Petition — Jones v. Kentucky

+a, Bupreme Court, U.

. _ ’

| SEP 18 if?5

ame he) ms PL

Pree

—_——— 7 2 ae

In The

SUPREME COURT OF THE we STATES

OCTOBER TERM,

JERRY TIMOTHY JONES,

Petitioner,

VS.

COMMONWEALTH OF KENTUCKY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF KENTUCKY

FE. ANDRE’ BUSALD

226 Main Street

Florence, Kentucky 41042

HOWELL W. VINCENT

180 Park Place

Covington, Kentucky 41011

Attorneys for the Petitioner

COURT INDEX PRESS, INC. — 809 Walnut Street, Cincinnati, Ohio 45202 — (513) 241-1450

TABLE OF CONTENTS

Page

er rey Peer eee: Pee l

ae oe oc s'b ob win'vine +S akin en 8% | 2

QUESTION PRESENTED ................065. 2

CONSTITUTIONAL PROVISIONS __.......... 2

STATUTORY PROVISIONS................. 3

STATEMENT OF THE CASE ................ 4

THE QUESTION IS SUBSTANTIAL .......... 7

WHERE A PRE-TRIAL MOTION FOR A

COMPETENCY HEARING HAS BEEN

MADE, ALLOWING THE TRIAL JUDGE

BROAD DISCRETION TO DENY SUCH A

HEARING CONSTITUTES AN_ INAD-

EQUATE PROCEDURE TO PROTECT

THE RIGHTS OF ALL DEFENDANTS

FROM BEING CONVICTED WHILE LE-

GALLY INCOMPETENT ................ 7

aa a Se a 13

APPENDIX:

A. April 28, 1975 Order of the Supreme Court

ee I I v0 Feo Pek wes are ie oe

B. June 20, 1975 Mandate of the Court of Ap-

Eg eee eee eee 2a

June 20, 1975 Memorandum Opinion of the

Court of Appeals of Kentucky .............. 3a

C. October 12, 1973 Mandate of the Court of

Appeals of Kentucky

October 12, 1973 Memorandum Opinion of

the Court of Appeals of Kentucky by Com-

missioner Cattina

D. Judgment; Boone Circuit Court

Motion

Affidavit

Page

7a

8a

12a

13a

l4a

Ill.

TABLE OF AUTHORITIES

Cases: Page

Drope v. Missouri, 420 U.S. ——, 95 S. Ct. 896

RT Lon} . 4, 5, 7, 8, 9, 10, 11, 18

Dusky v. United States, 362 U.S. 402, 80 S. Ct.

788 (1960)... = a SF Pony an a he 7

Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836

EE Ca a aa cWh paket et shes 8 euy es 7, 9, 10, 13

Russell v. Commonwealth, 482 S.W. 2d 584 (Ky.

RS gaa’ ei, ont tee ap Pac tata i)

United States v. Walker, 301 F. 2d 211 (6th

eee Sp TP ES Ne ea ara eae

Via v. Commonwealth, 522 S.W. 2d 848 (Ky.

Pes Sales ss phe 9

Constitutional Provisions:

United States Constitution Amendment XIV , 2

Statutory Provisions:

rr pepe re ceesnee 4. 3

Kentucky R. Cr. 8.06 ..... Brus a5 rere ete ee 4, 8

LL eile es 42 ee ee | 3

Other Authorities:

Nove, 57 Ky. Law J. 527 (1969) ........... cc enee. 8

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO.

JERRY TIMOTHY JONES,

Petitioner,

vs.

COMMONWEALTH OF KENTUCKY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF KENTUCKY

Petitioner appeals from the judgment of the Court of

Appeals of Kentucky, entered June 20, 1975, following

remand from the Supreme Court of The United States,

affirming a judgment of guilt, and reaffirming its judgment

of January 18, 1974. Petitioner submits this statement to

demonstrate that the Supreme Court of The United States

has jurisdiction of the appeal and that a substantial con-

stitutional question is presented.

OPINIONS BELOW

The June 20, 1975 Memorandum Opinion of the Court

of Appeals of Kentucky is reported at ——~ S.W.2d ——

(Ky. 1973). The Opinion is attached hereto as Appendix B.

