United States v. Hess

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 20, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-4281
v. (D.Ct. No. 2:07-CR-00085-DLR-1)
(D. Utah)
DAVID JAY HESS,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before TACHA, Circuit Judge, and ANDERSON and BRORBY, Senior Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant David Jay Hess was found incompetent to stand trial and ordered
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
to be committed for a period of four months to a federal facility for treatment and
restoration to competency. Although Mr. Hess now appeals his commitment, his
attorney has filed an Anders brief and a motion to withdraw as counsel. See
Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set forth
hereafter, we grant counsel’s motion to withdraw and dismiss this appeal. Id.I. Background
On February 7, 2007, Mr. Hess was indicted on two counts of knowingly
mailing a written communication to a United States magistrate containing a threat
to injure or kill, in violation of 18 U.S.C. § 876(c). On March 29, 2007, Mr.
Hess’s attorney filed a motion, stipulated to by both parties, requesting a
competency determination on Mr. Hess, pursuant to 18 U.S.C. §§ 4241 and 4242,
as to both his commission of those offenses and his ability to stand trial. The trial
court granted the motion, after which a forensic psychologist with the Federal
Bureau of Prisons conducted a psychological evaluation of Mr. Hess and prepared
a report; some of Mr. Hess’s prior medical reports were provided to assist in the
evaluation. Mr. Hess stipulated as to the foundation of the evaluation and did not
provide any evidence contradicting the report. In the report, the government
psychologist found Mr. Hess: (1) suffered from a delusional disorder and was
delusional at the time of his offenses against the magistrate; (2) would not be able
to understand the proceeding against him and would act in a way
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counterproductive to his case and against advice of counsel; and (3) should be
committed to a federal facility for four months for treatment and restoration to
competency.
On November 30, 2007, the district court held a competency hearing during
which the parties stipulated to the admission of the government psychologist’s
report as an exhibit, and Mr. Hess did not present evidence to dispute the report’s
findings or conclusions. During the hearing, Mr. Hess addressed the court,
asserting he had not seen the report, to which his counsel responded, explaining
he and Mr. Hess had discussed the report, but when he and a social worker
attempted to review the report with Mr. Hess he refused to see them. Mr. Hess
also requested evidence be presented or evaluations provided by other
psychologists who previously treated him. Based on Mr. Hess’s inability to
explain how information from other psychologists would assist the court in
determining his competency, the district court denied Mr. Hess’s request. It then
found the government psychologist’s report demonstrated Mr. Hess suffered from
a mental disorder significantly impairing his ability to understand the nature and
consequence of the proceeding against him and his ability to assist counsel in his
defense, resulting in a determination Mr. Hess was incompetent to stand trial. As
a result, it ordered Mr. Hess committed for a period of four months to a medical
facility for treatment and restoration.
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Following Mr. Hess’s timely pro se notice of appeal, his appointed counsel
filed an Anders appeal brief, explaining no reasonable grounds exist for an
appeal. See Anders, 386 U.S. at 744. In support, counsel pointed out the
government psychologist’s report contained an “abundant basis” for the district
court’s finding Mr. Hess was incompetent to stand trial, which was not rebutted
by Mr. Hess; counsel was not aware of any evidence contradicting the district
court’s incompetency determination; and no showing was made that additional
medical testimony or information, as requested by Mr. Hess, would assist in the
competency determination. Counsel also noted Mr. Hess’s letter, which this court
construed as a notice of appeal, did not raise any issues relevant to the district
court’s order on his incompetency.
Pursuant to Anders, this court gave Mr. Hess an opportunity to respond to
his counsel’s Anders brief. See 386 U.S. at 744. Mr. Hess has filed a pro se
response requesting appointment of another attorney who specializes in appeals,
seeking oral argument, and contending his appeal is not frivolous. In support, he
makes derogatory remarks about his current appellate counsel and provides a
rambling dialog of information irrelevant to this appeal. However, in regard to
the district court’s competency order, Mr. Hess states the government
psychologist found him “not competent to stand trial” and that he “agree[s] with
him.” Apt. Resp. at 3.
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II. Discussion
As required by Anders, we have conducted a full examination of the record
before us, keeping in mind our standard of review on the issues presented. See id.We review for clear error a trial court’s factual determination on whether a
defendant is competent to stand trial. See United States v. Gilgert, 314 F.3d 506,
513 (10th Cir. 2002). In addition, “[t]he decision on whether to order a second
competency exam is a matter wholly within the sound discretion of the trial
court.” United States v. Prince, 938 F.2d 1092, 1095 (10th Cir. 1991). “We will
not reverse a trial court’s refusal to order a second competency exam unless we
conclude the trial court’s decision was an abuse of its discretion.” Id.Our review establishes the district court did not err in finding Mr. Hess was
incompetent to stand trial and ordering him committed for a period of four months
to a federal facility for treatment and restoration to competency. Without making
any specific reference to details in the government psychologist’s report, it is
clear the report supports the district court’s findings on Mr. Hess’s mental
disorder and conclusion he was incompetent to stand trial. With regard to Mr.
Hess’s apparent request for other psychologists’ evaluations or opinions, we
cannot say the district court abused its discretion in denying that request absent
an explanation as to how an additional psychological evaluation would assist the
court in its competency determination. Our holdings on these issues are bolstered
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by Mr. Hess’s own admission on appeal that he is incompetent to stand trial.
III. Conclusion
For these reasons, no meritorious appellate issue exists for our
consideration on appeal. See Anders, 386 U.S. at 744. Accordingly, we grant
counsel’s motion to withdraw and DISMISS Mr. Hess’s appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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