U.S. v. Fortune

• Decision Date: 30 May 1975
• Docket Number: No. 74-3125,74-3125
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Fate FORTUNE and Wayne William Barfield, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 883

513 F.2d 883

UNITED STATES of America, Plaintiff-Appellee, v. Larry Fate FORTUNE and Wayne William Barfield, Defendants-Appellants.

No. 74-3125.

United States Court of Appeals, Fifth Circuit.

May 30, 1975.

Ardon E. Moore, Jr., Tyler, Tex. (Court-appointed), for Fortune.

Dale Long, Tyler, Tex. (Court-appointed), for Barfield.

Roby Hadden, U. S. Atty., H. Kelly Ireland, Asst. U. S. Atty., Tyler, Tex., Dennis R. Lewis, Asst. U. S. Atty., Beaumont, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Texas.

Before WISDOM and DYER, Circuit Judges, and KRAFT, ^* District Judge.

WISDOM, Circuit Judge:

Appellants Wayne Barfield and Larry Fate Fortune, together with Peter Gaston Kaiser, were convicted by a jury on a thirteen-count indictment that charged them with numerous federal offenses ¹ related to the kidnaping of James Hoover, a Georgia stockbroker. On appeal, Barfield contends that the trial court erred in not granting his motion for judgment of acquittal because the totality of the evidence created a reasonable doubt as to his sanity at the time of the offense. Fortune joins in Barfield's argument and also contends that the trial court erred in allowing certain testimonial references to the issue of his competency to stand trial, and in admitting into evidence, as a government exhibit, a driver's license he used to conceal his identity at the time of his arrest. Kaiser does not join in this appeal. We find the appellants' contentions without merit. We affirm.

I

On September 7, 1973, Barfield, Fortune, and Kaiser seized James Hoover at gun point in Columbus, Georgia, and forced him to accompany them in his automobile to Tyler, Texas. The next morning, the defendants removed Hoover from the automobile, forced him into a ditch, fired eight bullets into his body, and left him for dead. The indestructible Mr. Hoover did not die. He crawled to a nearby house, was hospitalized, recovered, and testified at trial. In the afternoon of September 8, local police officers apprehended Barfield, Fortune, and Kaiser, in Colorado City, Texas. A federal grand jury in Tyler charged the defendants with numerous offenses in a thirteen-count indictment returned on September 21. Thereafter, on October 1, Judge Justice ordered the defendants committed to the Medical Center for Federal Prisoners in Springfield, Missouri, to determine whether they were then competent to stand trial, and whether they suffered from a mental disease or defect by which they lacked substantial capacity to appreciate the wrongfulness of their conduct at the time of the crime or to conform their conduct to the requirements of law.

The three defendants were transferred to the Federal Youth Center in Englewood Colorado, where they were examined for ninety days by Dr. Jeffrey Anker and his staff. Dr. Anker concluded that the defendants were competent to stand trial. He failed to comply with the court order that also directed him to report on the sanity of the defendants at the time of the offenses. On defendants' motion, the court appointed Dr. Joe Oliver to examine the three defendants to determine whether they were suffering from a mental disease or defect, at the time of the offenses, that impaired their capacity to appreciate the wrongfulness of their conduct or to conform their conduct to the requirements of law. Dr. Oliver concluded that the defendants were sane and so testified at trial. The defendants, dissatisfied with Dr. Oliver's opinion, produced Dr. Anker, who testified that Barfield and Fortune were not sane at the time of the offenses.

II

Barfield contends that statements made at trial by Judge Justice, Dr. Anker, and the prosecutor, improperly informed the jury that the defendants had been found competent to stand trial, and thus violated 18 U.S.C. § 4244. That section provides, in relevant part, that "(a) finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury." Barfield contends that Section 4244, as previously construed by this Court in Davis v. United States, 5 Cir. 1974, 496 F.2d 1026, compels the conclusion that the statements made at trial were improper and constitute reversible error. We disagree.

