Darrow v. Gunn

• Decision Date: 05 April 1979
• Docket Number: No. 78-1369,78-1369
• Citation: 594 F.2d 767
• Parties: Neil E. DARROW, Petitioner-Appellant, v. Warden GUNN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 767

594 F.2d 767

Neil E. DARROW, Petitioner-Appellant, v. Warden GUNN, Respondent-Appellee.

No. 78-1369.

United States Court of Appeals, Ninth Circuit.

April 5, 1979.

Daniel T. Dauenhauer, Sacramento, Cal., for petitioner-appellant.

Kane Kirkland Fischer, Deputy Atty. Gen., Sacramento, Cal., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before CHOY and KENNEDY, Circuit Judges, and SCHWARZER ^*, District Judge.

CHOY, Circuit Judge:

This case comes to this court for a second time following the district court's denial of Darrow's petition for habeas corpus. We vacated the district court's denial of the petition and remanded the case when it was first before us, Darrow v. Gunn, 551 F.2d 312 (9th Cir. 1977) (unpublished memorandum). On this second appeal, we find that the district court did not err in refusing Darrow's petition on remand. We therefore affirm.

I. Statement of the Case

On July 16, 1973, Darrow pleaded not guilty and not guilty by reason of insanity in state court to charges of first degree murder, kidnapping and use of a firearm in committing these crimes. The court appointed two forensic psychiatrists to examine Darrow.

On July 18, Darrow attempted to withdraw his earlier pleas and to enter a plea of guilty, over the objection of his attorney. The court did not accept the change of plea at that time.

Five days later the two court-appointed psychiatrists examined Darrow. They each filed a report with the court on July 31. Both psychiatrists essentially concluded that Darrow was sane at the time he allegedly committed the crimes charged, and that he appeared to be sane at the time they examined him. ¹

On August 21, Darrow renewed his request to change his plea. Again the court refused to accept his plea of guilty; instead, it continued the matter for one day. Finally, on August 22, 1973, the court, after an extensive examination of Darrow and his attorney, ² allowed Darrow to change his plea on the first degree murder charge to guilty in exchange for the district attorney's promise to dismiss other charges pending against him. ³

On August 28, 1973, Darrow moved to set aside his guilty plea, alleging that he was mentally incompetent at the time his plea was entered. In support of his motion, Darrow cited a report by Dr. Galioni, a forensic psychiatrist hired by his appointed counsel. Dr. Galioni had examined Darrow on June 29 and July 11, 1973, concluding that Darrow was a paranoid schizophrenic living in a delusional world and was legally insane at the time of the crimes charged. Dr. Galioni also reported that Darrow was aware of the nature of the charges against him and could cooperate and collaborate with the public defender's office in presenting his defense unless "the paranoid system, within which he operates, is enlarged to include the public defender's office." ⁴ The state court denied the motion.

On September 3, 1975, Darrow petitioned the District Court for the Eastern District of California seeking habeas relief. The district court refused to issue a writ of habeas corpus. He appealed. We vacated the district court's decision and remanded for reconsideration, citing the absence of the transcript of the proceedings in which Darrow's plea was accepted from the record before the district court and the district court's failure to apply the standards set forth in Sieling v. Eyman, 478 F.2d 211 (9th Cir. 1973), and Sailer v. Gunn, 548 F.2d 271 (9th Cir. 1977).

On remand, the district court concluded that it was unable to determine if Darrow was competent to plead guilty at the time his plea was accepted. It therefore remanded the case to the state trial court which originally heard the case for a hearing to determine Darrow's competence at the time the plea was entered, because that court "may have had additional facts before it."

The state court held an evidentiary hearing to supplement the record before it. ⁵ The court concluded that Darrow was competent at the time his plea of guilty was accepted. The district court then reviewed the state court proceedings and agreed with the state court that "Darrow was Seiling competent at the time of the plea." The district court once again denied Darrow's petition for habeas corpus, stating:

The Court is mindful that the United States Supreme Court is reluctant to permit retrospective hearings on questions of mental competency. See, Pate v. Robinson, 383 U.S. 375 (86 S.Ct. 836, 15 L.Ed.2d 815) (1966). The reason for this reluctance is that ordinarily a retrospective hearing is not sufficiently reliable to be constitutionally proper. In a case such as this, however, where the 1973 reports of the two court-appointed psychiatrists confirm their testimony at the review hearing, and review hearing testimony . . . clearly discredits the one report (Dr. Galioni's) which supported Darrow, it is appropriate to hold that the review hearing was sufficiently reliable to be constitutionally proper.

