U.S. v. Clark

• Decision Date: 29 September 1992
• Docket Number: No. 90-2190,90-2190
• Citation: 943 F.2d 775
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie Earl CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 775

943 F.2d 775

UNITED STATES of America, Plaintiff-Appellee, v. Willie Earl CLARK, Defendant-Appellant.

No. 90-2190.

United States Court of Appeals Seventh Circuit.

Argued Feb. 20, 1991.

Decided Sept. 19, 1991.

Rehearing and Rehearing In Banc

Denied Sept. 29, 1992.

John F. Hartmann (argued), Barry R. Elden, Asst. U.S. Attys., Office of U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for U.S.

Martin S. Agran, Agran & Agran, Frederick F. Cohn (argued), Keith Spielfogel, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr., and CUDAHY and EASTERBROOK, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

A jury found that defendant-appellant Willie Earl Clark, having been convicted of a felony under Illinois law, knowingly possessed a firearm on July 27, 1987, in violation of 18 U.S.C. § 922(g)(1). Clark, who waived his right to counsel and presented his defense pro se, now argues that he lacked the mental capacity to represent himself and that his conviction should be reversed. Clark also presents other arguments for reversal of his conviction. He claims that his arrest was without probable cause and therefore in violation of his fourth amendment rights. In addition, he challenges the following: the district court's instruction to the jury on the nature of the offense; the district court's denial of Clark's motion to suppress; the district court's denial of Clark's motion for a bench trial; and the sufficiency of the evidence. For the reasons that follow, we affirm the conviction.

FACTS

The morning of July 27, 1987, defendant Willie Earl Clark, Brenda Smith, and two men were gathered in front of a vacant lot on South California Avenue in Chicago. Chicago Police Sergeant Edward Kopsky heard a gunshot while patrolling a nearby area. He turned his patrol car toward the direction of the gunshot. As he approached the area, he saw Clark standing in front of the vacant lot. He noticed that Clark had an object in his right hand. He also saw Smith standing a few feet away from Clark and two men walking away from Clark.

Kopsky drove closer to Clark, and then observed Clark throw the object he was holding into the vacant lot. Kopsky stopped his car in front of Clark and exited the car. He smelled what he thought to be gunpowder. Kopsky asked Clark, "What was that?", and Clark told him it was a firecracker. Smith, who was intoxicated, disagreed with Clark and told Kopsky that it was a gun, that Clark had shot into the ground and then thrown the gun into the lot. Kopsky then checked Clark for weapons, handcuffed him, placed him in the back seat of the police car, and radioed for assistance.

Shortly thereafter Officers Eugene Vann and Nick Goggin arrived to assist Kopsky. Goggin searched the area for the gun and, after climbing a fence at the rear of the vacant lot, found a nine-millimeter German Luger pistol. When Brenda Smith saw what Goggin had discovered, she said, "That is the gun." Sergeant Chris Zaglifa, also at the scene in response to the request for assistance, unloaded the pistol. He removed seven live nine-millimeter rounds from the gun.

Vann moved Clark from Kopsky's car to the car in which he and Goggin had arrived. Vann searched the back seat of Kopsky's car, where Clark had been sitting, and discovered a live nine-millimeter round that matched those already removed from the German Luger. Vann and Goggin then drove Clark to the police station.

According to Vann's testimony, Vann read Clark his Miranda rights on the way to the station, upon arriving at the station, and after completing the case report. (During the course of the trial, Clark moved to suppress Vann's testimony regarding the Miranda warnings and Clark's statements, but the district court determined, outside of the presence of the jury, that Vann's testimony was credible.) After Clark stated that he understood his rights, Vann questioned him. Vann asked Clark what he had been doing on the morning of the incident. Clark replied that he had been "burned" by a drug dealer and that he was attempting to get his money back. Vann asked Clark whether he tried to harm the dealer, and Clark answered that he only wished to scare him. ¹

PROCEDURAL BACKGROUND

On June 14, 1988, a grand jury indictment charged that on July 27, 1987, Clark, having been convicted of a felony under Illinois law, knowingly possessed a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). In a pretrial proceeding September 15, 1988, Clark informed the district court that he wished to have his court-appointed attorney, Martin Agran, dismissed and that he would rather represent himself than have Agran represent him. He mentioned an attorney that he would like to have represent him, Jeffrey Harris, and the court granted him a one-day continuance to secure his desired counsel. The next day Clark appeared with Agran, not Harris. He told the court that he would have no one represent him other than Harris and that he would represent himself if Harris could not serve as his counsel.

