U.S. v. Frank, 89-10289

• Citation: 956 F.2d 872
• Decision Date: 11 February 1992
• Docket Number: No. 89-10289,89-10289
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terrance FRANK, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 872

956 F.2d 872

UNITED STATES of America, Plaintiff-Appellee, v. Terrance FRANK, Defendant-Appellant.

No. 89-10289.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1991.

Decided June 3, 1991.

As Amended on Denial of Rehearing

and Rehearing En Banc Feb. 11, 1992.

Jon M. Sands, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.

Linda A. Akers, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before HUG, ALARCON and WIGGINS, Circuit Judges.

ALARCON, Circuit Judge:

Terrance Frank appeals from the judgment of conviction entered following trial by jury, on two counts of second degree The facts presented by the Government at the guilt phase of this matter were uncontroverted. Frank was 24 years old at the time of the charged offenses. He fatally shot Eugene George and Irvin Harvey. Frank also shot and wounded Esther Harvey, and Louis Harvey. The crime occurred on June 24, 1988, at the Harvey family residence located in a remote part of the Navajo Indian Reservation in Arizona.

                murder in violation of 18 U.S.C. § 1111 and § 1153, two counts of assault with intent to commit murder in violation of 18 U.S.C. § 113(a) and § 1153, and four counts of use of a firearm in commission of a crime of violence in violation of 18 U.S.C. § 924(c) and § 1153.   Frank was sentenced to prison for 35 years
                

Frank was indicted on July 13, 1988. On September 23, 1988, Frank requested a hearing to determine whether he was competent to stand trial. The district court appointed two psychiatrists and a psychologist to assist defense counsel for the competency proceedings. Frank was also examined by a Government psychiatrist and psychologist. Each expert testified regarding Frank's competency. A hearing was also held on Frank's motion to suppress the statement he gave to an FBI agent.

On appeal, Frank seeks reversal on the following grounds:

1. The district court erred in finding Frank competent to stand trial.

2. The district court erred in denying Frank's motion to suppress his confession.

3. The district court erred in rejecting Frank's proposed jury instruction on the effect of a verdict of not guilty by reason of insanity.

We conclude that these contentions lack merit and affirm. We address each of these issues and the facts pertinent thereto under separate headings.

DISCUSSION

I. COMPETENCY DETERMINATION

Frank contends that "in light of the overwhelming evidence to the contrary," the district court's finding that he was legally competent to stand trial constituted clear error. Appellant's Opening Brief at 21. Frank refers this court to the testimony of defense witnesses to support his contention that he was unable to concentrate or assist counsel in his defense because he is mentally retarded and suffers from severe depression. The Government's experts disagreed. They testified that there was no evidence that Frank was mentally retarded or that he suffered from severe depression at the time of their examination. Each prosecution expert was of the opinion that Frank was able to understand the nature and the consequences of the criminal proceedings against him and to assist his counsel in the preparation of a defense.

The district court concluded that the Government met its burden of proving that Frank was competent. The court found that Frank was oriented as to time, place, and person, and was not presently suffering from a mental disease or defect. In explaining its ruling on the competency motion, the district court stated:

The defendant understands the charges against him and the possible consequences if he is found guilty. He has some understanding of the roles of the prosecutor, defense counsel, and the judge. He has very little understanding of his constitutional rights, but this is not so much the result of mental incompetency as cultural differences.

The defendant is able to assist his counsel in the preparation of a defense.

A defendant is incompetent to stand trial if the court finds "by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense...." 18 U.S.C. § 4241(d)

A district court's finding that a defendant is competent to stand trial is a question of fact which we review for clear error. United States v. Lindley, 774 F.2d 993 (9th Cir.1985). We are required to consider the evidence in the light most favorable to the Government. United States v. Carlson, 617 F.2d 518, 523 (9th Cir. (citing United States v. Glover, 514 F.2d 390, 391 (9th Cir.), cert. denied, 423 U.S. 857, 96 S.Ct. 108, 46 L.Ed.2d 83 (1975)), cert. denied, 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 468 (1980); United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974).

