United States v. Mercado, 210

• Decision Date: 22 November 1972
• Docket Number: Docket 72-1651.,No. 210,210
• Citation: 469 F.2d 1148
• Parties: UNITED STATES of America, Appellee, v. Hector Enrique MERCADO, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

469 F.2d 1148 (1972)

UNITED STATES of America, Appellee, v. Hector Enrique MERCADO, Appellant.

No. 210, Docket 72-1651.

United States Court of Appeals, Second Circuit.

Argued September 15, 1972.

Decided November 22, 1972.

John J. Kenney, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. of New York, and John W. Nields, Jr., Asst. U. S. Atty., on the brief), for appellee.

Sheila Ginsberg, New York City (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for appellant.

Before FRIENDLY, Chief Judge, and LUMBARD and FEINBERG, Circuit Judges.

LUMBARD, Circuit Judge:

This is an appeal from a judgment of the Southern District of New York, rendered April 28, 1972, wherein the district judge found that appellant Hector Mercado had violated the conditions of his probation, and he revoked probation and imposed a three year term of imprisonment. The major issues before Judge Ryan were appellant's contentions that he was incompetent at the time of the acts that he was charged with committing and that he was incompetent at the time of the hearing. Judge Ryan found that Mercado was competent at both times and revoked probation.

On March 13, 1970, Mercado pleaded guilty to one count of an indictment charging him with embezzling letters from the mail while he was a postal employee, in violation of 18 U.S.C. § 1709. He was sentenced as a youth offender under 18 U.S.C. § 5010(a) to a three year term of probation.¹

According to Morris Kuznesof, Mercado's probation officer, Mercado appeared to adjust well to probation during the next eight months.² He was enrolled at New York University in plant ecology and maintained a "B+" average. However, in January, 1971, appellant began to behave oddly. He dropped out of school, and in conversations with Kuznesof his thinking became confused and he exhibited inappropriate reactions. It was during this period that Mercado seems to have developed his strong feelings for Cynthane Morgenweck, a classmate of his at college, with whom he had hardly exchanged a word. Mercado explained to his probation officer that he had dropped out of school because he found it too painful to be near Miss Morgenweck and that he followed her around like a "puppy dog."

On April 13, 1971, a probation report was filed charging Mercado with having violated probation by failing to go to school or get a job and by refusing to follow the directions of his probation officer. A hearing on the alleged violations was held by Judge Ryan on October 7, 1971. Mercado took the position that he was suffering from mental illness, which made it impossible to comply with the requirements of his probation. Dr. Richard Sallick, a court-appointed psychiatrist and director of the Payne-Whitney out-patient clinic of New York Hospital, testified in support of his contention. On the basis of two personal interviews and a psychological examination done at Dr. Sallick's request by a Dr. Clarkin, Dr. Sallick concluded that Mercado was indeed incompetent.³ Accepting this testimony, Judge Ryan declined to find that Mercado had violated his probation, but committed him instead to the custody of the Attorney General under 18 U.S.C. § 5010(e), so that a study and evaluation of Mercado's mental condition could be made.⁴

On February 3, 1972, after defendant's return from the Federal Reformatory, Petersburg, Virginia, where the examination had been conducted,⁵ another hearing was held. The report submitted by the government contained a psychological evaluation by Dr. Kurt Morbitzer, who examined Mercado while he was at the Federal Reformatory and found him to be competent. Nevertheless, Judge Ryan continued Mercado on probation with the special condition that he not annoy Cynthane Morgenweck or her family.

