to stand trial. Furthermore, at the actual psychiatric evaluation relator was not confronted with potential adverse witnesses who would testify at his trial concerning his criminal responsibility. The record clearly indicates that neither the doctors' testimony nor their reports were introduced for any reason at his trial.
It may well be that an analogy can be drawn between the questioning process at a psychiatric interview and the custodial interrogation referred to in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). It may be argued that the presence of counsel is, therefore, necessary to enable a defendant to intelligently exercise his Fifth Amendment rights. Although not expressly raised by counsel, it appears that the problem is raised by the circumstances. We cannot, however, adopt the view that a psychiatric evaluation is equivalent to custodial interrogation since clearly their purposes are distinct and have different aims. A psychiatric evaluation is not conducted by the police with a view to eliciting inculpatory statements, but rather is conducted by medical experts in order to objectively ascertain a defendant's legal competency to stand trial. In the instant case, it is clear from the State record that relator was advised at the psychiatric interview not to volunteer any information regarding the alleged crime; he volunteered none, and in fact, nothing concerning his examination was presented to the jury as evidence against him. The doctors' testimony was evaluated only by the trial judge at a separate hearing. The general warnings given here we find to have been sufficient, considering the nature of the examinations and the intended use of the doctors' testimony. Perhaps, had the examination been designed to elicit and had elicited inculpatory utterances which were introduced into evidence against relator, there may be prejudice shown resulting from the absence of counsel. However, such is not the instant case, and, lacking any showing of prejudice, we find no basis for relator's contention that his right to a fair trial was abridged by the ex parte psychiatric examination in counsel's absence. See United States ex rel. Wax v. Pate, 298 F. Supp. 164 (N.D. Ill. 1967) aff'd. 409 F.2d 498 (7th Cir. 1969). We do add that giving notice of a psychiatric examination to counsel is the better and more acceptable practice. However, we do not believe that constitutional principles mandate counsel's presence, and absent a showing of prejudice as here, failure to give notice of itself cannot render relator's trial constitutionally defective. United States ex rel. Wax v. Pate, 409 F.2d at 499.
Relator's second and third contentions are interrelated with his first. Relator contends that certain rulings of the trial judge improperly limited counsel's inquiry into the medical qualifications of the expert witnesses at his pre-trial competency hearing and restricted examination into relator's prison records. Relator further contends that during his trial he was under the influence of drugs. This he contends prevented him from taking the stand in his own behalf and placed him in a dazed state subject to misinterpretation by the jury.
These contentions we find to be without merit. First of all, relator's argument concerning the trial judges limiting counsel's examination into doctors' qualifications and certain medical records, does not raise an issue of constitutional dimensions. 28 U.S.C. § 2254. The actions of the trial judge upheld on review by the Pennsylvania Supreme Court involved matters of pre-trial procedure committed to the sound discretion of the trial court not affecting the substantial rights of defendant. The qualifications of an expert witness, being a matter committed to the trial judge's sound discretion, is not reviewable on habeas corpus unless clearly erroneous. United States v. Alker, 260 F.2d 135, 155 (3rd Cir. 1958) cert. denied 359 U.S. 906, 79 S. Ct. 579, 3 L. Ed. 2d 571 (1959). Likewise, a ruling as to what portions of certain of relator's prison records were relevant to the issue of competency to stand trial is also a matter of discretion reviewable only for clear error. Here, the record does not indicate a clear error or a showing of prejudice to the substantial rights of relator of constitutional magnitude.
As to relator's contention that he was in a drugged state during the trial, we find this contention unsupported by the record. Relator in essence is attempting to re-litigate the issue of competency decided adversely to him in the trial court. This contention was adequately and reliably determined by the Pennsylvania Supreme Court as follows:
"[There] is no evidence in the record that Stukes was at all influenced by drugs at his trial. Major tranquilizers were given to Stukes for the span of three days, from April 26th to April 28, 1967. Thereafter librium, a minor tranquilizer which has no general depressing effect on the mind, but merely relieves anxiety, was given to Stukes in 10-milligram doses three times daily until June 13th. At that time, as noted before, the quantity of librium given to Stukes was reduced to one 10-milligram dose per day before bedtime. The jury was not sworn until June 20th. Dr. Guy testified that the effects of librium continue for four or five hours. It is thus apparent that throughout his trial (and indeed for the entire period of his incarceration except, of course, for three days in late April when Stukes was given thorazine and cogentin), Stukes was entirely unaffected by drugs, as far as his ability to confer with counsel is concerned. In respect to this, it should also be noted that trial counsel of extensive experience and recognized ability admittedly were 'in constant communication' with Stukes during his confinement, and never once complained of his lack of competency to stand trial or inability to confer with them until June 14, 1967, after they learned of the tests ordered by Judge Carroll." 435 Pa. at 543-544, 257 A. 2d at 832.
As to these factual determinations, there is ample support in the State record. The record indicates clearly that relator was not affected in any detrimental way by drugs during his trial or during non-trial hours when counsel reasonably might have consulted with him. For the entire trial period, excepting a few days of the voir dire, relator's drug consumption amounted to ten milligrams of librium nightly at bedtime, the equivalent of a nightly sleeping pill. Only for three days during mid-April did relator receive major medication and since this was remote from the beginning of the trial, it did not interfere with relator's ability to function during the trial or during the preparation period prior to trial. In fact, during the period from his arrest on April 3, 1966, to April 27, 1967, relator received no drugs. Obviously, relator conferred with counsel to prepare his case during this substantial period of time. Our independent review of the record indicates that the State findings are amply supported by the record and, finding no support for relator's arguments, we reject relator's second and third contentions.
Relator's next contention is that he was denied his Sixth Amendment right to a speedy trial. Again, the relevant facts, amply supported in the record, appear in the Pennsylvania Court's opinion at pages 544 and 545, 257 A. 2d at page 832:
"Stukes was arrested on April 3, 1966, and after a preliminary hearing on April 4th, was held on charges of rape, robbery, burglary, and related offenses. On May 10th, Lena Alexandroff, the victim, died, and the charge of murder was added to the previous charges. The grand jury returned the murder indictments against Stukes and two others who participated in the crimes, Burgess and Dessus, on the same day, May 10th. Also on May 10th, Stukes' counsel petitioned the lower court for an immediate trial, and for leave to retain an investigator and a pathologist. The last request was granted.