U.S. v. Bodey

• Decision Date: 16 February 1977
• Docket Number: No. 76-1332,76-1332
• Citation: 547 F.2d 1383
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Spencer BODEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1383

547 F.2d 1383

UNITED STATES of America, Plaintiff-Appellee, v. Robert Spencer BODEY, Defendant-Appellant.

No. 76-1332.

United States Court of Appeals Ninth Circuit.

Feb. 16, 1977.

Kenneth E. Kanev, argued, Asst. Fed. Public Defender, Seattle, Wash., for defendant-appellant.

Robert M. Taylor, argued, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court For the Western District of Washington.

Before BROWNING and KILKENNY, Circuit Judges, and VAN PELT, Senior District Judge. ^*

OPINION

ROBERT VAN PELT, Senior District Judge.

This is an appeal by Robert Spencer Bodey from a conviction for armed robbery of a national bank in violation of 18 U.S.C. § 2113(a) and (d). A trial was held in the Western District of Washington October 16-21, 1975, which resulted in a hung jury. On November 10, 1975, defendant moved for a competency examination pursuant to 18 U.S.C. § 4244. On November 13th defendant was sent to the Medical Center for Federal Prisoners at Springfield, Missouri, where a competency examination was conducted and the defendant was found competent to stand trial. Defendant was returned from Springfield on December 1, 1975, and a second trial was held December 15-18, 1975. The jury returned a verdict of guilty. Bodey was committed to the custody of the Attorney General of the United States and is again at the Medical Center in Springfield.

On appeal, Bodey raises three issues:

(1) That at the first trial the court erred in denying his motion for judgment of acquittal at the close of the government's case;

(2) that at the second trial the court erred in refusing to grant an 18 U.S.C. § 4244 competency examination; and

(3) that the prosecutor's statement "there is ample evidence Mr. Bodey is faking" during the second trial was prejudicial and deprived defendant of a fair trial.

We will consider each of these issues separately.

I. The Motion for Acquittal

Bodey's defense at both trials was insanity. The jury at the second trial, as above noted, did not find him insane.

Bodey urges particularly that at the first trial the government did not overcome the testimony of the two psychiatric experts for the defense who said that as a result of mental disease or defect he could not conform his conduct to the requirements of law. This testimony meets the standards for legal insanity under Wade v. United States, 426 F.2d 64 (9th Cir. 1970). We agree that Dr. Johnson's testimony (the government expert) at the first trial was not strong when compared to the two expert witnesses for defendant. Bodey urges that his motion for acquittal at the first trial should have been sustained.

There have been instances in this court where we ordered a judgment of acquittal after the government presented insufficient evidence of sanity, because a new trial would serve no purpose. Buatte v. United States, 330 F.2d 342, rehearing denied 331 F.2d 848 (9th Cir. 1964). However, in this case a new trial has already been held in which the government did sustain its burden of proof as to the defendant's sanity by securing additional psychiatric testimony tending to show Bodey could conform his conduct on the date in question. Inadequacy of the government's testimony is not claimed at the second trial. In United States v. McGraw, 515 F.2d 758 (9th Cir. 1975) this court noted that when the government produces insufficient evidence of sanity a judgment of acquittal is not necessarily the rule and ordered the case remanded to the district court because "we are not convinced that the government could not introduce expert testimony of McGraw's sanity." Id. at 761. We believe that whether a judgment of acquittal or new trial should be ordered depends upon the facts of each case, and where, as here, a valid second trial has already taken place, that factor cannot be overlooked. The jury having failed to agree on a verdict in the first trial, and the judge having declared a mistrial on account thereof, we need not rule on the sufficiency or insufficiency of the evidence of sanity at that trial.

