Sick Defendant Should Have Complained At Time of Trial; No Abuse of Discretion in Denying NT Motion
U.S. v. Herrera, --- F.3d ----, 2007 WL 987409(10th Cir. April 4, 2007).
The district court did not abuse its discretion in denying a new trial motion without an evidentiary hearing.
D, convicted after trial of drug trafficking, filed a motion for a new trial 4 months later based on newly discovered evidence that he was not competent during trial. He had been suffering a serious staph infection on his skin, feet, and backside before trial and as trial began, for which he was using a topical medication, and was diagnosed with diabetes the day after trial concluded. D attested that he had been in pain and unable to concentrate, and his attorney attested that D complained about his health and appeared to have difficulty concentrating during trial. D supported his motion with a medical opinion in general that onslaught of diabetes coupled with the staph infection could deleteriously affect cognitive abilities.
The district court denied the motion because: (1) the evidence was not newly discovered. The symptoms were known to D before trial, diabetes was suspected a year earlier, the fact that it was not conclusively diagnosed until the day after trial did not mean it was newly discovered. The 10th acknowledges, however, that some conditions–it lists mental conditions--and some fact settings certainly allow for post-trial diagnoses to qualify as newly-discovered evidence. (2) D did not raise a bona fide doubt under the totality of the circumstances that he was incompetent during trial. The 10th reviews the test, the evidence, the trial court’s determination: D claimed to have been delirious and nauseous during trial but neither D nor counsel brought this to the court’s attention, and the court observed no problems and observed D and his counsel communicating.
The district court did not abuse its discretion in denying a new trial motion without an evidentiary hearing.
D, convicted after trial of drug trafficking, filed a motion for a new trial 4 months later based on newly discovered evidence that he was not competent during trial. He had been suffering a serious staph infection on his skin, feet, and backside before trial and as trial began, for which he was using a topical medication, and was diagnosed with diabetes the day after trial concluded. D attested that he had been in pain and unable to concentrate, and his attorney attested that D complained about his health and appeared to have difficulty concentrating during trial. D supported his motion with a medical opinion in general that onslaught of diabetes coupled with the staph infection could deleteriously affect cognitive abilities.
The district court denied the motion because: (1) the evidence was not newly discovered. The symptoms were known to D before trial, diabetes was suspected a year earlier, the fact that it was not conclusively diagnosed until the day after trial did not mean it was newly discovered. The 10th acknowledges, however, that some conditions–it lists mental conditions--and some fact settings certainly allow for post-trial diagnoses to qualify as newly-discovered evidence. (2) D did not raise a bona fide doubt under the totality of the circumstances that he was incompetent during trial. The 10th reviews the test, the evidence, the trial court’s determination: D claimed to have been delirious and nauseous during trial but neither D nor counsel brought this to the court’s attention, and the court observed no problems and observed D and his counsel communicating.
posted by Anonymous at 9:53 AM
<< Home