*1 LEE, Huey Appellant, R. ALABAMA,Appellee.
STATE OF
No. 22994. Appeals
United States Court of
Fifth Circuit.
June
Rehearing Aug. 22, Denied Bell, Judge,
Griffin B. Circuit dis-
sented. Ala.,
Huey Montgomery, pro R. se. Anderson, III,
Walter Mark Asst. Atty. Gen., Ala., Montgomery, MacDon- Gallion, Atty. Gen., ald Robert F. Miller, Atty. Gen., appellee. Asst. *2 investigation, respectable physi call a REHEARING FOR PETITION ON witnesses, and credible and other cian BANC EN necessary, may it call a if he deems Judge, TUTTLE, Chief and Before jury, purpose em he is and for that BELL, GEWIN, WISDOM, BROWN, compel powered wit attendance of COLEMAN, THORNBERRY, GOLD- jurors; if it be satis and nesses and GODBOLD, AINSWORTH, BERG, DY- person in factorily proved is that Judges. SIMPSON, Circuit and ER discharge may sane, judge imprisonment safe and order his from Judge: TUTTLE, Chief custody and removal to the hospitals, he must remain where Lee, 6, 1942, Huey July R. Jr. was On mind; right and until restored to jail arrested, in of Barbour confined then, judge direct shall have so if charged Alabama, County, mur- and with ed, superintendent inform must slaying degree for the in first der per sheriff, whereupon judge and July Lee, Huey father, R. Sr. On prison, and son must be remanded request Boyd filed one G. D. resumed, or proceedings be investigation as to the for an discharged.”1 he otherwise be request Huey is R. Jr. This said of Title under Section 428 authorized was conducted Alabama, judge jury July 15 of the 1940 Code and a on 1942. Not- provides withstanding strong testimony as follows: medical contrary, jury having heard Inquisition wpon alleged “§ physicians from seven proceedings. prisoner; insane lay seventeen witnesses returned a ver- confinement, any person under —If in reading: jury dict “We the find the indictment, or for want bail defendant to be sane.” good behavior, keeping the or Jury 20, 1942, witness, peace, appearing On or as a or in October Grand charging summary consequence returned an indictment Lee convic tion, any justice, with the murder of his father. Two an order of days later, judge county, appears insane, the Sheriff of to be Bryce request county filed a that Lee be court of record of the sent where Alabama, Hospital Tuscaloosa, at for ob- he is confined must institute a careful pointed jury sanity, to be As out an earli the fact of such such regular jurors appeal impaneled from a from the er denial of habeas cor spe- pus, request from a attendance for the week or shown the record venire, direct. cial as the court to have referred to Title Sec. 428 being jury sane shall find the the 1940 Code of If accused they verdict, shall there commented on “that seems to the time of their applicable inquiry, rather than make no other be the section sec proceed. they apply only If find that when chief shall which would ” time, ‘under indictment.’ he is insane confinement committing significance him to make an order This is of considerable be shall hospitals, cause, pointed out, he where the Alabama state as will hereafter be to his remain until he is restored must Court of Alabama its superintendent right mind. When the later consideration of the case stated opinion hospitals “sanity hearing” shall be had had a person purposes comparison he shall forth- is so restored 426. For such Sec. judge with, writing, quote provisions inform the here of Sec. we fact; such court sheriff 426: person whereupon re- Inquisition must in certain cases “§ 426. prison proceedings. any per- of such felony; manded —If judge, re- any felony charged and the criminal son held person indictment, shall such In no event sumed. and the confinement under long prose- large ground as such so set at trial court shall have reasonable long pending, or so sanity, trial of such cution to doubt his be insane. person continues sus- for such offense shall be inquire pended shall into until Bryce request servation, accompanied time of his admission Partlow, Tuscaloosa, Alabama, Hospital, from Dr. W. D. Hospitals, superintendent is one Alabama State the Alabama State “ * * * my profes- 1942 was insane Hospital It is October continually all times reasonable sional there is ground date date of admission to said defendant believe *3 report It of the been