JAMES DONALD SMITH, JR., PETITIONER V. UNITED STATES OF AMERICA No. 90-6022 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The court of appeals' opinion (Pet. App. 1-7) is unreported, but is noted at 909 F.2d 1480 (Table). JURISDICTION The judgment of the court of appeals was entered on July 20, 1990. The petition for a writ of certiorari was filed October 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court erred in not holding a second hearing on the day of trial on the question of petitioner's competence to stand trial. STATEMENT After a jury trial in the United States District Court for the Western District of Texas, petitioner was convicted of possessing a firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1). He was sentenced to the minimum mandatory term of 15 years' imprisonment under 18 U.S.C. 924(e)(1), because he had three previous convictions for violent felonies. The court of appeals affirmed. 1. Around midnight on July 1, 1988, San Antonio Police Officer Lee Tappan observed an automobile driving through a residential neighborhood without headlights. Officer Tappan stopped the car for questioning. Petitioner was the driver, and a woman was the sole passenger. When petitioner refused to produce his license and proof of insurance in response to a request from Officer Tappan, he was placed under arrest. Pet. App. 2. Inside the automobile, draped over the front seat, the officer found a man's blue jean jacket, the pocket of which held a .22 caliber revolver. When questioned by Officer Tappan, petitioner admitted that he owned the gun and stated that he needed the gun for his personal protection. The officer also questioned the woman passenger, who made no claim to the gun. Pet. App. 2. In October 1988, Special Agent Dan Carrasco of the Bureau of Alcohol, Tobacco and Firearms took petitioner's fingerprints and questioned him about ownership of the gun. Petitioner again admitted that he owned the gun. Pet. App. 2-3. 2. Before trial, on the motion of petitioner's court-appointed counsel, petitioner was transferred to the Medical Center for Federal Prisoners in Springfield, Missouri, where mental health professionals conducted a competency examination of petitioner. Subsequently, petitioner was examined separately by Dr. John C. Sparks, Director of the Medical/Psychiatric Department for the County of Bexar, Texas, and by Arthur G. Bouton, Ph.D., a clinical psychologist, who was assisted by Betsy Bouton Puentes, M.A., a psychological associate. On September 12, 1989, the district court conducted a mental competency hearing. The court heard testimony from Dr. Sparks and Ms. Puentes, and all three reports of petitioner's psychiatric examinations were entered into evidence. Pet. App. 3, 5. All of the examinations had similar findings. Petitioner was diagnosed as being schizophrenic and having intelligence in the subnormal range. Id. at 5. Dr. Sparks and Ms. Puentes testified that petitioner's schizophrenia was then in remission due to medication. The same opinion was expressed in their reports. Id. at 5-6. The expert reports and live witnesses were unanimous that petitioner was able to understand the nature and consequences of the proceedings against him and was able to assist properly in his defense. Id. at 6. The district court found that petitioner was competent to stand trial. 3. About two weeks later, on the day of trial, September 27, 1989, petitioner's court-appointed counsel brought to the district court's attention that petitioner recently had not been receiving his usual medication, Thorazine, because he had adversely reacted to it, and that petitioner instead was receiving Vistaril, an antipsychotic drug with the same therapeutic effect as Thorazine. 3 Tr. 4. Counsel told the court: "(T)he doctors both testified that without the medication that (petitioner's) ability to communicate would diminish and that he would be hallucinating. I honestly need to explain to the court that I have not discovered any symptoms, that I could see, of hallucinations. However, he, virtually, refuses to communicate with me at all." Ibid. The district judge asked petitioner directly: "Are you having problems communicating with your attorney? Do you get along with Mr. Brake?" 3 Tr. 6. Petitioner answered: "I don't feel he's doing a proper job." Ibid. Based on petitioner's responsiveness to his question and the substance of petitioner's response, the court found that the problem of non-communication with counsel was within petitioner's control. The court therefore directed that the trial go forward without another competency hearing. 3 Tr. 6-7. /1/ Petitioner was convicted of possessing the pistol while a convicted felon. Because petitioner had four previous burglary convictions, he was subject to a mandatory minimum 15-year sentence under 18 U.S.C. 924(e)(1), and he received the minimum. 