940 F2d 1535 O'Neill v. Frohnmayer

940 F.2d 1535

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Michael S. O'NEILL, Petitioner-Appellant,
v.
David FROHNMAYER, Attorney General, State of Oregon,
Respondent-Appellee.

No. 90-35637.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1991.
Decided Aug. 5, 1991.

Before GOODWIN, ALARCON and CYNTHIA HOLCOMB HALL, Circuit Judges.

1

MEMORANDUM*

2

Michael S. O'Neill appeals from the judgment of dismissal entered pursuant to the order granting the motion for a summary judgment filed by David Frohnmayer, the Attorney General of the State of Oregon (State), in this state prisoner's habeas corpus proceeding. The district court denied O'Neill's cross motion for a summary judgment. O'Neill contends that the record demonstrates that the state trial judge denied him due process by (1) failing sua sponte to conduct an evidentiary hearing to determine his competency to waive his right to trial by jury, and (2) entering a finding of guilty although there was insufficient evidence that he had the intent to steal prior to entering each victim's premises.

3

We affirm because we conclude that, at the time the waiver was accepted, there was insufficient evidence to expect the state trial judge to entertain a genuine doubt of O'Neill's competency to waive trial by jury. We also conclude that the record contains sufficient evidence to support a finding of an intent to steal at the time of entry.

4

We discuss each of the issues, and the facts pertinent thereto, under separate headings. Before we can do so, however, we must first determine whether we should reach the merits of this appeal in view of the fact that O'Neill failed to exhaust his state remedies regarding the sufficiency of the evidence of intent.

5

* CONSIDERATION OF AN UNEXHAUSTED CLAIM

6

In Rose v. Lundy, 455 U.S. 509 (1983), the Supreme Court held that a "district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Id. at 522. (Footnote omitted.) O'Neill raised three issues in his direct appeal to the Oregon Court of Appeals. First, he argued that he was denied due process because the trial judge failed, sua sponte, to order an evidentiary hearing concerning his competency. Second, he asserted that there was insufficient evidence of dangerousness to require the judge to commit him to the jurisdiction of the Psychiatric State Review Board. Third, he alleged that there was insufficient evidence to support a finding that, except for his insanity, he was guilty of five counts of second-degree burglary. In his appeal to the Oregon Supreme Court, O'Neill did not seek reversal on the ground that there was insufficient evidence to support a finding of guilty of the five counts of burglary. Thus, he failed to exhaust this claim to the highest state court as required by 28 U.S.C. Sec. 2254(b). In its motion for a summary judgment, however, the State erroneously conceded that O'Neill had exhausted his state court remedies. The district court addressed the merits of each claim.

7

In Granberry v. Greer, 481 U.S. 129 (1987), the Supreme Court instructed that, where a state fails to seek dismissal of a habeas petition filed in federal court because it contains mixed claims, "[t]he appellate court is not required to dismiss for nonexhaustion notwithstanding the State's failure to raise it, and the court is not obligated to regard the State's omission as an absolute waiver of the claim." Id. at 133. We conclude that the interests of judicial efficiency will be served if we review the merits of each claim, instead of remanding this matter with instructions to dismiss, or to permit O'Neill to amend his petition by striking the unexhausted claim. See Rose v. Lundy, 455 U.S. at 510 (the petitioner may avoid dismissal by amending his petition to include only the exhausted claims).

II

COMPETENCY TO WAIVE TRIAL BY JURY

8

O'Neill contends that on the date he waived his right to trial by jury the state court judge had sufficient evidence that O'Neill was not mentally competent to require a sua sponte declaration of a genuine doubt and an evidentiary hearing to resolve this factual issue.

9

"A defendant is not competent to waive constitutional rights if mental illness has substantially impaired his or her ability to make a reasoned choice among the alternatives presented and to understand the nature and consequences of the waiver." Chavez v. United States, 656 F.2d 512, 518 (9th Cir.1981) (citing United States v. Moore, 559 F.2d 310 (9th Cir.1979), cert. denied, 444 U.S. 1024 (1980). In determining if the trial judge should have, sua sponte, required a competency hearing, "[w]e review the record to see if the evidence of incompetence was such that a reasonable judge would be expected to experience a genuine doubt respecting the defendant's competence." Id. at 516 (citing Bassett v. McCarthy, 549 F.2d 616, 621 (9th Cir.), cert. denied, 434 U.S. 849 (1977)). "[A genuine] doubt should arise when there is 'substantial evidence' of incompetence." Id. at 517. In determining whether there is substantial evidence, the court looks at the totality of the evidence before it at the time defendant's counsel informs the trial judge that his client wishes to waive a constitutional right. Id.

10

A trial judge is required to declare a doubt regarding the defendant's competency, as a matter of due process, "only where the record as a whole discloses substantial evidence sufficient to raise a genuine doubt in the mind of a trial judge concerning the defendant's competence." Bassett v. McCarthy, 549 F.2d at 619.

