UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: July 11, 1973.
UNITED STATES OF AMERICA, EX REL. NORMAN BENJAMIN PARSON, APPELLANT,
RAYMOND W. ANDERSON, WARDEN, APPELLEE
(D.C. Habeas Corpus No. 152). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE.
Van Dusen, Aldisert and Adams, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
Petitioner Norman B. Parson, convicted by the state of Delaware of murder in the first degree,*fn1 appeals to this Court from the denial by the district court of his petition for habeas corpus.*fn2 Determining the propriety of granting his petition requires this Court to consider questions involving the role of amnesia in establishing this defendant's competence to stand trial.*fn3 Resolution of that issue requires a brief explication of the involved procedural history of this case.
Parson was arrested on the night of January 31, 1964 in connection with a homicide that had occurred earlier that evening.*fn4 He was indicted for murder in the first degree, and provided with appointed counsel. Prior to standing trial, Parson underwent extensive psychiatric and psychological examination. During Parson's trial which began in January, 1965, "No defense of insanity at the time of the crime was asserted and no hearing on competency to stand trial was requested or held."*fn5 Parson was convicted of murder in the first degree and that conviction was affirmed on appeal.*fn6 Certiorari was denied by the U.S. Supreme Court.*fn7
Having unsuccessfully sought direct appellate review of his conviction, Parson then filed a petition for habeas corpus in the district court. That court concluded that substantial doubts had been raised concerning Parson's competence at the time of his trial. The district court then proceeded to hold a hearing to determine whether it was possible accurately to assess, at that time, Parson's mental state on the occasion of his first trial. Concluding that such assessment was impossible, the court, pursuant to Pate v. Robinson,*fn8 ordered that the writ of habeas corpus be granted unless the state retried Parson.
Before retrial by the state, extensive psychiatric and psychological studies were again conducted. Parson was found competent to stand trial and was once more convicted. "No plea of insanity at the time of the crime was entered and no evidence of such insanity was introduced by the defense."*fn9 This second conviction was affirmed,*fn10 and Parson again sought habeas corpus in the district court.
Stated simply, Parson's basic contention here is that because he suffered from amnesia concerning the events that occurred at the time of the homicide, he could not properly assist in his own defense and was therefore incompetent to stand trial.
Two possible avenues of defense were open to Parson: (a) rebuttal of the prosecution's evidence, (b) the insanity defense. Were his amnesia to appear to have blocked entry to either avenue, this Court would then have to consider whether such amnesia did, in fact, render Parson incompetent to stand trial.*fn11
The state trial court and the U.S. District Court found under the circumstances and the evidence adduced that Parson's amnesia did not diminish his capacity either to understand the proceedings against him or properly to assist in his own defense.*fn12 We hold that these findings are not clearly erroneous.
Had the proof of Parson's commission of the crime been based on eyewitness testimony, or had the prosecution relied substantially on statements attributed to Parson, his amnesia might have significantly hindered the preparation and presentation of a rebuttal defense. No such evidence was presented here.*fn13 Rather, the evidence was of a physical nature.*fn14 Thus, it would appear that the amnesia did not meaningfully affect the availability of this type of defense.
Amnesia may at times make difficult the employment of an insanity defense. In this case, however, an insanity defense was neither asserted nor attempted. Nor is it suggested that this was a mere oversight or the result of improper assistance of counsel. On the contrary, the district court found:
"The defense declined to introduce other evidence of defendant's mental condition [it had introduced evidence of his amnesia] because the court ruled that such testimony would open up the issue of the defendant's mental condition and would allow the state to introduce evidence which the defense felt might be prejudicial."*fn15
Because the defense's trial strategy deliberately omitted a defense based on insanity,*fn16 Parson cannot now be heard to contend that the defense was unavailable to him because of his amnesia. Therefore, we hold that, in the context of this case, the fact that the defendant suffered amnesia as to the commission of the crime, does not, in and of itself, render the defendant incompetent to stand trial.
Parson further contends that the state failed to prove his sanity at the time of the commission of the crime. He argues that intent is an element of the crime and that it is the prosecution's obligation to prove intent by negativing the possibility of the defendant's insanity. Under Delaware law, the defense must serve notice of the insanity defense and tender evidence of insanity at trial; absent such notice and evidence the defendant is presumed sane.*fn17 Without deciding whether this presumption would pass constitutional muster if the defense of insanity had been asserted or attempted without conforming with the Delaware procedure,*fn18 we find that, in this case where the insanity defense was advertently not asserted or attempted, the state is not obligated to prove the defendant's sanity in the first instance.*fn19
The order of the district court will be affirmed.
Judge Aldisert concurs in the result.