insane. is the time has insane either charged type opinion our offense of the that commission (Empha- by indictment, presently.” of characterized both or said grandiose added.) of delusions and delusions sis persecution. opinion he our request. attorneys a similar filed magnifies the so in his own estimation Acting of Title under of ego compared importance or self as Alabama,2 judge the 1940 Code of the every person or with considera- other such entered an order in accordance with he tion that when others with whom requests. in the Alabama Lee remained accept viewpoint has to deal fail to his Hospital to State from October in their com- attitude toward him in August 3, July 21, Dr. 1943. On pliance will, im- or he his wishes Partlow, and D. Dr. J. S. Tarwater W. mediately per- feels and decides such Mayfield, P. B. Dr. who constituted sons are his and are enemies endeavor- lunacy, fol the commission on submitted persecute to him. We are of lowing report: feelings opinion and further that his governed by emotions are these delu- opinion us, “It is the of each of and grandeur persecution, of of sions and opinion jointly it is our and collective- he, therefore, ly, Huey acts Lee, Jr., and that or endeav- the said R. subject hospitals Investigation per- bama state and § of of by charged capital of examination such son observation and offense.— lunacy length of for such of commission Whenever it shall be known to made presiding judge by as of com- time mission of a court necessary lunacy against deter- an be indictment has been returned capital offense, by his mine mental condition so far as it a defendant for a af- responsibility. report his criminal written of not less three than fects lunacy reputable specialists practitioners soon as such commission of “As in men- conclusion, diseases, appointed within and has reached tal nervous judge respect report set and in as hereinabove the superintendent or the written forth, condition such the mental of the Alabama hos- State defendant, pitals, ground re- a full shall make written there is reasonable port thereof clerk of the court to believe in- to the that such defendant was against either, which the indictment said de- sane sion of such at the time of the commis- report offense, pending, presently, be fendant placed shall or it shall duty presiding judge be the on file and be accessible to of the court, to the and to the coun- forthwith order delivered such be solicitor defendant county for defendant. the sheriff of sel superintendent duty of the clerk “It shall Alabama state hospitals, duty receipt charged of said who is with the said placing sheriff of coun- such defendant issue an under the ob- directing ty re- such defendant be servation and examination himself prison two and removed to members of medical to be manded staff against proceedings him, constituting him be named criminal a commission lunacy, legally determining otherwise dis- with the view of resumed or be charged. the mental condition of such defendant removing expense and the existence “The such defend- mental disease hospitals present and of or defect which would affect to and from the ant confined, maintaining responsibility or there criminal his criminal him while pro- responsibility paid manner the time com- same shall persons (Emphasis ad- mission the crime. add- law in the case vided following ed.) judged mind to be of unsound shall, probate inquisition in court.” “Such defendant remain custody superintendent of the Ala- ideas, Lee, Huey emotions, detained R. Jr. be said ors to act longer patient as a him- in this institution beliefs and delusions vindicate Court, believes, necessary against who, for the it would be self those conspire jurisdiction, persecute persecute to issue him. or some court or fur- order for the commitment are We further feelings Huey beliefs, R. the said ther detention of such ideas and Hospi- thereto, com- Jr. in said Alabama State and emotions so incident pletely dominate and control tals.” when- determine his course action August 1943, pursuant to an On others, ever his is not thwarted will re- sheriff order of render him as to abnormal thus Bryce Hospital moved Lee mentally ex- abnormal or insane to the County jail await of Barbour “to distinctly tent affects against him.” Lee *4 responsibility
