Hodges v. United States

• Decision Date: 11 March 1969
• Docket Number: No. 19029.,19029.
• Citation: 408 F.2d 543
• Parties: Ollie Melvin HODGES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

408 F.2d 543 (1969)

Ollie Melvin HODGES, Appellant, v. UNITED STATES of America, Appellee.

No. 19029.

United States Court of Appeals Eighth Circuit.

March 11, 1969.

COPYRIGHT MATERIAL OMITTED

James E. Lyons, Legal Aid and Defender Society of Greater Kansas City, Kansas City, Mo., for appellant, Paul T. Miller, Kansas City, Mo., on the brief.

Paul A. White, Asst. U. S. Atty., Kansas City, Mo., for appellee, Calvin K. Hamilton, U. S. Atty., and Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., on the brief.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

BLACKMUN, Circuit Judge.

Ollie Melvin Hodges, born in 1900, after pleas of not guilty, was convicted by a jury on each of three counts of an indictment charging him with violations of the counterfeit-utterance statute, 18 U.S.C. § 472.¹ Specifically, the indictment charged Hodges with passing, uttering, publishing, and selling, knowingly and with intent to defraud, counterfeit $10 Federal Reserve notes at two hotels and a shoe store in Kansas City, Missouri, on or about January 13, 1966. Judge Duncan imposed a sentence of 3 years on each count, with the sentences all to run concurrently. Hodges appeals in forma pauperis.

The points raised on appeal are: (A) that Hodges was denied his constitutional right "to a speedy * * * trial"; (B) that he was prejudiced by an Allen instruction; and (C) that Chief Judge Becker applied an erroneous standard at a pre-trial competency hearing when he determined that the defendant was competent to stand trial.

No point is raised about the sufficiency of the evidence and there is now no real dispute as to the facts. It is fair to say, we feel, that the factual controversy at the trial centered not so much on Hodges' passing of the bills as on his intent at the time of their passing.

In view of the presence of the speedy trial issue, we outline the chronological development of the case as it appears in the record:

1. On January 27, 1966, Hodges was arrested in Omaha. He was not able to furnish bail.

2. The next day Hodges was removed to the Western District of Missouri. The indictment was returned there on February 11, 1966. The district court forthwith appointed J. Whitfield Moody and another, both of the Legal Aid and Defender Society, Kansas City, Missouri, as defense counsel.

3. Hodges appeared with court-appointed counsel for arraignment before Judge Becker on February 21. A plea of not guilty to each count was entered. At the inception of this proceeding counsel asked whether Hodges might sit down because he "has had a stroke." Hodges said he suffered his third stroke in 1964 and had been under doctor's care since February of that year. The court inquired as to whether the defendant could make bail or be released on his own recognizance and as to his medical needs. After some discussion in open court, the Assistant United States Attorney orally moved that the defendant be committed for psychiatric examination. Defense counsel and, upon direct inquiry, Hodges himself stated that there was no objection to this. The court, pursuant to 18 U.S.C. § 4244, then issued its order committing the defendant to the United States Medical Center at Springfield, Missouri, for a period not to exceed 90 days, for psychiatric examination and evaluation to determine his competency to stand trial and also his competency at the time of the alleged offenses. Hodges was taken to Springfield on February 26. He was returned 88 days later on May 25.

4. The competency hearing took place on June 30 and July 1, 1966. Judge Becker preliminarily observed that the Medical Center report stated that the predominant opinion was that Hodges was not mentally competent to assist in his defense.² The court said, however, that it would proceed with a hearing on that issue as, indeed, is required by § 4244. At the hearing the government called Dr. Arthur Hildreth, then a staff psychiatrist at the Medical Center. The defense placed Hodges on the stand. At the conclusion of the testimony defense counsel stated to the court that it was Hodges' desire to proceed and that "it would be an injustice in this particular case to find him incompetent." Judge Becker observed that he had the impression "that the defendant has recently had a remarkable recovery both from physical illness as well as mental impairment." Then, despite Doctor Hildreth's contrary testimony, the court found the defendant competent to stand trial. It expressly made no finding as to competency at the time of the alleged offenses. It also indicated that, if the defendant's condition deteriorated, another hearing might be required. The case was adjourned "till further order".

