     Case: 19-60292       Document: 00515330038         Page: 1     Date Filed: 03/03/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         March 3, 2020
                                     No. 19-60292
                                                                         Lyle W. Cayce
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

CHRISTOPHER RAYNARD KIDD,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                      for the Southern District of Mississippi
                             USDC No. 3:14-CR-114-2


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Christopher Raynard Kidd was convicted by a jury of conspiracy to
distribute, and distribution of, 50 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to, inter alia,
366-months’ imprisonment on each count, to be served concurrently.
       Kidd asserts the district court erred in determining between his trial and
sentencing that he was competent during his trial and was sufficiently


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                 No. 19-60292

competent to be sentenced. In addition, Kidd claims his third attorney, High,
provided ineffective assistance of counsel.
      A district court’s competency finding “may not be set aside on review
unless it is clearly arbitrary or unwarranted”. United States v. Dockins, 986
F.2d 888, 890 (5th Cir. 1993) (citation omitted). To be competent to stand trial,
defendant must have “sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding and ha[ve] a rational as well as
factual understanding of the proceedings against him”. Godinez v. Moran, 509
U.S. 389, 396 (1993) (internal quotation marks and citations omitted). “A
defendant who has it within his voluntary control to . . . cooperat[e], is not
incompetent merely because he refuses to cooperate”.          United States v.
Simpson, 645 F.3d 300, 306 (5th Cir. 2011) (alterations in original) (internal
quotation marks and citation omitted).
      Kidd contends his incompetence was demonstrated by:                (1) his
representation by four different attorneys before and during his trial and
sentencing; (2) his placement in shackles during his trial; (3) his failure to
present evidence at trial; and (4) determinations by his mental-health expert
that he suffered from a chronic paranoid personality disorder and was
incompetent to stand trial or be sentenced.
      Kidd points to two of his attorneys’ withdrawals before trial; but, during
his evaluation by forensic psychologist Dr. Channell, Kidd reported the
withdrawals were based on:       (1) his unwillingness to sign one attorney’s
speedy-trial waiver, premised on the attorney’s inability to attend a hearing
due to medical issues; and (2) his failure to “click” with another attorney
because of the attorney’s advice to accept a plea deal. Moreover, although Kidd
cites his problems with his third attorney, High, High testified Kidd’s
frustration with him arose due to his refusal to allow Kidd to keep copies of



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                                 No. 19-60292

discovery materials and his discussing the Government’s plea offer. High
testified he was able to communicate with Kidd and Kidd was able to assist in
his defense.
      Regarding the court’s authorizing the use of leg restraints on Kidd at
trial, the court explained there was an essential state interest in restraining
him because, inter alia: there had been attempted murders and other threats
among Kidd’s co-defendants, demonstrating tensions ran high among them;
several co-defendants would be testifying against Kidd and sitting in close
proximity to him in the courtroom; and Kidd seemed erratic and agitated
throughout the trial.
      Although Kidd asserts his failure to present evidence demonstrated his
behaving irrationally, he does not cite evidence in the record regarding the
reasoning behind this defense strategy or showing it was based on his inability
to communicate with counsel. Nor does he provide any case law demonstrating
that holding the Government to its burden of proof constitutes incompetence,
especially where, as here, Kidd stated he did not believe the jury would credit
testimony of his co-defendants because they were offered lesser sentences in
exchange for their testimony.
      Kidd’s remaining assertions rely primarily on defense-expert Dr.
O’Brien’s conclusions that Kidd had paranoid personality disorder and was not
able to sufficiently communicate with his attorney.         These conclusions,
however, conflicted with Dr. Channell’s, who had previously evaluated Kidd
over the course of approximately four months, diagnosing him with antisocial
personality disorder and determining he was sufficiently able to communicate
with his attorney.
      As the factfinder regarding Kidd’s competence, the district court had sole
discretion to decide what weight to accord Dr. O’Brien’s and Dr. Channell’s



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                                 No. 19-60292

conflicting opinions. See Albany Ins. Co. v. Anh Thi Kieu, 927 F.2d 882, 894
(5th Cir. 1991) (citation omitted). The court ultimately determined Kidd was
competent after considering two competency hearings, Dr. Channell’s and Dr.
O’Brien’s reports, testimony by High and Kidd’s prior prison warden, prison
incident reports and correspondence, the parties’ assertions, and the court’s
own observations of Kidd during his trial, which extended over three years.
Based on review of the record, Kidd has not demonstrated the court’s
competency determination was clearly arbitrary or unwarranted.
      Regarding Kidd’s contending High was ineffective, “Sixth Amendment
claims of ineffective assistance of counsel should not be [considered] on direct
appeal, unless they were previously presented to the trial court”. United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (citation omitted). When the claim
was not raised in district court, as in this instance, it will be considered on
appeal “only in rare cases in which the record allows a reviewing court to fairly
evaluate the merits of the claim”. Id. (internal quotation marks and citation
omitted).
      While High testified at the competency hearing regarding his ability to
communicate with Kidd, and the court made factual findings at the hearing,
the focus of that hearing and the findings was Kidd’s competency—not High’s
effectiveness vel non. In short, the record was not sufficiently developed in
district court regarding this issue. We, therefore, decline to reach this issue,
without, of course, prejudice to collateral review.
      AFFIRMED.




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