Conner v. Wingo, 19869.

• Citation: 429 F.2d 630
• Decision Date: 05 June 1970
• Docket Number: No. 19869.,19869.
• Parties: William Ronald CONNER, Petitioner-Appellant, v. John W. WINGO, Warden Kentucky State Penitentiary, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

429 F.2d 630 (1970)

William Ronald CONNER, Petitioner-Appellant, v. John W. WINGO, Warden Kentucky State Penitentiary, Respondent-Appellee.

No. 19869.

United States Court of Appeals, Sixth Circuit.

June 5, 1970.

Thomas G. Hervey, Harvard Voluntary, Defenders, Cambridge, Mass., for appellant, Livingston Hall, court-appointed, Cambridge, Mass., on brief.

George F. Rabe, Frankfort, Ky., for appellee, John B. Breckinridge, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, Ky., on brief.

Before EDWARDS, McCREE and COMBS, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant appeals from an order of the United States District Court for the Western District of Kentucky dismissing without an evidentiary hearing his application for a writ of habeas corpus. This court had previously heard his first appeal from such a dismissal and remanded for the District Judge to reconsider on a more complete record. The instruction of this court was as follows:

"In view of the holdings of Townsend v. Sain 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 we remand the case to the District Court with instructions to the district judge to require counsel for the respondent-appellee to produce and file with the court a transcript of the evidence and procedure at the hearing before the state court judge together with any other pertinent parts of the record in the state court. The district judge will then reconsider his decision dismissing the appellant\'s petition in the light of those records. In the alternative to requiring the records to be produced the district judge will hold a hearing." Conner v. Wingo, 409 F.2d 21, 22-23 (6th Cir. 1969).

After supplementation of the record by addition of the trial record and the evidentiary record at a state postconviction hearing, the District Judge again dismissed the instant petition without taking additional evidence. The District Judge held that the state trial and postconviction hearing records showed full and fair hearings "resulting in reliable findings of fact and correct conclusions of law." Appellant again appeals.

The events which form the background for this case happened on April 15, 1962, in or near Hazel, Kentucky, when appellant seized a police vehicle and kidnapped the town marshal and another resident at gunpoint, finally releasing them without injuring them, but making off with the car. Appellant was tried in the Circuit Court for Calloway County, Kentucky, found guilty on a charge of armed robbery, and given a life sentence.

The only defense at trial was insanity. The jury rejected the insanity defense and found appellant guilty. Appellant subsequently filed a motion to vacate sentence, which motion was denied without hearing. The Kentucky Court of Appeals affirmed this judgment. Conners sic v. Commonwealth, 400 S.W.2d 519 (Ky.1966), cert. denied, Conner v. Wingo, 385 U.S. 1012, 87 S.Ct. 722, 17 L.Ed.2d 549 (1967).

In 1966 the Supreme Court decided Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), in which the Court held that the trial judge in that case was put on notice by the facts developed before him in the trial of the defendant's possible mental incompetence to stand trial. The Court held that it was a deprivation of due process for the judge not to have ordered a hearing sua sponte on defendant's competence to stand trial.

Appellant thereupon filed another motion to vacate judgment in the Kentucky state courts, asserting that he had similarly been denied due process by the failure of the trial judge to order a competency hearing in his case and that, in fact, he had been incompetent to stand trial. After a full evidentiary hearing the Circuit Court for Calloway County entered adverse findings of fact on both issues and dismissed the petition. On appeal the Kentucky Court of Appeals affirmed. Conner v. Commonwealth, 430 S.W.2d 321 (Ky.1968).

Thereafter appellant filed the instant petition for writ of habeas corpus in the United States District Court for the Western District of Kentucky.

The Kentucky Circuit Judge who heard appellant's second motion to vacate judgment stated the issues which were before him as follows:

"The defendant contends both (1) that he was deprived of a fair trial because he was incompetent to stand trial and (2) that he was deprived of due process because the trial judge failed to make an inquiry into his competence in the face of facts which should have put the judge on notice."

