United States v. Davis, 17128.

• Decision Date: 16 August 1966
• Docket Number: No. 17128.,17128.
• Citation: 365 F.2d 251
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Pickens DAVIS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

365 F.2d 251 (1966)

UNITED STATES of America, Plaintiff-Appellee, v. James Pickens DAVIS, Jr., Defendant-Appellant.

No. 17128.

United States Court of Appeals Sixth Circuit.

August 16, 1966.

Wilkes T. Thrasher, Jr., Chattanooga, Tenn., for appellant.

Charles J. Gearhiser, Asst. U. S. Atty., Chattanooga, Tenn. (J. H. Reddy, U. S. Atty., Chattanooga, Tenn., on the brief), for appellee.

Before PHILLIPS, EDWARDS and CELEBREZZE, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal from the order of the district court committing defendant-appellant to the custody of the Attorney General under 18 U.S.C. § 4246, until he became mentally competent to stand trial.

Defendant was indicted for bank robbery and kidnapping. One indictment charged him with robbing the Red Bank Branch of the Hamilton National Bank, Chattanooga, Tennessee, and with assaulting three bank employees and putting their lives in jeopardy by use of a .38-caliber revolver, in violation of 18 U.S.C. § 2113(d). The other indictment charged him with kidnapping Dr. Robert G. Demos, and transporting him in interstate commerce from Chattanooga, Tennessee, to Rome, Georgia, and holding him for ransom or reward or otherwise, to facilitate defendant's escape and to avoid apprehension, in violation of 18 U.S.C. § 1201.

Defendant was arrested during the night following the bank robbery and kidnapping, March 26, 1965, or in the early morning of March 27. On March 30 defendant executed an affidavit of indigence and requested the appointment of counsel to assist him in preparation for his trial. The district court appointed two reputable attorneys of the Chattanooga bar, Mr. Henry Grady and Mr. Ward Crutchfield.

On April 3, 1965, the United States Attorney filed a motion requesting a hearing as to the mental competency of defendant to assist in his defense. The court directed an examination pursuant to 18 U.S.C. § 4244. On June 3, 1965, a hearing was held, in which Dr. James S. Cheatham, the examining psychiatrist at Moccasin Bend Psychiatric Hospital at Chattanooga, filed his report and testified. The court concluded that defendant was not capable at that time of cooperating with his counsel and accordingly entered an order directing that he be committed for proper treatment.

Thereafter defendant was taken to the United States Medical Center at Springfield, Missouri. A report dated September 27, 1965, from the psychiatric staff at the Medical Center expressed the opinion that defendant at that time was competent to cooperate adequately with counsel to present the defense of his case. A further hearing was held on November 19, 1965, at which Dr. Louis Moreau from the Medical Center testified and defendant also made a statement. From this hearing the court concluded that defendant was competent to stand trial.

Trial was set for December 15. At a preliminary hearing on December 9 defendant requested the court to discharge his attorneys and appoint additional counsel. The court ruled that the motion was not based on good cause and denied the request, but designated a third attorney, Mr. Wilkes T. Thrasher, Jr., who also is a reputable member of the Chattanooga bar, to assist in the defense of the accused. As a result of this hearing, the trial date was cancelled and defendant was ordered transported to the office of Dr. Cheatham for further psychiatric examination.

On January 10, 1966, the defendant again moved that his attorneys be discharged. The court refused this request and a further hearing was held as to defendant's competency. The court reserved judgment until January 13, 1966, in order to allow defendant to obtain further psychiatric examination. On January 13 the United States Attorney and defendant, in person and by counsel, appeared again in court and the case was passed until January 25 to allow for further psychiatric examination of defendant by a psychiatrist of defendant's own selection, but at Government expense.

On February 3, 1966, a further hearing was held in open court at which defendant's psychiatrist, Dr. Peter L. DeRuiter, testified. The court concluded that defendant was not able or willing to cooperate with counsel and that defendant should be hospitalized at St. Elizabeths Hospital, Washington, D. C. An order was accordingly entered on February 4. On the same day defendant indicated his intent to appeal.

On February 15 the court permitted Mr. Grady to withdraw as counsel, leaving Mr. Crutchfield and Mr. Thrasher as court-appointed counsel. Mr. Thrasher represented defendant on his appeal to this court.

