U.S. v. Clark

• Decision Date: 17 April 1980
• Docket Number: No. 79-1287,79-1287
• Parties: 5 Fed. R. Evid. Serv. 1323 UNITED STATES of America, Plaintiff-Appellee, v. Richard L. CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 180

617 F.2d 180

5 Fed. R. Evid. Serv. 1323

UNITED STATES of America, Plaintiff-Appellee, v. Richard L. CLARK, Defendant-Appellant.

No. 79-1287.

United States Court of Appeals, Ninth Circuit.

April 17, 1980.

Kenneth C. Cory, Federal Public Defender, Las Vegas, Nev., for defendant-appellant.

Samuel Coon, Asst. U. S. Atty., Reno, Nev., argued, Leland E. Lutfy, Ruth L. Cohen, Asst. U. S. Attys., Reno, Nev., on brief, for plaintiff-appellee.

Appeal from the United States District Court for the District of nevada.

Before BROWNING, Chief Judge, TANG, Circuit Judge, and HOFFMAN ^*, District Judge.

HOFFMAN, District Judge:

In an indictment filed on March 6, 1975, appellant Clark was charged with bank robbery of a Las Vegas, Nevada bank in violation of 18 U.S.C. § 2113(a). Initially, there was a delay as appellant had indicated his desire to plead guilty under Rule 20 in Arizona where he voluntarily surrendered himself, but the district court in Arizona returned the case to the District of Nevada by order filed on June 6, 1975. Appellant's competence to stand trial was then questioned, and the district court ordered that he submit to a psychiatric examination. Two local psychiatrists thereafter examined appellant one on August 26, 1975 and one on September 24, 1975 after which a competency hearing was held pursuant to 18 U.S.C. § 4244 before a United States Magistrate. At the hearing both psychiatrists who had examined appellant rendered opinions that he was incompetent to stand trial, but one of the psychiatrists also indicated that he believed appellant's competence would be restored within a reasonable time. On October 24, 1975, the district court, approving the report and recommendation of the Magistrate, entered an order that appellant be committed, under 18 U.S.C. § 4246, to the government's medical facility at Springfield, Missouri, until he became mentally competent.

On November 10, 1975 (or perhaps November 7, 1975), appellant was examined by two government psychiatrists, who found him competent to stand trial. Thereafter, his records were reviewed and he was interviewed by a team of eleven members of the psychiatric staff. On December 8th, the court received a report from Springfield indicating that appellant was competent. Accordingly, appellant was returned from Springfield and arraigned on February 6, 1976, before a United States Magistrate and, represented by an Assistant Public Defender, entered a plea of not guilty.

At the arraignment the Magistrate inquired as to appellant's memory of pertinent facts and his ability to assist in his defense. ¹ After being assured by defense counsel that there was no question as to appellant's competency to stand trial, the court set the matter for trial. No additional competency hearing was held, and no formal order declaring appellant competent to stand trial was entered.

Appellant's trial commenced March 15, 1976. At trial appellant's counsel argued that Clark was insane when he committed the offense. ² Counsel did not, however, request an additional competency hearing.

During the course of the proceedings, the court declared that the evidence dealing with the issue of insanity would be presented in the following order: direct defense evidence, then government rebuttal evidence, to be followed by defense surrebuttal evidence. The court indicated that defense counsel would be permitted to recall the defense psychiatrist after the government presented its rebuttal evidence. Upon the conclusion of the government's rebuttal evidence, the court inquired as to whether the defense would be offering any surrebuttal evidence. Defense counsel replied that he intended to recall the psychiatrist who had previously testified for the defense, but that the witness was presently unavailable (having been told by defense counsel to report at a later time). The court stated that unless the defense was going to offer any new evidence, the trial would proceed without defense surrebuttal. Defense counsel made no objection and no offer of proof, whereupon the trial proceeded without surrebuttal.

At the conclusion of the trial on March 17, 1976, the jury rendered a verdict of guilty. ³ On appeal, Clark contends that his due process rights were violated in the following three instances: (1) when the district court failed to automatically hold a second competency hearing upon his return from the Springfield medical facility; (2) when the court failed to interrupt the trial and sua sponte order a second competency hearing on the grounds that there was substantial evidence that the defendant was still incompetent, and; (3) when the court refused to allow the admission of the defendant's psychiatric surrebuttal evidence.