2

The October 12, 1973 Memorandum Decision of the

Court of Appeals of Kentucky is reported at 503 S.W. 2d

757 (Ky. 1973). The Opinion was ordered not to be pub-

lished, but is attached hereto as Appendix C.

JURISDICTION

The judgment of the Court of Appeals of Kentucky

was entered June 20, 1975. This Petition is filed within

the Ninety (90) Day period prescribed by Rule 22 of the

Supreme Court of the United States. Notice of this Ap-

peal was given to the Court of Appeals of Kentucky on

August 1, 1975. This Court's jurisdiction is invoked under

28 U.S.C. Section 1257 (3).

QUESTION PRESENTED

Whether present procedures concerning hearings to de-

termine competency at time of trial are adequate to pro-

tect the constitutional rights of all Defendants to be free

from conviction while legally incompetent.

CONSTITUTIONAL PROVISIONS

UNITED STATES CONSTITUTION

AMENDMENT XIV

SECTION I

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

§

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

STATUTORY PROVISIONS

18 United States Code § 4244

Whenever after arrest and prior to the imposition of

sentence or prior to the expiration of any period of pro-

bation the United States Attorney has reasonable cause to

believe that a person charged with an offense against the

United States may be presently insane or otherwise so

mentally incompetent as to be unable to understand the

proceedings against him or properly to assist in his own de-

fense, he shall file a motion for a judicial determination

of such mental competency of the accused, setting forth

the ground for such belief with the trial court in which

proceedings are pending. Upon such a motion or upon a

similar motion in behalf of the accused, or upon its own

motion, the Court shall cause the accused, whether or not

previously admitted to bail, to be examined as to his men-

tal condition by at least one qualified psychiatrist, who

shall report to the Court.

KENTUCKY REVISED STATUTES

203.015 Examining physician; psychologist; qualifica-

tions, certificate; contents. —

(1) When the petition has been properly filed with the

Clerk of the Court, the Court shall appoint two physicians

or one physician and one certified clinical psychologist

licensed under the provisions of KRS Chapter 319 to ex-

amine the defendant and to certify to the court as to wheth-

er they find the defendant mentally disabled.

a

4

(2) Where possible, the physicians or physician select-

ed shall have made a special study of mental deficiency

and mental disease. The examiners, either physicians or

physician and certified clinical psychologist, shall be en-

titled to a fee of ten dollars each for such examination

and certification, to be paid by the county in which the

petition is filed, upon a certified copy of an order of al-

lowance made by the court holding the inquest.

(3) The certificate shall state that the defendant has

been examined by each of the medical examiners making

the certificate within three days prior to the date of the

certificate.

KENTUCKY RULES OF CRIMINAL PROCEDURE

8.06 Insanity.

If upon arraignment or during the proceedings there are

reasonable grounds to believe that the Defendant is insane,

the proceedings shall be postponed and the issue of sanity

determined as provided by law. If the Defendant is found

to be insane, the Court shall direct that he be confined

in a mental institution until his mind is restored, at which

time he shall be returned to the Court for further proceed-

ings.

STATEMENT OF THE CASE

On April 28, 1975 this Court entered the following Or-

der in the case of Jones v. Kentucky, 73-1884:

_ The Petition for Writ of Certiorari is granted, the

judgment is vacated, and the case is remanded to the

Court of Appeals of Kentucky for further considera-

tion in light of Drope v. Missouri, 420 U.S. —~ (1975) .

5

The Defendant's first Petition for Certiorari was based

on the denial of his pre-trial Motion for a Competency

hearing. The essence of the argument was that Kentucky

Law allowed Trial Judges overly broad discretion with

regard to denial of such Motions, thereby inadequately

protecting the right of an accused from being convicted

while legally incompetent. Subsequent to the filing of the

Petition, this Court decided the case of Drope v. Missouri,

420 U.S. —, 95 S.Ct. 896 (1975).

On remand, the Kentucky Court of Appeals recon-

sidered the evidence of the instant case in light of the

Drope Opinion. Finding no evidence of “bizarre be-

havior” by Defendant Jones, and apparently disbelieving

or disregarding evidence of Defendant’s prior treatment

for psychological disorders, the Kentucky Court found the

Jones case to be factually distinct from Drope and so re-

affirmed the judgment of conviction.

