Hays v. Murphy

• Decision Date: 26 October 1981
• Docket Number: No. 81-2064,81-2064
• Citation: 663 F.2d 1004
• Parties: Mrs. Leo H. HAYS, as natural mother and next friend of Thomas Lee Hays, Petitioner-Appellant, v. Al MURPHY, Warden, Oklahoma State Penitentiary, and The Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1004

663 F.2d 1004

Mrs. Leo H. HAYS, as natural mother and next friend of Thomas Lee Hays, Petitioner-Appellant, v. Al MURPHY, Warden, Oklahoma State Penitentiary, and The Attorney General of the State of Oklahoma Respondents-Appellees.

No. 81-2064.

United States Court of Appeals Tenth Circuit.

Oct. 26, 1981.

Charles Foster Cox and Clarence Kent Eldridge, Oklahoma City, Okl., for petitioner-appellant.

David W. Lee, Asst. Atty. Gen. of Oklahoma, Oklahoma City, Okl. (Jan Eric Cartwright, Atty. Gen. of Oklahoma, Oklahoma City, Okl., was on the brief), for respondents-appellees.

Before HOLLOWAY, LOGAN and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

This habeas action was begun in the District Court for the Eastern District of Oklahoma by Mrs. Leo H. Hays as natural mother and next friend of Thomas Lee Hays, a prisoner at the Oklahoma State Penitentiary. Mrs. Hays alleges that her son is incompetent and thus incapable of maintaining the proceedings himself or of protecting his own federal constitutional rights not to be subjected to an illegal sentence of death. Mrs. Hays attacks the validity of the conviction and death sentence imposed on her son on a charge of first degree murder by the District Court of Muskogee County, Oklahoma, and affirmed by the Oklahoma Court of Criminal Appeals. Hays v. Oklahoma, 617 P.2d 223 (Okl.Crim.App.). The respondent Warden and respondent Attorney General challenge the standing of Mrs. Hays to proceed as a next friend, arguing essentially that she has not demonstrated the incompetency of Thomas Lee Hays so as to justify a next friend proceeding.

After an evidentiary hearing the district court, 521 F.Supp. 1290, upheld the objection of respondents, finding that Thomas Lee Hays was competent under the applicable standard so that this next friend proceeding could not be maintained. The habeas suit was therefore dismissed. Mrs. Hays appeals, arguing that the limited observations of her son by physicians and others were wholly inadequate to serve as a basis for the determination of his mental competency and that, in any event, the evidence demonstrated the incompetence of her son so that the finding of competency was clearly erroneous.

From thorough study of the record we must agree with the first proposition asserted by the petitioner, Mrs. Hays. There was sufficient evidence that Mr. Hays may have a serious mental disease, disorder or defect, existing prior to commencement of this suit and during critical earlier times, so as to require careful evaluation and examination of him to determine his competency. The limited observations of him by experts and others, under the conditions where they were made, are shown overwhelmingly by the record to be insufficient under procedures recognized as essential for a determination of the critical question involved-the competency of Mr. Hays under the controlling standard. See Rees v. Peyton, 384 U.S. 312, 314, 86 S.Ct. 1505, 1506, 16 L.Ed.2d 583. Accordingly, we must reverse the judgment of dismissal and the findings and conclusions of the district court and remand the case for further proceedings.

I

The principal facts pertinent to our disposition are as follows:

Thomas Lee Hays was convicted in the District Court of Muskogee County on a charge of first degree murder arising from a homicide in March 1977 in Muskogee. Circumstantial evidence tending to show that Mr. Hays committed the fatal shooting is detailed in the opinion of the Oklahoma court. See 617 P.2d at 226-27. Mr. Hays has maintained his innocence throughout, as he continues to do. He was found guilty, however, by a jury verdict and subjected to a death sentence after a penalty determination by the jury under the bifurcated procedure prescribed by Oklahoma statutes, now appearing as 21 O.S.Supp.1979, § 701.10 et seq.

On direct appeal to the Court of Criminal Appeals Mr. Hays asserted several claims of error including: erroneous admission of exhibits; erroneous denial of a motion for a mistrial after improper admission of lineup testimony; constitutional error arising from prejudicial and improper comments by the prosecutor on Mr. Hays's failure to testify; improper excusing of trial jurors who manifested a personal objection to the imposition of the death penalty; that there was insufficient proof of the required elements of felony murder; that the procedure by which the death penalty is reached in Oklahoma contravenes the Eighth Amendment in that it constitutes cruel and unusual punishment, and that the method of selecting the jury practically insured imposition of the death penalty; that the evidence failed to establish the aggravating circumstances of an "especially heinous, atrocious or cruel" murder, the creation of a great risk of death to more than one person, or the probability that the defendant would commit criminal acts of violence which would constitute a continuing threat to society.