The state judge entered findings and conclusions on both issues adverse to appellant. After review of the complete state court records, the United States District Judge relied upon and in effect adopted the state court's findings and conclusions of law.

Appellant in this appeal contends both courts erred in these decisions. He claims that the competency finding of the Calloway County Circuit Court is invalid under the rule set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). He also claims that the same court's finding of insufficient evidence to put the trial judge on notice of appellant's incompetence is wrong under the holding of Pate v. Robinson, supra. He disputes the United States District Court's reliance on these state court findings. He seeks the issuance of a writ of habeas corpus and a retrial of the original charges, or in the alternative, a remand for evidentiary hearing before the United States District Court.

As to the second issue, appellant's counsel has briefed this case very effectively, seeking to demonstrate that Pate v. Robinson, supra, requires us to grant the writ of habeas corpus. He points out that appellant had several periods of mental hospital treatment prior to this trial and that he had performed in an unusual and irrational manner in jail and at trial. He argues that these facts put the state trial judge on notice of appellant's incompetence so as to require him sua sponte to order a competency hearing.

The state argued that Conner had been sent to a Kentucky state mental hospital immediately after his arrest in 1962, observed there for a month, and then had been returned to jail by the hospital authorities; that the examining psychiatrist at the hospital, Dr. Kernoke, testified at appellant's trial giving as his opinion that Conner was a psychopathic personality but not insane, and that he had seen nothing in Conner's conduct in court during the trial to make him change his mind on the subject of Conner's sanity.

Careful analysis of appellant's second issue persuades us that although there are important parallel circumstances between this case and Pate v. Robinson, supra, there are also important distinctions:

1) In the Robinson case both prosecutor and defense counsel called the trial judge's attention to the defendant's possible incompetence to stand trial. In the instant case there were no such facts and Conner's attorney testified at the hearing on motion to vacate judgment that he believed Conner was capable of understanding the charges and of cooperating in his own defense. While we recognize and accept the Supreme Court view in the Robinson case that an incompetent cannot waive the defense of incompetency, we think this distinction is of obvious importance in explaining absence of direct competency inquiry in the trial court.

2) In the Robinson case the trial judge denied a brief continuance requested by the defendant to produce a psychiatrist from the Illinois Psychiatric Institute and denied defendant summonses for "material witnesses." No such claims of deprivation of full and fair hearing rights are asserted to have occurred in appellant's trial.

3) In the Robinson case the past record of mental instability and irrational behavior as developed before the trial judge was considerably more pronounced than in the instant case. Over a period of years Robinson had killed his infant son and then a woman with whom he was living and an apparent bystander. In the aftermath of the first of these killings, he had twice attempted suicide — once by shooting himself and once by drowning. The record contained evidence of repeated episodes of extreme violence and other episodes when Robinson appeared to others to be in a complete daze and would say nothing at all. He told relatives that something was after him and his mother described "a starey look" and said he seemed to be "foaming at the mouth." The Supreme Court opinion appears to relate Robinson's lifetime of irrational conduct to the fact that a brick dropped from a third story window hit him on the head when he was nine years old.

In comparison to this macabre history — a history which the Supreme Court opinion in Robinson spelled out in too great detail to repeat here — the state postconviction hearing judge accurately summarized the facts arguably bearing on appellant's competence as follows:

"The Court finds that the following was made known to the trial judge during the trial of defendant. The defendant attempted to commit suicide by hanging himself in the Calloway County Jail between the time of the crime in April of 1962 and the time of his trial on October 12, 1962. The defendant wrote a suicide note to the jailer at that time in which he stated the suicide was God\'s will and he must do it since God told him to. The defendant also wrote a suicide letter to his mother expressing his love and affection for her and for a woman named Doris and the baby of Doris and the defendant. In another suicide note to his mother, the defendant expressed feelings of loneliness and that everybody was out to get him. An inmate of the jail testified: the defendant told him to stay away because the defendant did not know what he was doing; the defendant `said something about some guys across the hall trying to hurt him;\' there were times in the jail when the defendant had headaches, during which times he stared at the wall and didn\'t say anything. Another inmate of the jail testified that the defendant `is scared of peop

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