11

O'Neill was represented by counsel on February 2, 1987, the date that the court accepted O'Neill's waiver of trial by jury. O'Neill's attorney did not inform the court that his client lacked the mental capacity to waive trial by jury. To the contrary, counsel represented that his client "understood what was going on." Furthermore, the record shows that defense counsel filed a document entitled, "Petition to Waive Jury Trial and Try the Case to the Court Upon Stipulated Facts." O'Neill signed this petition.

Paragraph 15 of the petition states:

12

I OFFER MY WAIVER OF JURY TRIAL AND STIPULATION TO THE FACTS FREELY AND VOLUNTARILY AND OF MY OWN ACCORD AND WITH FULL UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE INDICTMENT AND IN THIS PETITION AND IN THE CERTIFICATE OF MY LAWYER WHICH FOLLOWS.

13

The petition, at paragraph 11, also contained the statement that O'Neill's "mental health was presently satisfactory."

14

The record does not contain any reference to any irrational behavior which might indicate that O'Neill was mentally deranged. The court asked O'Neill numerous questions to ascertain whether he understood his right to trial by jury and the consequences of a waiver. O'Neill replied responsively to questions concerning biographical information. He replied "yeah" to the court's questions regarding whether his attorney had explained his constitutional rights associated with a jury trial.

15

O'Neill argues that psychiatric reports in the court's file on February 2, 1987, provided substantial evidence sufficient to raise a reasonable doubt regarding O'Neill's competency to waive trial by jury. A report submitted by psychologist Richard Lazere, dated August 20, 1986, indicated that O'Neill had a long history of mental illness and concluded that O'Neill was incompetent to stand trial. A report filed by Edward Colbach, M.D., on December 17, 1986, asserted that O'Neill was insane at the time the alleged offenses were committed.

16

Dr. Lazere's report did not discuss O'Neill's competency to waive trial by jury. Dr. Lazere also reported that O'Neill was "irrational and mentally deranged" at the time of the examination conducted on August 20, 1986.

17

Upon reviewing Dr. Lazere's report, the state trial court found that O'Neill was incompetent to stand trial and committed him to the Oregon State Hospital for treatment on September 10, 1986. O'Neill was discharged from the hospital on October 29, 1986.

18

The Chief Medical Officer of the Oregon State Hospital sent a letter to the court on November 7, 1986, to inform it that O'Neill was not competent to stand trial. Attached to this notice was a report prepared by Alice Shannon, M.D., a psychiatrist at the Oregon State Hospital. Dr. Shannon reported that O'Neill had responded well to medication. She concluded that there had been an "improvement in the general psychotic process and a clear indication of his ability to aid and assist." Dr. Shannon also stated: "It is my opinion that at the time of discharge Mr. O'Neill was able to understand the nature of the charges against him and assist his attorney in the preparation of his defense."

19

On November 28, 1986, at the request of defense counsel, O'Neill was examined by Dr. James Adams, a clinical psychologist. Dr. Adams concluded that O'Neill was competent to stand trial. Dr. Adams noted that O'Neill "showed no signs of hallucinations or markedly thought disordered speech." Dr. Adams also reported that O'Neill "is aware of his rights and knows how to cooperate with his attorney." O'Neill was in custody at the Multnomah County Detention Center (MCDC) when Dr. Adams examined him. In his report, Dr. Adams expressed concern about O'Neill's "refusing to take prescribed medications at the MCDC ... [and] about the possibility of relapse if he is released to the community and is under any stress."

20

O'Neill was later released from the MCDC and was a resident at the Open Heart Home where he was examined by Dr. Colbach on December 17, 1986. At the request of the state, O'Neill was examined regarding his criminal responsibility, by Dr. Colbach, on that date. Dr. Colbach reported that O'Neill "insisted" that he was currently taking his antipsychotic medication. In addition, Dr. Colbach reported that "[r]ight now his illness is in partial remission and he is not in any way psychotic." Dr. Colbach noted that O'Neill "can become quite psychotic at times, especially if he is abusing alcohol." Dr. Colbach also concluded that O'Neill "probably did not have the substantial capacity to appreciate the criminality of his conduct at the time of the alleged offenses."

21

Contrary to O'Neill's contention, there is nothing in any of these reports that would indicate that O'Neill was not competent to waive trial by jury on February 2, 1987. Dr. Lazere found O'Neill to be "irrational and mentally deranged" prior to the treatment he received at the Oregon State Hospital. Dr. Colbach found O'Neill "not in any way psychotic" four months after he was examined by Dr. Lazere and following treatment at the Oregon State Hospital.

