United States v. Hill

• Decision Date: 15 December 1975
• Docket Number: No. 74-1339.,74-1339.
• Citation: 526 F.2d 1019
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alf HILL, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

526 F.2d 1019

UNITED STATES of America, Plaintiff-Appellee, v. Alf HILL, Jr., Defendant-Appellant.

No. 74-1339.

United States Court of Appeals, Tenth Circuit.

Argued August 19, 1975.

Decided December 15, 1975.

Certiorari Denied April 19, 1976.

COPYRIGHT MATERIAL OMITTED

Leonard D. Munker, Federal Public Defender, Wichita, Kan., for defendant-appellant.

Bruce E. Miller, Asst. U.S. Atty., Topeka, Kan. (E. Edward Johnson, U.S. Atty., Topeka, Kan., on the brief), for plaintiff-appellee.

Before HILL, SETH and McWILLIAMS, Circuit Judges.

HILL, Circuit Judge.

This appeal follows appellant's conviction for one count of violating 18 U.S.C. § 111¹ and one count of violating 18 U.S.C. § 1792.² Only a very brief factual statement is required.

On October 11, 1973, appellant, an inmate in the United States Penitentiary at Leavenworth, Kansas, was taken from his second floor cell to attend a good time forfeiture hearing on the first floor of the maximum security building. After a brief time in the hearing room, appellant came out and eventually started walking toward a restricted area. Two prison officers commanded him not to go there; appellant proceeded, and one officer took appellant by the arm and pulled him back. Appellant started swinging at the officers, and a brawl followed. During the struggle appellant screamed such things as the following: "20 to 30 of the . . . pigs kicking me in my testicles and my head," "They broke my nose," "There is 20 or 30 of these people just beating me up," "They broke my arm," and "They broke my leg." Officers testified that in response to these yelled statements inmates who were in their cells broke glass and wooden doors, yelled, and started fires.

A two-count indictment was returned against appellant on November 14, 1973. Trial commenced on March 4, 1974; a verdict of guilty on both counts was returned by the jury.

Appellant initially contends the trial court erred in denying his counsel's request for a continuance. The motion for continuance was filed three days before the trial setting. In the affidavit supporting that motion, appellant's counsel alleged, inter alia, the investigation of the facts was far from complete due to restrictions placed on the court-appointed investigator and law student investigators by penitentiary personnel and hindrances placed upon appellant's representative in reviewing government files. A supplemental affidavit, filed by two of appellant's three counsel, explained that on February 28, 1974, appellant had advised them he did not want to retain his counsel; in another case involving appellant, a judge had granted leave for counsel to withdraw. On appeal, appellant mentions the lack of rapport between his out-of-district counsel and the court, the notoriety of the case, the numerous requests of appellant, and the court's limited knowledge of the facts as indicating an abuse of discretion in denying the continuance.

Consideration of these contentions is based on the well-established rule that "the trial court is vested with discretion as to granting a continuance. Its exercise will not be disturbed on appeal in the absence of a clear showing of abuse resulting in manifest injustice." United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973). Our review of the record convinces us no abuse of discretion occurred in denying this motion for continuance. One attorney had entered his appearance on November 27, 1973, two other attorneys had entered their appearances on January 24, 1974. Services of a court-appointed investigator were utilized. No showing of inadequate time to investigate and prepare for trial is made. See United States v. Harris, 441 F.2d 1333 (10th Cir. 1971). The record does not show any injustice resulting from the denial of this continuance request.

Another error alleged is the trial court's denial of the motions of appellant's counsel for an independent psychiatric examination of appellant under 18 U.S.C. § 4244. On February 27, 1974, appellant's counsel, in a telephone conversation with the trial judge, first raised the issue of appellant's lack of competency to stand trial. The trial judge directed a mental examination of appellant pursuant to § 4244. The examination was conducted by Dr. Karl K. Targownik. Regrettably, the examination was not thorough, as appellant points out. Appellant indicated to Dr. Targownik that he desired to discuss the matter with his counsel before submitting to the examination, and Dr. Targownik acceded to appellant's desire. Thus, the examination was terminated following a very brief exchange. On the first day of trial, appellant's counsel filed a motion for an independent psychiatric examination. That motion indicated it formalized the concern expressed previously and discussions had at a pre-trial hearing. Allegations in an affidavit supporting that motion included the following: appellant could not grasp concepts as fast as when counsel first met him, appellant frequently went into tangential subjects, appellant was very suspicious of prison employees, and appellant was unable to concentrate on subjects vital to his defense.

