included charges of second-degree murder and voluntary manslaughter were submitted to the jury. The defendant was found guilty of voluntary manslaughter and on October 2, 1970 was sentenced to ten years in prison, to be served consecutively with the sentence he was then serving.
A careful examination of the record below seems to reveal that this is not a case of obvious guilt on the part of the defendant. On the evening of November 23, 1969 the defendant, who had been assigned to J Unit, Cell 39, was seated with several other inmates at a table in the day room of the unit. The day room was located on a tier immediately beneath the cell tier. Edward Knox, a negro inmate who had been assigned to J. Unit, Cell 45, which was located near the defendant's cell, was observed entering the defendant's cell by one of the men in the day room area. The act of entering another inmate's cell was prohibited by both penitentiary regulations and inmate custom. At this time Knox was naked, soapy and carrying a pair of shorts. The inmate who first observed him testified that he was coming from the area of the unit's shower room.
Earlier that day Knox had received two separate and substantial over doses of a tranquilizer known as "Thorazine". The dosages had been incorrectly administered to Knox by a non-physician employee of the penitentiary's Medical Clinic. There was no evidence that the defendant knew that Knox, who was known to the defendant only by sight, had received this treatment.
Upon learning of Knox's entry into his cell, the defendant quickly walked to his cell and entered, the door automatically closing behind him. No one observed what then transpired inside the cell but upon hearing a loud commotion inmate John Hughes proceeded toward the defendant's cell. Upon opening the cell door, Hughes observed the defendant and Knox standing and holding each other. Both were covered with blood. The defendant shoved a knife towards Hughes who took it and then departed. Later he deposited the knife in a trash cart located in the day room area. Within a matter of seconds the defendant and Knox, still intertwined, came out of the cell. Knox was observed striking or attempting to strike several blows at the defendant as the defendant was apparently trying to pull away from Knox or push himself away from Knox. Knox collapsed to the floor of the tier and the defendant was immediately taken into custody by a security officer who had arrived on the scene. As previously stated, the government presented no witnesses who actually saw what occurred in Cell 39, nor was any evidence of motive presented.
Testifying in his own behalf the defendant admitted that he had killed Knox but stated that he had acted out of fear for his own life. The defendant related that upon entering his cell he discovered Knox, standing naked and staring with a wild or crazy expression in his face. Knox purportedly refused to respond to the defendant's inquiries as to why Knox was in the defendant's cell. According to the defendant, Knox then attacked him with a knife which had been hidden in the shorts carried by knox. The knife, first encased in a sheath, became uncased during the struggle and the defendant, having gained possession of the knife, began to swing wildly at Knox thereby stabbing him numerous times. An autopsy performed on Knox's body revealed that several of the stab wounds were inflicted in the area of the upper back and the head of the deceased. The defendant further testified that after the cell door had been opened, he heard the security officer approaching and then placed the sheath from the knife in his back pocket. A search of the defendant after he had been take into custody revealed the presence of the sheath.
Dr. Franklin Brosgol, a physician then employed at the penitentiary (and who had prescribed the Thorazine for Knox, which was incorrectly administered by a nonphysician employee), testified that the dosage of the tranquilizer Knox had received would, in his opinion, render Knox non hostile, non aggressive, difficult to communicate with and "stuporous". The doctor further testified, however, that because the effects of this drug vary depending upon the individual recipient, he had no way of knowing with certainty how Knox might have reacted to the drug. There was also evidence that this physician had never examined Knox prior to pronouncing him dead.
Dr. Kenneth Ash, testifying for the defendant, stated that as Staff Psychiatrist of the United States Medical Center for Federal Prisons in Springfield, Missouri, he had examined Knox one year earlier. At that time he diagnosed Knox as a paranoid schizophrenic. He testified also that much larger doses of Thorazine than Knox had received on the day of his death could be administered to a patient without putting him to sleep, depending upon the state of mental agitation of the patient. He stated that the real effect of this drug is not noted until two or three days after administration. In his opinion the immediate effect of the drug upon Knox was open to serious question. His testimony further revealed that when he interviewed Knox in Springfield, Missouri he, the doctor, was fearful for his own person and that Knox could have had another "flareup" after his return from the Medical Center to the general prison population. Finally, and in response to a lengthy hypothetical question propounded by the district judge which incorporated a description of Knox's behavior throughout the day of his death, Dr. Ash testified that, in his opinion, Knox on that day had experienced a reoccurrence of his paranoid schizophrenia.
Against this background it can readily be seen that the testimony of the defendant was a crucial, perhaps pivotal, aspect of the case. On direct examination the defendant admitted that he was then confined in the penitentiary on assault and robbery charges and that previously he had been confined in both a state institution in Oregon and a federal penitentiary in California on similar offenses. On cross examination the prosecutor asked the following questions:
"Q. (Prosecutor) Calvin, have you ever been convicted of a felony?
Q. When was your first felony conviction?
A. Unauthorized use of a motor vehicle.
Q. And where did that take place?
Q. When did your next felony ...