Friendly, Chief Judge, Waterman, Circuit Judge, and McLean, District Judge.*fn*
Petitioner is a state prisoner who was convicted by a jury verdict on March 23, 1962, in the Court of General Sessions, New York County, of the crimes of sodomy, assault with intent to commit sodomy, and robbery in the first degree. In April 1968 he applied to the District Court for the Northern District of New York for a writ of habeas corpus. He claimed that both at the time of the commission of the crimes and at the time of trial he was insane, and that the trial court's failure to hold a hearing on the subject of his mental capacity deprived him of due process of law. Judge Foley denied the petition without a hearing by order dated April 25, 1968. His opinion is unreported. In February 1969 this court granted a certificate of probable cause and assigned counsel to represent petitioner on his appeal. After examining the record, we agree with the conclusion reached by the District Court and we therefore affirm the order.
Petitioner was sentenced on May 21, 1962 as a second felony offender to prison terms aggregating from 65 to 130 years. On his direct appeal the Appellate Division affirmed his conviction but reduced the sentence to 20 to 50 years. People v. Evans, 20 A.D.2d 764, 247 N.Y.S.2d 492 (1st Dept. 1964). The New York Court of Appeals denied leave to appeal, and the Supreme Court of the United States denied certiorari. Evans v. New York, 379 U.S. 861, 85 S. Ct. 123, 13 L. Ed. 2d 64 (1964).
Thereafter petitioner instituted two successive coram nobis proceedings in the state court. In the first, begun in July 1964, petitioner claimed that he was insane at the time of his trial. The petition was denied in September 1964, the Appellate Division affirmed the order, People v. Evans, 24 A.D.2d 843, 263 N.Y.S.2d 443 (1st Dept. 1965), and leave to appeal to the Court of Appeals was denied. In his second proceeding, begun in February 1967, petitioner claimed that he was insane at the time of commission of the crimes. This petition was denied in March 1967. Again the order was affirmed by the Appellate Division, People v. Evans, 28 A.D.2d 1093, 284 N.Y.S.2d 688 (1st Dept. 1967), and leave to appeal to the Court of Appeals was denied. It is thus clear that petitioner has exhausted his state remedies.
The proceedings in the Court of General Sessions immediately prior to, during, and immediately subsequent to, petitioner's trial have an important bearing upon petitioner's present contention. They may be summarized as follows.
Petitioner was indicted twice. The first indictment charged him with sodomy committed on Robert Jakubik on September 5, 1961, and with assault with intent to commit sodomy and with robbery committed on John McDermott on November 12, 1961. The second indictment charged him with sodomy and with robbery committed on James White on August 1, 1961. The two indictments were consolidated for trial.*fn1 The court appointed The Legal Aid Society to represent petitioner in the consolidated case.
Prior to the consolidation, the Court of General Sessions, on January 10, 1962, made an order, pursuant to Section 658 of the Code of Criminal Procedure, committing petitioner to Kings County Hospital for examination to determine whether petitioner was mentally competent to stand trial. The order was made on motion of the district attorney. The record does not reveal what transpired at the time or why the district attorney requested the examination. Presumably it was because he had become aware of petitioner's history. Since 1938 petitioner, on several occasions, had been confined in mental hospitals, both in Michigan and in New York, sometimes under his own name, and sometimes under the name of James Ramsey. Each time he had been discharged after treatment for varying periods. His most recent commitment had been to Bellevue Hospital for observation in the fall of 1961. Again he was found sane and released.
On January 23, 1962, two psychiatrists who had examined petitioner at Kings County Hospital, reported to the court. Their conclusion was that petitioner was not insane and that he was capable of understanding the charges against him and of making his defense. His electroencephalogram was normal. When interviewed he was coherent and relevant in his statements. No hallucinations or paranoid delusions were elicited from him. The doctors found him to be "well oriented in all three spheres."
As far as appears, neither side objected to this report. Accordingly, the court set the case down for trial. The trial began on February 20, 1962. After the court had granted the People's motion to consolidate the indictments, the selection of a jury began. Six jurors had been chosen when petitioner objected to his continued representation by Legal Aid counsel. He told the court that he felt that counsel's questions to prospective jurors, particularly his reference to the complaining witnesses as "boys," was prejudicial to him. He pointed out that he was "facing the rest of my life in the penitentiary" on these charges and that they were of vital concern to him. He stated that he knew that he could ask for a mistrial later on, but "why waste the time of the State and your time, the District Attorney's time and everybody else." He urged that he be given new counsel immediately. Petitioner's counsel asked to be relieved at this point. The upshot was that the court declared a mistrial, relieved petitioner's counsel, and appointed another lawyer to represent him.
The trial began again on March 1, 1962. No claim was made by petitioner or his new attorney that he was then insane or that he had been insane at the time of the offenses. After the trial had been in progress for some two weeks, petitioner suddenly interrupted a prosecution witness and in an outburst of obscene language accused him of perjury. The court instructed the jury to disregard it and adjourned the trial until the following day.
On the next day, petitioner made a scene in court, banged his feet on the floor, and struggled with court officers. Petitioner's attorney then moved to have petitioner committed to a mental hospital for examination as to his sanity. The court called a doctor to examine him forthwith but the doctor advised the court that the petitioner refused to be examined. He recommended a psychiatric examination. The court thereupon granted the motion, committed petitioner to Bellevue Hospital for examination, and adjourned the trial in the meantime.
The psychiatrist's report dated March 22, 1962 concluded that petitioner was not in such a state of insanity as to be incapable of understanding the proceedings or of making his defense. The report noted that petitioner's behavior when left to himself in the ward differed markedly from his conduct when interviewed by the doctors. He took part in an agreeable fashion in the activities of the ward, mingled freely with the other patients, and manifested no unusual behavior. At his interviews, on the contrary, he refused to cooperate, refused to answer questions, denied any knowledge of having been in court, and denied that he had previously been in Bellevue. It was the psychiatrist's opinion that in all probability petitioner was malingering and that he was "consciously evasive."
The trial resumed on March 23, 1962. Petitioner was present in a strait jacket. He struggled and yelled. His attorney moved for a mistrial. The court denied the motion. Defendant then rested without presenting any evidence. Defense counsel took no exception to the judge's charge. The ...