The test that must be applied in determining competency to stand trial is set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). There the Court held:

[I]t is not enough for the district judge to find that "the defendant [is] oriented to time and place and [has] some recollection of events," but that the "test must be 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."

Id. at 402-03, 80 S.Ct. at 788-89 (citations omitted). Accord, De Kaplany v. Enomoto, 540 F.2d 975, 979 (9th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). The Government has the burden of demonstrating by a preponderance of the evidence that the defendant is competent to stand trial. United States v. Hutson, 821 F.2d 1015, 1018 (5th Cir.1987).

We have examined the record to determine whether the district court's findings are supported by the evidence in the record.

Dr. Jeffrey Harrison, a psychologist, testified that "Mr. Frank is able to assist his attorney at this time, that he is able to with education from his attorney understand the proceedings, and that there is no significant mental illness that would interfere with his ability to assist and understand the proceedings." He stated that although Frank suffered from depression, this condition did not interfere with his ability to recall the facts surrounding the case, or his awareness of the wrongfulness of his actions.

Dr. Alexander Don, a psychiatrist, testified that while Frank's intelligence was "low average," he was able to relate the charges against him and the identity of the victims. Frank was also able to give a detailed account of the events surrounding the offense. Dr. Don concluded that while Frank suffers from a relatively mild depression, "that would not qualify as a disease sufficient to interfere with his ability to communicate with his attorney.... Absent therefore a significant mental disease, and absent a significant mental defect, there is no medical psychiatric reason why he should not be able to communicate adequately with his attorney and assist him."

The record also shows that Frank speaks and understands English. His school records establish that he attended school for 10 years without behavioral problems.

The district court rejected the testimony of the defense experts that Frank was incompetent as a result of major depression, mental retardation, or borderline intelligence. In performing its fact-finding and credibility functions, a district court is free to assign greater weight to the findings of experts produced by the Government than to the opposing opinions of the medical witnesses produced by the defendant. See United States v. Lindley, 774 F.2d 993 (9th Cir.1985) ("The district court did not clearly err in assigning more weight to the findings of [the government's] psychiatrists than to the contrary conclusion of a psychiatrist retained by the defense.") Clear error is not demonstrated by pointing to conflicting evidence in the record. The record demonstrates that the district court did not clearly err in its finding that Frank was competent to stand trial.

II. ADMISSIBILITY OF THE CONFESSION

Frank challenges the admission of his confession at trial on discrete constitutional grounds. He argues that his confession was involuntary because of his defective mental condition, his low I.Q., and "his unsophistication and unfamiliarity with the criminal justice system made him vulnerable to suggestion." Appellant's Opening Brief at 25. Frank also contends that because he lacked the mental capacity to comprehend his constitutional rights, he did not knowingly and intelligently waive his right to remain silent and to have counsel present during police interrogation.

We review a district court's finding that a defendant waived his Miranda rights under the clearly erroneous standard. United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir.1988) (citing United States v. Bernard S., 795 F.2d 749, 751 (9th Cir.1986)). Accord, United States v. Doe, 819 F.2d 206, 209 (9th Cir.1986) (Whether defendant knowingly and voluntarily waived his Miranda rights is essentially a factual inquiry reviewed under the clearly erroneous standard.) We consider the evidence on appeal in the light most favorable to the Government. United States v. Walker, 576 F.2d 253, 256 (9th Cir.1978), cert. denied, 439 U.S. 1081, 99 S.Ct. 865, 59 L.Ed.2d 51 (1979).

An involuntary or coerced confession is inadmissible. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). A voluntary confession is inadmissible if the accused lacks the mental capacity to make a knowing and intelligent waiver of the right to remain silent and the right to counsel during police interrogation. Moran v. Burbine, 475...