Greer v. Beto

• Citation: 379 F.2d 923
• Decision Date: 03 July 1967
• Docket Number: No. 24409.,24409.
• Parties: Melvin W. GREER, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

379 F.2d 923 (1967)

Melvin W. GREER, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 24409.

United States Court of Appeals Fifth Circuit.

July 3, 1967.

Arthur L. Forbes, Houston, Tex., for appellant.

Lonny F. Zwiener, Asst. Atty. Gen. of Texas, Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., R. L. (Bob) Lattimore, Howard M. Fender, Robert E. Owen, Asst. Attys. Gen., Austin, Tex., for appellee.

Before BELL, GODBOLD, and DYER, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

Appellant, a recidivist with a long record of mental illness, sought a writ of habeas corpus in the District Court after having exhausted his state remedies. His contention in the District Court and here is that he was given an inadequate pretrial sanity hearing by the Fannin County, Texas court wherein he was charged with burglary and with theft,¹ and that he was denied the effective assistance of counsel in his sanity trial and in the trial of the burglary charge on the merits.

The District Court denied relief. We reverse for further proceedings on the issue of whether appellant had the effective assistance of counsel at his trial on the merits in Cause No. 15,137, the burglary charge.

Appellant is presently serving a twelve year sentence which was imposed after a jury verdict of guilty rendered on a plea of not guilty in that case. He is serving concurrent sentences imposed on pleas of guilty to burglary which pleas were entered in Kaufman County, Texas and Grayson County, Texas. The petition for the writ is also directed to these latter sentences. The District Court, however, pretermitted consideration and determination of the allegations as they related to these guilty pleas and the sentences pursuant thereto on the ground that appellant was lawfully incarcerated in Cause No. 15,137 and thus was not presently entitled to a writ of habeas corpus. Brown v. Beto, 5 Cir., 1967, 377 F.2d 950.

The District Court appointed counsel to represent appellant and thereafter conducted an evidentiary hearing. That hearing centered on the state court sanity trial in Cause No. 15,137 which trial preceded the trial on the merits by some two months. That trial involved a determination of sanity at the time of the offense and at the time of the trial. Appellant was found sane at both times. His contention is that the sanity trial was constitutionally infirm by reason of the fact that his court appointed counsel was deprived of the assistance of a psychiatrist and because there was no testimony on his behalf by a psychiatrist. He relies on Bush v. McCollum, N.D.Tex.1964, 231 F.Supp. 560, affirmed sub nom. McCollum v. Bush, 1965, 344 F.2d 672. Cf. United States ex rel Smith v. Baldi, 1958, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed.2d 549. The facts are to the contrary. Whether the test be made in terms of due process, or as a part of or an adjunct to the Sixth Amendment right to counsel, it is our conclusion that appellant was not deprived of any federal constitutional right in the state court sanity trial.

An experienced criminal lawyer who is a past president of the Texas State Bar was appointed to represent him. This lawyer obtained the separate trial on the question of appellant's sanity under the provisions of Art. 932b, Vernon's Ann. Texas Code of Crim.Proc., the applicable Texas statute then in effect.

There were several medical doctors practicing in Fannin County but none specialized in the field of psychiatry. There is an adequate factual basis for the finding by the District Court that one of these doctors examined appellant but his lawyer was not satisfied with the result and did not use the doctor as a witness. There was testimony in the District Court that this doctor had offered opinions in court in other cases as to mental illnesses after qualifying himself as an expert to testify in such matters.

The District Court found that appellant's lawyer then arranged for all of appellant's medical records to be sent by the Veterans Administration to the Veterans Administration hospital in Bonham, Texas, which is in Fannin County. Most of appellant's mental illness diagnosis and treatment had been by and under the army and the Veterans Administration. The records were turned over to a doctor who testified as to his conclusions based on these records and based on his examination of appellant. This doctor, although not a psychiatrist, had been practicing medicine for thirty years and had been employed by the Veterans Administration hospital in Bonham since 1946 as a physician. He had made numerous psychiatric examinations and evaluations on many patients and had treated many patients suffering from mental diseases.

In Bush v. McCollum, supra, appellant's counsel requested that the defendant be committed to a hospital for examination and diagnosis by psychiatrists, and also requested the assistance of and testimony by psychiatrists. Each request was refused. No such requests were made here; counsel made his own arrangements. Moreover, as distinguished from Bush where there was virtually no psychiatric testimony, here there was testimony by the Veterans Administration doctor who was experienced in psychiatric matters. We affirm the judgment of the District Court as it pertains to the sanity trial.

The trial on the merits is quite another matter. Counsel who represented appellant at the sanity trial was relieved and another lawyer was appointed for the trial on the merits which, as stated, took place slightly more than two months later. The findings, conclusions, and opinion of the District Court deal only in the briefest way with the contention that appellant did not then have the effective assistance of counsel.

It is undisputed that there was a complete absence of medical testimony at the trial on the merits. This fact must be considered in the light of the additional fact that the issue of appellant's sanity was then and there again submitted to the jury. The jury made separate findings that appellant was sane and guilty. We can surmise that such an issue was presented since the state trial court gave an instruction to the jury on the issue and defense of insanity and required the separate finding. The transcript of the evidence at the trial was not before the District Court, if indeed such was available, and thus we do not have the benefit of it.

Under the facts before us, it is apparent that a sharp issue is presented as to whether appellant had the effective assistance of counsel, as was his due, at the trial in light of the undisputed fact that no medical evidence whatever, psychiatric or otherwise, was offered on the question of his sanity. His trial counsel testified by interrogatory that he did not know of any doctor who had examined appellant. His explanation, by a fair inference, was that appellant had only recently been found sane. This failure to offer testimony was compounded by the introduction into evidence of the jury verdict rendered in the sanity trial finding appellant sane. In addition the trial was before a different jury and the issue of insanity was being tried anew. We think that this, without more, makes out a prima facie case of ineffective or inadequate assistance of counsel.

We hasten to add that counsel may have been handicapped in offering medical testimony since the Texas authorities seem to hold that an indigent is not entitled to a psychiatric examination at the expense of the state. See Crain v. State of Texas, Tex.Crim.App.1964, 394 S.W.2d 165. Such Texas policy may not, however, avoid the federal constitutional right to the effective assistance of counsel. See McCollum v. Bush, supra; Bush v. McCollum, supra. See also Avery v. State of Alabama, 1940, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377; Powell v. State of Alabama, 1932, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158; Roberts v. United States, 5 Cir., 1963, 325 F.2d 290. The case of Williams v. Beto, 5 Cir., 1965, 354 F.2d 698, contains a full discussion of the standards to be used in determining questions involving whether effective counsel was afforded in criminal cases.

This matter must be reversed for an additional hearing on the question whether appellant was deprived of the effective assistance of counsel at his trial on the merits. Without in anywise restricting the District Court as to what should be considered at the hearing, it would appear that the testimony of counsel who represented appellant at the trial on the merits, and a transcript of the evidence adduced on that trial, if not also the transcript of the sanity trial will be needed. Good judicial administration requires that we mention these matters although we recognize that they are to be left to the discretion of the District Court along with other procedural questions.

Reversed and remanded for further proceedings not inconsistent herewith.

GODBOLD, Circuit Judge (concurring in part and dissenting in part).

There are three overlapping issues in this case — the adequacy of a pre-trial determination of competence to stand trial, the right to effective representation by counsel at the pre-trial sanity hearing, and the right to such counsel at the trial itself. The majority have dealt effectively with the third issue only.

In view of appellant's long...