United States v. Irvin, 23773.
Decision Date | 08 October 1971 |
Docket Number | No. 23773.,23773. |
Citation | 450 F.2d 968 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Hubert Hall IRVIN, Jr., Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
James McWilliams (argued), San Francisco, Cal., for defendant-appellant.
John M. Newman, Jr., Asst. U. S. Atty. (argued), Roger A. Browning, Asst. U. S. Atty., Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Irving Prager, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before DUNIWAY, ELY and KILKENNY, Circuit Judges.
Irvin appeals from a judgment of conviction of bank robbery, 18 U.S.C. § 2113 (a), (d), and (e). We need consider only his claim that the trial judge should have granted his counsel's motion for an examination to determine his competency to assist in his own defense. We reverse.
On November 6, 1967, the case was set for trial on Tuesday, December 5, 1967. On that day, Irvin's appointed counsel stated that she had "a motion to make," and the following occurred:
A jury was then empanelled and the matter recessed until December 9. On that day, before the jury was brought in, Irvin's counsel told the trial judge that Irvin "has further stated to me to reiterate to the court that he does not feel he is competent to assist in his defense at this time." The judge replied: "The court has already found, and finds again, for purposes of the record, that the defendant Irvin is competent to assist in his defense."
These proceedings do not comport with the requirements of 18 U.S.C. § 4244.1 It does not matter whether we view the trial judge's action as a finding, on the merits of the issue, that Irvin was competent to stand trial, or as simply a denial of Irvin's motion for a psychiatric examination to determine his competency. Under either view, the requirements of the section were not met.
We have trod this ground before. Meador v. United States, 9 Cir., 1964, 332 F.2d 935; Morris v. United States, 9 Cir., 1969, 414 F.2d 258. A motion to determine competency under section 4244 can be denied without granting a psychiatric examination only if the trial judge correctly determines that the motion is frivolous or is not in good faith or does not set forth the grounds relied upon for believing that the accused may be incompetent. Meador, supra. Otherwise, a finding of competency can be made only following a psychiatric examination and report. No suggestion of frivolity or bad faith appears on this record, and counsel's statements adequately presented the grounds for her belief that Irvin was unable to assist her — namely, that he in fact did not assist her and that he positively appeared to her to be unable to do so. We need not decide whether, had the trial judge's personal inquiries into Irvin's own feelings about his competency been more thorough, the "reasonable cause" already made out could, under section 4244, have been dispelled. Here the questioning of Irvin was perfunctory, to say the least, and Irvin's answers were as ambiguous as the questions were perfunctory.
Section 4244 cannot be construed to require a formal written motion, of the sort filed in Meador, supra. Such a construction would be inconsistent with the mandatory requirement that the trial judge order a psychiatric examination on his own motion whenever there appeared "reasonable cause" to support a belief of possible incompetency. Morris, supra. Counsel's informal motion, renewed at trial, sufficed to supply such "reasonable cause."
We must "reverse the judgment and remand the case for a new trial, with opportunity for a determination of appellant's mental competency to participate in the new trial." Meador, supra, 332 F. 2d at 938 (emphasis added). Accord, Dusky v. United States, 1960, 362 U.S. 402, 403, 80 S.Ct. 788, 4 L.Ed.2d 824 (per curiam); Morris, supra, 414 F.2d at 259. Under these decisions, it would not be appropriate to remand for a "nunc pro tunc" hearing to determine whether Irvin was in fact competent at the time he stood trial. Such cases as United States v. Pennington, 9 Cir., 1971, 439 F.2d 145, and United States v. Shea, 9 Cir., 1970, 436 F.2d 740, 743, did not involve either section 4244 or the "difficulties of retrospectively determining the accused's competency as of more than a year ago." Dusky v. United States, supra, 362 U.S. at 403, 80 S.Ct. at 789.
Reversed and remanded for proceedings consistent with this opinion.
The fact that appellant did not cooperate with his attorney does not establish that he was unable to assist in his own defense. One accused of bank robbery, such as appellant, when faced with the adverse testimony of at least four eyewitnesses, might have excellent reasons for not responding to an attorney's questions. For example, he might know that he had no defense. In such case, why should he waste his time answering a lawyer's questions? I...
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