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United States v. Zelker

decided: July 17, 1972.


Friendly, Chief Judge, and Mansfield and Mulligan, Circuit Judges.

Author: Mansfield

MANSFIELD, Circuit Judge:

The Superintendent of New York's Green Haven Correctional Facility at Stormville, New York, appeals from a judgment of the district court for the Southern District of New York granting a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to Albert Curtis, a state prisoner serving a sentence of from 20 years to life as a result of his plea of guilty to second degree murder in 1963, on the ground that his guilty plea was not knowingly and intelligently made. We reverse.

On May 3, 1963, a Bronx County Grand Jury filed an indictment charging Curtis, then 25 years old, with first degree murder based upon his killing of a 43-year old man at the Ace's Up Social Club in the Bronx during the course of a robbery on April 18, 1963. According to statements later made by the District Attorney at the time of Curtis' guilty plea, which were not disputed, the state was prepared to prove that on the latter date Curtis, armed with a 38-caliber revolver which he was entitled to carry as a special police officer (guard) in New Jersey, met in the Bronx with one James Lester, with whom he discussed the proposed robbery. Thereupon they went to Lester's apartment where Lester obtained a rifle and, after learning from a third party that a card game was in progress at the Ace's Up Social Club, they proceeded to the Club where approximately 10 persons were engaged in a card game, with money on the tables.

Curtis and Lester, with guns drawn, backed the participants against the wall and proceeded to take the money from the card tables. At that point one of the card players, Albert Langford, who apparently was intoxicated, either lunged or fell toward Curtis, who turned and fired four shots at Langford, killing him. In the course of fleeing from the premises, Curtis reloaded his revolver with two bullets, but upon observing a passing police patrol car, threw the revolver in a sewer. He and Lester were later apprehended and Curtis led the police to the sewer where the revolver was recovered. According to the District Attorney several of the robbery victims were prepared to identify Curtis as the person who killed Langford during the course of the robbery.

Thus the state appeared to have a strong case against Curtis, with the likelihood that upon a trial he would be convicted of first degree murder, for which he could be sentenced to death. Following the filing of the indictment on May 3, 1963, two counsel, Herbert Feuer and Anthony Masciarelli, were appointed by the Bronx Supreme Court to represent him. Curtis admitted to Feuer that he had killed the victim. Interrogation of Curtis by his counsel, however, revealed a history of anti-social tendencies and commitment to institutions, which offered the possibility of an insanity defense. From the time he was 15 years old in 1953 he had been in and out of various institutions for truants and reformatories. In 1957 as the result of being sentenced on a burglary charge he was sent to the Patuxent Institute in Maryland, where he was found to be a defective delinquent. Finally released in November of 1962 by order of the Baltimore City Criminal Court, he came to New York where in 1963 he was charged by his wife with assault, as a result of which he was briefly examined by one Dr. Fishman on February 7, 1963.

According to the records before us Dr. Fishman "found no psychotic tendencies, but indicated the patient was a sociopathic personality". Four days later Curtis voluntarily committed himself to the Bellevue Psychiatric Hospital. He was observed there for more than two weeks and released on February 27, 1963, with a final diagnosis of "sociopathic personality,"*fn1 a term which describes a mental state characterized by marked anti-social tendencies, but which does not connote insanity or mental incompetency as those terms are legally defined. See generally, L. Hinsie and R. Campbell, Psychiatric Dictionary 600, 682-83 (3d ed. 1960).

In view of the foregoing history, Curtis' counsel moved the court for his commitment to Bellevue Psychiatric Hospital for examination into his competence to stand trial, pursuant to former New York Code of Criminal Procedure § 658 [1939], N.Y.Laws, ch. 861, § 2 (repealed 1971).*fn2 With the acquiescence of the prosecution the court granted the motion and Curtis was committed to Bellevue on May 10, 1963. Pursuant to statute, two qualified psychiatrists were appointed to conduct his examination.*fn3 He remained in Bellevue under their observation for two months, during which time he appears to have been thoroughly examined; records of prior mental examinations, both at the Patuxent Institute and at Bellevue, were obtained and considered.