II. Subsequent § 4244 Examinations

Defendant was called to the witness stand to testify in his own defense during the second trial. He gave many answers of "I don't know", "I'm not sure", and "I can't remember", to background questions of his counsel (such as why he didn't graduate from high school, whether he had ever testified in court before, how old his brother and sister were) and to questions regarding various dates and times (such as how long he had been in jail, when he had last seen his daughters, dates of employment, his divorce, etc.). The government objected to defense counsel's use of leading questions and defense counsel expressed surprise that defendant did not remember this information. The court allowed defense counsel to continue refreshing Mr. Bodey's memory by the use of leading questions, and granted a recess for defense expert Dr. Berberich to examine the defendant. After the recess, defense counsel moved for a § 4244 hearing. The court then conducted its own competency hearing. Mr. Bodey was again put on the stand, out of the jury's presence, and he testified he was leaving his defense up to counsel and that although counsel had advised him to testify he did not feel well and was not capable of testifying. Dr. Berberich testified he had examined the defendant for 15 minutes that morning and, from that very brief contact, he seriously doubted whether the defendant could assist counsel in his own defense. He had also seen the defendant for approximately an hour the previous evening, but admitted that an hour is not long enough to do an extensive evaluation and he was only able to form impressions. The court then read into the record the results of the November, 1975 § 4244 examination at Springfield.

At Springfield the defendant had been examined by twelve members of a psychiatric team (not all of whom were doctors). Both physical and mental tests were done on the defendant, and it was the team's determination that Bodey was competent to stand trial. Attached to this report were reports of the individual psychiatrists who examined Mr. Bodey. Three of these reports noted the defendant's very vague answers to questions. Dr. Ottensmeyer stated the defendant gave answers such as "I'm not sure" or "I don't know", to simple, general questions regarding his family, education, and whether he had any children. Dr. Brooks noted that the defendant was very vague about his parents and his early life. Dr. Fain, the third psychiatrist, stated the defendant was unable to remember any details of the previous trial, when it took place, or even what the charge was. When Dr. Fain interviewed the defendant, Bodey could remember virtually nothing about his past.

It was Dr. Brooks' opinion that Bodey's memory loss was merely a device to forestall his second trial and that he was "feigning mental illness." Dr. Ottensmeyer noted that defendant told him that he did not know if he had an attorney and did not think he could cooperate with one. The report of the Springfield staff was made approximately three weeks before the second trial. After the trial court read these reports into the record, it ruled that the defendant was competent. The defense then made an offer of proof using Dr. Liebert, another expert witness for the defense, who had examined the defendant for half an hour during noon recess. Dr. Liebert stated he did not understand the defendant's memory deficit, as Bodey claimed he could not remember anything, including his counsel's name or why he was in court, and at this point, on the basis of his brief examination, he thought Bodey was incompetent to stand trial. Defense counsel moved for a further § 4244 hearing, and the trial judge again ruled Bodey competent to stand trial. Motion for a competency examination was again made at sentencing and was again denied.

It is the defendant's contention that there was such a change in Mr. Bodey's condition between the first § 4244 examination and the requests for a second examination, that a second examination was required. The defendant argues that Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) is controlling, but submits that even under the Ninth Circuit's standards in United States v. Ives, 504 F.2d 935 (9th Cir. 1974), vacated and remanded, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), vacated, reinstated in part, and remanded in part, 547 F.2d 1100 (9th Cir. No. 73-1726 1976) and United States v. Cook, 418 F.2d 321 (9th Cir. 1969) defendant should have been granted a second examination. We disagree and find the trial court acted properly.

Drope, supra, is distinguishable from the instant case. In Drope there was no § 4244 examination prior to the trial and no evidentiary hearing on competency during the trial. The defendant's behavior immediately prior to the trial and during it should have created some question of competency. The Supreme Court found that:

(t)oo little weight was given to the testimony of petitioner's wife that on the Sunday prior to trial he tried to choke her to death. For a man whose fate depended in large measure on the indulgence of his wife (he was charged with the rape of his wife), who had hesitated about pressing the prosecution, this hardly could be regarded as rational conduct.

Id. 420 U.S. at 179, 95 S.Ct. at 907. Furthermore, the petitioner in that case shot himself in an attempt to commit suicide on the second day of the trial. See also Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) where the defendant had a long history of disturbed behavior including killing his son for which he had already been imprisoned, and no § 4244 examination was conducted prior to trial and no evidentiary hearing on competency was held during trial; Moore v. United States, 464 F.2d 663 (9th Cir. 1972) where the defendant had a long history of mental illness and...