U.S. ex rel. Foster v. DeRobertis

• Decision Date: 16 August 1984
• Docket Number: No. 83-2881,83-2881
• Citation: 741 F.2d 1007
• Parties: 16 Fed. R. Evid. Serv. 256 UNITED STATES of America ex rel. Sidney FOSTER, Petitioner-Appellant, v. Richard DeROBERTIS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1007

741 F.2d 1007

16 Fed. R. Evid. Serv. 256

UNITED STATES of America ex rel. Sidney FOSTER, Petitioner-Appellant, v. Richard DeROBERTIS, Warden, Respondent-Appellee.

No. 83-2881.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1984.

Decided Aug. 16, 1984.

Omer G. Poirier, Jenner & Block, Chicago, Ill., for petitioner-appellant.

David E. Bindi, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before PELL and COFFEY, Circuit Judges, and DUMBAULD, Senior District Judge. ^*

PELL, Circuit Judge.

Petitioner Sidney Foster appeals the district court's denial of his petition for a writ of habeas corpus. In August 1975, petitioner was convicted of murder and concealment of a homicidal death by an Illinois trial court. The Illinois Appellate Court, by a divided panel, reversed, finding that the trial court erred in not holding a pre-trial competency hearing and that the State had failed to prove beyond a reasonable doubt that petitioner committed the murder and was sane at the time he concealed the homicide. People v. Foster, 56 Ill.App.3d 22, 13 Ill.Dec. 869, 371 N.E.2d 961 (1st Dist.1977). The Illinois Supreme Court reversed and reinstated the convictions. People v. Foster, 76 Ill.2d 365, 29 Ill.Dec. 449, 392 N.E.2d 6 (1979). The district court granted summary judgment to the State on petitioner's habeas corpus petition. On appeal, petitioner once again asserts that he was entitled to a competency hearing, was convicted on insufficient proof, and was prejudiced by the trial court's erroneous evidentiary rulings. We will consider each claim in turn.

I Facts

Petitioner lived with the murder victim, Vivian Patterson, and her four children. Petitioner's relationship with Patterson was close but platonic. Petitioner claims to be a transsexual; a biological male with female gender identification. Unbeknown to Patterson, petitioner forced her son Solomon Hudson to engage in homosexual acts. Petitioner also believed that he was somehow the father of Solomon. There was evidence that during December of 1973 petitioner confided to Diane Adams, a friend, that he was worried that Patterson might move to California with her children and leave petitioner behind.

On December 18, 1973, petitioner borrowed a .38-caliber Rohm revolver and six rounds of ammunition from Edward Thomas. Petitioner explained to Thomas that he needed the gun because of harassment in his music recording business. At petitioner's request Thomas placed the gun and bullets in a camera case. On the evening of December 31 petitioner returned the gun. Petitioner told Thomas that "he thought he got the dude and wouldn't be needing the gun any more." The gun contained only two bullets, one of which had misfired.

During most of December Patterson's children stayed with her ex-husband, Lucius Hudson. One of the children, Sandra Hudson, saw Patterson on December 27 or 28, but did not see her when she visited the apartment on December 29 or 30. Solomon was similarly unable to reach his mother when he called home on December 29. Petitioner told the children that Patterson had gone to California. Petitioner told the children not to tell Lucius Hudson about their mother's trip. When Solomon returned home on the 31st, petitioner told him that his mother had been in a plane crash in California and was in critical condition. During January petitioner told the plane crash story to several of Patterson's friends.

Sometime around New Year's Eve petitioner met Wilbur Richburg and Marvin Morgan and offered them $5,000 each to help dispose of Patterson's body. The men went to Patterson's apartment to view the corpse, which was in the bedroom. Richburg and Morgan left the apartment after arranging to return. During January the children complained of a bad smell emanating from their mother's bedroom, which petitioner kept locked. Petitioner claimed that the smell was caused by chicken bones, but refused to let the children into the bedroom.

