United States v. Leroy Kendrick , 331 F.2d 110 ( 1964 )

PER CURIAM.

This is an appeal from the District Court’s decision denying, after hearing, the petitioner’s motion under 28 U.S.C.A. § 2255 to vacate an illegal sentence on the grounds that the petitioner was incompetent to stand trial. The Government now concedes that this question is properly raised under 28 U.S.C.A. § 2255. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), reversing per curiam, 96 U.S.App.D.C. 117, 223 F.2d 582 (1955); Fisher v. United States, 317 F.2d 352 (4 Cir. 1963); Nelms v. United States, 318 F.2d 150 (4 Cir. 1963).

The petitioner, who is forty-four years of age, has spent most of the last thirty years in and out of prisons. At nineteen, he began his jail career after having spent some years in reformatories. In June of 1952 he was adjudicated insane by the North Carolina courts and committed to an institution for the criminally insane. Escape followed, and in 1954 we find him in trouble in South Carolina. On January 13, 1959, he was again remanded to the North Carolina state hospital for the insane, where he stayed until March 16, 1959. His present petition attacks his trial of November 17-23, 1960, when he was tried and sentenced to seven years for three thefts from interstate commerce committed between July and September of that year.

The substance of his allegations in the present action is that he was adjudicated insane by the North Carolina courts in 1952, and has never since then been adjudicated sane; that at his trial in November of 1960 he was insane and suffering from amnesia; that as a result of his disabilities he was not competent to stand trial. He alleged that he lost his memory as the result of a wreck in June 1959 and did not recover it until after psychiatric treatment during his present jail term.

At the hearing below the case for the petitioner consisted of a certified copy of his adjudication of insanity in 1952 and his own testimony. In addition to his testimony of amnesia and a long history of being in and out of mental hospitals, he testified in great detail to psychiatric treatment which he had undergone during his present confinement. He testified that he was confined in the psychiatric section of the prison hospital, where he was administered paraldehyde, as a result of which he regained his memory; that he had also received electric shock treatments and undergone extensive psychoanalysis; that he was assigned an accelerated work schedule as a form of psychotherapy. He also testified that he underwent a brain operation and a kidney operation to relieve a condition that had caused him frequent blackouts. During his testimony, the petitioner named the doctors from whom he contended he had received the treatment.

The Government’s case consisted of the testimony of counsel appointed by the Court to represent the petitioner at his trial in 1960 and of the F.B.I. Agent who arrested him. Both of these witnesses testified to the extent of their contacts with the petitioner and stated over objection from petitioner’s present counsel that in their opinion he was sane and competent to stand trial, and that in their opinion he knew the difference between right and wrong.¹ The Court permitted the Government to put into the record letters from psychiatrists and psychiatric reports dealing with the petitioner’s competency to stand trial which the Agent had collected in preparation for the hearing. These letters and reports were based on examinations of the petitioner which were made between the time of his lunacy inquisition in 1952 and his discharge from the North Carolina hospital for the insane on March 13, 1959, some twenty months prior to the trial which was attacked by this proceeding and before the alleged loss of memory due to an accident in June of 1959. A decision based on this evidence raises serious questions as to the ability of layman to interpret psychiatric clinical reports without expert assistance and especially to evaluate the relevancy of such evidence to petitioner’s mental condition at the subsequent trial date. Cf. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

The Court’s finding that the medical file of the petitioner at the United States Penitentiary, Atlanta, Georgia, reflects no mental disorder is without adequate record support. We can find only one reference to such a file in the record. On cross-examination, the F.B.I. Agent, in an attempt to support his opinion testimony, stated as follows:

“On March 22, 1962, a review of Kendrick’s medical file at U. S. Penitentiary, Atlanta, Georgia, reflects he has been diagnosed as a chronic character disorder, psychopathic personality, disorganized, not psychotic.”

Even if we assume that this lay witness was competent to review a medical file and correctly report what it reflects, we are given no information whatsoever as to the qualifications of the diagnostician, the extent of his examination, or the facts upon which the diagnosis was based. A judgment based on such evidence, in the context of this hearing, is also subject to the criticism that laymen, without expert psychiatric opinion should not attempt to draw inferences from such evidence, cf. dissenting opinion of Judge Bazelon in Bishop v. United States, 96 U.S.App.D.C. 117, 223 F.2d 582 (1955), reversed and remanded for hearing on issue of sanity, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).

Again, the Trial Court, after quoting Title 18 U.S.C.A. § 4245, says:

“Under this procedure, petitioner may request an examination by the board of examiners and may request a certification by the Director of the Bureau of Prisons that there is probable cause to believe that he was mentally incompetent at the time he was convicted and sentenced. * * It appears from an examination of the reports of the medical examiners at the United States Penitentiary, Atlanta, Georgia, that they have not found sufficient evidence of insanity to submit and initiate proceedings under Title 18 U.S.C.A. § 4245, et seq., and from the reports as examined it appears that the petitioner was sane at the time he was tried and that he is presently mentally competent. Therefore, it would appear that petitioner is not entitled to relief either under Title 28 U.S.C.A. § 2255 or Title 18 U.S.C.A. § 4245.”