In Davis, the defendant had three separate competency hearings. On September 2, 1972, the district court conducted a competency hearing under 18 U.S.C. § 4244, found probable cause to believe that the defendant might be insane, and committed him to the Medical Center for Federal Prisoners, in Springfield, Missouri, for examination. After a competency hearing on November 27, 1972, the district court found that Davis was not competent to stand trial, despite an opposite conclusion by medical authorities at Springfield recommitted him under 18 U.S.C. § 4246, and requested a written report within six months. This report was received and the trial court, after a further competency hearing, found the defendant to be competent to stand trial on June 6, 1973. The trial took place on June 13-15, 1973.

The psychiatrist who examined Davis at Springfield testified at trial. On cross-examination, Davis's counsel attempted to introduce as evidence the court's order of November 28, 1972, finding the defendant incompetent to stand trial. The court admitted the evidence before the government was able to interpose an objection. On redirect examination, to offset the effect of the November order, the government then offered as evidence the court's June 6 order finding Davis competent to stand trial. The June 6 order was admitted without objection by the defense. On appeal, Davis argued that admission of the June 6 order violated the clear mandate of 18 U.S.C. § 4244 and constituted "plain error" within the meaning of Fed.R.Crim.P. 52(b). This Court agreed, holding that "(w)e discern plain error affecting substantial rights of the accused because of the specific prohibition of the introduction of evidence of a court finding of mental competency written by Congress into Sec. 4244." 496 F.2d at 1029.

In Davis, the trial court violated Section 4244 by admitting as evidence the very order that stated the court's finding that the defendant was competent to stand trial. That is not the case here. Barfield does not contend that the court violated Section 4244 by admitting any order that found him competent to stand trial. Instead, he contends that certain statements made by the court, the prosecutor, and Dr. Anker, informed the jury that Dr. Anker had, in fact, examined him to determine his competency to stand trial. Those statements, together with the obvious fact that he is a defendant on trial, he suggests, would inevitably lead the jury to conclude that he was found competent to stand trial. In his view, any reference made during the course of trial to a competency examination would violate Section 4244 in that it would allow a finding of competency "otherwise (to) be brought to the attention of the jury."

While we agree with Barfield that any reference to a competency examination is undesirable in the context of a defense based on insanity, we think that the statutory construction he suggests is both unwarranted and unrealistic. In circumstances, as here, where the same psychiatrist has examined a defendant to determine sanity at the time of the offense, as well as competency to stand trial, it may well be impossible to prevent all references to the fact of a competency examination. Indeed, judicial gymnastics directed toward the annihilation of all such references may, in some circumstances, have a more undesirable effect, in terms of distortion of testimony, than would the references themselves. At any rate, Section 4244 does not require that result.

At trial, Dr. Anker testified for the defendants. He described his duties at Englewood and stated his opinion that Barfield and Fortune were insane under the rule stated by this Court in Blake v. United States, 5 Cir. 1969, 407 F.2d 908. ² On cross-examination, government counsel asked Dr. Anker his reason for examining Barfield. He replied that Barfield "was referred to the Federal Youth Center at Englewood for a psychiatric evaluation to determine whether he was competent to stand trial". Defense counsel objected to this reference, and a conference was held out of the presence of the jury. Judge Justice told counsel that the prosecution was entitled to cross-examine the witness, but that he did not want to get into the issue of competency to stand trial because it had no bearing on the case. Later, on direct examination, Fortune's counsel asked Dr. Anker why he had reason to examine Fortune. In order to distract the jury's attention from the competency issue, Judge Justice told the jury, simply, that "this court ordered mental examinations of all three of them". Implicit in the court's statement is the instruction that the jury should not consider the circumstances of the examination beyond the fact that it was ordered by the court.

Dr. Anker, as we have noted, was ordered by the court to report on both the competency and the sanity of the defendants. His report failed to state an opinion regarding sanity. During direct examination, Fortune's counsel suggested, possibly to establish a reason for Dr. Anker's failure to report on the sanity question, that the government had not provided the psychiatrist with a statement of the Blake test at the time of the examination. Government counsel objected to this suggestion and stated that it was the court's duty, not that of the government, to provide Dr. Anker with a formulation of the Blake test. To absolve the government of that responsibility, Judge Justice informed the jury of the circumstances relating to the examination. He said:

Well, let me tell the jury what...