Jerry Timothy Jones was indicted for wilful murder on

January 11, 1972. The trial was initially set April 18,

1972, but had to be continued because Jones was hospital-

ized (TE 136; TR 4, 5). Jerry Jones is a sick man. He

suffers from various mental and physical infirmities (TE

135). He has been under continuous doctor's care and

sporadically in and out of hospitals since 1959 (TE 118,

119, 120, 131, 132, 133, 135).

The trial was reset for August 8, 1972, but again had

to be continued because Jones was in the hospital (TE

122). On the day prior to the next scheduled date for

the trial Defense counsel filed a Motion for a competency

hearing and a supporting detailed Affidavit (set out in

Appendix D.) The Affiant, Defendant's mother, attested

to Defendant's serious infirmities and history of psychia-

tric treatment. Counsel moved the Court to order a con-

tinuance so that Jones’ competency to stand trial could be

EE |

6

determined. The trial judge summarily denied the Mo-

tion without everi interrogating the Defendant (TR 11).

At the trial, unrebutted evidence was adduced from

Bertha Jones, natural mother of Defendant (TE 118); from

Doctor Charles Baron, Defendant's Physician (TE 136) ;

and from Thelma Elliott, Defendant's ex-wife (TE 157),

that Jerry Jones was a sick man, both at the time of the

incident which gave rise to the murder indictment and

up to and through the time of the trial.

The jury returned a verdict of guilty on the wilful

murder charge. Defense counsel, in its Motion and

Grounds for a new trial, charged the trial court with re-

versible error in failing to grant Defendant's Motion for a

competency inquest. On Appeal, Defendant's counsel

again raised the constitutional issue, and in the Petition

for Rehearing the issue was once again raised. On each

occasion the issue was rejected, each respective court hold-

ing that the decision to grant a competency inquest is

within the broad discretion of the trial judge, and each

court found no abuse of discretion.

Petition for Writ of Certiorari was filed with this Court

on June 17, 1974, and on April 28, 1975 this Court enter-

ed the Order quoted above. From the June 20, 1975 Or-

der of the Court of Appeals of Kentucky re-affirming De-

fendant’s conviction, we hereby respectfully appeal.

7

THE QUESTION IS SUBSTANTIAL

WHERE A PRE-TRIAL MOTION FOR A COM-

PENTENCY HEARING HAS BEEN MADE, AL-

LOWING THE TRIAL JUDGE BOARD DIS-

CRETION TO DENY SUCH A HEARING CON.-

STITUTES AN INADEQUATE PROCEDURE TO

PROTECT THE RIGHTS OF ALL DEFENDANTS

FROM BEING CONVICTED WHILE LEGALLY

INCOMPETENT.

A.

In Drope v. Missouri, 420 U.S. ———, 95 S.Ct. 896, de-

cided February 19, 1975, this Court re-affirmed the con-

stitutional right of a criminal Defendant to be free from

conviction while legally incompetent. The rationale be-

hind that right is that the accused, if legally incompetent

at the time of trial, will not be able to assist in his defense.

The test for competency was expressed clearly in Dusky

v. United States, 362 U.S. 402, 80 S. Ct. 788 (1960). The

question should be “. . . whether he (Defendant) has

present sufficient ability te consult with his lawyer with a

reasonable degree of rational understanding and whether

he has a rational as well as actual understanding of the

proceedings against him.” 362 U.S. at 402, 80 S. Ct. at

789. In Drope, this Court cited the Dusky test with ap-

proval. 420 U.S. at ———, 95 S. Ct. at 904.

Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836 (1966)

firmly established the constitutional basis for the right to

be competent at the trial, stating that “the conviction of

an accused person while he is legally incompetent violates

due process (citation omitted) , and state procedures must

be adequate to protect this right. Jd. at 378, 86 S. Ct. at

838. Pate established at least two governing principles

for exercise of the right. First, the Defendant's demeanor

at trial is not the only factor to be considered — history

of mental infirmities is also to be used as a standard.

Second, even if the Defendant makes no Motion for a

Competency Hearing, the trial court has the duty to order

such a hearing sua sponte if the evidence adduced at trial

creates a sufficient doubt of mental incapacity.

