U.S. v. Nichols, No. 381

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtWALKER
PartiesUNITED STATES of America, Appellee, v. Lorenzo NICHOLS, Defendant, Howard Mason, Defendant-Appellant. ocket 94-1036.
Decision Date26 May 1995
Docket NumberD,No. 381

Page 403

56 F.3d 403
UNITED STATES of America, Appellee,
v.
Lorenzo NICHOLS, Defendant,
Howard Mason, Defendant-Appellant.
No. 381, Docket 94-1036.
United States Court of Appeals,
Second Circuit.
Argued Nov. 18, 1994.
Decided May 26, 1995.

Page 405

Ivan S. Fisher, New York City, for defendant-appellant.

Leslie R. Caldwell, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Zachary W. Carter, U.S. Atty., and Susan Corkery, Asst. U.S. Atty., of counsel), for U.S.

Before: OAKES, ALTIMARI, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Howard Mason appeals from a judgment of conviction and sentence entered in the United States District Court for the Eastern District of New York (Edward R. Korman, District Judge) after a jury trial. Mason argues that the district court erroneously (1) assigned him the burden to prove incompetency; (2) found him competent to stand trial in 1989 and to be sentenced in 1994; (3) permitted him to waive his right to attend trial before finding him competent to waive that right; and (4) tried him in absentia without securing a knowing and voluntary

Page 406

waiver on the record of his right to attend trial. We affirm.
BACKGROUND

According to the evidence adduced at trial, Howard Mason was a leader of the "Bebos" drug gang, which controlled much of the South Jamaica crack trade in Queens during the mid to late 1980's. In 1988, Mason was imprisoned on a state firearms conviction. Following his imprisonment, Mason took revenge by directing Bebos underlings to assassinate a New York City police officer. On February 25, 1988, the Bebos carrying out the order happened upon rookie police officer Edward Byrne, who was on assignment outside the home of a witness in an unrelated drug case. They shot Officer Byrne five times in the head at point-blank range, killing him.

I. Arrest and Detention

On August 11, 1988, Mason, along with other members of the Bebos and another drug gang, was arrested on federal narcotics conspiracy charges. He was detained at the Metropolitan Correctional Center ("MCC"). At the MCC, Mason's disruptive conduct earned him disciplinary segregation. After he attacked two codefendants with a homemade weapon and started a fire in his cell because he was denied access to a phone, Mason was transferred to the Federal Correctional Institute at Otisville, New York ("Otisville") on August 7, 1989. His conduct at Otisville placed him once again in disciplinary segregation.

On August 15, 1989, Mason was charged alone in a superseding indictment with, among other crimes, ordering the murder of Officer Byrne. After arraignment on the new charges, Mason was again placed in the MCC. When staff noted a sudden change in his behavior, he was sent to MCC staff psychologist Parry Hess. Dr. Hess noted that Mason displayed "paranoid delusions accompanied by agitation and violent outbursts, selective mutism, social withdrawal, marked weight loss, and poor hygiene" and recommended that he be sent to a forensic psychiatric facility for evaluation.

On September 15, 1989, Mason was transferred to the Medical Center for Federal Prisoners in Springfield, Missouri ("Springfield"). Mason submitted to an initial interview with Dr. Richard D'Andrea, a clinical psychologist at Springfield, but thereafter refused to permit further interviews, psychological tests, or a physical examination. Based on the initial interview and about fifteen brief visits to Mason's cell, Dr. D'Andrea wrote a report that he filed with the district court on October 23, 1989. He concluded that Mason understood the charges against him, that Mason's unwillingness to cooperate with the Springfield staff was "volitional and not due to mental illness," and that he was competent to stand trial.

