Spivey v. Zant, 80-7243

• Decision Date: 16 August 1982
• Docket Number: No. 80-7243,80-7243
• Citation: 683 F.2d 881
• Parties: 11 Fed. R. Evid. Serv. 643 Ronald K. SPIVEY, Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 881

683 F.2d 881

11 Fed. R. Evid. Serv. 643

Ronald K. SPIVEY, Petitioner-Appellant, v. Walter ZANT, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee.

No. 80-7243.

United States Court of Appeals, Fifth Circuit.

Unit B^*

Aug. 16, 1982.

Jeffrey D. Colman, Jenner & Block, Michael Shepard, Michael Palmer, Chicago, Ill., for petitioner-appellant.

William B. Hill, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before DYER, TJOFLAT and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

In our first encounter with this habeas corpus case, Spivey v. Zant, 661 F.2d 464 (5th Cir. 1981), we remanded the case to the district court for further proceedings on petitioner Ronald Keith Spivey's fifth, sixth, and fourteenth amendment claims; the procedural history of the case is detailed in that opinion, as are Spivey's constitutional claims. On remand, the district court was to conduct an evidentiary hearing to determine whether Spivey was represented by counsel on April 15, 1977, when the Georgia trial court ordered a psychiatric examination of his competence to stand trial and his mental condition at the time of the offense, as well as on April 18, 1977, when the first court-ordered examination occurred. The court was also to determine whether Spivey's counsel, if he had one, had prior notice of the April 18 examination. Having made the requisite findings, the court was to rule on Spivey's sixth amendment claim; if Spivey was required to submit to the examination without prior notice to counsel, either because he had no attorney or because his attorney had no notice, then Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), required sustaining Spivey's claim. Spivey v. Zant, 661 F.2d at 475-6. Finally, the district court was to reconsider Spivey's claim that his fifth amendment privilege against self-incrimination was violated when the court-appointed psychiatrist, without advising him that he had the right to remain silent and that any statement he made could be used against him at trial, and without notifying him of the purpose of the examination, interrogated Spivey while he was in custody and before he had manifested an intention to assert an insanity defense, and then testified for the State in rebuttal to Spivey's insanity defense. We retained jurisdiction of the case.

Having conducted an evidentiary hearing on remand, the district court entered its opinion and order finding the dispositive facts adversely to Spivey and rejecting his constitutional claims. Spivey now challenges the district court's order on three grounds: (1) That the court committed procedural errors, particularly the quashing of a subpoena duces tecum served on William J. Schloth, which require that we vacate the court's order and remand for further proceedings; (2) That the court-ordered psychiatric examinations violated Spivey's sixth and fourteenth amendment rights because, contrary to the findings of the district court, Spivey was not represented by counsel between April 15 and April 18, 1977, or, alternatively, because his attorney had no prior notice of the April 18 inquiry into Spivey's mental condition at the time of the offense; (3) That, contrary to the conclusions of the district court, Spivey's fifth and fourteenth amendment rights were violated by the prosecutor's use of information obtained through the compulsory psychiatric examinations. We conclude that the district court erred by quashing the subpoena duces tecum served on William Schloth. Therefore, without reaching the merits of Spivey's constitutional claims, we vacate the court's order and remand for further proceedings.

The significance of the district court's quashing of the subpoena on Schloth is best understood in the context of the principal factual inquiries and the evidence adduced in the hearing below. Spivey was initially represented in the Georgia trial court by appointed counsel, Cain. On April 8, 1977, Cain represented Spivey in a hearing before the trial judge, Judge J. Alvan Davis, on Cain's motion for a psychiatric examination of Spivey. The record, including the language of the motion, suggests that the motion was directed to Spivey's competency to stand trial rather than to his mental condition at the time of the offense. Spivey, who opposed the motion and regarded it as a breach of Cain's promise not to file such a motion without first consulting him, announced that he would never again discuss the case with Cain and that he wanted another attorney. Judge Davis responded to Spivey's objections to the motion by emphasizing his duty to inquire into Spivey's "ability to stand trial at this time."