4. Petitioner appealed and presented two arguments to the court of appeals: (1) the evidence was insufficient to prove that he possessed the gun, and (2) the district court erred in finding that he was competent to stand trial given the testimony of one expert that petitioner would not be able to understand much of what was said in a courtroom. Br. of Appellant vii (Issues Presented for Review), 4-5 (Summary of the Arguments), 6-11 (Argument and Authorities). The court of appeals affirmed. Pet. App. 1-7. It upheld the district court's finding that petitioner was competent to stand trial based on the evidence presented at the pretrial competency hearing, and it rejected petitioner's argument that the evidence was insufficient to prove that he "possessed" the firearm. The court of appeals did not discuss the contention that petitioner now raises -- i.e., whether the district court erred in not holding a supplemental competency hearing on the day of trial to determine whether petitioner was still competent to stand trial -- because petitioner did not present that claim to the court of appeals. ARGUMENT Petitioner argues that the failure of the district court to conduct a supplemental inquiry into petitioner's competency on the day of trial violated due process and 18 U.S.C. 4241. Pet. 5-13. Because that claim clearly lacks merit and since this case raises no substantial question regarding the standard for conducting a supplemental competency determination, this case does not warrant further review by this Court. 1. A defendant cannot be forced to stand trial if, due to a mental disease or defect, he is "incompetent," 18 U.S.C. 4241(d); Drope v. Missouri, 420 U.S. 162, 171-172 (1975); Pate v. Robinson, 383 U.S. 375, 378 (1966), and a defendant is incompetent if he lacks "a rational as well as factual understanding of the proceedings against him" or a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding," Dusky v. United States, 362 U.S. 402, 402 (1960); Drope v. Missouri, 420 U.S. at 172. A district court must hold a hearing on a defendant's competency if there is "reasonable cause" to believe that he is incompetent to stand trial. 18 U.S.C. 4241(a). See also Drope v. Missouri, 420 U.S. at 172 (concluding that a "reasonable cause" standard "is, on its face, constitutionally adequate to protect a defendant's right not to be tried while legally incompetent"). In this case, the district court conducted a pretrial hearing on petitioner's competence to stand trial. The court found that petitioner was mentally ill, but nonetheless was competent to stand trial. The question whether the defendant is competent to stand trial is a question of fact, Demosthenes v. Ball, 110 S. Ct. 2223, 2225 (1990); Maggio v. Fulford, 462 U.S. 111, 117 (1983), and the record amply supports the district court's finding in this regard. See Demosthenes v. Ball, 110 S. Ct. at 2225 (the record supported state court's finding of competency when three psychiatrists who had examined the prisoner testified that he was competent). The court of appeals unanimously upheld the district court's finding, and petitioner does not challenge it in this Court. Instead, he maintains that the district court erred in not conducting a second competency hearing on the day of trial. That claim lacks merit. In Drope v. Missouri, supra, the Court considered the question presented by this case: what circumstances at trial indicate that the trial judge should conduct an inquiry into the defendant's competence to stand trial. The Court explained that "evidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient." 420 U.S. at 180. At the same time, the Court also cautioned that "(t)here are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated." Ibid. Finally, the Court also noted that "(e)ven when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial." Id. at 181. On the facts of that case, the Court ruled that the trial court had erred in not conducting a hearing into Drope's competency based on the evidence of his behavior before trial as well as his suicide attempt during the trial. Id. at 178-182. In this case, after a hearing petitioner was found competent to stand trial based on the concurrent opinions of three experts who conducted independent mental competency examinations focusing specifically on petitioner's competence to stand trial. No new psychiatric or psychological evidence was thereafter presented to the district court that could have impeached the court's finding. When a question arose on the day of trial regarding petitioner's reaction to a change in his medication, the trial judge questioned petitioner directly. Petitioner's alert response to the judge's question supported the judge's finding that petitioner understood what was going on about him. See Demosthenes v. Ball, 110 S. Ct. at 2225. None of the factors articulated in Drope counselled in favor of holding an additional competency hearing. The due process requirement that petitioner understand the circumstances of the trial and its potential consequences for him was satisfied by petitioner's evident awareness of what was happening. Although petitioner appeared resistant to communicating with his appointed counsel, the district court acted within its discretion in finding that petitioner's noncommunicative attitude was a matter within his control. Thus, there was no infringement on petitioner's right to counsel. Petitioner also does not suggest that there was any special feature of this case that rendered it too complicated for someone like petitioner to understand or to communicate effectively with his counsel. The proof that the gun was discovered in a man's coat on the seat of the car next to petitioner, coupled with his admission on two occasions that the gun belonged to him, provided irrefutable proof of petitioner's guilt of possessing the weapon. Petitioner also apparently cooperated with counsel except for the few days before the one day of trial. Petitioner does not suggest what benefit freer communication would have yielded during trial. And since petitioner received the statutory mandatory minimum term of imprisonment for his offense, his sentence could not have been adversely affected by any difficulty he had communicating with counsel. 