Howell v. United States, 67 C 640.

• Decision Date: 21 February 1968
• Docket Number: No. 67 C 640.,67 C 640.
• Citation: 282 F. Supp. 246
• Parties: Eugene HOWELL, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of Illinois

282 F. Supp. 246

Eugene HOWELL, Petitioner, v. UNITED STATES of America, Respondent.

No. 67 C 640.

United States District Court N. D. Illinois, E. D.

February 21, 1968.

Harvey M. Silets, Chicago, Ill., for petitioner.

R. J. Weber, Asst. U. S. Atty., Chicago, Ill., for respondent.

MEMORANDUM OPINION

DECKER, District Judge.

This is a petition under 28 U.S.C. § 2255 for an order to vacate the sentence imposed upon petitioner by the late Judge LaBuy of this court in 1964. An evidentiary hearing was held before me on November 29, 1967 and December 1, 1967, after which the petition was taken under advisement. After due consideration of the petition, memoranda, original trial transcript, and evidence presented here, I have concluded that the petition must be denied.

Petitioner was tried before a jury and convicted in March, 1964 of the offense of conspiracy to transport and conceal unlawfully imported heroin, a narcotic drug, in violation of 21 U.S.C. § 174. A sentence of twelve years was imposed on April 28, 1964. Judgment was affirmed on appeal, United States v. Owens et al., 346 F.2d 329 (7 Cir. 1965). The two principal grounds of the present petition may be stated as follows: (1) The admission at trial of an inculpatory statement made by petitioner to police was in violation of the Fifth Amendment because the statement was not voluntarily made, but instead was given under the pressure of promises by the police that they would give petitioner the heroin he needed at that time if he would give them a confession. (2) Petitioner was denied due process in the conduct of his trial because the trial court failed to inquire into petitioner's competency to stand trial, even though it knew that petitioner had been addicted to narcotics at a time prior to the trial.

The evidentiary hearing which I granted in this case was limited to the question of whether petitioner, as a result of his alleged use of narcotics during his trial, was unable to understand the nature of the charges against him and was unable to assist his counsel during the course of trial. Ruling was reserved as to whether petitioner is entitled to a hearing regarding his allegation that his confession was inadmissible because it was the result of physical and psychological coercion.

The constitutional requirement that in some circumstances a defendant is entitled as a matter of due process to a hearing on his competency to stand trial was brought to light in Pate v. Robinson, 383 U.S. 375, 384-386, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). That case made clear that a certain quantum of evidence pointing toward present incompetency imposes upon the trial judge the constitutional duty to conduct a hearing as to the accused's competency. The standard of competency was stated in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960):

"The `test must be whether the accused 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.'"

The question which Robinson and Dusky require to be answered here is whether sufficient evidence of incompetency was before the trial judge so that his failure to conduct a competency hearing constituted an abuse of his discretion in the conduct of the proceedings and a denial of petitioner's constitutional right to a fair trial.

It is clear that a factual inquiry is necessary in order for this question to be answered. In the recent case of Heard v. United States, 263 F.Supp. 613, 617-618 (D.D.C.1967), it was held that

"insufficient evidence of mental incompetency existed at trial to raise a bona fide doubt requiring the trial court judge sua sponte to order a hearing."

The Heard decision is very close to the present case factually and in the legal issues presented. Heard involved a conviction for a narcotics violation, and the issue was raised there as to whether the accused's "recognized addiction to narcotics and other indications of mental aberration" required the trial court to order a competency hearing irrespective of the absence of any request. The court in Heard denied the motion under § 2255, finding that the petitioner had not presented enough evidence to raise a "bona fide doubt" of his competency. This standard of bona fide doubt appears to have been taken by the court from the Supreme Court opinion in Pate v. Robinson, 383 U.S. 375, at 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Although it is not fully clear that the Supreme Court intended to offer this as a standard, it appears to be an apt way of describing the factual determination which the trial judge must make in these cases.