In Drope, this Court decided that, contrary to the view

of the trial judge, the evidence revealed at trial was such

as to create a “sufficient doubt” of the Defendant's com-

petency to stand trial, thus requiring further inquiry under

Pate. The Court said: ‘““The record revealed a failure to

give proper weight to the information suggesting incom-

petence which came to light during trial.”

The Court specifically left undecided another question:

Whether defense counsel's pre-trial contention that the

Defendant was not of sound mind and should have a

psychiatric examination was sufficient by itself to raise the

issue of competency and mandate a psychiatric evalua-

tion in accordance with state procedures. Drope, 420

U.S. at ———, 95 S. Ct. at 906. It is that question which

Petitioner now presents before this Court.

Kentucky Rule of Criminal Procedure 8.06 provides that

whenever reasonable grounds arise to believe that the De-

fendant is insane, the proceedings shall be postponed and

the issue of sanity determined as provided by law. The

phrase “provided by law” in Rule 8.06 apparently refers to

civil competency proceedings, as set out in Chapter 203 of

the Kentucky Revised Statutes. See Note, 57 Ky. L.J. 527,

528. Under such proceedings, when the trial judge is

convinced that Defendant's competency is in question

(reasonable grounds), the judge appoints two physicians

9

or one physician and one clinical psychologist to examine

the Defendant. The doctors are required by Ky. Rev.

Stat. Section 203.015 to certify to the Court whether the

Defendant is mentally disabled. The doctors are provided

a fee of Ten ($10.00) Dollars each for the examination.

On its face the Kentucky Procedure seemed adequate to

protect a Defendant's right to be mentally competent at

trial. A survey of Kentucky authorities, however, reveal-

ed that the trial judge was afforded broad discretion as

to just what constituted a reasonable ground, and that the

trial judge’s decision would be overturned on appeal only

upon a clear showing of abuse of that discretion. See, e. g-,

Russell v. Commonwealth, 482 S. W. 2d 584 (Ky. 1972).

These and similar cases led us to conclude that the trial

judge’s discretion was so broad as to render the Kentucky

Procedure inadequate.

When Jones v. Kentucky was vacated and remanded in

light of Drope, the implication was that Kentucky Pro-

cedure did not conform with requirements of due process.

In an Opinion written shortly thereafter, however, the

Kentucky Court of Appeals, in Via v. Commonwealth, 522

S. W. 2d 848 (Ky. 1975), stated that Kentucky Procedure

had always conformed to the Drope standard. The im-

plication of Via is that the trial judge's discretion may not

be so broad as the earlier cases suggested. Despite this

apparent confusion, however, it still is clear that the trial

judge himself must weigh the evidence as to competency.

OF

In both the Drope and Pate cases there was evidence of

various types of bizarre behavior by the Defendants. Such

behavior fit the pattern of what a layman would consider

an indication of insanity, and this Court held that such

10

obvious evidence could not be disregarded. Thus, when

there is evidence of mental incapacity that a layman would

recognize as such, the standard established by Drope is

more than adequate to protect the Defendant's rights.

The Drope test is particularly appropriate where no mo-

tion has been made by the Defendant and the Judge has

to exercise his duty to order a competency hearing sua

sponte.

The facts of the case at bar do not fit the pattern of

Drope. Dr. Charles Baron, a specialist in Psychiatry who

gave the only medical testimony at trial, testified that De-

fendant is a ‘depressive reactor” and is under continual

medical care and constantly receives medication (TE 136) .

Dr. Baron testified that a depressive reactor is one who

is “non-communicative, talks very little, does not want to

go anywhere, really non-giving and non-receiving” (TE

136). Although one in this condition certainly would

have difficulty cooperating in his defense, the symptoms

of this mental deficiency are quite the opposite of the

bizarre behavior in Drope and Pate.

Defendant's pre-trial Motion for a competency hearing

was overruled because the trial judge did not believe that

the supporting affidavit raised reasonable grounds of in-

competency. The judge did not have a discussion with the

Defendant and made no attempt to investigate the issue

further. Even if he had, however, it is unlikely he would

have recognized Defendant's symptoms as constituting a

mental deficiency.

This Court has recognized that evaluation of psychologi-

cal factors is a difficult task, and that even trained psychia-

trists often disagree on their evaluation of the same facts.

