Brizendine v. Swenson

• Decision Date: 11 August 1969
• Docket Number: No. 1394.,1394.
• Parties: William Prell BRIZENDINE, Petitioner, v. Harold R. SWENSON, Warden, Respondent.
• Court: U.S. District Court — Western District of Missouri

302 F. Supp. 1011

William Prell BRIZENDINE, Petitioner, v. Harold R. SWENSON, Warden, Respondent.

No. 1394.

United States District Court W. D. Missouri, C. D.

August 11, 1969.

J. Arnot Hill, Kansas City, Mo., for plaintiff.

Gene E. Voigts, Asst. Atty. Gen., Jefferson City, Mo., for defendant.

JOHN W. OLIVER, District Judge.

MEMORANDUM AND ORDER

I.

The state prisoner involved in this case invokes the habeas corpus jurisdiction of this Court for a second time. In Brizendine v. Swenson (W.D.Mo.1966), 261 F.Supp. 68, we dismissed petitioner's first application for federal habeas corpus because petitioner had not then exhausted his available state court post-conviction remedies. Following that decision petitioner filed a pro se Missouri Rule 27.26, V.A.M.R. motion in the state trial court. The Supreme Court of Missouri affirmed the denial of that motion in State v. Brizendine (Mo.Sup.Ct. en banc 1968), 433 S.W.2d 321, with one judge dissenting.

We find and conclude that petitioner is now entitled to appropriate federal habeas corpus relief on two separate and independent grounds: (1) the federal standards enunciated in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed. 2d 815 (1966), although recognized by the Supreme Court of Missouri, were not properly applied to the undisputed factual situation presented; and (2) petitioner was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States.

II.

When this case was first here we noted that the Supreme Court of Missouri had stated in State v. Brizendine, (Mo.Sup. Ct.Div. 2, 1965) 391 S.W.2d 898, 901, (which affirmed petitioner's conviction on direct appeal) that "It is apparent from the transcript that neither appellant, the State, nor the Court, was aware of, or at least proceeded under Chapter 552 a chapter of the Missouri statutes enacted in 1963 entitled Mentally Ill Persons in Criminal Cases in effect at the time of defendant's 1964 arraignment and trial."

We stated in regard to the federal question of defendant's competency to stand trial that:

The facts apparent from the transcript, assuming for the moment that the transcript is accurate, show that on February 4, 1964 Judge Hall sustained a "Motion for order to examine defendant's metal state" filed January 30, 1964 by petitioner's counsel. That motion made no mention of V.A.M.S. § 552.020.

We noted that the pretrial motion filed on behalf of the petitioner for a psychiatric examination alleged that his attorney had "numerous conferences with defendant;" that "during each of said conferences, defendant has been unable to comprehend the questions asked him;" and that "he is unable to understand and comprehend that he is charged in this Court with first degree murder."

We further noted that Judge Hall granted that motion on February 4, 1966, specifically finding that "defendant should be given a psychiatric examination and that a report concerning his mental condition is necessary to a disposition of the Murder, First Degree charge now pending against defendant." The Clinical Director of State Hospital No. 2 at St. Joseph was directed to make the examination and to file a written report. We then stated that:

Dr. G. S. Waraich, Acting Superintendent of State Hospital No. 2 at St. Joseph, wrote a letter to Judge Hall, quoted in part on page 900 of 391 S.W.2d. The transcript does not show, however, that any hearing of any sort was held at which that letter was ever introduced in evidence; at which Dr. Waraich was called as a witness; or at which it was ever judicially determined that petitioner was competent to stand trial. The transcript does not show that petitioner was ever afforded the opportunity to cross-examine Dr. Waraich or to offer evidence of his own, as was his right, on request, under V.A.M.S. § 552.020, ¶ 2. The transcript does not show whether petitioner contested the finding or that he was ever given an opportunity so to do. * * *

All the transcript shows is that two days after Judge Hall signed his order on February 4, 1964, the case was continued for the term and until March 9, 1964, the first day of the March 1964 Term; was on that day reset for trial on March 23, 1964; and that the trial in fact commenced before Judge Jensen on March 30, 1964, without any notice being made of Judge Hall's order for examination for competency to stand trial.

