Balfour v. Haws

Decision Date22 December 1989
Docket NumberNo. 88-3369,88-3369
PartiesLavin T. BALFOUR, Petitioner-Appellant, v. J. Ronald HAWS, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Paul A. Wagner, Chicago, Ill., for petitioner-appellant.

Jack Donatelli, Asst. Atty. Gen., Crim. Appeals Div., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, COFFEY, and KANNE, Circuit Judges.

CUMMINGS, Circuit Judge.

Lavin T. Balfour, now serving a 30-year prison term for his Illinois murder conviction, appeals on four grounds from denial of his petition for writ of habeas corpus. Balfour was convicted following a bench trial in state court. The Appellate Court of Illinois affirmed the conviction on appeal in a published opinion. 148 Ill.App.3d 215, 101 Ill.Dec. 223, 498 N.E.2d 547 (1st Dist.1986). In the Illinois Supreme Court, where Balfour turned next with a pro se petition, leave to appeal was denied without opinion. 114 Ill.2d 548, 108 Ill.Dec. 419, 508 N.E.2d 730 (1987). Balfour then commenced a pro se habeas corpus petition in federal district court pursuant to 28 U.S.C. § 2254, which was dismissed without prejudice. Assisted by appointed counsel, Balfour tried again with an Amended Petition and supporting Memorandum of Law. In a Memorandum Opinion and Order dated September 13, 1988, the district court denied the Amended Petition. No. 87-C-5587, 1988 WL 96561 (N.D.Ill.), 1988 U.S. Dist. LEXIS 10357 (Williams, J.) ("District Court Op.").

Balfour argues that: (1) the trial court denied Balfour due process by declining to order a clinical psychological examination of him before pronouncing sentence; (2) Balfour was denied his Sixth Amendment right to effective assistance of counsel for a variety of reasons, including failure to investigate Balfour's mental condition before trial; 1 (3) the trial court deprived Balfour of due process by failing to require the state to produce at trial several photographs of Balfour reenacting the encounter with decedent Robert Rodgers taken by police following Balfour's arrest; and (4) the evidence presented at trial was as a whole legally insufficient to support a murder conviction. For the reasons stated below we affirm the district court.


Actual and stipulated testimony given at Balfour's trial is summarized in Justice Rizzi's opinion, 101 Ill.Dec. at 226-228, 231, 498 N.E.2d at 550-552, 555 (McNamara and White, JJ., concurring), which serves as the basis of our review. See Sumner v. Mata, 449 U.S. 539, 545-547, 550, 101 S.Ct. 764, 768-769, 770, 66 L.Ed.2d 722. Summarizing briefly, on June 4, 1981 in an alley in Harvey, Illinois, Balfour and Rodgers became involved in an argument, which turned violent. Balfour kicked and stomped on Rodgers repeatedly; state and defense versions of the fight varied as to what other blows were delivered and who the aggressor was. Rodgers, who was intoxicated at the time, died later that day in a hospital from injuries inflicted by Balfour. After a three-day bench trial, the trial judge was convinced beyond a reasonable doubt that Balfour had murdered the victim without the justification of self-defense.

A. Competency

Trial of a criminal defendant who lacks " 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and] a rational as well as factual understanding of the proceedings against him' " does not satisfy due process. Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 788, 4 L.Ed.2d 824 (per curiam ) (quoting with approval statement of Solicitor General in confessing error). To guard against such trials, courts are responsible for considering evidence such as irrational behavior, demeanor at trial, and any medical evidence regarding the defendant's competence. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (discussing import of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815).

Balfour does not contend that the record would support an argument that his due process right to a fair trial was violated because he was in fact incompetent to stand trial. Nor does he argue directly that the trial court was sufficiently alerted to problems before or during trial so that the court should have ordered, sua sponte, a competency hearing. Instead, he argues that the trial court violated the Due Process Clause by failing to order a psychiatric evaluation once bona fide questions about Balfour's competency were raised in the Presentence Investigation report (PSI) and at sentencing. 2 While Balfour concedes that the record does not prove that he was incompetent to stand trial, he argues that sufficient indicia of incompetence were presented to the trial court at the time of sentencing, one month and 11 days following conviction, to trigger a due process requirement that Balfour be examined by mental health professionals and given a hearing on whatever evidence that examination produced.