22

When O'Neill waived his right to trial by jury he gave no indication to the court or counsel that he had relapsed, that he was psychotic, or that he was irrational or deranged. Thus, there was nothing in his demeanor that contradicted the conclusions of Dr. Shannon, Dr. Adams, and Dr. Colbach. The fact that O'Neill was insane at the time of the commission of the offenses, several months earlier, because of alcohol consumption, or his failure to take his medication, does not provide substantial evidence that he was incompetent to waive trial by jury on February 2, 1987. Finally, although the record discloses that he has a long history of mental illness, the uncontradicted evidence before the state trial court demonstrates that O'Neill can be treated successfully and his psychosis can be controlled by medication.

23

O'Neill's reliance on Sieling v. Eyman, 478 F.2d 211 (9th Cir.1973), and Moore v. U.S., 464 F.2d 663 (9th Cir.1972), is misplaced. In Sieling, the state trial court received conflicting testimony concerning the defendant's competency to stand trial. Id. at 213. The court found the accused competent to stand trial. A month later, the defendant informed the court that he wished to plead guilty. Id. The state trial judge accepted a plea of guilty without inquiring as to the defendant's competence to waive his right to trial by jury. Id. We reversed and remanded for a competency hearing in the state court. Id. at 216. In the instant matter, unlike the situation in Sieling, the reports of the doctors, after O'Neill's treatment in the Oregon State Mental Hospital, were not in conflict.

24

In Moore, the trial court found the defendant competent to stand trial without an evidentiary hearing, notwithstanding recent evidence of suicide attempts, mental illness, visual hallucinations and a diagnosis that the defendant's "competency will be subject to periods of impaired judgment during his panic reactions." Id. at 665. We reversed in Moore because we concluded that there was substantial evidence that the defendant was not competent to stand trial. Id. at 666-667. In the instant matter, no evidence was presented to the district court that O'Neill was presently mentally incompetent. Instead, the evidence showed that his treatment had been successful and that his psychosis was in remission.

25

O'Neill also refers us to Evans v. Raines, 534 F.Supp. 791 (D.Ariz.1982), and Rhay v. White, 385 F.2d 883 (9th Cir.1967). We have reviewed these cases and each is factually distinguishable. In Evans, the district court granted habeas corpus relief to a state prisoner when the state trial judge accepted a waiver of counsel after receiving two psychiatric reports describing the petitioner as a paranoid schizophrenic. Id. at 796 n. 7. The defendant in Evans chose to represent himself because he believed defense counsel was part of a conspiracy that was bent on framing him. Id. at 798. The report in the matter before this court indicated that O'Neill was not presently suffering from mental illness.

26

In Rhay, we affirmed the district court's order granting habeas corpus relief to a state prisoner where the record showed that the defendant's demeanor and evidence presented during the trial demonstrated that the defendant was presently mentally ill. Psychiatric testimony revealed that the defendant was suffering from paranoia, had difficulty communicating with his counsel, and was in such a state of mental tension that "he was barely in control of himself." Id. at 884. We concluded that this evidence should have compelled the state trial court to suspend criminal proceedings so that a competency hearing could be conducted. Id. at 884.

27

No evidence of present psychosis or abnormal behavior was presented to the state trial court during the proceedings on February 2, 1987. O'Neill has not demonstrated that there was substantial evidence before the court sufficient to require a sua sponte declaration of a genuine doubt. The only evidence presented to the state trial court by O'Neill was that his "mental health was presently satisfactory."

III

SUFFICIENCY OF THE EVIDENCE

28

O'Neill contends that there was insufficient evidence to support a finding that he was able to form the requisite intent for second-degree burglary. The standard of review for determining sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Litteral, 910 F.2d 547, 550 (9th Cir.1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).

29

Pursuant to Oregon law, "a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in the building with the intent to commit a crime therein." ORS Sec. 164.215. Oregon statute defines "intent" as "act[ing] with a conscious objective to cause the result or to engage in the conduct so described." ORS Sec. 161.085(7).

30

O'Neill argues that while he unlawfully entered the stores and shoplifted items, he did not have the requisite intent to be found guilty of the crime. The record below, however, supports the finding that Mr. O'Neill entered each store with the intent to steal merchandise.

31

After his arrest on August 7, 1986, O'Neill told a police officer that "just yesterday I walked out with three cartons [of cigarettes] and nobody bothered me." On August 8, 1986, after police arrested O'Neill for stealing six gold chains, he admitted that he took the chains so he could sell them on the street. Furthermore, Dr. Colbach's report states that O'Neill told him that he began shoplifting to give "moral support" to his neighbors whom he believed were part of a larger shoplifting ring.

32

After reviewing the evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found the crime beyond a reasonable doubt that O'Neill entered each of the victim's premises or remained there with the intent to steal. Accordingly, the state trial court did not violate O'Neill's right to due process by finding him guilty as charged of burglary in the second degree.

33

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3