II. Competency Hearing Prior to Accepting a Plea of Guilty

Darrow asserts that "(i)t is well settled that a state court may not, after Improperly failing to hold a hearing as to a defendant's competency, hold a limited Retrospective hearing as to that defendant's competency at the time of entry of a plea," citing Pate v. Robinson, 383 U.S. at 386-87, 86 S.Ct. 836, and Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (emphasis added). This contention is actually two assignments of error: (1) the trial court erred by failing to hold a competency hearing before accepting Darrow's guilty plea; and (2) the district court erred in holding that a retrospective competency hearing could cure such a defect.

"(F)ailure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial." Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975), Citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. Even greater care must be taken to insure that an individual is competent to plead guilty, for a guilty plea is a waiver of important constitutional rights. Sieling v. Eyman, 478 F.2d at 214-15; See Westbrook v. Arizona, 384 U.S. 150, 150, 86 S.Ct. 1320, 1320, 16 L.Ed.2d 429 (1966) (although court had decided defendant was competent to stand trial, further "inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel" was necessary).

The Supreme Court has never "prescribe(d) a general standard with respect to the nature or quantum of evidence necessary to require resort to" a procedure adequate to insure that a defendant is competent. Drope v. Missouri, 420 U.S. at 172, 95 S.Ct. at 904. However, this court has stated that

a due process evidentiary hearing is constitutionally compelled at any time that there is "substantial evidence" that the defendant may be mentally incompetent . . . . "Substantial evidence" is a term of art. "Evidence" encompasses all information properly before the court . . . . Evidence is "substantial" if it raises a reasonable doubt about the defendant's competency . . . . Once there is such evidence from any source, there is doubt that cannot be dispelled by resort to conflicting evidence. The function of the trial court (in such cases) is not to determine the ultimate issue: Is the defendant competent . . . ? It (Sic ) sole function is to decide whether there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant's competency. At any time that such evidence appears, the trial court Sua sponte must order an evidentiary hearing on the competency issue.

Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972); See de Kaplany v. Enomoto, 540 F.2d 975, 980-81 (9th Cir. 1976), Cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977); Tillery v. Eyman, 492 F.2d 1056, 1058-59 (9th Cir. 1974). We have also said that

under the due process clause a hearing on a defendant's competence to plead guilty is required if the trial judge entertains or should reasonably have entertained a good-faith doubt as to the competence of the defendant to understand the nature and consequences of his plea or to participate intelligently in the proceedings, including his ability to make a reasoned choice among the alternatives presented to him.

Sailer v. Gunn, 548 F.2d at 275.

Recognizing that our review of a failure to provide a competency hearing must be "comprehensive," we conclude that the court did not err. A reasonable judge, situated as was the trial court judge, should not have entertained a good faith doubt concerning Darrow's competence to stand trial or to plead guilty. See de Kaplany v. Enomoto, 540 F.2d at 983. The court was not faced with "a long and extensive history of irrational behavior and mental illness as in Pate, Drope, and Moore." Id. Nor was it, "as in Tillery (and Sieling ), confronted with a psychiatric report which threw doubt on the defendant's competency." ⁶ Id. Darrow did not behave irrationally in the court's presence, as did the defendant in Tillery. Although Darrow's attorney indicated that he had counselled Darrow not to plead guilty, at no time did he indicate any fear regarding Darrow's competency to plead guilty. Finally, Darrow's conduct in pleading guilty to first degree murder in exchange for the district attorney's agreement to drop five other serious charges was not suspect.

On the basis of our review of the record, we conclude that the trial court did not err in not ordering a hearing to determine Darrow's competence to plead guilty Sua sponte, prior to accepting such a plea. See Sailer v. Gunn, 548 F.2d at 274-75; De Kaplany v. Enomoto, 540 F.2d at 979-85. Therefore, we need not reach Darrow's contention that the retrospective competency hearing conducted in this case did not cure the omission of a...