United States v. Ives, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^* 

This action stems from the latest in a long string of trials and appeals originating with appellant's 1971 conviction for murder committed on an Indian reservation. Louis J.M.M. Ives now files a Sec. 2255 motion to vacate his third conviction for second degree murder.¹  The district court denied Ives' petition; we reverse and remand for an evidentiary hearing.

Ives is a paranoid schizophrenic. See United States v. Ives, 609 F.2d 930, 932 (9th Cir. 1979), cert. denied, 445 U.S. 919 (1980). His mental stability is directly related to an ordered regimen of psychotropic drugs, most notably Haldol and Prolixin. Although the drugs can stabilize his condition, Ives' frequent departures from this drug diet often lead to the breakdown of his mental awareness and competence. Appellant now contends that his schizophrenia was at a sufficiently virulent stage during his second retrial that he was incompetent to stand trial within the meaning of the Due Process Clause.

Before trial, the district court held a hearing to evaluate Ives' competency to stand trial. At the hearing, the testifying psychiatrist portrayed Ives as presently competent but subject to rapid deterioration.²  Appellant argues his condition, while acceptable at the commencement of trial, degenerated until he no longer had "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and no longer possessed a "rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960) (quoted in De Kaplany v. Enomoto, 540 F.2d 975, 980 (9th Cir. 1976) (en banc), cert. denied, 429 U.S. 1075 (1977).³ 

Our review of the record reveals that there is evidence to support Ives' interpretation of the facts. Our review also shows that after the pretrial hearing, appellant's counsel never formally raised the issue of competence.⁴  Counsel's inaction, however, does not relieve the trial court of the duty to guard the defendant's rights vigilantly. "Even when a defendant is competent at the commencement of the 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." Drope v. Missouri, 420 U.S. 162, 181 (1975). In the absence of a defense motion calling the court's attention to the issue of mental competence, the trial court retains the duty to raise sua sponte the question of mental adequacy for trial. Id. at 180.

The mere fact that some evidence of incompetency exists does not end our inquiry; emotional outbursts often mar tense trials. The relevant inquiry is "whether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial." De Kaplany, 540 F.2d at 983. Upon review of the record, we conclude that appellant's repeated, often incoherent, outbursts at trial should have signaled to a reasonable trial judge that there was a substantial question as to Ives' competency to stand trial. Consequently, the court below erred in denying Ives a competency hearing.

The appropriate remedy for this error is for the trial court to hold a hearing and determine Ives' competency during trial. Ordinarily, we would have considerable doubt whether a hearing held more than ten years after the trial could answer the competency question. However, the circumstances of this case are unique: Ives was examined by a series of psychiatrists shortly before trial; at least three of the examining psychiatrists were present in court during at least part of the case. It, therefore, may be possible for the district court to make a meaningful inquiry into Ives' state of mind during trial at this late date. We are not in a position to determine that question on the record before us. If the district court finds that a hearing on Ives' competency during trial could fairly and accurately resolve the evidentiary questions, then that court is ordered to conduct such an inquiry. If, on the other hand, the district court determines that the passage of time makes this inquiry impractical, then the only available remedy for the error is for that court to vacate the conviction.

REVERSED AND REMANDED.