criminal affects and so arraigned plead and on to called any responsibility such criminal at 1, and 1943 to the indictment October time from the date of admission his pleas were three the record discloses that Bryce Hospital present to The to the interposed for him: report. date of this “(1) guilty; Not knowledge upon “Based our of the insanity; guilty by “(2) of reason Not Huey Lee, mental condition of said R. and Jr., from his date of admission to insanity guilty by “(3) of reason Not Bryce 1942, Hospital 24, The October of of commission at the time present date, upon to the a con- based offense.” study servative of his case with other on October The came on case similar conditions mental which 27, 1943, stated Lee’s counsel thus and come under our observation jury: pleas his to the study time, course of and based Gentlemen, “By to that Mr. Lee: history case, including of the of his pleads indictment, not the Defendant supplied facts as relative to record guilty. puts plea issue the That charged, of the crime of he is which He also case. facts in the material transcript as shown in of certain court guilty by says reason not he is us records in his case submitted to puts insanity, plea in issue of study, it is our not, as we the fact that whether his mental condition above as described it, express language our sometimes prior existed admission to The incapable the man was insane Bryce Hospital prior to and at committing crime, time the commission of the crime did not commit Alabama laws to the did extent affect say that crime, case we and in this responsibility criminal the time of insanity. by guilty reason of he is not the commission of crime. say “By You mean Court: provisions “Under of the same insane at he was (425, 15, Ala- Section Title Code of ? offense of the commission time of the 1940) to, bama referred we above rendering “By want understand don’t that with the Mr. Lee: We Court, plead obligation and we our and that differ with the suggested, Hospitals of the has Alabama State as the Court discharged therefore, that, commission of the the time insane at 3 added.) (Emphasis if it is the wish of the Court offense.” prosecution 3. it must Section Code of 423 Title 1940 -interposed provides -«by -plea, -special the time Alabama as follows: Insanity specially arraignment of record and entered must be “-§423. of upon court, pleaded as a the docket crime.— defense for by be, guilty up rea- ‘not shall When the defense of is set substance
101
prescribed
statutory
rep
defense
which is a
full
in which he was
After a
1940 Code
Title
in his
423 of
resented
counsel and testified
Alabama,
not
supra,
does
footnote
behalf,4
of mur
own
Lee was convicted
degree
punish
the issue to the
der in
first
and his
competency of
accused
imprisonment.
mental
ment
fixed at
life
State,
Hawkins v.
the time of trial.
of conviction was affirmed
In that
Ala.
Lee v.
267
Court
arraign-
“Upon his
State, 1944,
said:
the court
20
471
246 Ala.
So.2d
pleas
interposed the
ment
the defendant
and certiorari
denied
the Su
guilty
guilty
reason
preme
and not
United
Court
States.
‘present’
insanity.
pleas the
Alabama, 1944,
these
Under
325 U.S.
State
an issue.
was not
of the defendant
L.Ed. 2002.
In that
S.Ct.
Ala.
27 So.
Ex Parte
appeal,
See
Lee did not raise the issue
direct
153;
State,
147;
Ala.
2d
presented
Jones v.
to this
is now
Chisholm,
808.”
F.
Cir.]
at U. S.
[5
which is his lack
mental
Hawkins v.
So.2d
enable
assist
in his own
defense.
January 16, 1946, Lee, represented
On
defense
said:
“The
began
long
attorneys,
different
supported
any evidence is that of
post-conviction
series of
to obtain
efforts
insanity.
guilty by
This
reason of
relief.
he filed
On that date
‘clearly proved
defense must be
*5
Supreme
petition
Court of
jury’ and
reasonable satisfaction
of the
of
for leave to file
Court
in the Circuit
so.
burden is on the defendant
do
County
petition
of
a
for writ
Barbour
Code;
Boyle
Title
error of coram nobis. The Alabama Su-
State,
229 Ala.
the mental
of the accused to
The decision
the United States Su
preme
stand trial when this issue is raised
v. Rob
the case of Pate
citing
836,
corpus,
inson, (1965)
375,
United
federal
383
86
U.S.
S.Ct.
Baldi, 1953,
may
sparked
States ex rel.
effort
Smith
the further
561,
549,
391,
by
by
L.Ed.
U.S.
