United States v. Wilkins, 15600.

• Decision Date: 05 August 1964
• Docket Number: No. 15600.,15600.
• Citation: 334 F.2d 698
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Barker WILKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

334 F.2d 698 (1964)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Barker WILKINS, Defendant-Appellant.

No. 15600.

United States Court of Appeals Sixth Circuit.

August 5, 1964.

William E. Harvey, Cincinnati, Ohio (Court appointed), for appellant.

Wayne J. Carroll, Asst. U. S. Atty., Louisville, Ky., for appellee, William E. Scent, U. S. Atty., Louisville, Ky., on the brief.

Before MILLER and CECIL, Circuit Judges, and FOX, District Judge.

FOX, District Judge.

Appellant Robert Barker Wilkins and his co-defendant, Charles Edsel Gidcomb, were convicted on their plea of guilty to a count of bank robbery, Title 18 U.S.C. § 2113(d), which occurred on December 12, 1960, in the Planters Bank at Trenton, Kentucky.

The case is before this court on an appeal from a District Court order denying defendant's "motion to vacate and set aside the sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure and Title 28 USC 2255." The motion was filed on July 1, 1963.

Appellant contended that at the time of the arraignment his attorney raised the question of his sanity and specifically requested a psychiatric examination. He also alleged that his counsel informed the court that appellant was hospitalized at Chattanooga, Tennessee, and that the court was aware of an attempted suicide by the appellant.

The motion incorrectly states what occurred on May 15 and May 17, 1961, the dates of arraignment. Defendant's attorney did not move the court for a psychiatric examination under § 4244. The only pre-trial motion before the court was one for a continuance.

The colloquy between the appellant Wilkins' attorney, Mr. Leland H. Logan, the District Judge and Mr. William B. Jones, United States Attorney, and this court's comments are set forth in footnote one.¹

The defendants were arraigned and entered a plea of not guilty. The court asked each of the defendants whether he understood the charge against him, and each answered "Yes." The Court entered a plea of not guilty for each defendant, and both the District Attorney, Mr. Jones, and defense counsel, Mr. Logan, announced that they were ready for trial.

The case went to trial on the following day, May 18, 1961.

The case commenced at ten o'clock in the morning; the jury was impaneled, the Government made its opening statement, the defense reserving its opening statement, and two witnesses testified for the Government, Mallie C. Taylor and Sue Payne Bransford.

The case continued until noon and was recessed until 1:15, when defense counsel, Mr. Logan, moved to withdraw the plea of not guilty and enter a plea of guilty to the charges for each of the defendants. The court then questioned the defendants as to whether they desired to withdraw their plea of not guilty and enter a plea of guilty. Both of the defendants responded "Yes," and both stating that they had read the indictment, specifically entered a plea of guilty.

The Court then asked the attorneys if they had anything to say before sentence was pronounced. A pre-sentence report on each of the defendants was given to the Court by the probation officer.

Mr. Logan made a plea for leniency for each of the defendants. As to Mr. Wilkins, he stated in particular that he had a good record, was regularly employed, and had served in the Navy in the South Pacific. Mr. Logan stated that on the morning of the day of the robbery, however, Wilkins, together with his co-defendant, had consumed about two and a half to three and a half pints of liquor. Each of the defendants was asked if he desired to make a statement. Defendant Wilkins' statement was as follows:

"I understand the graveness of this mistake I made and I have made in this 46 years and I am sure if and when given an opportunity to society again that it will never happen again and what I have done will follow me the rest of my life in my knowledge."²

The Court sentenced each of the men to twenty years on the second count and the first count was nolle prossed.

At no time between the appearance before the Commissioner and the sentence did defendant Wilkins or his attorney make a motion for psychiatric examination. Mr. Logan, appellant's counsel, in presenting his motion for a continuance, did state that he felt that by some form of psychiatric examination the sudden deviation from a normal course of good conduct could be cleared up.

