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June 4, 1971

UNITED STATES of America ex rel. James A. STUKES
John P. SHOVLIN, Superintendent, Fairview State Hospital, Waymart, Pa.

Troutman, District Judge.

The opinion of the court was delivered by: TROUTMAN

TROUTMAN, District Judge.

 In the present petition relator raises various grounds for relief, all of which have been considered and decided adversely to him in the State proceedings. We have carefully reviewed the extensive State record. The record indicates that the relevant factual matters have been fully and reliably developed at the State proceeding so as to obviate the necessity of a further evidentiary hearing in this Court. 28 U.S.C. ยง 2254; Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). Furthermore, we find the facts as determined by the State courts to be amply and fairly supported by the record. We will proceed and treat the issues in the order presented.

 Relator first contends that he was denied the right to effective representation of counsel at a critical stage of the proceedings against him; namely, at a pretrial ex parte psychiatric examination ordered by the Common Pleas Court to determine his competence to stand trial. The facts as developed in the State proceedings appear in the Pennsylvania Supreme Court's opinion at pages 539-541 of 435 Pa., at page 830 of 257 A. 2d as follows:

"Stukes was arrested on April 3, 1966. Able counsel was appointed to represent him on April 28th. His trial, i.e., the voir dire examination and the selection of jurors, began on June 6, 1967.
"Pursuant to an order entered on May 5, 1967, by the Honorable Vincent A. Carroll, President Judge of the Philadelphia Courts, Stukes was examined on May 19th by two psychiatrists and a psychologist to determine if he was competent to stand trial. Such an examination was requested by Edward A. Guy, M.D., Director of the Division of Psychiatry of the Philadelphia prisons. Neither the District Attorney nor defense counsel were notified of the petition or the court's order and neither were present during the examination. During the examination, no questions were asked pertaining to the alleged offense and Stukes was cautioned not to volunteer any such information. As a result of the examination, the examining physicians concluded that Stukes was 'able to cooperate with counsel and to understand the nature of the proceedings against him'.
"The question of Stukes' competency to stand trial first arose in Dr. Guy's mind following an examination that he made of him on April 24, 1967, during which the Doctor found Stukes 'acutely agitated and fearful'. He prescribed that Stukes be given thorazine, a major tranquilizer which affects the central nervous system. The use of this drug was discontinued on April 28th, upon which date Stukes was given one dose of cogentin to combat drowsiness, one of the side effects of thorazine. From April 28th until June 13th, Stukes was given three ten-milligram doses of librium each day and thereafter the dosage was reduced to a simple ten-milligram quantity of librium each day, given prior to bedtime. (Footnote omitted)"

 Relator contends that the pretrial ex parte psychiatric evaluation by the Commonwealth doctors was a "critical stage" of the proceedings against him constitutionally requiring the presence and assistance of counsel.

 A "critical stage" of the prosecution was defined generally by the Wade Court as "any stage of the prosecution, formal or informal, in or out of court, where counsel's absence might derogate from the accused's right to a fair trial". 388 U.S. at 226, 87 S. Ct. at 1932. It is clear that the basic right of the accused sought to be protected by affording counsel at a given stage of a criminal proceeding is his right to a fair trial. It is also apparent that counsel's presence at what may be considered a "critical stage" of the proceedings is mandated because counsel's legal training and expertise may then be employed on behalf of the accused to observe, discover and prevent possible unfairness or irregularity in police procedures which may later irreparably prevent a basically fair determination of guilt or innocence. The need for counsel's presence in Wade was clearly indicated to insure the fairness of lineup identifications where the accused was confronted by his accusers for the purpose of identifying him as a participant in the crimes charged. Clearly, a defendant's rights may be irreparably lost and a fair trial denied if intentional or unintentional suggestion produces the testimony which ultimately identifies the defendant as the criminal *fn1"

 A pre-trial psychiatric evaluation to determine competency to stand trial, however, stands on different footing and, in this Court's opinion is not a "critical stage" of the proceedings in the constitutional sense requiring counsel's presence. Counsel's absence from the physician analyses or interviews of the defendant involves only a minimal risk to a defendant's right to a fair trial because of the nature of a psychiatric examination and because of the limited role which counsel can play in employing his legal skills to protect the accused's rights. The examination by the psychiatrists or psychologists, although admittedly less purely scientific than fingerprint analysis or blood sampling, bears a strong analogy to such tests as far as the reasons why it is inappropriate to constitutionally require counsel's presence. The Wade Court recognized that a lawyer's access to knowledge of scientific procedures and data furnishes sufficient bases from which he can meaningfully cross-examine a scientific expert on his scientific findings. He need not be physically present at the actual testing to do this. To our understanding, a psychiatric evaluation is largely based upon judgments drawn from physical observation of the subject as well as from conversations with him. It does not appear that the presence of counsel and employment of his legal talent can be useful in protecting a defendant's rights at this stage since counsel, as a practical matter, can do nothing than to test the accuracy of medical conclusions drawn from a doctor's observations.

 As is evident from the State record in this case, counsel's absence from the actual psychiatric evaluation in no way prevented meaningful and extensive cross-examination of the doctors who evaluated relator. Counsel made a full and thorough inquiry into the doctors' findings concerning relator's competence 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. ...

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