73 S.Ct.
made
con
as evidenced
1953,
Massey
Moore,
Cir.,
right
tinuing fight
to a
to establish
205 F.2d
rev. 348 U.S.
mental ca
factual determination
of his
Again,
pacity
S.Ct.
perhaps, overlong permissible opinion. it also will be develop way stated, in con of Lee’s a factual the real merit contention alleged conspiracy tention as to which here not the is that there has been at charged hearing vaguely he has either in heretofore allege any corpus in other for habeas courts or basis corpus ap relief he contention that on or about 27 considers October propriate. requisite 1943 he men- lacked capital capacity put tal be trial in a judgment is reversed case; given sub- and this contention is is case further remanded for opinion expressed stance when the latest opinion. not inconsistent with this lunacy commission, not otherwise judgment shall be issued forthwith. upon, acted “in- he was then sane.” Judge TUTTLE, (concurring Chief specially): Although clear, it seems we Having majority opinion, written the stated, that, law, under Alabama conclude, Judges I nevertheless as do put actual there issue trial was not in Thornberry Goldberg, that under capacity, his then mental the state should teachings Robinson, Pate v. Lee’s given demonstrate, opportunity conviction should be set without aside true, put if in issue was fact hearing in the United States evidence, charge by proper either I, therefore, agree District Court. pretrial determination join in, concurring special opin- court, or otherwise. by Judge Thornberry. ion authored prior deci conclude that We GEWIN, vacated, Judge (concurring sions Circuit of this court must be dismissing result): judgment trial court must be reversed and peculiar Limited to the facts and un- case remanded to the district court by the rec- usual circumstances disclosed directions afforded an the state be ord, I concur in the result. opportunity promptly to demonstrate actually the trial court there has BELL, Judge Circuit GRIFFIN B. been a mental determination (dissenting): capacity to stand on or Oc trial about per- respectfully I I dissent. am 28, 1943, tober 27 and default opinion court suaded that proceed which the trial court shall Cir., 1960, Wiman, 280 F.2d Lee v. disposition light of the case precise issue on the was incorrect Supreme Pate Court’s decision in petitioner’s lack of mental asserted Robinson, supra. con This court capacity issue trial. This cludes after careful consideration of the detailed consideration opinion Court’s decision and then and that decision we followed duty in that case that it will opinion is the court now trial such circum vacated, Alabama, Cir., Lee v. State stances, to decide con it can rehear- 364 F.2d modified on adequate ques duct an on the Cir., ing, Lee v. State competency tion of Lee’s to stand trial 1967, 373 F.2d Now the 82. cannot, If it will be under overruling despite decision obligation to set aside the transcript petitioner’s fact of conviction and remand the the court. state courts for newa trial at which goes saying the con- without will, course, time it open to Lee person of an when viction accused adequate hearing to have an legally incompetent then due violates Robinson, 1966, process mental to stand trial. of law. Pate v. being jury, and the other L.Ed.2d a U.S. 86 S.Ct. defense his sole proposition on the merits where 815. This is not new to the Comm, he murdered at the time law. 4 on the Law Blackstone’s Ala- England, pp. 24, his father. See Indeed such appeal on the bama conviction would be more than a viola- *12 1944, 246 law; process the Lee v. tion conviction. it would due 343, That unworthy Ala. inhumane of a civi- offered that much was people states lized coun- and is not to be the time of That, on the at issue however, tenanced. question is that all presented. offense and Rather, ques- commission of the agreed petitioner experts was petitioner tion whether has made a And, paranoiac. as showing, an incurable sufficient to warrant a hear- points out, ing, the state judge here trial state commit- immediately prior ted error trial and thus denied him due report process merits, failing had trial on the law to set Lunacy necessary procedural machinery Commission in mo- petitioner insane inquire was petitioner’s It stated that into it. mental capacity the offense time he committed to stand at the trial. time of examination which and at the undisputed hearing It is that no such the trial. was some three months before sought time, at no more, this would indicate Without hearing on presented the issue now has mentally incompetent to appellant was petitioner ever been accorded in the in- stand trial there is more. but tervening period. Many judges have plea years heard his Wiman, over the until but pointed in Lee As out v. now, no prima court Lunacy has found a facie supra, Com- of the showing that trial, the facts known to the mission, on the like the evidence judge suggested state petitioner’s trial question mental was addressed to the incompetency capacity lack of to accountability commission for the majority degree trial necessary is satisfied