This motion was considered prior to the start of the jury selection. Dr. Targownik testified concerning the examination. From his written report, he read:

Since the undersigned did not complete a full psychiatric examination, therefore he cannot form a medical diagnostic opinion, but can express a clinical impression of high degree of medical scientific certainty that this man is competent to stand trial.

In denying the motion, the trial judge pointed to the omnibus hearing report which indicated no claim of any mental incompetency of appellant to stand trial would be made. The judge mentioned the telephone call where appellant's counsel implied that if the court did not grant a continuance the issue of competency to stand trial might be raised (an interpretation of the call challenged by appellant's trial counsel). The court further recognized efforts of appellant to avoid going to trial. The court found:

. . . the suggestions made by the defendant's counsel that the defendant might not be competent to stand trial was sic not made in good faith, but amounts sic simply to a ruse to obtain a continuance . . .. There does not now appear to be anything on which to form a credible basis justifying the need of a mental examination of this defendant . . .. The Court does find that he is mentally competent to stand trial, and he is able to understand the proceedings against him and to properly assist his counsel in his defense.

Appellant's counsel then orally moved for an examination by an independent psychiatrist. In response to that further motion, the court stated:

. . . the Court out of an abundance of precaution directed this be done as a result of the statement, which the Court now finds wasn't made in good faith, and really would have required no examination . . .. This is nothing but another ruse of the defendant to try to keep from going to trial.

Appellant cites United States v. Burgin, 440 F.2d 1092 (4th Cir. 1971), where the court said, "A district court is required to grant a § 4244 motion for a mental examination unless the motion is not made in good faith or the grounds for the motion are frivolous." See also Rose v. United States, 513 F.2d 1251 (8th Cir. 1975); Meador v. United States, 332 F.2d 935 (9th Cir. 1964). Appellant contends the court erred in failing to grant the motion, relying on the mandatory nature of the statute. The government answers that Burgin authorizes the trial court's action. The government points to the trial judge's explicit findings that the motions was were not made in good faith and contends the normally mandatory examination was properly denied.

We agree with the government. The Fifth Circuit in an analysis of § 4244 made the following statement:

Unquestionably there is an allowable range of discretion in the district judge in granting or denying a motion for a § 4244 examination citations omitted. But it is easy to misconceive the level of inquiry at which discretion is operative. As we have pointed out, the statute is mandatory in requiring an examination once the underlying criteria trigger its operation. The trial judge's discretion operates at two levels; that of determining whether there is an undergirding factual basis for "reasonable cause to believe," and whether the facts which the court accepts as existent are wholly insufficient to give rise to the alleged "reasonable cause to believe." Interwoven through both levels is the principle, as usually articulated, that the court may reject a motion which it considers to be frivolous or filed not in good faith. Once the two levels of analysis are passed, discretion drops out and the mandate of the statute takes over.

United States v. McEachern, 465 F.2d 833 (5th Cir.), cert. denied, 409 U.S. 1043, 93 S.Ct. 539, 34 L.Ed.2d 494 (1972).

The trial judge was acting within his range of discretion when he denied the motions for psychiatric examination on the ground of lack of good faith in making the motions. To some extent the merits of the matter of incompetency became entangled in this determination, but the trial judge clearly determined these motions were ruses to obtain a continuance. Appellant has not attacked this finding. The trial court, on this record, did not err in denying the motions for an independent psychiatric examination of appellant.

Appellant contends the court erred in overruling requests that appellant be allowed to appear in propria persona and also to be represented by counsel. Appellant points to another morning-of-trial motion in which his counsel moved to allow appellant "to assist at trial in his own defense." In suggestions filed in support of this motion, counsel said:

It is essential that defendant be represented by attorneys trained in the law at his trial. . . .

It is also essential, however, that defendant be allowed to assist in his own

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