After the affirmance of the conviction on direct appeal, Mr. Hays, according to his trial counsel, did not authorize an application for certiorari to the Supreme Court of the United States and none was filed. A hearing was held on May 19, 1981, by a state district judge, acting as a special referee appointed by the Court of Criminal Appeals. Mr. Hays was present and declined to respond when asked by the judge whether he had any statements to make. He remained mute when the judge inquired whether he wished to waive his right to appeal his conviction. ¹ Based on Mr. Hays's lack of response, the special referee made a report in which he found that

the appellant has not affirmatively waived his right to appeal, he has not expressed, in open court, any particular desire with reference to appeal, and the Special Referee concludes as a matter of law that appellant does not waive any statutory or constitutional rights by his silence.

(VI R., Report of Special Referee filed May 20, 1981).

After this hearing the Attorney General applied to the Court of Criminal Appeals to set an execution date and that court set the date of September 14, 1981.

On August 19, 1981, Messrs. Cox and Eldridge, present counsel for the petitioner-appellant, and Mr. Louis Bullock ² filed an application in the Oklahoma Court of Criminal Appeals for a stay of execution. An application for state post-conviction relief was also filed the same day by these attorneys in the District Court of Muskogee County. The Court of Criminal Appeals set a hearing on the matter for September 2, 1981, and ordered that Mr. Hays be brought to the hearing. At that time the Judges asked Mr. Hays questions in open court. In response he indicated that he did not want further legal proceedings on his behalf, that he did not want Messrs. Cox, Eldridge and Bullock to represent him, and that he understood that his execution date was set for September 14. When asked, however, whether he wanted his former retained counsel, Mr. Settle, to withdraw from the case, Mr. Hays made no comment. He also made no comment when asked whether he understood that he could have further proceedings if he desired. ³

The Court of Criminal Appeals then entered an order on September 2 declining to stay the execution scheduled for September 14. The order recited the questions asked and the answers given by Mr. Hays. See note 3, supra. On consideration of testimony and exhibits presented and the transcript of the hearing on May 19, 1981, before the special referee, the court found that Mr. Hays had "affirmatively waived any further legal proceedings on his behalf and does not seek a stay of execution." The court further found that Mr. Hays was not represented by Messrs. Eldridge, Cox and Bullock, and that he did not wish them to represent him. ⁴ The order concluded with a denial of a stay of execution.

Two days later on September 4, this federal habeas suit was filed in the Eastern District of Oklahoma. The district judge immediately set a hearing for September 8. On that date an evidentiary hearing was held with the taking of testimony from witnesses for both sides, the introduction of extensive documentary evidence, and arguments by counsel. This evidence focused mainly on the competency issue in dispute. At this federal hearing, counsel for Mrs. Hays also offered to introduce evidence to establish the existence of substantial constitutional questions presented by this habeas suit concerning the original trial record "raising very significant federal questions ...." The district judge apparently agreed that substantial constitutional questions were presented, interposing that "(t)he Court gleans that from the petition." (VII R. 73).

The district court announced a ruling at the conclusion of the hearing on September 8. It found essentially that Mrs. Hays, as natural mother of Thomas Lee Hays, was a proper person to maintain this next friend proceeding, but that Mr. Hays had the capacity to appreciate his position and problem and made a rational choice with respect to continuing or abandoning further litigation at the September 2 hearing before the Court of Criminal Appeals. (VII R. 200-201). Written findings and conclusions followed. The court therein found Hays to have such competency at the present time and at least "through a period preceding September 2, 1981, and June 15, 1981 ...." (I R. 194). The habeas suit was dismissed for lack of jurisdiction due to the absence of a proper case or controversy.

The district court did, however, issue a stay of execution for 30 days to permit the prosecution of an appeal to this court. On consideration of the record, the docketing statement and the initial brief, on September 24, this court, on its own motion, determined that the stay should be extended until further order of the court due to the important nature of the proceeding and the serious consideration required by the issues presented. The appeal was expedited, briefs filed, and argument of the appeal on its merits was heard on October 2,...