U.S. v. Lemon

• Decision Date: 08 March 1977
• Docket Number: No. 76-1443,76-1443
• Citation: 550 F.2d 467
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Marshall LEMON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 467

550 F.2d 467

UNITED STATES of America, Plaintiff-Appellee, v. James Marshall LEMON, Defendant-Appellant.

No. 76-1443.

United States Court of Appeals Ninth Circuit.

March 8, 1977.

Warren Williamson, Federal Defenders, Inc., argued, San Diego, Cal., for defendant-appellant.

Stephen Peterson, Asst. U. S. Atty., argued, San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before TRASK and CHOY, Circuit Judges, and EAST, ^* District Judge.

CHOY, Circuit Judge:

James Lemon appeals his conviction on two counts of bank robbery, 18 U.S.C. § 2113(a). He argues for reversal on the grounds that: (1) the court gave jury insanity instructions contrary to the standard established in Wade v. United States, 426 F.2d 64 (9th Cir. 1970) (en banc); (2) the court failed to abide by a provision of the Speedy Trial Act, 18 U.S.C. § 3164; (3) his Miranda rights were violated; (4) his custodial consent to a search of his hotel room was both involuntary and elicited in violation of Miranda ; and (5) his court-appointed counsel did not provide the reasonably effective assistance of counsel required by the sixth amendment and the Criminal Justice Act, 18 U.S.C. § 3006A. We affirm.

FACTS AND PROCEEDINGS BELOW

This action concerns two San Diego, California bank robberies which occurred on July 22 and July 25, 1975. On July 26, 1975, the San Diego Police received an anonymous telephone tip that the man depicted in published bank surveillance photos was a local gambler, Fred Forens. Acting on the call, two officers, armed with the photos, checked the areas reportedly frequented by Forens. Upon entering a local bar, the officers observed appellant, checked his identification, and asked him to step outside, where he was compared with the photos. Appellant denied he was the person shown. At that point, the officers placed him under arrest, conducted a pat-down search, and handcuffed him. During the pat-down, a key to the Knickerbocker Hotel was found, and the officers proceeded there with appellant. Upon obtaining his consent, the officers searched appellant's hotel room and found marked bills from the robbed banks as well as a shirt similar to that worn by the robber. Appellant was then taken to the police station where, for the first time, he was given his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and questioned further.

On August 6, 1975, a federal grand jury returned a three-count indictment charging appellant with two counts of bank robbery, and one count of armed robbery (later dismissed). 18 U.S.C. § 2113(a) & (d). On September 15, 1975, a hearing was held on appellant's pre-trial motion to suppress tangible evidence and statements. Appellant's trial was set for October 21, 1975. On that date, appellant's jury trial was trailed to October 23 because of two other jury trials scheduled for October 21. On October 23, appellant requested that his case be continued to November 3, 1975, when he said he would enter a plea of guilty. On that date, appellant's counsel advised the court that the case would not be disposed of, notified the government that a defense of insanity would be interposed, and asked for a future court appearance to set a trial date in order to allow the government an opportunity to obtain an expert witness. On November 17, 1975, the government requested that an out-of-town psychiatrist be permitted to examine appellant. The court granted the request and set the trial for the earliest date thereafter available, January 13, 1976.

On January 14, 1976, appellant moved to dismiss for denial of speedy trial. The motion was denied on January 20, and trial commenced on the two counts of bank robbery. Appellant was convicted of both counts on January 23, and this appeal ensued.

JURY INSANITY INSTRUCTIONS

In Wade v. United States, 426 F.2d 64 (9th Cir. 1970) (en banc), this court approved the following jury instruction on insanity:

"A person is not responsible for criminal conduct if at the time of such conduct as Id. at 71-72. This instruction is the first part of a two-part standard developed by the American Law Institute (A.L.I.) and is still the standard in this circuit. United States v. Sullivan, 544 F.2d 1052 (9th Cir. 1976). The second part of the A.L.I. standard reads:

a result of mental disease or defect he lacks substantial capacity either to appreciate the (wrongfulness) of his conduct or to conform his conduct to the requirements of law."

"As used in this Article, the terms, 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct."

426 F.2d at 71. This latter portion was rejected by this court in Wade, id. at 72-73, but was included in the jury instructions given by the trial judge in the instant case at the urging of appellant's counsel. Appellant now contends that its inclusion rendered the instruction so misleading as to deny the jury the proper standard of assessment. We do not agree.