Late in January Richburg and Morgan returned to the apartment with cardboard barrels. Unable to fit Patterson's 300 pound body into the barrels, the men dismembered it and wrapped the pieces in sheets. Richburg and Morgan dragged the body to petitioner's car and placed it in the trunk. Petitioner removed the "license-applied-for" sticker from his windshield and suggested that someone keep a watch out for the police. On January 23 petitioner kept watch over the car from a window in the apartment. He then left the apartment to make a phone call and took Sandra along. Petitioner told Sandra that she "was going to hate him for the rest of [her] life." Petitioner then picked up the other children from school and explained that he needed two plane tickets in false names for Solomon and himself. When petitioner took Solomon to the home of petitioner's parents he noticed detective cars parked out front. Petitioner then went to the home of his sister. The next day, petitioner turned himself in.

The police discovered Patterson's body on January 23. The only identifying marks on the car were a "Cee Fred" sticker and the auto identification number. The police learned through "Cee Fred" that the car belonged to petitioner. The body was taken to the morgue. An autopsy did not reveal the date of death, but did reveal that Patterson died from a bullet wound in the head from a .38-caliber weapon. A bullet removed from the body demonstrated characteristics found in bullets fired from certain Rohn revolvers and certain other weapons. The police could not examine Thomas's revolver as he had lent it to another friend, who subsequently lost it during a chase by the police.

After surrendering to the police, petitioner made a number of statements. Petitioner admitted some involvement in disposing of the body, but denied any responsibility for the killing. At first petitioner claimed that "the mafia" killed Patterson with a machine gun. Petitioner then claimed that a drug dealer named "Jiggy"--also referred to as "T-Bone" and "Jimmy Wayne"--committed the murder. At all times petitioner claimed that the murder took place on December 28. Petitioner stated that Jiggy had warned him not to tell anyone what had happened. According to petitioner, Jiggy and his friends dismembered Patterson's body and placed it in petitioner's car. At trial petitioner admitted that this final claim was not true and that he had arranged with Richburg and Morgan to conceal the body. After petitioner was released on bail he tried to commit suicide by swallowing 25 aspirins.

Petitioner claimed that he did not commit the murder and relied upon an insanity defense to the concealment charge. In support of his defense, petitioner presented Dr. Mehlinger. Dr. Mehlinger testified that petitioner suffered from a "transient situational disturbance" at the time he concealed Patterson's death and could not appreciate the criminality of his actions. On cross-examination Dr. Mehlinger admitted that his evaluation was based on only one 90-minute interview 18 months after the crime, that he assumed that petitioner was not the killer, and that he was surprised to learn at trial that petitioner had obtained a gun as he had thought that petitioner would not be so aggressive.

In addition to evidence of his mental problems, petitioner presented two witnesses who claimed to have seen Patterson alive in early January. This claim was also made by one of the prosecution's witnesses. However, none of Patterson's children saw her alive after December 28.

II Pre-Trial Competency Hearing

Three days prior to trial petitioner's counsel filed a motion requesting that petitioner be examined by a psychiatrist and that the court hold a hearing on the question of petitioner's competence to stand trial. In support of this motion counsel stated that he had reasonable grounds to believe that petitioner was incompetent based upon his observation of petitioner and upon confidential information received from petitioner. Counsel stated that he had consulted with a psychiatrist on the question of petitioner's competence.

At the court's request, counsel made an offer of proof. Counsel produced handwritten statements that petitioner gave to the police, including one in which petitioner stated that "I don't know if I am in my right mind," and opined that petitioner's handwriting indicated that he was mentally disturbed. Counsel offered proof of the nature of the crime and petitioner's suicide attempt. In addition, petitioner himself testified at length upon a number of subjects, many of which were not directly related to his current competency. Petitioner stated that he understood that he had hampered his defense by not telling the truth about the concealment in the beginning and indicated that he knew what the charges were against him. The court refused to grant counsel a continuance to obtain a psychiatrist to whom counsel had spoken previously. The court found no bona fide doubt about petitioner's competency and refused to order a psychiatric examination of petitioner.

The question of a criminal defendant's competency to stand trial revolves around whether he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). Neither petitioner nor respondent here questions that petitioner was entitled to a hearing on his competency if he raised a bona fide doubt about his ability to consult with his attorney or his understanding of the charges against him. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

The determination whether a bona fide doubt exists as to a defendant's competency should be based on "evidence of [his] irrational behavior, his demeanor at trial, and any...