Drope, 420 U.S. at —-——, 95 S. Ct. 908. Determination of

whether a Defendant has exhibited any indicia of mental

incapacity requires medical evaluation. This is especial-

1]

ly true when the particular mental deficiency is not mani-

fested by bizarre behavior or other outward signs which a

layman would associate with insanity. A trial judge is

not trained in the diagnosis of psychological disorders.

How, then, can a trial judge be expected to “weigh the

evidence” and make an accurate preliminary determina-

tion of mental incompetency? We submit that the Drope

standard of allowing the trial judge to weight the evi-

dence of incompetency to arrive at “sufficient doubt’ is

not adequate to protect the Defendant's right in all cases.

In cases like the one at bar, the judge, due to his lack of

medical training, simply will not recognize the evidence

of incompetency which he is supposed to weigh. The end

result is that Defendants with mental infirmities which

manifest themselves in bizarre patterns of behavior are

much more likely to receive the constitutionally guaranteed

psychiatric examination than those Defendants who suffer

from more subtle, but just as real forms of mental illness.

The Drope standard still will be appropriate in cases

where no Motion has been made but where “obvious”

indicia of insanity come to the judge’s attention. It is our

contention, however, that once the Defendant has made a

Motion before trial a different standard should apply.

Once a Motion is made, unless frivolous or not made in

good faith, psychiatric examination should always be

granted. This is currently the law in the Federal System.

See United States v. Walker, 301 F. 2d 211, 214 (6th Cir.

1962) (applying 18 U.S.C. Section 4244). Since the right

to be free from conviction while legally incompetent is a

- constitutional requirement, this also should be the law of

the states. The kind of justice a man receives can not be

made to depend on the courthouse in which he is tried.

In the case at bar, the Defendant's pre-trial Motion was

supported by an Affidavit from Defendant’s mother, de-

12

scribing Defendant’s history of emotional disturbances and

psychiatric treatment. While the Affidavit by itself, of

course, was not sufficient to establish competency, it was

enough to raise the issue. The trial judge should not have

been free to weigh the Affidavit against supposed indica-

tors of incompetency, and he should not have been free

to disregard the Affidavit. Such decisions required medical

expertise.

The trial judge should have been limited to determina-

tion of the legal question whether the Motion was made

in good faith and not for the purpose of delay. The stand-

ard of good faith should be: Is there any evidence to sup-

port the Motion for a Competency Hearing? Since there

was some evidence to support the Motion in the instant

case (the events described in the Affidavit), the Judge

should have had no further discretion to deny the Motion.

18

CONCLUSION

Drope and Pate are characterized by evidence of bizarre

behavior which can easily be detected by persons without

medical training. Indeed, the Kentucky Court of Appeals

emphasized the lack of bizarre behavior in its re-affirmance

of Defendant's conviction. Certain mental defects, how-

ever, arg so subtle, that a judge, without medical training,

is incapable of recognizing the indicia and symptoms con-

stituting the infirmity. Because of this, once the issue of

competency is brought to the court’s attention pre-trial

the court should only determine that the Motion is made

in good faith and is not frivolous. After such determina-

tion, failure to make adequate inquiry into Defendant's

competency is in violation of the rationale of Drope, even

if not the precise letter. For this reason, Writ of Certiorari

should be granted.

Respectfully submitted,

E. ANDRE’ BUSALD

226 Main Street

Florence, Kentucky 41042

HOWELL W. VINCENT

130 Park Place

Covington, Kentucky 41011

Attorneys for the Petitioner

APPENDIX A

ORDER OF THE SUPREME COURT OF

THE UNITED STATES

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

April 28, 1975

E. Andre’ Busald, Esq.

Blakely, Busald, Robinson & Funk

226 Main St.

Florence, Ky. 41042

RE: Jerry Timothy JONES v. KENTUCKY,

73-1884

Dear Sir:

The Court today entered the following order in the

above-entitled case:

The petition for a writ of certiorari is granted, the judg-

ment is vacated and the case is remanded to the Court of

Appeals of Kentucky for further consideration in light of

Drope v. Missouri, 420 U.S. -—— (1975).

Mr. Justice Douglas took no part in the consideration or

decision of this petition.