In Heard the factual material presented by petitioner was held to amount to nothing more than

"the bare fact of his recognized addiction to narcotics over a long period of years and certain nebulous allegations that his behavior at trial evidenced incompetency." 263 F.Supp. at 616.

This was not considered enough to justify a requirement that a competency hearing be held. The conduct of the accused in submitting to his attorney and the judge a list of doctors whom he desired to subpoena was described by the court as "action which demonstrated a reasonable degree of rational understanding both as to the proceedings against him and as to the tactical presentation of an insanity defense." Id. at 617.

In United States v. Tom, 340 F.2d 127 (2d Cir. 1965), a very similar result was reached, also on a narcotics conviction which was being attacked on a § 2255 motion. The court found, in a decision which antedated Pate v. Robinson, that the petitioner had failed to present evidence sufficient to indicate incompetency. The court said,

"It appears not to be disputed that Tom was taking narcotics at the time of the trial. But the record does not show, and we have no reason to believe, that the use of narcotics per se renders a defendant incompetent to stand trial."

Presumably if this decision had been subsequent to Pate v. Robinson, it would have held that proof of narcotics addiction is not sufficient evidence in itself to require the trial judge in all cases to conduct a competency hearing.

In Hansford v. United States, 124 U.S. App.D.C. 387, 365 F.2d 920, 923 (1966), the court came to the following conclusion:

"We believe the record in this case demonstrates, as did that in Pate v. Robinson, a sufficient likelihood of incompetence to have imposed on the trial court a duty to inquire into the defendant's competency. This is not, of course, to say that a defendant under the influence of narcotics is necessarily incompetent."

The court went on to say that a competency hearing should have been held, under the circumstances of the case, to see what the exact effects of narcotics use on the particular defendant had been. I do not find the court to be saying that a hearing is required whenever any evidence at all of narcotics use is present. Rather, I find the court to have made a factual determination that the "uncontradicted testimony that this defendant's memory and other intellectual functions became severely impaired when he was under the influence of narcotics," id. at 924, was enough evidence to require such a hearing.

In Hansford, as in Pate v. Robinson, the evidence presented which was so highly pertinent to the defendant's present competency was offered for the purpose of establishing the defense of insanity. Extensive evidence of the particular defendant's mental characteristics thus was the basis for the courts' conclusions in both cases that a hearing was constitutionally required. Further showing that the court in Hansford was not stating a per se rule in cases of narcotics addiction is the court's belief

"that a competency hearing is constitutionally required if it appears that a defendant may be suffering from withdrawal symptoms during trial." Id. at 923.

It thus is clear that substantial evidence of the accused's incompetency, when presented as part of an insanity defense, requires the trial judge to conduct a hearing even if the defendant's demeanor is not suggestive of incompetency. However, if the defendant's demeanor is questionable, suggesting difficulties such as withdrawal symptoms, the duty can arise on the trial judge even in the absence of other evidence.

In the present case I find that there was neither enough evidence offered at the trial to raise "a substantial doubt regarding the defendant's competency," id., nor was there anything in petitioner's demeanor or conduct during the proceedings which raised the necessary degree of doubt. A reading of the transcript of the trial and the evidence offered at the hearing before me are fully convincing on this point.

It appears that petitioner was in fact addicted to the use of heroin prior to trial. The Federal Narcotics Agents, and the U. S. Attorney, were aware prior to the trial that petitioner claimed to be a heroin addict. Petitioner testified that he was using narcotics continuously during the trial and was giving himself six or seven injections each day; this testimony was not corroborated by any other witness. Petitioner also testified that he secured medicine from one of his doctors to use during the trial to relax him. There is nothing in the transcript of the trial, however, which refers to the fact that the petitioner may have been using narcotics during the trial. Brief references do appear in the record to petitioner's statement to the police that he had obtained the heroin to supply his own addiction. At the most these references could have put the court on notice that the defendant had been an addict in the past. They did not indicate that petitioner continued to use narcotics after his arrest or was still using them. The present case is thus distinguishable from Pate v. Robinson and Hansford because in those cases evidence relating to incompetency was extensive while in this case the...