985 F.2d 298 (6th Cir. 1993), 92-5269, United States v. Herrera-Martinez
| Date | 09 February 1993 |
| Docket Number | 92-5269. |
| Citation | 985 F.2d 298 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Olga HERRERA-MARTINEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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Argued Nov. 16, 1992.
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James E. Arehart, Lawrence R. Carmichael, Asst. U.S. Attys., Lexington, KY, Jacquelyn A. Jess, Asst. U.S. Atty. (argued and briefed), Covington, KY, for plaintiff-appellee.
Robert L. Abell (argued and briefed), Lexington, KY, for defendant-appellant.
Before: KEITH and JONES, Circuit Judges; and JOINER, Senior District Judge. [*]
KEITH, Circuit Judge.
Appellant, Olga Herrera-Martinez, appeals her jury conviction and sentence. She was charged in a two count indictment for assault with a dangerous weapon with intent to do bodily harm at a federal correctional institution, in violation of 18 U.S.C. § 113(c), and assault upon an employee at a federal correctional institution, in violation of 18 U.S.C. § 111(a)(1). For the reasons stated below, we VACATE the judgment of the district court and REMAND for the court to conduct proceedings consistent with this opinion.
I.
On July 19, 1991, the Appellant pleaded not guilty to both counts of the indictment. On October 15, 1991, prior to the commencement of her trial, Andrew Stevens, Appellant's appointed counsel, informed the court that Appellant wanted to proceed pro se and had been unwilling to assist in the preparation of her defense. (Tr. I at 2). Stevens also informed the court that he believed Appellant had a defense to the charges against her. (Tr. I at 3).
Appellant informed the court of her desire to represent herself at trial. The court then began to question and advise her regarding the trial process. (Tr. I at 3). During this colloquy, Appellant made numerous bizarre and obscene statements.
You want--to the Court, what do you want to do through to me? Six month, whatever you want to play, true, a month, whatever, I don't want to talk shit.... I don't feel like hearing any shit.... No shit. If you want to give me 20 years, give me 40 years, do whatever the fuck you want.... I believe that everyone in the world has the right to represent themselves when they're not guilty, and they don't need anyone. And I don't need anyone.... All my life, ever since I was little. I'm the mother of all the jungles.
(Tr. I at 5-6). After the foregoing colloquy, Stevens moved for the court to order Appellant to undergo a competency evaluation pursuant to 18 U.S.C. § 4241. (Tr. I at 9). The court did not rule on Stevens' motion, but further questioned Appellant, who continued to respond to the court in a bizarre and obscene manner. 1 The court ultimately decided to allow Appellant to proceed pro se, instructing Stevens to serve as standby counsel. (Tr. I at 9).
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Stevens then renewed for the second time his request that Appellant be given a competency evaluation. (Tr. I at 11). The court then ruled "that Ms. Herrera-Martinez is fully capable and competent of proceeding here today." (Tr. I at 12).
When the court attempted to explain to Appellant that she would be tried by a jury, she responded with more obscenities. 2 At the request of the government, the court heard testimony regarding Appellant's competency from Claudia Santee, a psychiatric nurse employed in the mental health unit at the Federal Correctional Institution in Lexington, Kentucky. (Tr. I at 17).
Santee testified that she knew Appellant because she had previously been under observation at the mental health unit. (Tr. I at 17-18). Santee testified that she had overheard a psychologist at the mental health unit (Dr. Alice Conroy) state to another physician that Appellant did not suffer from a mental disease or defect. (Tr. I at 19-20). Santee opined that Appellant was not suffering from a mental disease or defect. (Tr. I at 21). Appellant cross-examined Santee and continued to make obscene and bizarre remarks. 3 (Tr. I at 26). The court then remarked that "maybe I ought to have you sent out for a competency evaluation," but proceeded to further explain to Appellant the mechanics of proceeding with a trial. (Tr. I at 26). The court finally stated, "I see no reason at this time to believe that Ms. Herrera-Martinez is not competent to stand trial." (Tr. I at 28).
During the course of the trial, Appellant made a number of outbursts and eventually had to be forcibly removed from the courtroom. 4 In a contempt order, the court stated that Appellant "shouted and laughed loudly in court," "directed vile and obscene language towards the Court," and "consistently refused to communicate with the Court." 5 (App. at 29). After Appellant was removed from the courtroom, Stevens represented her throughout the remainder of the trial.
Subsequent to Appellant's removal from the courtroom, Dr. Conroy testified that she had evaluated Appellant on four separate occasions and each time found that she had no specific disease or defect and was competent to proceed in prison disciplinary proceedings. (Tr. II at 72). Dr. Conroy also testified that Appellant had stated to her that she knew how to feign craziness. (Tr. II at 74).
Prior to Appellant's sentencing, the court committed her for a thirty day psychiatric evaluation to determine her mental competency to "understand the nature and consequences of the proceedings against her or to assist in her own defense." (App. at 31). On February 6, 1992, a competency hearing was held. At this hearing, Dr. Conroy testified that although Appellant had an "antisocial personality disorder," she was capable of understanding the nature and consequences of her trial. (Tr. III at 11-12). Dr. Conroy added, however, that Appellant "may very well choose not to understand those proceedings because she has no particular interest in them." (Tr. III at 12). Dr. Conroy also testified that Appellant had a habit of conversing with a ghost while in her isolation cell. (Tr. III at 18).
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At the conclusion of Dr. Conroy's testimony, the court ruled that Appellant was mentally competent. (App. at 36). Appellant was then sentenced to concurrent terms of 60 months on the assault with a dangerous weapon charge and 36 months on the charge of assaulting a federal employee. This timely appeal followed, limited to the issue of whether the district court erred in allowing Appellant to represent herself at trial.
II.
No specific objection was made at trial regarding the court's decision to allow Appellant to proceed pro se. Therefore, we must review the district court's actions under the plain error standard. United States v. Meyers, 952 F.2d 914, 917 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1695, 118 L.Ed.2d 407 (1992). The Supreme Court has defined "plain error" for purposes of Fed.R.Crim.P. 52(b) as error that "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985).
United States v. McDowell, 814 F.2d 245 (6th Cir.), cert. denied, 484 U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987), is a leading case in this Circuit regarding...
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