Mason was returned to the MCC in late October, 1989. On November 3, 1989, Mason was visited in jail by his mother and his court-appointed attorney, Harry Batchelder, Jr. Their purpose was to discuss a government offer to consider making a downward departure motion for Mason's mother, who faced sentencing for a recent narcotics conviction, if Mason would plead guilty. According to an affidavit that Batchelder filed with the district court on November 7, 1989, Mason was uncooperative and abusive during both the November 3 visit and a subsequent meeting three days later. He accused Batchelder of lying about his codefendants' willingness to testify against him at trial and conniving with the district court to have him transferred to the "Bug-House." According to Batchelder, Mason at times had a vacant stare, was unresponsive to questions, and did not comprehend the effect that his insistence on going to trial might have on his mother's sentence. Because he was "professionally uncomfortable" that Mason understood his advice or trusted that he would work in Mason's best interests, Batchelder requested that the district court replace him with another attorney.

On November 7, 1989, Mason appeared before the district court. When Judge Korman remarked, "Your lawyer indicated that you had some problems that you want to raise with me," Mason rejoined, "It's your lawyer, it ain't my lawyer. What can I say[?] All I can do is keep getting torched." Moments

Page 407

later, Judge Korman inquired, "Do you wish Mr. Batchelder to represent you or not?" Mason replied, "I don't wish to go to the hospital and the police be kicking on my doors and hollering and screaming on me. I don't wish a lot of things. I don't have no choice." After noting the strange behavior described in the Batchelder affidavit, the court stated to Mason that "one of our concerns is that you understand what's going on around you so that you could assist your lawyer in preparing a defense." Mason again answered unresponsively: "I cannot prepare for anything. I'm locked in 23 hours a day. How can I prepare for anything? I'm in bug houses. How can I prepare for anything?"

When Judge Korman asked if Mason would submit to another psychiatric examination, Mason did not answer the question. Instead he asked, "What is it I'm charged with? I don't even know what I'm charged with." Judge Korman then read Mason the indictment. After he read Count One, which charged a RICO offense, Mason asked for a definition of racketeering. Mason then expressed confusion as to why, after his initial arrest on state charges, he was facing federal charges other than conspiracy. The district court explained that the government had filed a superseding indictment. As the hearing drew to a close, the court asked Mason if he had any other questions. Mason responded, "Yeah. I just wanted to know my status, why I got to keep going through these tribulations. If you're going to give me life [imprisonment], you're going to give me life anyway." He expressed doubt that he could get a fair trial, and answered questions about whether he wanted to retain Batchelder as his counsel with complaints about having no access to the prison law library and being asked to deal with legal papers which "ain't dealing with the same issue."

Finally, Mason agreed to talk with a psychiatrist who would determine his competency, saying, "Yeah, I got to. I ain't got no choice." Mason's resolve was short-lived. On November 16, when Dr. Naomi Goldstein accompanied Batchelder to the MCC, Mason refused to see her, expressing distrust of her because she worked for the government.

II. Trial

On November 27, 1989, Mason appeared in court for jury selection. Batchelder requested a hearing on the issue of Mason's competency to stand trial. Judge Korman questioned the need for the hearing since Mason had already been found competent. Batchelder responded that he wished to cross-examine Dr. D'Andrea about his report, especially given Mr. Mason's repeated assertions, even after the November 7 hearing, that he did not understand "what he was being tried for." Judge Korman discounted those statements as not indicative of incompetency: "At best that is an ambiguous statement. At best it could reflect that he doesn't think he did anything wrong." Judge Korman then conversed with Mason, who repeated that he did not understand why he was being charged for crimes other than conspiracy and why no codefendants were present.

The court remarked that Mason had been found competent by a psychiatric expert and had appeared competent in his court appearances. It nonetheless called Dr. D'Andrea in for a hearing. The court proceeded to select a jury with Mason present.

When proceedings commenced the next day, November 28, 1989, Mason refused to attend. Judge Korman advised Mason that the trial would go on without him and explained at some length that he was only hurting himself by refusing to assist in his defense. Mason replied that he was not prepared for trial and that he could not get a fair trial. He again protested that he was facing new charges: "I come from [state prison] and I don't know what I'm coming to court for and now I have different charges. I know some of these people. I know them." After this interchange, Mason opted to be absent for the trial. The district court adopted Batchelder's suggestion to set up an audio connection to Mason's holding cell so that he could hear the proceedings. The audio connection could not be established that day, during which the jury was sworn and the government called and questioned witnesses outside Mason's presence.

