Favis Clay Martin v. W. J. Estelle, Jr., Director, Texas Department of Corrections , 583 F.2d 1373 ( 1978 )

GEWIN, Circuit Judge:

For a third time petitioner Martin comes before this court. The course of his protracted efforts to overturn his 1970 conviction for murder is detailed in our most recent opinion in this ease, Martin v. Estelle, 546 F.2d 177 (5th Cir. 1977). There, Martin appealed from the district court’s denial of his petition for a writ of habeas corpus on the grounds that the state court’s failure to provide him with a fair competency hearing prior to his murder trial denied him due process of law. We found for Martin and remanded his case to the district court with instructions to “provide appellant with a federal competency trial if such a trial is practicable.” Id. at 180. Pursuant to this instruction the district court, on June 14, 1977, held a hearing on the question of Martin’s competency at the time of his June 8,1970, trial in Texas state court. The court found that it was unable to retrospectively determine Martin’s competency and ordered that the writ be issued subject to the state’s right to retry him. After careful review of the record on appeal we remand to the district court for further proceedings consistent with this opinion.

Martin was accorded a hearing by the state court on his competency to stand trial, but the hearing itself was found to be inadequate. In these circumstances this court has held that the case should be remanded to the district court for a determination of whether a meaningful retrospective competency hearing can be conducted. See Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973). If the lower court finds that this question can be answered affirmatively then a hearing must be conducted to ascertain petitioner’s competency at the time of his original trial.¹ At this hearing the burden is on the petitioner to prove his incompetency by a preponderance of the evidence. Bruce v. Estelle, 536 F.2d 1051, 1058-59 (5th Cir. 1976). If the court finds that a meaningful competency hearing cannot be conducted, then of course, the writ must issue.

The test to be applied in determining the question of meaningfulness is whether the “quantity and quality of available evidence is adequate to arrive at an assessment that could be labelled as more than mere speculation.” 536 F.2d at 1057. Although the factors involved in arriving at a decision regarding the meaningfulness of a retrospective competency hearing must necessarily vary from case to case, this court has taken notice of certain types of data which are essential to the decision-making process. Medical evidence, such as expert testimony from psychiatrists who have examined the defendant near the time of trial or testimony based upon hospital records reflecting defendant’s mental history, generally provide sound material for reconstruction of defendant’s mental state. See id.; United States v. Makris, 535 F.2d 899, 904-05 (5th Cir. 1976). In addition to expert testimony, the testimony of laymen who have interacted with the defendant contemporaneous with trial can also provide data of equal weight with that derived from expert testimony. See 536 F.2d at 1057. Finally, the transcript of the trial itself or, as in the instant case, the competency hearing, can be used to assist the court in forming. an accurate picture of defendant’s mental state at the time of trial.

In answering the threshold question whether a meaningful retrospective hearing on competency can be held, the lower court must take the initiative to insure that all relevant evidence comes before it. The court, for example, may wish to enlist the aid of experts in making its determination, as in Bruce v. Estelle, where the court appointed two psychiatrists “to examine Bruce, furnish a medical report and testify at the 1974 retrospective hearing.” 536 F.2d at 1054. At the evidentiary hearing held in Bruce the experts agreed that a meaningful hearing could be conducted if “pertinent legal and medical records were combined with current medical evaluation to produce a hindsight picture of Bruce’s mental condition in 1965.” Id. at 1055. Also the court may find that there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing. See United States v. Makris, 398 F.Supp. 507, 511-12 (S.D.Tex. 1975), aff’d 535 F.2d 899 (1976).

Our examination of the proceedings conducted by the district court in this case reveals that the court failed to follow the procedure described above for deciding questions of retrospective competency in that it made no initial determination of meaningfulness. The record shows that on March 17, 1977, the question of whether a retrospective competency hearing was practical was argued before the court. (R.II, p. 10).² Apparently no decision was reached at that time because at a hearing on June 8, 1977, to consider petitioner’s motion for a continuance in the competency proceedings, in reply to petitioner’s question whether a decision had been reached the court answered:

Well, sir, it was decided to the extent to go ahead and have a hearing. I think it is going to have a very definite bearing on whether or not you were competent, though. It is intermixed in my mind, the fact that whether it is practical and whether I can determine competency at this late date are all one and the same ball of wax.

PETITIONER: Then, you haven’t actually decided, then, that it is practical to have a retrospective hearing?

THE COURT: I have reserved the right to make that determination.

PETITIONER: Oh, I see.

THE COURT: And even at this coming hearing.

THE COURT: In other words, if I, after hearing all of the evidence, if I decide that I just can’t determine this competency question now, I would think that the mandate of the Fifth Circuit requires you to go back for a new trial, yes, sir. Does that answer your question?

PETITIONER: Almost.

THE COURT: Well, I didn’t — I don’t mean to evade the answer, but the question is still open, you are correct on that, as to whether it is practical to have a trial.

(R.II, pp. 10-11). (Emphasis supplied)

The court finally decided to hold a hearing to consider evidence with the right reserved to the petitioner to bring in additional witnesses should the court find that the evidence presented demonstrated petitioner’s competence. At this proceeding the court committed its second error by placing the burden of proving Martin’s competency to stand trial upon the state,³ since as stated above, the habeas petitioner at a federal nunc pro tunc competency hearing has the burden of proving his incompetency. See 536 F.2d at 1058-59. Until the petitioner demonstrates his incompetency to stand trial the state is required to adduce no proof of competency.

It is our opinion that the lower court’s failure to make an initial determination of the meaningfulness of conducting a hearing on Martin’s retrospective competency and its improper allocation of the burden of proof at the hearing it did conduct are fatal to its decision. The erroneous allocation of the burden of proof is particularly serious since we believe that it clearly led to the district court’s finding that “there was nothing which established petitioner’s competency to stand trial on June 8,1970.” We therefore remand this case to the district court with instructions to first make a determination of whether a meaningful hearing regarding Martin’s competency at his original trial can be conducted. If the court finds that such a hearing can be held then the hearing should proceed with the burden on the petitioner to prove his incompetence at the time of trial.

REVERSED and REMANDED WITH DIRECTIONS.

1 . The test for determining competency to stand trial as established in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) is:

whether he [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.

2 . “R.II” refers to the record in the June 14, 1977, federal competency hearing.

3 . At the June 14, 1977, hearing the court stated: “I believe the burden is on the State, if you will call your first witness.” (R.II, p. 20).