U.S. v. Metcalfe

• Decision Date: 26 January 1983
• Docket Number: No. 82-1112,82-1112
• Citation: 698 F.2d 877
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William M. METCALFE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 877

698 F.2d 877

UNITED STATES of America, Plaintiff-Appellee, v. William M. METCALFE, Jr., Defendant-Appellant.

No. 82-1112.

United States Court of Appeals Seventh Circuit.

Argued Sept. 29, 1982.

Decided Jan. 26, 1983.

Donald G. Weiland, Chicago, Ill., for defendant-appellant.

Terry G. Harn, Asst. U.S. Atty., Peoria, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, COFFEY, Circuit Judge, and HILL, Senior District Judge. ^*

IRVING HILL, Senior District Judge.

After a jury trial in which he was represented by appointed counsel, appellant Metcalfe was convicted of armed bank robbery of a Peoria, Illinois, bank and sentenced to 15 years in prison. He raises three contentions on appeal:

1. A "motion" for the appointment of a psychiatrist to examine Metcalfe prior to trial to determine his competency to stand trial was erroneously denied;

2. The government's use of testimony of a jail cellmate violated his constitutional rights as defined in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); and

3. His representation by appointed trial counsel did not meet the minimum professional standard required under the Sixth Amendment.

We will discuss each contention separately.

I. COMPETENCY TO STAND TRIAL

On the date set for trial of the case, Metcalfe appeared in chambers with his appointed counsel and government counsel for an on-the-record conference. Defense counsel told the court that 3 days before, the defendant had inquired of him about having a mental examination under 18 U.S.C. Sec. 4244, and he had told Metcalfe that he, counsel, did not feel that he could file such a motion in good faith. They had left it that Metcalfe wanted to think some more about the matter. Counsel said he was bringing it up again at the chambers conference because he wanted it clear on the record that Metcalfe did not want to raise the question any further. However, Metcalfe then told the trial judge that he wanted to talk about it some more. The court then asked Metcalfe if he wanted to make some statement in regard to a possible mental examination. In reply, Metcalfe said that he was "emotionally unstable" and wanted his problem to be "recognized by the courts" so perhaps the court "could do something about it". He said that he had been in a mental institution before coming to Peoria. He said he was taken to that institution by his father because his mental problems went back into his childhood, but he did not know the name of the psychiatrist that they had seen because he was so young at the time. For further details, he referred the court to his father who was in the courtroom outside chambers. This colloquy between the court and Metcalfe is characterized by Metcalfe's present lawyer (who did not represent him at that time) as a "motion" under 18 U.S.C. Sec. 4244. The so-called motion was entirely oral.

In his colloquy with the judge, Metcalfe asserted that while he had had serious drug problems in the past, he had not been addicted to drugs since 1978 and had not "messed" with drugs in "quite some time".

Before summoning the father, the trial judge had a brief discussion with the defendant as to whether he understood the charge against him. That discussion revealed that the defendant clearly understood that he was being charged with a bank robbery and that he knew the elements and nature of the alleged robbery. Defendant had previously tendered an alibi defense and during the discussion, he complained that his defense had not been properly prepared, which he laid to the fact that he had been incarcerated and "[hadn't] had a chance to get in contact with anyone".

The trial judge then called the father into chambers and asked the father to describe the mental treatment given to defendant in the past. The father denied that there had been any. He said he had tried to get some mental treatment for his son but was unsuccessful because the son was over 21 and he, the father, was informed that treatment would not be provided unless the son himself asked for it. Apparently the son had declined to do so. The father did say that he continued to feel that his son needed a psychiatrist but gave no details whatever of any event or events which underlay that feeling.

The court then turned to defense counsel and sought from him an opinion as to whether the defendant was able to cooperate in conducting his defense. Defense counsel answered that he had not found the defendant unable to cooperate in planning his defense "and that is why I told him I cannot file it in good faith".

At this point, the trial judge said "I am going to deny the petition for a mental examination." He gave no further explanation of his ruling and made no further findings in connection with it.

We have concluded that no error was committed by the trial court in connection with the events related above. But it is appropriate to discuss the problem in some detail.