Encl. — cc opin. in Drope v. Missouri

Very truly yours,

Michael Rodak, Jr., Clerk

By

/s/ HELEN TAYLOR

Helen Taylor (Mrs.)

Assistant Clerk

la

2a

Carl Miller, Esq.

Asst. Attorney General of Kentucky

Capitol Bldg.

Frankfort, Ky. 40601

APPENDIX B

MANDATE OF THE COURT OF APPEALS

OF KENTUCKY

, 75 Term — June 20,

The Commonwealth of Kentucky, 1975

The Court of Appeals Appeal from a judg-

Jerry Timothy Jones ment of the

vs Boone Circuit Court

Commonwealth of Ky. Ind. #71-49,

File # F-303-72

The Court being sufficiently advised, delivered herein

an opinion per curiam, and it seems to them there is no

error in the judgment herein.

It is therefore considered that said judgment be affirmed;

which is ordered to be certified to said court.

It is further considered that the appellee recover of the

appellant its cost herein expended.

/s/ FRANCES JONES MILLS,

A copy—Attest:

FRANCES JONES MILLS, C. C. A.

Issued July 22, 1975

$a

RENDERED:

June 20, 1975

COURT OF APPEALS OF KENTUCKY

F-303-72

JERRY TIMOTHY JONES,

APPELLANT,

Vv.

COMMONWEALTH OF KENTUCKY,

APPELLEE.

Appeal From Boone Circuit Court

Honorable James R. Ford, Judge

Indictment No. 71-49

MEMORANDUM OPINION PER CURIAM

AFFIRMING

A jury found Jerry Timothy Jones guilty of willful

murder and fixed his punishment at life imprisonment.

Upon appeal this court, by its opinion of October 12, 1973,

affirmed the judgment of conviction. Upon appeal to the

United States Supreme Court, it was ordered on April 28,

1975, “that the judgment of said Court of Appeals in this

case be vacated with costs, and that this cause be remanded

to the Court of Appeals of the Commonwealth of Ken-

tucky for further consideration in light of Drope v. Mis-

souri, 420 U.S. (1975) .”

Upon remand this court has considered its opinion of

October 12, 1973, and adopts the opinion in toto with

.

4a

this further extension regarding the rule of Drope v. Mis-

souri, supra. Drope reafirms the proposition that when

a court is put on notice that a defendant coming on for

trial lacks the capacity to understand the nature and ob-

ject of the proceeding, to consult with counsel, or to as-

sist in preparing his defense, he may not be subjected to

a trial. Although this is the ancient common-law rule,

Drope promulgates guidelines which must be considered

by a trial court in determining whether the trial should

proceed, the trial court being required to take into con-

sideration evidence of the defendant's prior irrational con-

duct, his demeanor at trial, and any medical opinion on his

.competence to stand trial.

Briefily, Drope, along with four companions, forcibly

raped his wife and subjected her to other bizarre abuses

and indignities. His bizarre conduct ran the gambit from

sexual perversion to rolling down the stairs if he couldn't

get what he wanted. Also, in the course of the trial he

tried to commit suicide. Prior to the trial, a motion had

been made requesting a psychiatric examination and

evaluation, which motion was supported by a report from

a psychiatrist who concluded that Drope was a very neu-

rotic individual and that he suffered from a sociopathic

personality disorder, sexual perversion, borderline deficien-

cy, and chronic anxiety reaction with depression.

None of the conditions detailed in Drope obtains in the

prosecution and conviction of Jerry Timothy Jones. Jones

was charged with a murder that he committed in the back

room or restroom of a bar while he was exceedingly in-

toxicated. The murder was committed on December 29,

1971. Jones was indicted, and the prosecution was set for

trial on April 18, 1972. However, on the trial date the

case was continued because Jones was hospitalized with

uncontrolled diabetes. On August 24, 1972, Jones filed

5a

a motion requesting that the court enter an order allow-

ing and granting him psychiatric examination and evalua-

tion by two psychiatrists to determine whether he was

mentally competent to stand trial. This motion was not

supported by either medical reports or affidavits of physic-

ians. There was filed with the motion the affidavit of

Jones’ “natural mother.”” Although the major portion of

it is of the rankest type of hearsay, this affidavit does not

detail any irrational behavior on the part of Jones. It

consists primarily of a detailed history of Jones’ alcholism

and diabetes and of the dire results visited upon a diabetic

who attempts to satisfy his bent for alchol.