There is no reference anywhere in the record of this hearing, or among the exhibits, to the petitioner’s medical record during his current confinement at the Penitentiary except the F.B.I. Agent’s statement. We, therefore, must conclude that the Court’s findings, quoted above, were based on the F.B.I. Agent’s reference thereto on his cross-examination which we have quoted in full. If the Court’s reference to 18 U.S. C.A. § 4245 was intended to hold that this section offers an alternative remedy that a prisoner may pursue, we must disagree. Neither is it a prerequisite to relief under 28 U.S.C.A. § 2255. Under the circumstances, the failure of the Director of the Bureau of Prisons to initiate any proceedings under § 4245 cannot be held to support the conclusion that petitioner was competent at his trial in November 1960. See United States v. Cannon, 310 F.2d 841 (2 Cir. 1962).

We conclude, therefore, that the case should be remanded for a further hearing. Psychiatric opinion that he was competent to stand trial many months before the trial and before the automobile collision which he claims occasioned the loss of memory, is of little relevance to the specific contention of memory loss, Whether or not he was found to be suffer-in£ from memory loss when received at the Atlanta Penitentiary and was thereafter successfully treated for it, on the other hand, would be highly relevant, Such information is readily available in his complete medical records in Atlanta anc¡- the testimony of, or a current report from, one or more of the physicians who treated him. That line of inquiry, with such a high promise of fruitfulness, should have been pursued, we think, We do not agree with the petitioner that the testimony of his trial counsel should have been excluded at the post-conviction hearing on the basis of the attorney-client privilege,

We need not now consider whether the assertion that he was incapable of effective communication and cooperation with trial counsel is a waiver of the attorney-client privilege on the ground that the petitioner has flung open the curtain of secrecy which otherwise would conceal his actual communications. Nor need we enter the controversy as to whether such an assertion is always so necessarily an implicit attack upon the competence of trial counsel as to amount to a waiver of the privilege to the extent necessary to enable trial counsel to defend himself and his reputation. See Gunther v. United States, 97 U.S.App.D.C. 254, 230 F.2d 222 (1956); cf. United States v. Wiggins, 184 F.Supp. 673 (D.C.1960); United States v. Bostic, 206 F.Supp. 855 (D.C.1962). We do not here consider the question of waiver on either ground, for the attorney’s testimony was well within an established exception to the privilege,

Communications made in confidence by a client to his attorney are protected by the attorney-client privilege. It js -f^g substance of the communications which is protected, however, not the fact that there have been communications, Excluded from the privilege, also, are physical characteristics of the client, such as his complexion, his demeanor, his bearing, his sobriety and his dress. Such things are observable by anyone who talked with the client, and there is nothing, in the usual case, to suggest that the client intends his attorney’s observations of such matters to be confidential.² In short, the privilege protects only the client’s confidences, not things which, at the time, are not intended to be held in the breast of the lawyer, even though the attorney-client relation provided the occasion for the lawyer’s observation of them. See generally VIII Wigmore, Evidence (McNaughton Revision) § 2306.

Here the attorney testified to just such noneonfidential matters. Petitioner, the attorney testified, was responsive, readily supplied the attorney with his version of the facts and the names of other people involved, was logical in his conversation and his reasoning, and appeared to know and understand everything that went on before and during the trial. No mention was made of the substance of any communication by client to attorney; the witness testified only about his client’s cooperativeness and awareness.

All of the matters to which the attorney testified are objectively observable particularizations of the client’s demean- or and attitude. Made at a time when neither client nor lawyer -manifested any reason to suppose they were confidential, they were not within the privilege. Certainly, the client was then making no secret of his capacity, or want of capacity to communicate with his attorney and to cooperate in his defense.

It is suggested that, in these circum- ' stances, adequate cross-examination of attorney-witness might require the petitioner to inquire into the substance of his communications. That is speculative, however. Effective cross-examination need not go so far. And, if difficulty inheres in the situation, it is no more than if the question were the client’s sobriety or inebriety at the time of an otherwise unrelated consultation. If the attorney who testifies his client’s hair was blonde when she consulted him had confused her with another client, inquiry as to the substance of the communication might be the only effective means of revealing his confusion, but his testimony is not drawn within the privilege on that account.

We have not heretofore considered this particular'question when it was contested, but we have tacitly assumed that the trial attorney may be examined as to such matters, indeed, that the postcon-viction court should seek such light as the trial attorney can throw upon the question. United States v. Pledger, 301 F.2d 906 (4 Cir. 1962) ; United States v. Taylor, 303 F.2d 165 (4 Cir. 1962); United States v. McNicholas, 298 F.2d 914 (4 Cir. 1962). Our tacit assumption does not foreclose reconsideration, but after thorough reconsideration in this contested case, we adhere to it.

However, persuasive the highly relevant testimony of the attorney, which we now hol'd properly received, it does not militate against our conclusion that a further hearing should be held to inquire into the petitioner’s medical history, diagnosis, treatment and' response after his reception in Atlanta. Medical opinion ought to be sought as to whether one suffering from amnesia may appear reasonably oriented in time and place when discussing recent and present occurrences and whether, under such circumstances, apparent reasonableness may be infected with irrationality. Moreover, if the medical testimony should disclose a history of traumatic injury occasioning'memory loss before the trial and a subsequent history of successful treatment for it, it might provide weighty evidence, in the light of which the attorney’s testimony ought to be weighed. On the other hand, it may confirm all that the attorney has said. The circumstances, we think, require that this source of information be explored.

The judgment is vacated and the case remanded for further proceedings in accordance with this opinion.

Vacated and remanded.

1 . Obviously the right-wrong test had no relevance to the question before the Court in this hearing. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

2 . Particular circumstances may alter tlie rule. If the client reveals to the attorney a physical defect, usually concealed by ¡lothing, which may bo relevant to the attorney’s representation of liim, it well may be a confidential and protected communication.