The district court strongly advised Clark against pro se representation both on September 15th when Clark first mentioned the possibility, ("I do not have words in my vocabulary to explain to you how foolhardy I believe it is for someone under indictment who does not have legal training to represent himself in a case--in a criminal case." Transcript of September 15, 1988 at 4); and again on September 16th when Clark reiterated that he wished to represent himself ("I have to advise you that in my opinion you would be far better defended by a trained lawyer than you can be by yourself.... I would strongly urge you not to try to represent yourself." Transcript of September 16, 1988 at 8-9). Despite these warnings, Clark persisted and the district court conducted the necessary questioning in order to determine whether Clark's decision to waive counsel was knowing and intelligent. ² The district court determined that Clark's waiver was knowing and intelligent and that Clark could proceed pro se. The court directed Agran to act as stand-by counsel.

Jury selection commenced on September 28, 1988. On September 29, 1988, the district court determined that there was reason to question Clark's competency to stand trial. The court dismissed the jurors. The court then ordered an inquiry into Clark's mental capacity, a psychiatric evaluation, and a competency hearing.

On January 16, 1989, Dr. Toni Camp of the Isaac Ray Center, Inc., Chicago, filed in the district court her psychiatric evaluation of Clark. Having interviewed Clark and reviewed his records, she concluded that he had a psychiatric diagnosis of bipolar affective disorder, manic-mild (manic depressive illness) and, because of that, he was not competent to stand trial at that time. The competency hearing was held on March 22, 1989, and on March 24, 1989, the district court found that Clark was not competent to stand trial. The court ordered that Clark be hospitalized for treatment and later evaluated on his competency to stand trial.

The director of the United States Medical Center for Federal Prisoners in Springfield, Missouri ("Center"), certified in a letter of July 18, 1989, that Clark was competent to stand trial. The clinical psychologist who evaluated Clark at the Center, Dr. David Mrad, made observations similar to those of Camp, but did not concur with her diagnosis. He found, instead, that Clark's behavior was indicative of a significant personality disorder. At the second competency trial on August 29, 1989, Clark was represented by counsel, Keith Spielfogel. ³ Neither Clark nor his attorney contested his competency.

At the competency hearing, Clark again informed the district court that he wished to represent himself. Transcript of August 29, 1988 at 29. As had been done in the September 16, 1988, pretrial hearing when Clark asserted that he wished to proceed pro se, the district court conducted an inquiry to ensure that Clark was knowingly and intelligently waiving his right to counsel. Id. at 32-36. The court inquired as to whether Clark had ever studied law, which he had not, although he said that he had read "a few of the books" when he was in the institution. Id. at 32. Clark reminded the court that he had answered similar questions the previous year, and the district court explained that it was the court's responsibility to conduct another complete inquiry regarding waiver of his right to counsel. The district court asked Clark about his familiarity with the crime with which he was charged, his knowledge of the Federal Rules of Evidence and Federal Rules of Criminal Procedure, and the manner in which he would be required to present his testimony. Clark acknowledged his awareness and comprehension of what would be required of him. After yet another warning from the district court that Clark not represent himself, Clark stated that he wished to be his "own attorney in this matter," and that he made the decision voluntarily. Id. at 36. In an order issued August 29, 1989, the district court found that Clark was competent to stand trial and that he had knowingly and intelligently waived his right to counsel.

Clark's trial commenced on November 16, 1989. Clark presented his own defense, with Spielfogel as stand-by counsel. On November 28, 1989, the jury found Clark guilty. Following a March 13, 1990, sentencing hearing, on May 21, 1990, the district court sentenced Clark to twenty-five years' incarceration.

ANALYSIS

In this appeal, Clark argues that the district court erred in allowing him to waive his right to counsel because, Clark contends, he lacked the competency to proceed pro se. We now address Clark's competency argument and the other issues he raises.

Clark's Competency to Proceed Pro Se

Clark contends that he was denied due process and his sixth amendment right to counsel when the district court allowed him to appear pro se, because he was mentally ill and...