Although counsel for the petitioner later introduced Dr. Waraich's letter in evidence (Tr. 120), neither he nor anyone else apparently knew or remembered before the trial commenced that Judge Hall had ever sustained a defense motion for mental examination; that a report had been made by the examining doctor; or that no hearing or judicial determination of any sort had ever been held to determine whether petitioner was mentally competent to be tried. 261 F.Supp at 74.

We further noted, however, that petitioner's counsel at the trial "in both his opening statement and his closing argument * * * indicated his continuing belief that defendant was incompetent to stand trial." We quoted the appropriate pages of the transcript which showed petitioner's counsel's consistent protest, from the beginning of the trial to its end, that "the man is not competent to cooperate with me" (Tr. 119) and his purported justification that "I presented no evidence because this man can not cooperate with me" (Tr. 148).

We stated in Brizendine I that "the question of whether petitioner should have been tried at all was not some sort of hidden question." We stated the following in regard to the controlling federal standard:

Pate v. Robinson, 383 U.S. 375 at 378, 86 S.Ct. 836, at 838, 15 L.Ed.2d 815 (1966), reiterated the well established rule that "the conviction of an accused person while he is legally incompetent violates due process, Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), and that state procedures must be adequate to protect that right." That case also held that "the trial court's failure to make such inquiry * * * deprived Robinson of his constitutional right to a fair trial" (383 U.S. at 385, 86 S.Ct. at 842) and that the failure of Illinois to give an accused "an adequate hearing on his competence to stand trial" required the federal court to issue its writ of habeas corpus unless the accused was granted a new trial within a reasonable period of time (383 U.S. at 386, 86 S.Ct. at 842). 261 F.Supp. at 74-75.

We did not, however, apply that standard to the factual situation apparently established by the transcript on direct appeal. We noted, however, that:

The question of whether or not the procedures followed in regard to defendant's competency to stand trial were in accord with due process is not going to go away. We should not, however, exercise our power and jurisdiction to make further inquiry into that question * * * until after the Missouri courts have been given an opportunity to pass on that question. 261 F.Supp. at 75.

When the case reached the Supreme Court of Missouri for the second time on petitioner's Missouri Rule 27.26 appeal, that court appropriately recognized that the principles stated in Pate v. Robinson were applicable. We must, however, find and conclude that it refused properly to apply those principles to the undisputed relevant facts established in the state court trial and post-conviction proceedings.

III.

The Supreme Court of Missouri appropriately stated that petitioner's "claim for relief is based upon the trial court's failure to conduct a hearing and rule upon his competency" (433 S.W.2d at 326). On page 334 of 433 S.W.2d, that court reiterated that "the ground for relief * * * is that the failure of the trial court to conduct a hearing and pass upon the issue of his competency to stand trial violated the requirements of due process of law as set down in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815."

The Supreme Court of Missouri accepted the following findings of the state trial court:

On January 31, 1964, the Court sustained Defendant's motion for a mental examination and directed the Defendant to be delivered to State Hospital No. 2 at St. Joseph, Missouri.

* * * * * *

Following Defendant's return from State Hospital No. 2, no hearing was held by the Court to determine Defendant's competency to stand trial as provided for by Section 552.020, V.A.M.S.

* * * * * *

Chapter 552 of the Missouri Statutes became effective in October, 1963, and was applicable to the arraignment and other proceedings involving Defendant Brizendine. 433 S.W.2d at 330.

The Supreme Court of Missouri quoted the following from petitioner's counsel's statement in the trial court in support of his motion for a competency examination:

Well, sir, first of all, I have seen him, since I became his attorney about two months ago, at least twelve to sixteen times. I did not know the man, but the minute that I was called by some friends of his, why, everybody told me that he was using "goofballs," that he's crazy. I talked to him; I couldn't get him to understand this is a serious matter, this is a First Degree Murder that may involve his life, and he would laugh, just shake it off like it was nothing. Then he would sit down and write me letters telling me how to try the case and what alibi to put up. Of course, a lot of them do that. I went back and said, "Will you sit down and talk to me? I want to know how it happened. You can trust me; I want to know." He started laughing, changed the subject, telling me he was a bad boy, he was discharged from the Marines, a dishonorable discharge, because he was mentally sick. He didn't use the word "mentally," because he was sick. I said, "Tell me when you joined, when you were discharged." I couldn't ascertain the time, if he was in the Marine Corps or if he was discharged.

I went back and talked to him again, and from his actions, appearance and speech, and refusal to cooperate with me, I

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