The instruction containing the second part of the A.L.I. standard could only have harmed appellant's case had he attempted to establish his insanity with evidence of "repeated criminal or otherwise antisocial conduct." Appellant's insanity defense, however, was based on toxic psychosis, a form of black-out which he claimed resulted from his depression-induced ingestion of large amounts of alcohol and drugs in the days before the robberies. ¹ Although appellant argues that the jury may have believed that the two robberies occurring within three days of each other were evidence of repeated criminal conduct, it was shown at trial that his record was quite good. Under these circumstances, and because the insanity instructions as a whole conveyed the proper standard, United States v. Trejo, 501 F.2d 138, 140 (9th Cir. 1974), the inclusion of the surplus language is not reversible error. United States v. Martin, 489 F.2d 674, 677 (9th Cir. 1973), cert. denied, 417 U.S. 948, 94 S.Ct. 3073, 41 L.Ed.2d 668 (1974). ²

SPEEDY TRIAL ACT

The Speedy Trial Act requires that a person who is continuously " held in detention solely because (he is) awaiting trial" have his "conditions of release" reviewed by the court if, "through no fault of the accused or his counsel," trial does not commence within 90 days. 18 U.S.C. § 3164. When a defendant is detained for a study of his mental competency, he is not in detention "solely" for the purpose of awaiting trial under § 3164(a)(1). Moore v. United States, 525 F.2d 328, 329 (9th Cir. 1975); United States v. Bigelow, 544 F.2d 904, at 907 (6th Cir. 1976). Likewise, when a continuance is granted at the request of the defense, such a delay is the "fault of the accused or his counsel" under § 3164(c) and excludable as such from the calculation of the 90-day period. Bigelow, supra; United States v. Martinez, 538 F.2d 921, 923-24 (2d Cir. 1976); United States v. Tirasso, 532 F.2d 1298, 1299 (9th Cir. 1976) (dictum).

Appellant was arrested on July 26, 1975. Because § 3164 did not become effective Moreover, even if § 3164 were violated, the proper remedy under the Act would have been "review by the court of the conditions of release," § 3164(c), not the reversal which appellant here demands. See United States v. Carpenter, 542 F.2d 1132, at 1134 (9th Cir. 1976); United States v. Simmons, 536 F.2d 827, 835-36 n.44 (9th Cir. 1976); United States v. Tirasso, supra. And appellant does not allege that his continued detention in any way prejudiced him or his defense under the sixth amendment test of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

until September 29, 1975, § 3164(a), the 90-day period must be computed from that date, § 3164(b). H.Rep.No. 93-1508, 93d Cong., 2d Sess., reproduced in, 4 U.S.Code Cong. & Ad.News 7401, 7416 (1974); United States v. Cordova, 537 F.2d 1073, 1075 & n.1 (9th Cir. 1976). On appellant's request, his case was continued from October 23, 1975 to November 3, 1975 to allow him to enter a plea of guilty. On that date, appellant did not plead guilty, but instead requested a continuance. On November 17, 1975, a further delay was granted to allow an examination of appellant's competency. Because all delays from October 23, 1975 on were attributable either to requests by appellant or to the determination of his mental competency, we hold that § 3164 was not violated.

MIRANDA VIOLATIONS

Appellant next contends that the statements he made to the police in response to their questions while he was in custody, but before he was given Miranda warnings, were improperly admitted at trial. ³ Miranda v. Arizona,384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that a defendant be informed of his rights once he is in a custodial situation. The Miranda Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way." Miranda, supra at 444, 86 S.Ct. at 1612 (footnote omitted).

Appellant clearly was in custody from the time he was placed under arrest, and any questioning thereafter violated Miranda. It is, however, unclear from the record which questions were in fact asked after appellant was arrested "or otherwise deprived of his freedom in any significant way." But we have no occasion here to determine precisely when appellant was questioned or placed in custody, for we do not believe that any of the statements made by him contributed in any way to his conviction and thus hold that their admission, even if in violation of Miranda, was harmless error beyond a reasonable doubt. ⁴ Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Casimiro-Benitez, 533 F.2d 1121, 1124-25 (9th Cir. 1976); United States v. Hatcher, ...