crime. The required have inquiry. such an say stop point these this necessarily state facts show majority’s error, me, it seems to required a trial court should flows from two basic flaws reason- capac- appellant’s separate into ing. First, holding in Pate v. simply ity undergo trial. This Robinson, supra, overly extended. egregious in hold- error the law and the case, That like case, turns on its ing no doubt stems otherwise peculiar own facts. The court there reasoning. second flaw had the transcript before it and it disclosed question that a serious wholly ignores as majority opinion capacity Robinson’s mental degree to under- difference between the settled go trial was in issue before resolving capacity mental involved court. This fact subsidiary and the accountability of an for the commission facts capacity on convinced the court required to warrant offense and that the trial court should have con- postponing on lack mental a trial based separate ducted a hearing on the issue. Dusky undergo capacity v. trial. The defense there was based on in- 402, 1960, States, 80 362 U.S. United sanity at the time of the commission of S.Ct. L.Ed.2d the offense insanity and also mental the test to determine stated time of trial. being trial as whether to stand “ * * * sufficient Here has the defendant purely defense was based present ability his law- to consult at the time of the offense. degree yer rational Petitioner two reasonable trials on question, understanding has being the first separate —and well factual wherein he understand- was found sane rational against parte Lee, 1946, him.” trial. Ex 248 Ala. point Boles, Cir., 147. The was asserted In James v. So.2d Lyles negligence citing as a F.2d basis for a claim of States, U.S.App.D.C. part of trial and not as counsel United 730, pointed part an error on 254 F.2d out the state may rejected have a court. that a criminal defendant disease, mental the mental disease court. may have been the cause of his petition passed, years have As the act, may suffering and he from the Federal has followed same disease the time of his same on the courts and relief competent but he nevertheless be repeatedly denied without has been to stand The test trial. was stated as hearing. Undoubtedly Pate Robin- *13 being whether he can understand hope gave but petitioner renewed son charges against nature of the him and facts. changed nor the the law it neither can assist in his In defense. Lee v. procedure sub- a new It did add Wiman, supra, this court noted the dif- stituting hear- for a a new applied, ference in the tests to be incapac- past court on in the habeas rejected petitioner’s claim that he was ity remains to seen and it be hearing then entitled to a on his com- exceptions. It is a rule without petency to stand trial. The court stated also remains to be seen whether that only the claim could be sustained majority here rule fashioned by ignoring completely the in- test of exceptions. If it it will to stands have preclude person which would a anyone open prison for who doors being accused of a put crime from defense his trial asserted a substantial trial. We will detail the factual accountability based on a lack of mental basis for the court’s conclusion in this did not assert that he was but who regard for it is well opinion. stated in the undergo incompetent The evi- to trial. mental dence on issue of account- say petitioner It is sufficient to that ability furnish, ipso facto, will not prominent was a member of a holding in error basis for the trial court family. tried home He was his hearing sep- separate on the where no county. indigent. opin- He was not The capacity question arate to mental appeal ion on the on the of the case left stand trial All that was held. merits, supra, indicates then, here, as a determination will be protection that he received the full court it can the habeas of whether slightest the law. There was hearing presently adequate conduct an suggestion, distinguished as from Pate capacity question; not, on that Pate if Robinson, supra, his mental applies v. Robinson and the alternative undergo capacity to trial was doubt. discharge. is a new trial or average intelligence, He was above college, had attended testified a petitioner require I more of a would clear and lucid manner no he had to show than this. Substantial killing recollection of father. charge not understand he could later, represented was when he was against assist could not him or that he counsel, point new was first minimum; in his defense be should made that there should required have been nor has neither capacity undergo in this into his shown case.1 suggestion petitioner having 1. The such. No am sure it not intended as suf X great wrong years fered has ever recited that over since then as court petitioner. hearing result was accorded of the citation § stated, parte fact, he has never Court of Alabama in Ex as is that 27 So. hearing record dis- 2d 15, insofar of Title 426 instead of Title § on the Code mere closes in § is a add, undergo makeweight, although, trial. hasten mental I
Ill
rights
Judge (con-
abridged.