On November 29, 1989, Mason attended the trial in the morning, when several police

Page 408

officers who investigated Officer Byrne's murder testified. During one detective's testimony, Mason stood up, causing the court to call a recess. Batchelder informed the court that Mason wished to return to his cell. The court explained again that Mason's decision was unwise, that he was entitled to participate, that he had missed a significant part of the trial, and that by assisting his attorney he might be able to convince the jury that the government did not carry the burden of proving his guilt...

To continue reading

Request your trial
193 practice notes
  • Grayton v. Ercole, Docket No. 10–1419.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 15, 2012
    ...of the right to be present can be ‘implied from the defendant's conduct.’ ” Clark, 214 F.3d at 323 (quoting United States v. Nichols, 56 F.3d 403, 416 (2d Cir.1995)). A right may also be waived by counsel's failure to object: “If a defendant is entitled ... to attend certain stages of the t......
  • Harris v. Kuhlmann, No. 97-CV-2289(JS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 19, 2000
    ...a writ of habeas corpus and discussing N.Y. C.P.L. § 730 .30); see also Pate, 383 U.S. at 385-86, 86 S.Ct. 836; United States v. Nichols, 56 F.3d 403, 414 (2d Cir.1995) (holding that the Due Process Clause requires a hearing in instances where a court has "reasonable cause" to believe that ......
  • Mackenzie v. Portuondo, Nos. 99-CV-4659 ADS, 99-CV-4660, 99-CV-4661.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 20, 2002
    ...99-cv-4660, at p. 3. The Due Process Clause does not require a competency hearing in every instance. See United States v. Nichols, 56 F.3d 403, 414 (2d Cir.1995). Absent a reasonable doubt of competency, the trial court need not conduct a hearing. See Johnson v. Keane, 974 F.Supp. 225, 230 ......
  • People v. Davis, No. S012945.
    • United States
    • United States State Supreme Court (California)
    • July 21, 2005
    ...evidence that defendant understood the right he was waiving and the consequences of doing so. (See United States v. Nichols (2d Cir.1995) 56 F.3d 403, 416-417.)7 31 Cal.Rptr.3d 114 Here, there is scant evidence of consent, and even less evidence that defendant understood the right he was wa......
  • Request a trial to view additional results
193 cases
  • Grayton v. Ercole, Docket No. 10–1419.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 15, 2012
    ...of the right to be present can be ‘implied from the defendant's conduct.’ ” Clark, 214 F.3d at 323 (quoting United States v. Nichols, 56 F.3d 403, 416 (2d Cir.1995)). A right may also be waived by counsel's failure to object: “If a defendant is entitled ... to attend certain stages of the t......
  • Harris v. Kuhlmann, No. 97-CV-2289(JS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 19, 2000
    ...a writ of habeas corpus and discussing N.Y. C.P.L. § 730 .30); see also Pate, 383 U.S. at 385-86, 86 S.Ct. 836; United States v. Nichols, 56 F.3d 403, 414 (2d Cir.1995) (holding that the Due Process Clause requires a hearing in instances where a court has "reasonable cause" to believe that ......
  • Mackenzie v. Portuondo, Nos. 99-CV-4659 ADS, 99-CV-4660, 99-CV-4661.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 20, 2002
    ...99-cv-4660, at p. 3. The Due Process Clause does not require a competency hearing in every instance. See United States v. Nichols, 56 F.3d 403, 414 (2d Cir.1995). Absent a reasonable doubt of competency, the trial court need not conduct a hearing. See Johnson v. Keane, 974 F.Supp. 225, 230 ......
  • People v. Davis, No. S012945.
    • United States
    • United States State Supreme Court (California)
    • July 21, 2005
    ...evidence that defendant understood the right he was waiving and the consequences of doing so. (See United States v. Nichols (2d Cir.1995) 56 F.3d 403, 416-417.)7 31 Cal.Rptr.3d 114 Here, there is scant evidence of consent, and even less evidence that defendant understood the right he was wa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT