U.S. v. Voice, 80-1057

• Decision Date: 08 August 1980
• Docket Number: No. 80-1057,80-1057
• Citation: 627 F.2d 138
• Parties: UNITED STATES of America, Appellee, v. Thomas William VOICE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 138

627 F.2d 138

UNITED STATES of America, Appellee, v. Thomas William VOICE, Appellant.

No. 80-1057.

United States Court of Appeals Eighth Circuit.

Submitted May 20, 1980.

Decided Aug. 8, 1980.

David L. Bergren, Fort Pierre, S.D., for appellant.

Bonnie P. Ulrich, Asst. U.S. Atty., Sioux Falls, S.D., argued, Terry L. Pechota, U.S. Atty., Sioux Falls, S.D., on brief, for appellee.

Before HEANEY, BRIGHT and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Defendant Thomas William Voice appeals his conviction of second degree murder under the Major Crimes Act of 1855, 18 U.S.C. § 1153. His principal contentions on appeal are that the district court ¹ erred in (1) finding defendant competent to stand trial, (2) failing to suppress evidence of defendant's inculpatory statements, and (3) permitting the jury to find sufficient evidence that defendant committed the offense and was legally sane while doing so. We affirm the conviction.

Defendant was arrested May 21, 1979 for the beating death of Scottie Abernathy on May 20. The death occurred in Fort Thompson, South Dakota, within the Crow Creek Indian Reservation. A murder complaint was filed May 22 and a superseding indictment was filed July 12, both charging defendant with violating 18 U.S.C. §§ 1153, 1111. ² Defendant was provided with counsel and examined by psychiatrists and psychologists prior to trial. The district court held a hearing on August 27 and on August 30 issued an opinion finding defendant mentally competent to stand trial. On December 19, 1979, after a six-day trial, the jury found defendant guilty of second degree murder. The court sentenced defendant to life imprisonment.

I. Background

Viewing the evidence in the light most favorable to the verdict, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), we summarize the events leading to conviction before recounting the evidence in detail as discussion of defendant's contentions requires. Between 10:00 and 11:00 a. m. on May 20, 1979, defendant shopped at the Big Bend Store in Fort Thompson. As defendant was leaving, Larry Abernathy, the owner of the store, stopped defendant and insisted he pay for the pair of blue jeans concealed beneath his clothes. Defendant gave money to Abernathy's fourteen year old son, Scottie, who was tending the till. As Scottie made change, defendant complained he was being cheated. After an argument with Scottie and Larry Abernathy, defendant relented and walked out of the store. He went to the residence of his cousin Velda Howe. After conversing with several people at the Howe residence and watching television there, defendant walked back toward the Abernathy store. Visitors leaving the store at about 11:15 a. m. saw defendant next door, in front of the Big Bend Motel. The Abernathys lived in the motel while they were working at the store.

Scottie Abernathy was last seen alive at the Abernathy store shortly before noon. His father noticed his absence and began to look for him. At about 12:45 p.m. he found Scottie's body on a couch in the motel office, his head beaten in with several blows of a baseball bat. The bat was found on an ottoman in the room. Prior to its use the bat had been stored in a motel hallway underneath a shelf.

The defendant was at a gas station directly south of the motel and store at about 12:30 p.m. He walked to the motel when a crowd gathered in response to the discovery of Scottie Abernathy's body. On defendant's shirt at this time was a spot of human blood in a quantity too small to be identified as to type. Defendant was questioned at the scene by Gerald Lytle, a Fort Thompson police officer. Defendant told Lytle he wanted to see his counselor, a social worker in a nearby town. Lytle took defendant to the police station but did not question him further.

That afternoon, at about five p.m., FBI agents interviewed defendant for about one hour. Defendant denied killing Scottie Abernathy and was permitted to go home.

That evening, defendant told his brother-in-law, Quinton McGhee, that he had killed "Jackie" by splitting his head open with a baseball bat. Defendant told McGhee he had assaulted "Jackie" because Larry Abernathy had tried to make defendant pay for a pair of pants he was wearing. Defendant stated he had thrown the bat behind "the couch" after using it. He opined there must have been a gallon of blood on the couch.