Later, on June 20, 1961, Robert Barker Wilkins, through his attorney, Leland H. Logan, filed a motion for reduction of sentence, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, stating in part that prior to the sentencing by the court, the defendant's attorney had submitted a statement from Dr. William R. McCormick, of Bowling Green, Kentucky, which showed that appellant was suffering from Reynauds' Disease, the effect of which can and often does bring about the death of the patient. There was no mention made in the motion, either about mental incompetency, or that the appellant did not understand the nature of the charge against him, or could not assist counsel in preparation and defense in the case.

This motion was heard on July 10, and testimony was taken as to the physical condition of Robert Barker Wilkins. The court denied this motion by an order made on July 10, 1961 and entered July 11, 1961.

Thereafter, on May 25, 1962, defendant filed his first motion under Section 2255, Title 28 U.S.C. for leave to file a petition to vacate sentence and leave to file and to proceed in forma pauperis.

This motion raised three questions: (1) whether or not the sentence should be vacated since he was insane before, during and after the sentence; (2) whether or not the sentencing court improperly denied petitioner's request for a psychiatric examination, and if so, whether nunc pro tunc determination of his mental competency should be made; and (3) whether or not the petitioner was entitled to a hearing conducted in open court, and opportunity to submit testimony and other evidence upon his averments of facts.

The court in a two and a half page memorandum dated October 10, 1962, and entered October 11, 1962, denied the defendant's motion. The court found that a period of five months elapsed from the commission of the crime until the charge was made by the grand jury, and that the defendants appeared with their counsel and to all appearances were normal and fully aware of the proceedings. They were represented by experienced and competent counsel, who announced he was ready for trial, and after the trial had progressed, defendants moved to withdraw their plea of not guilty and enter a plea of guilty. The significance and import of this step were fully discussed, and before sentence was imposed they were given an opportunity, and their counsel was given an opportunity, to make statements to the court. The court further found that defendant's motion filed June 20, 1961, made no representation or suggestion that Robert Barker Wilkins was suffering from any mental disorder, and the court concluded that this was approximately seven weeks after the trial, and after the defendant had been committed to a Federal Penitentiary, where observation would naturally be made by the prison personnel.

The Court denied the motion.

On July 1, 1963, appellant Robert Barker Wilkins filed his second motion under Section 2255, Title 28 U.S.C., and Rule 35 of the Federal Rules of Criminal Procedure, to vacate and set aside the sentence. Among other things, he alleged that on Page 4 of the Transcript of Plea, Arraignment and Disposition, counsel for the defendant raised the question of sanity, and specifically requested a psychiatric examination of defendant Wilkins; that at Page 6 of the record, counsel informed the Court that defendant Wilkins was hospitalized at Chattanooga, Tennessee;³ that the court was aware of the attempted suicide by the defendant; and finally that the present report included both the fact of his irrational behavior, and medical reports stating the movant was an alcoholic. A pyschiatric examination and hearing were requested.

The motion incorrectly states what occurred on May 15 and May 17, 1961. Respondent's attorney did not move the court for a psychiatric examination under § 4244. The only pre-trial motion before the court was for a continuance.

The District Judge in a memorandum dated July 11, and entered July 13, 1963, denied appellant's second motion made on July 1, 1963, pointing out that Section 2255, Title 28, "expressly provides that the sentencing court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner." The court also pointed out that there was "no new theory for the second motion."

On August 1, 1963, appellant petitioned for permission to file notice of appeal and leave to proceed in forma pauperis, which petition was granted by an order dated and entered on September 12, 1963.

The case is presently before this Court on the petition of August 1, 1963.

Diligent, appointed counsel asserted many reasons for reversal of the District Court's order of July 11, 1963.

Under Title 18 U.S.C. § 4244, the general rule is that in every case when a motion is filed which sets forth grounds that constitute reasonable cause to believe that the defendant "may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense," Lebron v. United States (1955), 97 U.S.App.D.C. 133, 229 F.2d 16, 18, it is then mandatory for the District Court to have the defendant examined as to his mental condition by a qualified psychiatrist who is to report back to the court. Krupnick v. United States (CCA 8, 1959) 264 F.2d 213; United States v. Walker (CCA 6, 1962) 301 F.2d 211; Kenner v. United States (CCA 8, 1960) 286 F.2d 208.

When, however, the motion does not set forth grounds for reasonable cause to believe that the defendant may be insane or mentally incompetent, or when...