Sims v. Lane, 17193.

• Decision Date: 23 May 1969
• Docket Number: No. 17193.,17193.
• Citation: 411 F.2d 661
• Parties: Leroy SIMS, Jr., Petitioner-Appellant, v. Ward LANE, Warden of the Indiana State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

411 F.2d 661 (1969)

Leroy SIMS, Jr., Petitioner-Appellant, v. Ward LANE, Warden of the Indiana State Prison, Respondent-Appellee.

No. 17193.

United States Court of Appeals Seventh Circuit.

May 23, 1969.

Thomas L. Shaffer, Notre Dame, Ind., for appellant.

Michael V. Gooch, John F. Davis, Indianapolis, Ind., John J. Dillon, Atty. Gen., of Indiana, Michael V. Gooch, Deputy Atty. Gen., Indianapolis, Ind., for appellee.

Before DUFFY, Senior Circuit Judge, and KILEY and CUMMINGS, Circuit Judges.

CUMMINGS, Circuit Judge.

This appeal is from the denial of a petition for a writ of habeas corpus. In 1964, petitioner received a life sentence after a jury trial finding him guilty of kidnapping and robbery in contravention of Burns' Ind.Stat.Ann. §§ 10-2901 and 10-4101. The Indiana Supreme Court affirmed the judgment, Sims v. State, 246 Ind. 660, 208 N.E.2d 469 (1965), and certiorari was denied. 384 U.S. 922, 86 S.Ct. 1374, 16 L.Ed.2d 442.

Before ruling upon the habeas corpus petition, the district court appointed counsel, heard evidence and oral argument. An unreported memorandum opinion accompanied the order denying the petition.

In the Indiana Supreme Court, the district court, and here, petitioner has presented two principal contentions:

(1) The denial of his right to testify during his trial, and

(2) The denial of a psychiatric examination to determine whether he was competent to be tried.

As to the first contention, after the State had rested its case in the trial court, petitioner asked his two appointed counsel to permit him to take the stand and testify in his own defense. This is shown by the following excerpts from his trial lawyers' affidavit in support of the motion for a new trial:

"4. That during the trial of said cause, the defendant informed affiants herein that he was going to take the stand in his own behalf and state facts under oath which if believed would have refuted the testimony of Frank Robbins, Spurgeon Davenport and Sgt. Dabner, who testified for the State of Indiana.

"5. That the affiants herein did not believe that the matters the defendant asserted he would testify to were true and told the defendant that if he did take the stand to testify in his own behalf, that affiants would withdraw from the case and no longer represent him."

These facts were not known by the trial court until the time of sentencing.¹

At the hearing on the motion for a new trial, defense counsel explained that they considered "it would have been fatally critical for him Sims to testify" at his trial. Without explanation, the trial court overruled the motion for a new trial.

In rejecting petitioner's first contention, the Supreme Court of Indiana stated (246 Ind. 660, 208 N.E.2d 469, 472):

"In view of appellant\'s demonstrated disrespect for and contemptuous attitude toward the court, and in light of the failure of his own attorneys to believe the purported facts regarding which appellant proposed to testify, it is understandable why trial counsel refused to remain in the case if appellant rejected their counsel by taking the witness stand. Counsel had a duty to control the conduct of the case and to protect the interests of their client to the best of their ability, or to withdraw from the case."

The court added that Sims' counsel did not indicate what Sims' testimony would be at a second trial and it concluded his testimony would have had no effect on its outcome.

At the evidentiary hearing on the petition for habeas corpus, the two witnesses were petitioner's trial counsel. They testified that Sims had been antagonizing the jury and that his testimony would have contradicted the testimony of every State witness and would have been inconsistent with the theory of the defense. For these reasons, they told Sims they could not continue to represent him if he took the stand and testified.

The district court rejected petitioner's claim that he was entitled to relief because he had not been permitted to testify at his trial. The court observed that no possible prejudice had been shown to exist and noted that the trial court had not been informed of petitioner's wish to testify until after the trial. The court concluded that petitioner's trial lawyers were diligent and that their representation had not rendered the trial a "sham or mockery of justice."

The affidavit of petitioner's two trial lawyers in support of his motion for a new trial for the first time raised the issue of his possible insanity. Thus the pertinent paragraphs of their affidavit provide:

"2. That they believe that the defendant is insane, that he was insane during the trial of this cause, and that he was insane at the time of the commission of the alleged offenses herein.

