Kibert v. Peyton, 11126.

• Decision Date: 01 September 1967
• Docket Number: No. 11126.,11126.
• Citation: 383 F.2d 566
• Parties: Jessie KIBERT, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

383 F.2d 566 (1967)

Jessie KIBERT, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

No. 11126.

United States Court of Appeals Fourth Circuit.

Argued May 4, 1967.

Decided September 1, 1967.

Reno S. Harp, III, Asst. Atty. Gen., of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.

John J. Kirby, Jr., Charlottesville, Va. (Court-assigned counsel), for appellant.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BRYAN, Circuit Judges.

SOBELOFF, Circuit Judge:

Petitioner, Jessie Kibert, was convicted in a Virginia court on two counts charging first degree murder and given two life sentences, "to be served concurrently." He appeals from the District Court's denial of his petition for a writ of habeas corpus, wherein he alleged that at the time of his trial he was insane and completely incompetent to understand the charges against him and the pleas of guilty entered on his behalf.

With his two brothers, petitioner was arrested on April 26, 1959 for the murder of their aunt and uncle the day before, and indicted on June 2nd of that year. Pleas of guilty were entered on June 4th for all three defendants and the cases were heard by a judge sitting without a jury. On June 20th, Kibert was transferred from the jail to the Virginia State Penitentiary, and upon arrival there, was immediately committed to its hospital section. The prison psychiatrist initially diagnosed his condition as "acute confusional state with depressive features," and over the next three months Kibert received approximately 15 electroshock treatments. On September 18, 1959, he was committed to Southwestern State Hospital for the mentally ill upon the prison psychiatrist's final diagnosis of "schizophrenic reaction — undifferentiated type." He was not discharged from that hospital until April 5, 1961, at which time he was returned to the penitentiary

Kibert petitioned for state habeas corpus, and was granted a hearing on January 29, 1962. The court denied his petition, however, and the denial was upheld on appeal. He then sought habeas corpus relief in the District Court, alleging, as he had in his petition to the state court, that he was insane both before and during the trial. He asserts that he was dazed at the time and that he is unable to remember either the alleged murders or the trial; that he did not understand the charges against him or the pleas entered on his behalf; and that his trial and conviction, while incompetent and insane, violated due process.

The District Court dismissed Kibert's petition without a hearing, stressing that neither his attorney, with fifteen or sixteen years of experience, nor the trial court sought a psychiatric examination of Kibert pursuant to VA. CODE ANN. § 19.1-228 (1966 Cum.Supp.).¹ The District Court's opinion also relied upon the conclusory recital in the trial court's order that the petitioner "fully understood the nature and effect of his plea."² Finally, the District Court expressed agreement with the state habeas court's conclusion that since there was no medical evidence to substantiate the petitioner's contention that he was insane at the time of the trial, "other than findings made at a later date," the attack on his convictions could not succeed. A thorough review of the record in the state habeas proceedings, however, convinces us that the District Court was plainly in error in dismissing the petition, since for the reasons to be stated, the petitioner clearly established his incompetency to stand trial on June 4, 1959.

The fact that neither the attorney nor the trial court sought to have Kibert examined by a psychiatrist cannot, in the present circumstances, be taken as an indication of the prisoner's sanity. The attorney prior to trial had serious doubts as to Kibert's mental condition. Yet he put them aside and entered a plea of guilty solely on the basis of a mere nod of the prisoner's head when asked if he wanted such a plea entered on his behalf.³

The Commonwealth of Virginia has enacted a series of statutes which provide that the court, counsel for the accused, or the state may obtain a hearing and commitment if doubts arise prior to trial as to the competency of defendant. VA. CODE ANN. §§ 19.1-227, 19.1-228, and 19.1-229. As we had occasion to observe in Thomas v. Cunningham, 313 F.2d 934, 939 (4th Cir. 1963):

"What emerges from this humane legislation is the assurance by the Commonwealth that one whose mental capacity to cope with the exigencies of a trial is in doubt shall not be put in jeopardy without a preliminary inquiry into his present mental condition."