5. Three and a half months later, on October 19, 1966, the court issued its written order setting Hodges' case for jury trial to begin November 1.

6. On October 27 the court issued its order reciting "a conflict in the schedule of trials by the Assistant United States Attorney handling this cause and for good cause shown" and postponing the trial until "further order of Court".

7. On the same date the court ordered Hodges released on a $1000 personal recognizance bond with permission to "return to his residence at Omaha, Nebraska".

8. On February 21, 1967, the court issued a notice of the setting of six criminal cases for jury trial, the first to begin March 20. Hodges' case headed the list.

9. On March 1 the court issued an amended notice setting five cases for jury trial, the first to begin March 20. Hodges' case was second on that list.

10. On March 14 the court, for "good cause appearing", issued its order resetting cases theretofore set for the week of March 20 over to the week of April 3. Hodges' case was second on that list.

11. On March 31 the court, again for "good cause appearing", issued its order postponing "until further notice" the last five cases theretofore set for trial the week of April 3. Hodges' case was first on that list.

12. On June 23, 1967, an order signed by the four active judges of the Western District of Missouri transferred 12 criminal cases to the docket of Senior Judge Duncan. Hodges' case was first on that list.

13. Hodges went to trial before Judge Duncan on Monday, July 17, 1967.

14. On July 17, prior to the impanelling of the jury, the defense orally raised the speedy trial issue. On July 18, during trial, the defense submitted its written motion to dismiss the indictment on the ground that the several continuances were not at the request of the defendant and were without his consent and that the delay of some 17 months in bringing the defendant to trial was unnecessary; that there were other defendants indicted after Hodges and tried before he was; and that the delay violated his right to a speedy trial under the Sixth Amendment and was a denial of due process under the Fifth Amendment in that the defendant had been hampered in his evidence to locate and subpoena necessary witnesses.

15. Judge Duncan heard argument on the motion in chambers on July 19. Defense counsel stated that Hodges "was familiar with certain people in and about Kansas City"; that the testimony of persons with Hodges at the time he made purchases and passed the bills would be important on the issue of whether he knew the money was bad; and that Hodges, because of prior convictions, was handicapped in taking the stand and was further handicapped because of his strokes and inability to express himself. Upon inquiry by the court, counsel conceded that the defense had filed no motion at any time asking that the case be expedited. The prosecution stated that after Hodges came back from Springfield "it was determined he was in bad physical condition and he was sent by the Marshal up to Leavenworth to the hospital". Judge Duncan observed that no evidence which may have been denied to the defense would "throw any light upon the case as it has been produced up to this time"; that the one named person said to have been in Hodges' company when the money passed had been in the Philippines for a year and "her testimony could not possibly throw any light on the question of whether or not these bills that were passed were counterfeit bills"; that there was no suggestion as to what that witness would testify to; and that no application for continuance had been filed on the ground that the witness was not present. The court, accordingly, denied the motion to dismiss.

16. The verdict was returned on Friday morning July 21.

A. The speedy trial issue. The foregoing chronology demonstrates that:

1. There was less than a month between the date of the alleged offenses and the indictment.

2. As far back as the arraignment on February 21, 1966, Judge Becker inquired as to the possibility of Hodges' release on his own recognizance.

3. Although Hodges, continuously from the very date of the indictment's return, February 11, 1966, had counsel representing him, albeit court-appointed counsel, no motion, formal or informal, was ever made by the defense to suggest speedy trial concern until the case was called for trial.

4. On the other hand, Hodges himself expressed a desire for no delay. When he was on the stand at the competency hearing on June 30, 1966, after Springfield and a full year before trial, the following question by his counsel and Hodges' answer to it came forth:

"Q. Is it your desire to have an immediate trial of the charges of which you stand accused?

"A. Yes, sir, I do."

5. The time between arrest and indictment was 15 days. The time between indictment and trial was 17 months and 6 days. However, 88 days of this, or approximately 3 months, was the period of Hodges' commitment to Springfield.

6. Not one of the successive trial continuances was at the request of the defense. Apparently only one, the first, was at the request of the prosecution.

7. Hodges was incarcerated from the time of his arrest at Omaha on January 27, 1966, until his release on his personal recognizance about October...