"3. That affiants interviewed the defendant herein at the Marion County Jail, on Monday, March 23, 1964, which date was after the defendant had been convicted of kidnapping by a jury and at the time of said interview the defendant was unable to comprehend the fact that he had been convicted of the charge of kidnapping. He was unable to comprehend the finality of such conviction, accused the attorneys of having been bribed by the State of Indiana to fail to protect his interest in the trial of said cause.

* * * * * *

"6. That since the conclusion of the trial herein affiants have become aware of the insanity of the defendant.

"7. That affiants are not trained in the field of emotional illness and did not recognize the insanity of the defendant from observation of the bizarre behavior of the defendant before the trial and during the trial herein.

"8. That the defendant was unable to properly aid counsel in the preparation of his defense because of the aforesaid insanity."

Besides relying on the foregoing affidavit to show that the trial judge should have ordered a psychiatric examination to determine whether petitioner was competent to proceed with his trial, petitioner relies on the transcript of a voir dire examination of prospective jurors he conducted in the trial court before he was represented by counsel; he also relies on his probation report.

Before the trial court passed upon the motion for a new trial, the State filed the counter-affidavit of a lieutenant in the Indianapolis Police Department to the effect that Sims' "conversation has been rational, his actions have been that of a sane person, he has shown no evidence of a persecution complex, and he has been able to distinguish right from wrong." The officer concluded that Sims was of sound mind before and during the trial and was well able to comprehend the nature of the charges against him.

At the hearing on the motion for a new trial, the transcript reveals that Sims' lawyers were arguing that he was entitled to a new trial because he had been denied the right to testify. There was no request for a psychiatric hearing, and the question of his competency was not argued. In denying the motion, the trial court did not comment upon petitioner's supposed incompetence.

On appeal to the Supreme Court of Indiana, Sims claimed that he was entitled to a sanity hearing under Burns' Indiana Stat.Ann. § 9-1706a, providing:

"When at any time before the trial of any criminal cause or during the progress thereof and before the final submission of the cause to the court or jury trying the same, the court, either from his own knowledge or upon the suggestion of any person, has reasonable ground for believing the defendant to be insane, he shall immediately fix a time for a hearing to determine the question of the defendant\'s sanity and shall appoint two (2) competent disinterested physicians who shall examine the defendant upon the question of his sanity and testify concerning the same at the hearing."

Although the wording of this statute does not seem to permit a defendant to request a sanity hearing after "final submission of the cause to the * * * jury," the court held that the trial court had discretion to grant Sims a hearing under this statute even if the issue was not presented prior to the trial. See 208 N.E.2d at p. 472. In approving the denial of an insanity hearing, the court said (208 N.E.2d at p. 472):

"No doubt the trial court weighed the affidavit of these attorneys who specialize in criminal law in the light of this unusual disclosure Sims\' belief that they had been bribed because they advised him that an appeal would be futile together with the fact that it was not supported by an affidavit of any expert authority regarding appellant\'s mental competence."

The court concluded that no facts had been alleged nor evidence shown to require a conclusion that petitioner was insane at the time of the offenses or during the preparation of his trial, adding that his briefs "do not present even a prima facie case of insanity as a defense." See 208 N.E.2d at pp. 472, 473.

The district court also concluded that the evidence did not raise a bona fide doubt as to petitioner's ability to consult with his lawyers and to comprehend the proceedings against him, so that no sanity hearing was required.

I

Petitioner asserts that his counsels' refusal to permit him to testify violated the due process clause of the Fourteenth Amendment. He also relies on Article 1, Section 13, of the Indiana Constitution providing that an accused "shall have the right * * * to be heard by himself and counsel * * *" and on Section 3481 of the Criminal Code, providing that "the person charged shall, at his own request, be a competent witness" (18 U.S.C. § 3481).

In the federal courts, the privilege of an accused to testify in his own defense is merely statutory, abrogating the common law rule of incompetence. 18 U.S.C. § 3481. No case has been brought to our attention to support petitioner's contention that the Fourteenth Amendment accords a defendant in a state court a federal constitutional right to testify. To the contrary, the federal rule seems to be that the exercise of this right is subject to the determination of competent trial...