Early v. Tinsley, 6593.

• Decision Date: 17 November 1960
• Docket Number: No. 6593.,6593.
• Citation: 286 F.2d 1
• Parties: David F. EARLY, Appellant, v. Harry C. TINSLEY, Warden, Colorado State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

286 F.2d 1 (1960)

David F. EARLY, Appellant, v. Harry C. TINSLEY, Warden, Colorado State Penitentiary, Appellee.

No. 6593.

United States Court of Appeals Tenth Circuit.

November 17, 1960.

Harold R. Harward, Canon City, Colo., and Stephen E. Connor, Denver, Colo., for appellant.

J. F. Brauer, Asst. Atty. Gen. of Colorado, for appellee.

Before MURRAH, Chief Judge, LEWIS, Circuit Judge, and RICE, District Judge.

MURRAH, Chief Judge.

In this habeas corpus proceedings, petitioner appeals from an order of the trial court discharging the writ and denying stay of a death sentence imposed by the Colorado state court upon a jury conviction for murder in the first degree.

The salient facts are that on the evening of April 25, 1958, petitioner was apprehended at the scene of the crime for which he was charged. Later in the evening he made a full, complete and voluntary confession to the crime. The next morning, and before arraignment, he was interviewed by two psychiatrists who were introduced to him as "doctors," but whom he "assumed" were psychiatrists. Upon arraignment, without counsel, a plea of not guilty was entered. Thereafter, appointed counsel entered an amended plea of not guilty by reason of insanity. On the trial of the case the two psychiatrists who examined him prior to arraignment and prior to the appointment of counsel were permitted to testify, over objection of petitioner, concerning his mental responsibility for the crime. On appeal to the Supreme Court of Colorado, 352 P.2d 112, 118, from a death sentence, the admissibility of this testimony was strenuously challenged on the ground that the examinations were not conducted in accordance with the provisions of C.R.S. '53, 39-8-2; that this statute provides the exclusive procedure for raising and trying the issue of insanity in a criminal case, and failure to adhere to the statute rendered the testimony inadmissible and denied him due process of law under the Colorado and United States Constitutions. Const. art. 2, § 25; U.S.Const. Amend. 14. It was further contended that the admission of the pre-arraignment testimony accorded the state an undue and unfair advantage, amounting to a denial of due process and compulsory self-incrimination.

The Colorado Supreme Court rejected the petitioner's contentions, holding that 39-8-2, while intended to insure examination of accused persons by psychiatrists and specialists in mental diseases, did not operate to exclude employment of psychiatrists by either the state or the accused, or the admission of their testimony on the trial of the issue of insanity. On the question of whether pre-arraignment mental examinations by the people, without equal opportunity of the accused, operated to accord the state an undue or unfair advantage amounting to a denial of due process, the Colorado Supreme Court took the view that any such contention carried the concept of due process of law to an "illogical extreme." The court did not think that the petitioner had been thus deprived of any right guaranteed by the Colorado statutes or by the due process clauses of the state or federal Constitutions. It specifically found that the psychiatrists had identified themselves as doctors and that there was a basis for concluding that the petitioner was aware of their identity as psychiatrists. It noted the complete absence of any force or coercion or "surreptitious mental invasion," as in Rochin v. People of State of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, and concluded that the testimony of the psychiatrists was correctly admitted in evidence along with the testimony of several other psychologists and psychiatrists testifying for the state and the defense. Finally, the court concluded that the petitioner had been represented by "highly competent counsel" who defended him with skill and ability. Early v. People, Colo., 352 P.2d 112. Upon affirmance of the judgment and denial of certiorari to the Supreme Court of the United States, 81 S.Ct. 90, the judgment was ordered to be executed during the week of November 14, 1960.

Having thus exhausted his state remedies, petitioner filed this habeas corpus proceedings pro se in the United States District Court for the District of Colorado, on October 24, 1960. He again challenged the competency of the pre-arraignment psychiatric testimony on the grounds that it...