On appeal defendant contends:

(1) That the district court committed reversible error in refusing to discharge his court-appointed counsel and to appoint successive counsel until two attorneys had been appointed who were satisfactory to defendant (2) That the district judge abused his discretion in ordering another hearing and in making another determination upon the question of the defendant's mental competency, after having held him to be competent;

(3) That the confinement of defendant in mental institutions has violated his right to a speedy trial under the Sixth Amendment; and

(4) That the district court had no jurisdiction to commit him to a mental institution without a trial by jury.

1) The right to court-appointed counsel

In support of defendant's first contention, reliance is placed upon 18 U.S.C. § 3005, which provides: "the court shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire * * *" Defendant contends that under this statute the court must appoint such counsel "as he may desire" and discharge and appoint new attorneys whenever requested.

It is noted that, in order for 18 U.S.C. § 3005 to be applicable, a capital offense must be charged. Since defendant is charged with violation of the Federal Kidnapping Act, 18 U.S.C. § 1201, we treat this as a case falling within the scope of § 3005.

Defendant contends that § 3005 confers upon him not only the right to two attorneys, but also the right to two attorneys of his own selection. Further, he asserts the right to discharge his court-appointed counsel at will, in which event he contends that the trial judge must appoint two substitute attorneys, and that this process of discharging old counsel and appointing new counsel must be continued at the option of defendant, "as he may desire." We find no decision placing such a construction upon the statute, and we refuse to adopt this construction.

It is the general rule that the right to court-appointed counsel does not carry with it the right to select a particular attorney. United States v. Burkeen, 355 F.2d 241, 245 (C.A. 6), and cases therein cited. The choice of court-appointed counsel is for the court and not for the defendant. United States ex rel. Mitchell v. Thompson, 56 F.Supp. 683 (S.D.N.Y.).

The plan adopted by the Judicial Council for the Sixth Circuit under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A, expressly provides that:

"The selection of counsel shall be the sole and exclusive responsibility of the court, and any defendant entitled to representation under the Act shall not be permitted to make the selection of an attorney to represent him from the panel or otherwise."

We construe the words "as he may desire" in § 3005 to do nothing more than to confer upon the defendant in a capital case the option of whether one attorney or two attorneys will be appointed to represent him. The defendant is not entitled to more than one counsel except upon his request. Crum v. Hunter, 151 F.2d 359 (C.A. 10), cert. denied, 328 U.S. 850, 66 S.Ct. 1117, 90 L.Ed. 1623.

After two attorneys had been appointed for defendant in the present case, the district court was not required to set aside the prior appointment of counsel and appoint new counsel in the absence of a showing of good cause. United States v. Burkeen, supra, 355 F. 2d at 245 and cases therein cited. We have examined the record in the present case and find that defendant has not shown good cause for the discharge of his court-appointed attorneys.

2) The additional hearing on the issue of mental competency

The next contention is that the trial judge abused his discretion in ordering another hearing and in making another determination upon the question of defendant's mental competency, after having adjudged him to be competent.

In a proceeding under 18 U.S.C. § 4244, it is the obligation of the district judge to make a judicial determination of the mental competency of the accused. In considering the question of mental competency, the courts have found no problem in the trial judge adequately satisfying himself that the defendant is competent to stand trial, even to the extent of holding more than one hearing, although the statute does not specifically provide for a second hearing. Feguer v. United States, 302 F.2d 214 (C.A. 8), cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110; Crabtree v. United States, 209 F.2d 164 (C.A. 5), cert. denied 347 U.S. 961, 74 S.Ct. 710, 98 L.Ed. 1104; United States v. Levy, 232 F.Supp. 661 (N.D.Fla.). See also Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412, where the court recognizes that more than one hearing may be held, in order that the trial judge can satisfy himself adequately as to the competency of the accused.

In Amador Beltram v. United States, 302 F.2d 48, 50 (C.A. 1), which is relied upon by defendant, the court held that the trial judge has no affirmative duty to conduct, sua sponte, a second inquiry as to the competency of an accused, "unless the court is on notice that something is amiss." The record in the present case establishes conduct on the part of defendant in open court that was sufficient to raise a question in the mind of the district judge that something might be "amiss." In this situation it was the obligation of the district court to hold another hearing. Pate v. Robinson, 383 U.S. 375, 86 S.Ct....