cer-
On
THORNBERRY,
al
had been
Circuit
tiorari,
held that
curring
specially):
process
due
Robinson had been denied
by
agree
I
with the
grant
the failure of
dismissing
judgment of the trial court
competency
hearing upon
the issue of
be
corpus
must
Concluding
trial.
that a mean-
stand
however,
compelled,
I feel
reversed.
respectfully
ingful
issue could
determination of that
my
set
views
down
longer
made,
no
ordered
the Court
granted
may properly
the relief
by
release, subject
retrial
Robinson’s
light
Pate v. Robin
this Court
the state.
son, 1966,
836.1
86 S.Ct.
U.S.
reaching
result,
the Court
Robinson,
factual situa
In Pate v.
reasoned:
con
Robinson
follows:
tion was as
pressed upon us
It has been
in 1959
Illinois courts
victed in the
the state
would
sufficient
wife.
common-law
murder
Robin-
as to
limited
hold a
Robinson’s
defense raised
competence
the time
son’s mental
trial was
If he were
tried
competence to
offense. The issue
against
competent, the
found
raised,
trial, however,
also
pre-
But we
stand.
would
adversely to Robinson
decided
but was
by
difficulty
viously emphasized
*14
the
appeal,
Upon
Robin
trial court.
the
determining
ac-
retrospectively
competency.
again
son
raised
issue of
the
competence
trial.
to stand
cused’s
Dusky
however,
Supreme Court,
Illinois
The
States, 362 U.S.
United
v.
finding
conviction,
that a
affirmed the
(1960).
788, 4
824
L.Ed.2d
80 S.Ct.
hearing
capacity to
on
mental
to observe
The
able
would
requested and that
trial had not been
subject
inquiry, and ex-
the
pert
of their
the
failed to raise sufficient
evidence
testify
to
witnesses would
competence to
as to Robinson’s
doubt
in
solely
information contained
from
require the trial court to conduct a hear
printed
Robinson’s
the
record. That
People
on its own motion.
v. Robin
years
hearing
after
be held six
would
son, 1961,
174 N.E.2d
Ill.2d
aggravates
difficulties.
the fact
these
After
the
820.
certiorari was denied
This
determina-
for concurrent
need
Court,
Supreme
United States
Robin
distinguishes
present
the
corpus petition
son filed a
Denno,
from Jackson
378 U.S.
Court,
the United
District
States
which
(1964),
resolution
GOLDBERG,
Judge
(con-
Circuit
curring
specially):
the trial-in-ehief.5 The
absence
clear,6
such determination is so
how
agree with,
in, Judge
I
and concur
ever,
that I consider the
action Thornberry’s
concurring
specially
opin-
regard
inappropriate.
ion.
majority’s desire to afford the state
Rehearing denied; BELL,
J.,C.
dis-
every opportunity
senting.
to demonstrate that
can, my mind,
compatible
It has been held on several occasions
be viewed as
provides
process
that where a state
statute
due
view of the fact
separate
procedure
for a
determination
available
§
*16
competency,
strong
issue of a defendant’s
there was
statutory
procedure
failure to follow the
court of Lee’s mental
imbalance.
process.
a denial
of due
United States
Pate,
695;
v.
7th
Cir.
345 F.2d
Aside from the
fact
there is
Cunningham,
any
4th
Thomas
Cir.
even a hint of
such determination
us,
313 F.2d
938-39.
The Alabama
the record before
it should also be
courts, however,
presented
have viewed the invoca-
that when this
noted
issue was
discretionary
pe-
§of
426 as
with the
to the Alabama
judge, although
pro-
nobis,
no alternative
tition for writ of error
Ex
coram
parte Lee, Ala.1946,
cedure for determination
parte
provided
Bush,
way
statute.
Ex
alluded in
no
determina-
353;
Ala.
Sanders
tion of
So.2d
Lee’s
other
than
Ala.Ct.App.1964,
Ala.App.
July
verdict of
§
still,
reading