The following day, February 4, 1972, a new petition was filed alleging that Mercado had violated the special condition of his probation by telephoning the Morgenweck family four times the previous evening. In addition to a determination of the substantive charges arising out of these telephone calls, the government agreed that a hearing would have to be held pursuant to 18 U.S.C. § 4244 on whether Mercado was competent to assist in his defense.⁶

That hearing, the one being appealed from, was held on April 28, 1972. The defense called Dr. Sallick who testified that, in addition to his previous interviews with the defendant, he had conducted another examination of Mercado on February 18, 1972. Thus, Dr. Sallick's examination was the most recent one, as it occurred after the defendant had returned from Petersburg, Virginia. Dr. Sallick testified that Mercado at first seemed much improved at the February 18 meeting. However, after some conversation it became clear that Mercado's "mental status had not significantly changed. . . . He continued to be rather unrealistic in his thinking, to manifest the continuing unrealistic concern and plans with regard to the young lady whom he had called." In addition, Mercado evinced the same inappropriate reactions that he had exhibited during the earlier examinations. The doctor found him confused about "some aspects of his own behavior, particularly with regard to his making the calls that night" and his thinking was to some degree "rambling" and "delusional." On the basis of these observations, Dr. Sallick asserted that the original diagnosis of a schizophrenic illness of a paranoid type was probably correct and gave his opinion that the defendant was not responsible for the acts which violated his probation; though the defendant was able to understand the wrongfulness of his conduct, he was unable to conform his conduct to the requirements of the law. See United States v. Freeman, 357 F.2d 606, 622 (2d Cir. 1966).

Concerning Mercado's competence to stand trial, Dr. Sallick testified that although Mercado could understand the charges against him, he was not able to aid in his own defense. See 18 U.S.C. § 4244; Lyles v. United States, 103 U.S. App.D.C. 22, 254 F.2d 725, 729-730 (1957). On cross-examination Dr. Sallick admitted that the defendant was perfectly capable of recalling past events and discussing them with his attorney, and that he was able to comprehend and discuss any possible defenses to the charges that he might have. However, Dr. Sallick did stress that Mercado was unable to explain his motivation in a rational way.

The government did not call any witnesses in rebuttal. It had intended to call Dr. Morbitzer, who had examined Mercado at the Federal Reformatory, Petersburg, Virginia, but because of an illness in Dr. Morbitzer's family, he was unable to attend the hearing. Instead, over defendant's objection, the government sought to rely on the eleven page report which had been done at the Federal Reformatory, especially Dr. Morbitzer's one-and-one-quarter-page psychiatric report contained therein.

According to Mercado's uncontradicted testimony, Dr. Morbitzer had had only one interview with him, which lasted a half hour to forty-five minutes. Dr. Morbitzer disagreed with the previous diagnosis.⁷ He stated that "the psychotic or neurotic features evidenced were not particularly detrimental or . . . significant" and his diagnosis was that Mercado was an emotionally unstable personality.

Also included in the eleven page study was a psychological report by a Dr. Martin Bohn, Chief of the Psychology Program at the Federal Reformatory, Petersburg, Virginia,⁸ in which Dr. Bohn seems to have found many of the same symptoms as Dr. Sallick. He stated that Mercado could not maintain a single train of thought, smiled at inappropriate times, and had unusual thought patterns. Dr. Bohn concluded that "some schizophrenic process is involved, although the paranoid features are not readily evident at present."

On the basis of this evidence, Judge Ryan concluded that the defendant was competent to aid in his defense and that he was competent at the time of the commission of the acts charged. Judge Ryan stated that Dr. Sallick was perhaps too sympathetic to the defendant and that this had interfered with his professional judgment. The defendant then pleaded not guilty to the substantive charges that he had made several telephone calls to the Morgenweck Family on the evening of February 3, 1972. The government called Mrs. Morgenweck, Cynthane's mother, who testified that the calls had occurred. The government rested, and Mercado took the stand in his own defense. He admitted making the calls and tried to explain why. He also recounted his experiences during his conversations with Dr. Morbitzer and Dr. Sallick. The government declined to cross-examine the defendant and Judge Ryan proceeded to revoke probation and impose a three year term of imprisonment.

Mercado raises three objections to the district court's findings of competence and responsibility. Mercado first claims that both results were against the weight of the evidence. He...