Timmons v. Peyton

Citation360 F.2d 327
Decision Date29 April 1966
Docket NumberNo. 10042.,10042.
PartiesJay R. TIMMONS, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Daniel Hartnett, Accomac, Va. (court-assigned counsel) Ayres & Hartnett, Accomac, Va., on brief for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, and James Parker Jones, Asst. Atty. Gen. of Virginia, on brief), for appellee.

Ronald P. Sokol, Charlottesville, Va., amicus curiae.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge:

Jay Timmons was convicted by a jury of first degree murder in April 1962. He was sentenced to die. The Supreme Court of Appeals of Virginia affirmed the judgment of conviction. Timmons v. Commonwealth, 204 Va. 205 129 S.E.2d 697 (1963). Habeas corpus was sought in the state courts; a hearing was held, and in July 1963 relief was denied. The Virginia Supreme Court of Appeals denied a writ of error, and the Supreme Court denied certiorari. Timmons v. Cunningham, 375 U.S. 994, 84 S.Ct. 635, 11 L.Ed.2d 480 (1964). Habeas corpus was then sought in the court below; the facts were stipulated by counsel, and on April 28, 1965, the district court dismissed the petition but granted a certificate of probable cause. Timmons v. Peyton (D.C.E.D.Va.), 240 F.Supp. 749.

The facts of this case are the following: On October 19, 1961, at about 5:20 p. m. Jay Timmons shot two women. One of them was killed; the other was shot through both legs and through the neck. Timmons and the women had attended grade school together in a small town in Maryland. Timmons was employed by the father of the deceased victim. He had apparently come to the house in order to persuade her to give him a contract to paint her house. There is no indication in the record of any recent social relationship between Timmons and either of the two women. Apparently, he had not seen either of them other than on two or three occasions since childhood. When the surviving witness entered the house, the other woman sat at her desk writing. Timmons entered the living room and greeted the newcomer quite casually. This was the only remark made before the shooting began. After shooting them Timmons proceeded to have sexual intercourse with the one who was still alive. It is possible that he also had intercourse with the dead woman. He then telephoned the police and told them he had shot two women. Discovering that one of them was alive, he picked her up in his arms, took her to a car, and drove her to the hospital. He then returned to the residence where the events had taken place; the police were already there. This was about 5:35 p. m.

The police took Timmons to headquarters. En route he said it was an accident; a little later he said he would say no more. Shortly thereafter Timmons was rushed to the hospital because he was getting drowsy and told the police he had taken sleeping pills; his stomach was pumped and revealed that he had in fact taken pills containing Scopolamine and Methapyrilene. Timmons remained in the hospital overnight and was returned the next day to police custody. At that time Timmons made a written statement to the police which described fully the sequence of events; this written statement was later introduced into evidence at trial and read aloud to the jury. The court below found that the record was "* * * silent as to whether either of the two detectives said anything to petitioner as to any right to counsel, or otherwise warned him that anything said by him could be used against him. We presume that nothing was said along these lines."

At trial Timmons pleaded not guilty by reason of insanity. Defense counsel permitted without objection the written confession to be introduced into evidence along with slides of the two women after they had been shot. Counsel did object, without success, to showing photographs of the victims to the jury and, also without success, to enlarging the slides and projecting them for the jury on the ground that these were prejudicially inflammatory and not necessary to prove the state's case.1

Timmons was born in 1936, dropped out of school when he was sixteen, and had a nervous breakdown when he was twenty-three, two years before the events in question. At that time he shot himself and was then sent to a state mental institution in Maryland. He remained there two weeks, returned home for about three and a half months, and then went back in for about another month. His history at that institution revealed that he was "potentially dangerous." At trial defense counsel called the doctor who examined Timmons on the morning after the events in question. He testified that Timmons did not appear to him at that time psychotic. Defense counsel had never discussed the case with this witness. The witness, although he refused to express an opinion as to legal sanity, did testify that Timmons "was in reasonably good mental shape, not to require further psychiatric treatment. * * *" before being returned to police custody.

The chief witness for the defense was a well known and respected Norfolk physician who was a diplomated psychiatrist. He testified that he had made a thorough investigation and that in his opinion Timmons was psychotic when he commited the crime and had a history of four suicide attempts.2 Defense counsel did not contact the physician who had originally put Timmons in a state institution in Maryland because he had moved and counsel did not have his address, and also because that doctor was not a psychiatrist. Subsequently different counsel located the doctor and received a letter from him stating that "Mr. Timmons was definitely insane while under my care." Two psychiatrists testified for the state. The official diagnosis by the two state psychiatrists, who had examined Timmons at the Southwestern State Hospital, was "a social disturbance, in addition, alcoholism, and also mild mental deficiency." These two psychiatrists estimated that Timmons had received about eight hours of individual attention by the doctors during his two months at the hospital. Dr. Blalock, the superintendent of the asylum, one of the state's witnesses, testified that he had not examined Timmons personally except at the staff meeting when the diagnosis was made. He conceded that his institution was very much understaffed; that Timmons was one of two hundred maximum security patients under the direct supervision of Dr. Nemeth, the other expert witness for the state. He stated that in his opinion Timmons knew the difference between right and wrong and had the power to choose the right at the time he committed the offense.

Timmons' contentions before this court may be reduced to two basic arguments: (1) that his Fourteenth Amendment right to due process was violated in that he was denied the right to counsel at critical stages in his pretrial procedure, and (2) ineffectual counsel. Both the state habeas court and the district court found that his representation at trial was competent, and we cannot say that this finding was clearly erroneous.

We think that the denial of counsel to the petitioner for a period of three and one-half months following the offense, during the first 60 days of which time the state for all practical purposes held him incommunicado, was a violation of the petitioner's Sixth Amendment right to counsel during critical pretrial proceedings which materially affected the outcome of his trial. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). In considering this question, we must keep in mind the following chronology of events: The killing occurred on October 19, 1961. The confession was taken by the police on October 20, 1961. On October 24, 1961, the petitioner was served with notice of the motion to have him committed to Southwestern Hospital, a state institution for the criminally insane. On October 25, 1961, the commitment order was signed. On December 20, 1961, Dr. Blalock, the superintendent of Southwestern Hospital, reported that the petitioner was competent to stand trial. On December 27th Dr. Blalock further reported that in his opinion the petitioner was sane at the time of the commission of the offense, pointing out that he had overlooked this request in the order when his original report was made. On January 20, 1962, the petitioner, on advice of the police, waived a preliminary hearing. On February 1, 1962, counsel was appointed. On February 5, 1962, an indictment was returned by the grand jury.

We hold that the preparation of the defense may not without violation of due process be postponed indefinitely until the state has completed its case. We do not hold that an accused is entitled to have a lawyer present when he is undergoing psychiatric tests to determine his competency to stand trial or his sanity. That is not the question here where this petitioner was held by the authorities for sixty-one days — during which he received a maximum of only eight hours personal attention. We think the preparation of his defense could and should have been allowed to proceed concurrently with the state's. Furthermore, there is no reason to assume that reputable counsel and psychiatrists could not cooperate in the administration of tests and the necessary factual investigations of the patient's background to verify or refute his own statements.

On October 24, 1961, while defendant was confined in the city jail, notice of hearing to determine whether he should be committed to the state insane asylum was served on him. The commitment was made on motion of the state's attorney requesting that he be examined not only to determine if he was competent to stand trial as required by statute (Virginia Code of 1950, § 19.1-228)...

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