Collins v. Auger, 77-1469

• Decision Date: 08 May 1978
• Docket Number: No. 77-1469,77-1469
• Citation: 577 F.2d 1107
• Parties: In the Matter of the Application of Gary James Collins for a Writ of Habeas Corpus. Gary James COLLINS, Appellee, v. Calvin AUGER, Warden, Iowa Men's Reformatory, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1107

577 F.2d 1107

In the Matter of the Application of Gary James Collins for a Writ of Habeas Corpus Gary James COLLINS, Appellee, v. Calvin AUGER, Warden, Iowa Men's Reformatory, Appellant.

No. 77-1469.

United States Court of Appeals Eighth Circuit.

Submitted March 15, 1978.

Decided May 8, 1978.

Richard C. Turner, Atty. Gen., and Thomas D. McGrane, Asst. Atty. Gen. (argued), Des Moines, Iowa, on brief for appellant.

Keith E. Uhl (on brief), Scalise, Scism, Gentry, Brick & Brick, Des Moines, Iowa, argued, for appellee.

Before LAY and ROSS, Circuit Judges, and LARSON, ^* Senior District Judge.

LAY, Circuit Judge.

Gary James Collins was convicted of assault with intent to commit rape in the Iowa state court; his conviction was affirmed on direct appeal. State v. Collins, 236 N.W.2d 376 (Iowa 1975), cert. denied, 426 U.S. 948, 96 S.Ct. 3166, 49 L.Ed. 1184 (1976). He thereafter sought a writ of habeas corpus in the federal district court, alleging that the admission of a confession in his state trial was in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and resulted in a denial of his constitutional rights under the Fifth, Sixth and Fourteenth Amendments. The district court, the Honorable William C. Stuart presiding, found that admission of the confession did not violate the Miranda rule but was a denial of due process. Collins v. Auger, 428 F.Supp. 1079 (S.D.Iowa 1977). In view of the intervening decision of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), this court on appeal remanded the cause to the district court to certify its findings as to whether there had been a contemporaneous objection in the state trial court as to the due process issue and, if not, whether petitioner demonstrated "cause" and "prejudice" under the new standards adopted in Sykes, as originally set out in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Upon remand the district court vacated its prior order and denied relief. Collins v. Auger, 451 F.Supp. 22 (S.D.Iowa 1977).

Prior to his state trial petitioner filed an application for a mental evaluation to determine his competency to stand trial. The application was granted, and petitioner was interviewed a number of times by Dr. Romullo Lara at the Iowa Security Medical Facility at Oakdale. During the course of the interviews, petitioner confessed to Dr. Lara that he had committed the crime for which he was charged.

At petitioner's trial the statements made to Dr. Lara were admitted into evidence despite defense counsel's repeated objections on the basis of physician-patient privilege, the hearsay rule, and self-incrimination. In affirming the conviction the Supreme Court of Iowa held that admission of the statements made to Dr. Lara did not violate Collins' rights despite the absence of Miranda warnings prior to the interviews. Justice Rawlings filed a special concurring opinion in which he agreed that no Miranda violation had occurred but indicated that admission of the statements may have been a violation of due process. 236 N.W.2d at 379.

Contemporaneous Objection Rule.

The State contends that during the proceedings in the state trial court and on direct appeal, defense counsel did not specifically object to admission of the confession on due process grounds. Prior to Francis and Sykes, counsel's failure to object to constitutional error would not preclude habeas corpus relief in federal court unless a knowing, deliberate waiver was shown. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Harris v. Brewer, 434 F.2d 166, 168 (8th Cir. 1970). Only where it could be shown that the failure to make an objection was deliberate, for reasons such as trial strategy, was the defendant held to have waived the objection. Cf. Pope v. Swenson, 395 F.2d 321, 322-23 (8th Cir. 1968). The fact that the state had a procedural forfeiture rule which required a contemporaneous objection before trial errors could be later asserted on collateral attack did not limit a petitioner's right to assert constitutional issues in a federal habeas corpus action. See Harris v. Brewer, supra at 168.

In Francis and Sykes, the Supreme Court narrowed the application of the deliberate bypass doctrine, holding that, absent compliance with an applicable state contemporaneous objection rule, a state prisoner could assert alleged trial errors in a federal habeas corpus action only after showing "cause" for not making a contemporaneous objection and "prejudice" from the alleged error. In reaching this conclusion the Court recognized that, under principles of federalism, state procedural forfeiture rules are entitled to greater respect than that granted by the deliberate bypass rule. 433 U.S. at 88-89, 97 S.Ct. 2497.

On remand in the present case, the district court found that petitioner had failed to make an adequate contemporaneous objection to the admission of his statements to Dr. Lara and thus was required to establish both cause for his failure to object and prejudice from the erroneous admission. The court found that cause had been shown but concluded that, although admission of the testimony was not harmless error, no prejudice had been established. The district court therefore vacated its prior order and refused to grant the writ of habeas corpus. Collins v. Auger, supra. We now vacate the district court's order and direct that the court conditionally grant a writ of habeas corpus.

Although defense counsel did not specifically challenge the admissibility of the confession in the trial court on due process grounds, the fact remains that repeated objections were made at trial to the admission of the statements. The record thus indicates that the trial court, as well as the Supreme Court of Iowa, was alerted to evidentiary and constitutional issues pertaining to the confession's admissibility. As Judge Stuart recognized, since one member of the Supreme Court of Iowa dealt with the due process issue, it must have been brought to the state courts' attention. We conclude that petitioner asserted an adequate contemporaneous objection in the state proceedings. ¹

Since we find petitioner made a sufficient objection, he is entitled to review of his constitutional claims on the merits. The district court found that admission of the statements to Dr. Lara violated petitioner's due process rights:

(I)t is fundamentally unfair to use defendant's incriminating admissions to a psychiatrist during a psychiatric examination as part of the prosecution's case to establish his guilt. . . .

The defendant is entitled to raise his mental condition at the time of the offense as a defense. He is also entitled, under proper circumstances, to an examination to determine his competency to stand trial. Psychiatric examinations are essential to the proof of his mental condition. An indigent must seek a court order authorizing the examination and the payment of its cost. If the giving of a Miranda warning satisfied requirements of the Fifth Amendment and the Fourteenth Amendment and made the defendant's incriminating admissions admissible the defendant would be placed in a situation where he must sacrifice one Constitutional right to claim another.

If a defendant cooperated with the psychiatrist and made a full disclosure of his thinking processes and his background, including incriminating statements and if he failed to establish his lack of mental capacity, he would be faced with these admissions on trial. If a defendant exercised his right to remain silent and refused to cooperate with the psychiatrist the likelihood of a meaningful and reliable examination would be considerably decreased and his opportunity to urge a possible defense thwarted. A defendant should not be compelled to choose between exercising his Fifth Amendment right not to incriminate himself and his due process right to seek out available defenses.

Collins v. Auger, 428 F.Supp. 1079, 1082-83 (S.D.Iowa 1977).

See also State v. Evans, 104 Ariz. 434, 454 P.2d 976, 978 (1969) (en banc). Cf. Simmons v. United States, 390 U.S. 377, 393-94, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Reifsteck, 535 F.2d 1030, 1034 n. 1 (8th Cir. 1976). We agree with this reasoning and with Judge Stuart's conclusion that the error was not harmless.

Cause and Prejudice.

Even assuming, however, that petitioner did not properly challenge the admission of the statements and the "cause" and "prejudice" test required by Sykes...