The protection afforded the defendant by this legislation is illusory, however, if, when a reasonable doubt as to his sanity arises, neither court nor counsel seeks to utilize the procedures provided by the state for determining competency. Although the issue was not raised in court, it is clear from the attorney's testimony in the state habeas proceeding that he, at least, entertained substantial doubts as to his client's sanity. In similar circumstances, we held that the failure of the defendant's lawyer to explore the matter and adduce evidence in court where there was reason for doubt as to the mental condition of the accused, constituted a denial of his right to effective assistance of counsel. Owsley v. Peyton, 368 F.2d 1002 (4th Cir. 1966). See also Caudill v. Peyton, 368 F.2d 563 (4th Cir. 1966). The Supreme Court has held categorically that the defense of incompetency to stand trial cannot be waived by the incompetent, Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed. 2d 815 (1966), and it ineluctably follows that his counsel cannot waive it for him by failing to move for examination of his competency.

Since, in these circumstances, neither counsel nor court acted to have the defendant examined at the time of his trial, the question may be raised in post-conviction proceedings. In the state habeas hearing, two psychiatrists were summoned to testify. The prison psychiatrist who examined Kibert on his arrival at the penitentiary read to the court his report, written after the initial examination: "Patient is confused, stuporous, preoccupied, and depressed." The failure of the extensive electroshock treatments to bring any significant improvement prompted the final diagnosis of "schizophrenic reaction undifferentiated type" and led to the patient's commitment to the Southwestern State Hospital. At the court's request, the prison doctor explained the basis for his diagnosis:

"A. It is a person who has regressed and withdrawn from reality. His concept formation, his reality relationship, and his behavior is entirely not normal. He was walking around in a daze. He didn\'t know the day, the month, the year or where he was, what he did. He read the Bible continuously. He was entirely in a different world. It was mixed, too, undifferentiated."

* * * * * *

"Q. Would you say that on June 23rd when you examined him, he would not have been responsible for his actions?

A. On June 23rd, when I examined him first, his contacts with reality were very limited. He was not responsible on June 23rd * * * * * *

A. No, he was not normal, sir, between June 23rd and September 28th." (Emphasis supplied.)

Kibert was also diagnosed as "schizophrenic reaction acute and undifferentiated type" by the medical staff at Southwestern State Hospital. The Superintendent of the hospital described the symptoms which led to this diagnosis as follows:

"A. In his case, particular symptoms were difficulty in thinking, blocking, inadequate emotional reaction, varied confusion. There was some vague suggestion of paranoid trends to it. This confusion we consider as somewhat, as sort of catatonic feature.

Q. Did you make observations of the petitioner and could you describe to us some of his actions at the time you saw him the first time?

A. It took him considerable time to reply to questions. He seemed to have interference with thinking.

* * * * * *

A. His speech, his talking, was at times slow as if he had difficulty thinking and at times it seemed as if there were interrupting trends of thought within his own mind which would make him seem inattentive and then all of a sudden look up as if he had not been listening too well as if there were some incoherent trend of thought. He did not seem to be actually hearing the voices. He was not actually elucidated hallucinating? that we could tell. He would seem in a study part of the time, and part of the time he seemed overly cheerful and crying.

* * * * * *

A. * * * We felt that he was definitely mentally ill and was showing this schizophrenic picture and ill in that he had blocking of thinking, difficulty of thinking, unduly emotional. He was retarded in his thinking. He was at times apathetic and in rather poor contact with his environment. The whole picture was enough to make us feel that he was very definitely in that psychotic category." (Emphasis supplied.)

Despite the telling force of the testimony of the two psychiatric witnesses as to Kibert's mental condition on June 23 and in the following weeks, they were prevented from expressing their expert opinions as to the origins or date of the onset of petitioner's mental illness. Nor were they permitted to answer such questions based on observations of others made prior to and at the trial. On persistent objections by the Assistant Attorney General, the court limited the doctors' answers to what they learned through direct observations of the prisoner. It is elementary that an expert witness is permitted to take into account the testimony of others as to what they observed, and upon his interpretation to offer an informed professional opinion. Yet here, unaccountably, the psychiatrists were restricted to their direct observations.

The inquiry was further prejudiced by other exceedingly narrow rulings. As noted above, the State took the highly legalistic...