Appeal from the United States District Court for the Southern District of Florida. (No. 94-6258-CIV-UUB). Ursula Ungaro-Benages, Judge.
Before Kravitch, Dubina and Carnes, Circuit Judges. Carnes, Circuit Judge, dissenting.
A habeas petitioner contends that his due process rights were infringed when he was tried and convicted in state court for murder while incompetent to stand trial. We hold that petitioner has failed to prove a violation of his procedural due process right to a competency hearing or his substantive due process right not to be tried while incompetent.
In 1987, Carl Eugene Watts was tried in Florida state court and convicted by a jury of second-degree murder. Watts was asleep through much of the five day trial.
On the first day of trial, the judge recorded his initial observation of Watts's behavior: "I'd also like to make a statement for the record at this time that during the entire voir dire examination that I've conducted, since about 3:30 and it's 20 minutes to 5:00, that the defendant in this case, Mr. Watts, has been sleeping at counsel table." Trial tr. at 69.
The next day, after two prospective jurors approached the judge to express concern that Watts's sleeping would threaten their ability to remain impartial,*fn1 the judge questioned Watts about the cause of his continuing somnolence:
THE COURT: First thing I'd like to put on the record is that Mr. Watts for the second day in a row has slept through 90 percent of the ... questioning this morning and Mr. Blostein [counsel for Watts] has on occasion had to wake him up. I'm sure the jurors have all seen this. I'd like to ask some questions at this time.
Mr. Watts, are you under the influence of any drugs or alcohol or medication today?
THE COURT: Is there any particular reason why you are sleeping through this serious trial which is probably going to effect your life?
WATTS: No, sir. I'm not sleeping through it.
THE COURT: You have your eyes closed. You have your head down on your neck or your chest and it seems pretty obvious to everybody in the courtroom that you are sleeping.
As Watts continued to sleep, the judge initiated a similar colloquy with Watts and his lawyer at least once on each subsequent day of the trial. After estimating the percentage of the recent proceedings through which Watts had slept, the trial judge would ask Watts if he was under the influence of any drugs; Watts always replied that he was not. When pressed for an explanation of his inability to stay awake, Watts on one occasion suggested that he was not sleeping, but praying--a characterization that both the judge and Watts's attorney strongly doubted. On other occasions, Watts professed to having no explanation for his sleeping, disavowing physical illness, in addition to the use of alcohol, medication, or drugs. In response to a question from the bench, Watts indicated that he had never been treated for mental illness.
Watts's attorney at one point expressed frustration at his inability to keep his client awake:
MR. BLOSTEIN: For the record, and for my own protection on this, my thought is that Mr. Watts is also sleeping. I have over the last three days had to wake him up on numerous occasions including today and [addressed to Watts] if you were praying you didn't even notice that I attempted to wake you up.
THE COURT: On one occasion I saw you hit him in the shoulder and he never even moved. He never budged.
MR. BLOSTEIN: Exactly. I'm doing the best I can to represent Mr. Watts under the circumstances he's putting me in.
Trial tr. at 337-38. Nevertheless, Watts's attorney never raised the issue of Watts's competency at trial or requested a competency hearing.
Prior to closing arguments, the judge questioned Watts in an attempt to ensure that he understood his decision not to testify on his own behalf:
THE COURT: You are doing all right. Okay. You remember last week when your attorney put a couple witnesses on for you; do you remember that?
THE COURT: I think your mother came in and testified and your sister?
THE COURT: I want you to understand that you have a right to testify in this case if you want. Now your lawyer indicated to us last week that you were not going to testify and I just wanted to double check with you and make sure that that is what you want to do; that you do not want to testify in this case; is that true?
THE COURT: Have you talked this over with ...