Defendant was arrested the next afternoon for the murder of Scottie Abernathy. Both before and after the arrest, defendant made statements in the presence of law officers that indicated his animosity toward Larry Abernathy and his probable involvement in the killing of Scottie.

II. Competency to Stand Trial

Defendant's first contention is that the district court was clearly erroneous in finding him competent to stand trial. Due process requires that a defendant be tried only if he is competent to assist in his own defense. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). In aid of this due process right, Congress enacted 18 U.S.C. § 4244, which provides for a pretrial hearing, upon proper motion, to ascertain the accused's mental capacity to stand trial. The two-prong test applied under section 4244 is whether the accused "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960).

The district court held a section 4244 competency hearing on August 27, 1979, about sixteen weeks before trial. Upon review of written reports and testimony of four witnesses, including two psychiatrists, the court found defendant competent. The court denied defendant's motion for a second competency hearing ten days before trial. This motion apparently rested on psychiatric reports filed after the court's initial determination of competency. Defendant also sought a competency hearing during the trial. This motion was also denied.

The court's determination of competency is a factual finding which must be affirmed unless clearly arbitrary or unwarranted, United States v. Maret, 433 F.2d 1064, 1067 (8th Cir. 1970), cert. denied, 402 U.S. 989, 91 S.Ct. 1678, 29 L.Ed.2d 155 (1971), Feguer v. United States, 302 F.2d 214, 236 (8th Cir.), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110 (1962), or clearly erroneous. Butler v. United States, 384 F.2d 522, 523 (8th Cir. 1967), cert. denied, 391 U.S. 952, 88 S.Ct. 1854, 20 L.Ed.2d 865 (1968). Cf. United States v. Aponte, 591 F.2d 1247, 1249 (9th Cir. 1978) (clearly erroneous standard of review); United States v. Hayes, 589 F.2d 811, 822 (5th Cir.), cert. denied, 444 U.S. 87, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979) (clearly arbitrary or unwarranted standard of review); United States v. Caldwell, 543 F.2d 1333 (D.C.Cir.1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (clearly arbitrary or erroneous standard of review). If the initial determination of competency is not clearly unwarranted, refusal to hold a second hearing must also be affirmed unless the court abused its discretion in light of new evidence and the length of time elapsed from the prior determination. United States v. Cook, 418 F.2d 321, 324 (9th Cir. 1969). See generally Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975) ("defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence * * * are all relevant in determining whether further inquiry is required").

Some of the evidence introduced at the August 27 hearing tends to support the view that defendant was not competent to stand trial. This evidence showed that defendant, age 21, had a history of epileptic seizures and behavioral disorders stemming from his early childhood. He dropped out of school in the fifth grade. His Intelligence Quotient (IQ) was rated "dull normal," in the bottom fifteen percent of the population. The experts agreed defendant suffered from some mild degree of brain damage. One witness, psychologist Dr. Mary Curran, testified defendant had "poor verbal skills" and made "idiosyncratic use of language." She doubted defendant could provide counsel with an integrated version of his activities at the time of the offense. Supporting this assessment was psychiatrist Dr. Daryl Stephenson, who testified that defendant had "a very childish immature kind of appreciation of (the charges made against him)" and would not be able to give a full and accurate report of events to his attorney.

Other evidence, however, supported the contrary view that defendant was capable of understanding the proceedings and communicating with his counsel. The district court evaluated this evidence in its August 30 opinion:

(Psychiatrist Dr. David Bean) stated that he found that defendant understands that he had been charged with the killing of the victim, and that he comprehends that if he is found guilty, he will go to jail. Further, Dr. Bean testified that defendant has a detailed memory of many of the events in question. The fact defendant sometimes gives incorrect answers to some questions Dr. Bean ascribes to the fact defendant has gotten incorrect information, and not because defendant is mentally unable to give the correct answer.

Dr. Bean testified that while an attorney may have an initial problem in understanding defendant, this is because defendant's first contacts with other people cause him to become anxious and confused. As this anxiety reduces, the defendant is capable, in Dr. Bean's view, of coming up with a reasonable factual record with reasonable consistency. Counsel would have to take pains to talk to defendant simply to make sure defendant understands what is being discussed, but Dr. Bean was sure, if this was done, defendant could grasp the implications of his trial,...