I.

The first issue with which we must deal is whether appellant, who had previously been committed to a medical facility under 18 U.S.C. § 4246, was, by right, entitled to another competency hearing upon his being certified by the medical facility's psychiatric staff as mentally competent to stand trial. A nearly identical situation was before this Court in United States v. Ives, 504 F.2d 935 (9th Cir. 1974). (Ives I ), vacated, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97; on remand, 547 F.2d 1100 (9th Cir. 1976) (Ives II ), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977); appeal after remand, 574 F.2d 1002 (9th Cir. 1978) (Ives III ), appeal after second remand, 609 F.2d 930 (9th Cir. 1979) (Ives IV ).

In Ives I we rejected the contention "that some type of judicial hearing is required where a defendant has been committed as incompetent, the committing institution has subsequently concluded he is presently competent and the court has entered a finding of competency based upon that opinion." 504 F.2d at 947. The reasoning behind our decision in Ives I also applies to this case. ⁴ Therefore, we hold that when a defendant, committed as incompetent under 18 U.S.C. §§ 4244, 4246, has been returned to court as competent by the commitment institution, a second competency hearing is not automatically required. Rather, whether a second hearing is required depends upon the evidence in each case, under the principles in Part II infra. We now apply those principles to Clark's claim for a second hearing on return from the commitment institution.

The evidence before the trial court in this case justified its finding that the defendant was competent to stand trial. Although two psychiatrists had previously found Clark to be incompetent, and such findings may be evidence of present incompetence, at least one of those psychiatrists expressed the opinion that Clark's competency should be returned in a reasonable time. In addition, the December 8 report from Springfield, setting forth the opinions of two government psychiatrists that Clark was mentally competent, was unrebutted by any later evidence. At Clark's arraignment, the Magistrate specifically asked his attorney if there was any reason to believe that Clark was still incompetent. His attorney replied that there was not. Under the circumstances, the court acted properly in setting the matter for trial.

In Ives I the district court entered a formal order finding the defendant competent to stand trial. Apparently, no such order was entered, or requested, in Clark's case. At least one circuit has indicated that, although a hearing may not be necessary to declare an accused competent, where a judicial determination of incompetency has been made, that finding cannot be set aside absent a superseding judicial order. See United States v. Fessel, 531 F.2d 1275, 1277 n.4 (5th Cir. 1976). While we agree that it would have been better procedure for the trial court to enter an order, we find that the dialogue between the court and counsel for the defense at Clark's arraignment necessarily implied a judicial determination of Clark's competency. ⁵ Therefore, the failure to enter a formal order, if error, was harmless. ⁶

II.

Appellant also raises the question of whether the need for a second competency hearing arose during the course of the trial. In United States v. Ives, 574 F.2d 1002 (9th Cir. 1978) (Ives III ), we held that "the decision to hold an evidentiary hearing on a subsequent § 4244 motion rests in the sound discretion of the trial judge. Absent (an) abuse of that discretion, the determination will not be overturned." Id. at 1005 (emphasis added). See also United States v. Bodey, 547 F.2d 1383, 1387 (9th Cir.), cert. denied 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 249 (1977); United States v. Cook, 418 F.2d 321, 324 (9th Cir. 1969).

Ives III, 574 F.2d at 1005, suggests that a trial judge, when deciding whether a second § 4244 hearing is merited, should pay heed to the principles espoused in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and deKaplany v. Enomoto, 540 F.2d 975 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). ⁷ Drope held that a trial court has a continuing duty to insure that a defendant is not subjected to trial if his "mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense . . . ." 420 U.S. at 171, 95 S.Ct. at 903. In deKaplany we held that a hearing is required sua sponte whenever there exists "substantial evidence" that the defendant may be mentally incompetent and that "(e)vidence is 'substantial' if it raises a reasonable doubt about the defendant's competency to stand trial." 540 F.2d at 980-81 (quoting Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972)). In view of these principles the question to be decided is whether sufficient evidence arose during the course of the trial to establish a reasonable doubt as to Clark's ability to understand the nature of the proceedings and assist in his defense, such that the trial judge abused his discretion in failing to order, sua sponte...