2. Petitioner refers to various cases that have articulated different verbal formulations of the standard for deciding whether a hearing on a defendant's competence is required. Pet. 9-11. He claims that review is warranted to adopt a single formulation of the appropriate standard. That contention, however, lacks merit, for several reasons. First, in Drope v. Missouri, 420 U.S. at 172, this Court held that the Missouri standard there considered was facially adequate to protect a defendant's right not to be tried while incompetent. Missouri law required a court, on its own motion or the motion of the prosecution or defendant, to order a psychiatric examination of a defendant whenever the court "has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed." Mo. Rev. Stat. Section 552.020(2) (1969). Federal law applies the same standard. 18 U.S.C. 4241(a) (district court shall hold a competency hearing "if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent"). Accordingly, the federal statutory standard is also constitutionally adequate on its face. Because petitioner does not claim that the federal standard was improperly applied in this case, review of the question he does present is unnecessary. Second, it is doubtful whether the various standards set forth in the cases petitioner cites -- e.g., a "bona fide doubt" as to competency, a "reasonable doubt" as to competency, or a "reasonable cause to doubt competency" -- differ in any material way from each other. The Court's decisions prove that point. Drope v. Missouri, 420 U.S. at 172, concluded that the Missouri "reasonable cause" standard is sufficient, while Pate v. Robinson, 383 U.S. at 385, concluded that the Illinois "bona fide doubt" standard, Ill. Rev. Stat. ch. 38, Section 104-2 (1963), is also sufficient. Any difference among these standards is a purely semantic one that is not likely to have any practical effect in individual cases. In that regard, petitioner has not explained how his case would have been resolved differently under these various standards. As explained above, there was an insufficient basis in this record for finding that petitioner's mental state had changed sufficiently after the competency hearing that the district court erred in not conducting another hearing on the day of trial. Finally, as petitioner acknowledges, the court of appeals in this case did not address this issue. Accordingly, the decision below cannot be said to have adopted a rule of law that conflicts with the rule adopted by any other court. Petitioner criticizes the court of appeals for not considering this issue, but petitioner did not present to the court of appeals as a basis for reversal the claim that the district court erred in not holding another competency hearing on the day of trial. In fact, petitioner mentioned this point in only one sentence in his brief, as an aspect of the completely separate claim -- which he does not make here -- that the district court erred in finding petitioner competent in the first instance based on the psychiatric evidence at the pretrial competency hearing. Br. for Appellant 10 ("The error was compounded when the court insisted in proceeding to trial even after counsel informed him as the trial was about to begin, several days after the competency hearing, that (petitioner) seemed less able than ever to participate in his own defense."). The court of appeals cannot be faulted for not addressing an argument that petitioner never made. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney DECEMBER 1990 /1/ The district court's reasoning is evident from the following statement he made to petitioner immediately after petitioner answered "I don't feel (counsel's) doing a proper job": Well, at this stage we already have a jury and they're going to go forward, and I think it's in your best interest to try to work with Mr. Brake so he can try to see if he can get you off on this case. And, the harder time you give him, the more difficult it's going to be for him to try to properly represent you. If you don't talk to him, he's in a hard situation to try to do what's best for you. So, you need to try to cooperate and work with him. And I think it's in your best interest that you try to do that. Because, if he tries to defend you here and you refuse to talk to him, it could be a handicap for him and hurt your chances of convincing a jury of your innocence. 3 Tr. 6. When counsel then asked petitioner, "Is there anything you need to talk to me about?", petitioner responded, "Nope." 3 Tr. 7.