The record suggests, and we assume, that later on April 8, Judge Davis telephoned William J. Schloth and asked him to represent Spivey, and that Schloth agreed. One week later, on April 15, Judge Davis entered an order that Spivey be delivered to the Central State Hospital at Milledgeville for "a physical, neurological, and psychiatric examination and determination of (his) mental condition on (the date of the offense) and further to determine his mental capacity at this time to understand the nature of the charges against him and to assist his attorney in the defense of his case." That same day, Spivey was admitted to Milledgeville. The first examination pursuant to the April 15 order was conducted on April 18. Judge Davis issued his signed order appointing Schloth to represent Spivey on April 26. ¹ Not until May 10, 1977, did Schloth meet or speak with Spivey.

In the hearing below, the principal factual inquiries were whether Schloth was representing Spivey between April 15 and April 18, 1977, ² and whether he had notice before April 18 that an examination into Spivey's mental condition at the time of the offense was to be conducted.

At the evidentiary hearing, Mr. O. O. Spivey, the petitioner's father, testified that he learned from a court reporter that Schloth had been appointed to represent his son and that then, on approximately April 15, 1977, he visited Schloth at his office. Schloth confirmed that he had been appointed to represent Spivey. When Schloth asked whether O. O. Spivey would like to go with him to visit the petitioner in jail, Mr. Spivey replied that he had been told that his son had already been sent to Milledgeville. Schloth said he could not believe that Judge Davis would send Spivey to Milledgeville without first consulting him, but then confirmed by phone that Spivey had indeed been sent to Milledgeville. O. O. Spivey further testified that during the week of April 18, when he and Schloth next discussed visiting the petitioner, Schloth told him that the reason he had not been in touch earlier was that he had found out that he did not yet have Judge Davis' signed order authorizing him to represent the petitioner, and that he could not legally represent him without that order.

Spivey's original counsel, Cain, testified that some time after April 8, 1977, he called Schloth and offered to be of whatever help he could in bringing Schloth up to date on the case. Cain did not recall Schloth accepting his offer, and did not recall discussing with Schloth the question of Spivey's mental capacity. He testified affirmatively that he did not prepare the April 15 order directing a psychiatric examination of Spivey, did not receive a copy of the order at any time during 1977, and did not ever discuss the order with Judge Davis or Schloth.

Judge Davis testified that he did not himself prepare the April 15 order, and that he did not recall who did. He further testified that he did not recall discussing the April 15 order with Schloth.

Schloth testified that he had two or more conversations with Cain about the Spivey case, the first being on April 8, 1977. He further testified that after talking with Judge Davis on April 8, he knew there had been a hearing on a motion for a psychiatric examination and that Judge Davis had ordered that Spivey be delivered to Milledgeville, but "The exact time he was to go was up in the air." Schloth emphatically stated that he did not prepare the April 15 order but he equivocated as to when he received a copy of that order. On direct examination, he initially stated that he did not recall when he first saw the order, but then testified that he did his first research on the case on April 15, and that before doing the research he had picked up "all of the files" from the District Attorney's office, including, to the best of his recollection, the April 15 order. During cross-examination, however, Schloth testified that he obtained the indictment and the witness list from the District Attorney's office on April 26. Because Spivey's counsel did not pursue the contradiction in Schloth's testimony, ³ the record is uncertain as to when, in Schloth's recollection, he received or first saw the April 15 order. Schloth did testify that at some point he decided not to intervene in the psychiatric examination at Milledgeville, and that when he made this decision he was aware that the examination would explore Spivey's sanity at the time of the offense. However, this testimony does not indicate when Schloth became aware that Spivey's sanity at the time of the offense was to be examined, because Schloth did not indicate when he made the decision not to intervene.

Setting aside the issue of when Schloth's representation of Spivey commenced for sixth amendment purposes, the evidence presented at the hearing below was far from dispositive of when Schloth learned that an examination into Spivey's sanity at the time of the offense was imminent. It appears unlikely that Cain informed Schloth that such an examination was to be conducted because, so far as the record shows, Cain, who never saw the April 15 order, would have anticipated an examination only into Spivey's competence to stand trial. Nor is...