On July 17, 1963, the Bellevue psychiatrists made their report to the court (the "Bellevue Report"), in which both fully concurred, setting out in some detail Curtis' mental history, and finding that he was competent to stand trial. They concluded that "At this time, although there are projective trends, he is in good contact with reality and well aware of the circumstances with which he is now faced." They diagnosed Curtis as "Not psychotic; Sociopathic Personality with aggressive and impulsive features."*fn4 According to the statutory formula then in effect they found that Curtis "is not in such a state of idiocy, imbecility or insanity as to be incapable of understanding the charge, indictment, proceedings, or of making his defense."*fn5 A copy of the report was furnished to Curtis' counsel.*fn6

Curtis' outlook at this stage in the proceedings was grim indeed. The state had an apparently ironclad first degree murder case against him and was pressing for trial. Curtis had admitted the essential incriminating facts to his counsel and had impressed his counsel in their brief discussions as coherent and capable of understanding thoughts communicated to him with respect to his case. As the result of a two-month impartial psychiatric study he had been pronounced sufficiently sane to stand trial. In view of the two reports by Bellevue psychiatrists, one immediately before and the other after the crime, it appeared likely that a further psychiatric examination would fail to provide a basis for a defense of insanity.

In an effort to delay the apparently relentless march toward trial, Curtis' counsel nevertheless moved the court for appointment of two psychiatrists to examine Curtis to determine whether or not he was legally sane at the time of the crime. In the affidavit submitted with the motion Feuer averred that counsel made "no claim that the defendant is presently insane or of unsound mind. No claim is made that the defendant is incapable of understanding the charge or the proceedings against him or of making his defense." Curtis, who was present in court on August 7, 1963, when the motion for appointment of the additional psychiatrists was made, later testified at the habeas corpus hearing held by Judge Lasker that he believed that Feuer thought that he was not sane at the time when the crime was committed.*fn7 On August 7, 1963, the court, with the acquiescence of Feuer, granted the motion to the extent of authorizing the appointment of one psychiatrist for Curtis, with the prosecution to provide one for the state. Feuer decided at that time not to move to confirm the Bellevue Report. At the August 7 hearing Curtis entered a general plea of not guilty.

At this stage a new development occurred. As the result of several discussions with Feuer the District Attorney indicated that he would be willing to reduce the charge from first degree murder, which could result in imposition of the death penalty, to second degree murder, which carried a penalty of a minimum of 20 years and a maximum of life imprisonment, provided Curtis pleaded guilty to the latter. Although Feuer could have proceeded to implement the court's order authorizing a further psychiatric examination, he chose to hold up the examination pending consultation with Curtis regarding a plea to the lesser charge, believing that a further examination would merely confirm Curtis' competency.*fn8 There followed discussions between Curtis and his counsel, as to which conflicting versions were given by them in later testimony before Judge Lasker. Viewing the proof in the light most favorable to Curtis, it appears that upon a visit to Curtis in jail Feuer told him that "the court had destroyed my defense . . . and that he could not take me to trial with one psychiatrist . . . and that I had no defense [of insanity], and that I would be stupid to continue to try to go to trial without this." According to Curtis, Feuer advised him that if convicted of murder in the first degree, he would face the electric chair whereas if he pleaded guilty to a lesser offense (not then denominated), he would get less than life imprisonment.

On October 8, 1963, Curtis and both of his counsel appeared in court; again, according to Curtis, he was advised, this time by Masciarelli, that his best course was to plead guilty because he had no defenses. At this appearance Curtis' counsel consented to confirmation of the Bellevue Report, which had found him competent to stand trial. Curtis denied knowledge of what happened in court on that day. Shortly thereafter Curtis' mother came to visit him in jail and told him, according to his testimony, that his lawyer had

"Told her that I didn't have a defense and I had a bad probation report and I had many other things that were against me and that I should plead guilty and not try to go to trial as I had intended to, and I didn't want to go along with it, and she started to cry ...

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