The PSI stated that Balfour was taking the anti-psychotic medication Thorazine (chlorpromazine) at the time of the sentencing. 3 R. 703. It also stated that he had been held in the psychiatric ward of Cermak Memorial Hospital in Chicago "due to psychiatric problems" for two to three months following his arrest for Rodgers' death, after which he was an outpatient for unspecified treatment for "a year and a few months." Id. Thus Balfour was released from the hospital more than one year before trial, though he was an outpatient until shortly before trial and continued to take at least one anti-psychotic drug during trial.

At sentencing, the following exchange occurred involving the trial judge, the assistant public defender, and the defendant:

THE COURT: Do you have any additional evidence in mitigation, Mr. Pavletic?

MR. PAVLETIC: Nothing more than [has already been] tendered to the Court.

MR. BALFOUR: I am asking for the death penalty.

MR. PAVLETIC: Judge, at this point I would request a Behavioral Clinic examination in terms of the competency of the defendant prior to the actual sentencing of the defendant.

THE COURT: I don't know that his exuberance as to the penalty requested raises any bona fide doubt.

* * *

THE COURT: He just says, "If I am guilty, then do what you have to do."

R. 656, 657.

The PSI reflected that Balfour had already told the probation officer before the sentencing hearing that he wished to be executed for his crime. Balfour knew that death was not a sentencing option open to the trial court. 101 Ill.Dec. at 231, 498 N.E.2d at 555.

Balfour argues in this appeal that "suggestive fragments" in the PSI, together with his "irrational behavior," raised genuine questions regarding his competency that should have been further probed by the trial judge. Defendant's Br. at 22. During oral argument, Balfour's counsel also argued as a policy matter that habeas relief should be granted because it would not be particularly taxing to judicial economy in cases such as Balfour's to require a clinical examination to ensure that only competent defendants be required to defend themselves at trial.

A federal appellate court will review with a high level of deference a state court's finding that there is no bona fide doubt as to a defendant's competency. Such a finding is deemed to be a factual finding entitled to a presumption of correctness as long as it is "fairly supported by the record," pursuant to 28 U.S.C. § 2254(d)(8). Maggio v. Fulford, 462 U.S. 111, 116-118, 103 S.Ct. 2261, 2263-2264, 76 L.Ed.2d 794 (per curiam ) (White, J., concurring in result but dissenting on application of Section 2254(d)(8) to ultimate question of competency; Brennan, Stevens, Marshall, JJ., dissenting); Estock v. Lane, 842 F.2d 184, 186 (7th Cir.1988) (per curiam ); United States ex rel. Lewis v. Lane, 822 F.2d 703, 705 (7th Cir.1987). As mentioned above, this presumption of correctness extends to state appellate court findings, such as those contained in the Illinois Appellate Court opinion in this case. Sumner v. Mata, 449 U.S. 539, 545-547, 550, 101 S.Ct. 764, 768-769, 770.

Though incompetency was raised as an issue at a late date in this case, the Attorney General does not attempt to shoulder the extremely heavy burden of attempting to show that Balfour waived his right to have the trial court establish that he was competent to stand trial. See Lewis, 822 F.2d at 705-706. Nor does the government deny that a trial court must be attuned to the "wide range of manifestations and subtle nuances" that might suggest incompetency at any stage of the proceedings. See Drope, 420 U.S. at 180-181, 95 S.Ct. at 908. Thus if at the time of the sentencing hearing, Balfour's behavior or cumulative information in the record, including factors such as hospitalization and medication histories, raised bona fide doubt about his ability to consult effectively with his attorney and understand the charges against him, then he would have been entitled to a hearing on his competency. Foster, 741 F.2d at 1011.

To challenge the procedures used in determining his competency, Balfour must present facts " 'sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to [his] mental capacity * * * to meaningfully participate and cooperate with counsel' " during his trial. Lewis, 822 F.2d at 706 (quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir.1973), certiorari denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770).

Defense counsel did not raise the issue of Balfour's competence to stand trial with the trial judge, even indirectly, until the sentencing hearing. Moreover, as the state appeals court noted, at no point, even during the sentencing hearing, did defense counsel affirmatively represent to the trial court that he thought Balfour was unable to understand the proceedings or to assist in his defense. 101 Ill.Dec. at 231, 498 N.E.2d at 555. Instead, defense counsel consistently sought to establish a case of...

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