The government raises a threshold claim, i.e., that the defendant (who broached the competency issue himself while being represented by a lawyer who was unwilling to join in the client's action) "had no standing" to make a motion under Sec. 4244. Sec. 4244 provides that a motion for a judicial determination of a defendant's competence to stand trial may be made by the U.S. Attorney or by another person "in behalf of the accused". Metcalfe argues that when he himself made the "motion", he made it "in behalf of the accused" within the meaning of the statute.

We recognize that serious problems may arise when a represented defendant purports to take over any phase of the case and takes some action, such as the making of a motion, over the objection of, and against the advice of, his counsel. When that happens, management of the case by the trial judge becomes much more difficult. The record becomes muddied and a foundation is laid for later appeals and motions under 28 U.S.C. Sec. 2255 on grounds of ineffectiveness of counsel and irreconcilable conflict between counsel and his client. But while recognizing the problems, we do not choose, on these facts, to adopt a lack of standing concept as urged by the government. The trial judge apparently had no trouble with the standing problem and determined to entertain the motion even though he thereafter denied it. Our rejection of the lack of standing claim should be read as being limited to these particular facts and as creating no precedent.

We proceed to the merits of appellant's claim. In certain passages of his brief, appellant seems to argue that once the motion was made, the appointment of a psychiatrist to examine into his competency to stand trial was "mandatory". He points to the wording of Sec. 4244 which provides that after the motion is filed, "the court shall cause the accused ... to be examined ... by at least one qualified psychiatrist ...." (emphasis added). He also points to United States v. Ives, 574 F.2d 1002, 1005 (9th Cir.1978) which contains a dictum that the "initial Sec. 4244 motion gives the moving party a right to a mandatory psychiatric examination of the defendant". But in other passages of his brief, Metcalfe concedes that the trial judge has discretion to deny a motion under Sec. 4244 without appointing a psychiatrist if he determines that the motion is either frivolous or not made in good faith.

Even that admission is not a complete statement of the governing law. There are two alternative bases for denying a Sec. 4244 motion for the appointment of a psychiatrist. Meador v. United States, 332 F.2d 935, 937 (9th Cir.1964). They are:

1. A determination that the motion is insufficient in that it fails to set forth reasonable cause for believing that the defendant is incompetent to stand trial.

2. A determination that the motion is frivolous or not made in good faith. ¹

There appears to be a split in the Circuits as to the degree of discretion permitted to the trial judge in determining whether to grant such a motion. The narrow view, principally articulated by the Ninth Circuit, restricts the judge to a facial examination of the petition in light of surrounding circumstances to determine if reasonable cause and good faith are demonstrated. If the claims in the petition raise a prima facie doubt as to the defendant's competence and are not patently frivolous, the court must order a psychiatric examination. No preliminary hearing or other testing of the movant's reasonable cause is contemplated. Meador v. United States, supra, 332 F.2d at 936-38. ² The court's role is roughly analogous to its discretion in deciding a motion on the pleadings.

Other Circuits have taken a broader view of the court's discretionary powers in determining Sec. 4244 motions. The judge may conduct a hearing on factual issues to explore whether there exists reasonable cause to believe the defendant is incompetent. Evidentiary material tending to prove or disprove the factual allegations in the petition may be taken. The judge may interrogate the defendant and/or his counsel and make such other inquiries as he believes might shed further light on whether reasonable cause exists. United States v. Oliver, 626 F.2d 254, 258-59 (2nd Cir.1980). ³ In this later view, the court's authority might be analogized to its role in determining a summary judgment motion.

We think Oliver states the better rule. An order for a psychiatric examination under 18 U.S.C. Sec. 4244 should not be a perfunctory or ministerial act. United States v. Hall, 523 F.2d 665, 667 (2nd Cir.1975). It would be a misuse of the statute for such motions to be granted "so routinely that the statute amounts to no more than a provision for an automatic continuance on the defendant's request." United States v. Taylor, 437 F.2d 371, 376 n. 7 (4th Cir.1971). Of course, the trial judge should not attempt to resolve the basic issue of whether the accused is in fact...