Counsel for Jones did not at any time prior to or dur-

ing the trial indicate to the court that they were of the

opinion that Jones was not competent to stand trial or to

participate in his defense.

The motion and affidavit filed prior to trial did not in

themselves make a sufficient or any showing of the type that

would require the trial judge to grant the motion or to

cause a hearing to be conducted into the mental com-

petency of Jones and of his ability to stand trial and to in-

telligently aid in his defense.

The events of the trial are such that they clearly justify

the action of the court, and these events, even when

coupled with the motion and affidavit of the natural mother,

would not require a hearing on the question of Jones’

mental competency. Jones and his natural mother, to-

gether with his physician, Dr. Charles Baron, testified at

the trial. We have carefully examined the testimony of

these witnesses, and according to the record Jones ex-

hibited a very cool and collected approach to his defense.

His testimony was coherent and orderly, and he recited

events in a chronological order. There was no evidence

of any bizarre conduct which in any way hinted that there

6a

might be a question concerning his ability to actively and

positively assis in his defense. The testimony of his mother

added nothing that was not contained in her affidavit other

than the fact that it was her opinion that he was so drunk

at the time he committed the crime that he didn’t know

what he was doing. The good doctor who had treated him

for so long recounted an extensive history of uncontrolled

diabetes, with crisis after crisis triggered by the overcon-

sumption of alcohol. The doctor did inject here and there

the fact that there was an anxiety aspect to Jones’ con-

duct, but this seems to have been one of the sidelines or

side effects of Jones’ other weaknesses. The doctor did

not say, even in his testimony at the trial, that the mental

condition of Jones was such that he should not have been

tried or that he was not competent to participate in his

own defense.

None of the witnesses recounted anything other than the

trials and tribulations of a diabetic who has the unfortun-

ate luck of also being an alcoholic. Jones apparently has

never learned that consumption of alcohol by a diabetic

is even more dangerous than playing Russian roulette.

Upon a consideration of all of the evidence, this court

has concluded that Jones was not deprived of any con-

stitutional rights and that the trial court conformed to the

guidelines of Drope v. Missouri, 420 U.S. (1975),

and did not abuse its discretion. Edwards v. Common-

wealth, Ky., 500 S.W.2d 396 (1973).

The judgment is affirmed.

All concur.

ATTORNEYS FOR APPELLANT:

Howell W. Vincent

130 Park Place

Covington, Kentucky 41011

7a

E. Andre’ Busald

11 Locust Street

Florence, Kentucky 41042

ATTORNEYS FOR APPELLEE:

Ed W. Hancock, Attorney General

John C. Ryan, Special Asst. Attorney General

Capitol Building

Frankfort, Kentucky 40601

APPENDIX C

MANDATE OF THE COURT OF APPEALS

OF KENTUCKY

73 Term — October

The Commonwealth of Kentucky, 12, 1973

Th

e Court of Appeals Appeal from a judg-

Jerry Timothy Jones aoe & te

Vs. Boone Circuit Court

Commonwealth of Ky. Ind. No. 71-49

F-303-72

The Court being sufficiently advised, it seems there is

not error in the judgment herein.

It is therefore considered that said judgment be affirmed;

which is ordered to be certified to said court.

It is further considered that the appellee recover of the

appellant its costs herein expended.

/s/ FRANCES JONES MILLS,

A copy—Attest:

FRANCES JONES MILLS, C. C. A.

Issued January 18, 1974

RENDERED:

October 12, 1973

COURT OF APPEALS OF KENTUCKY

F-303-72

JERRY TIMOTHY JONES,

APPELLANT,

We

COMMONWEALTH OF KENTUCKY,

APPELLEE.

Appeal From Boone Circuit Court

Honorable James R. Ford, Judge

Indictment No. 71-49

MEMORANDUM OPINION OF THE COURT BY

COMMISSIONER CATINNA AFFIRMING

(Not to be cited as authority)

9a

A jury found Jerry Timothy Jones guilty of willful mur-

der and fixed his punishment at life imprisonment. Upon

appeal he alleges nine grounds for reversal of conviction.

(1) The conviction of willful murder should be set

aside because the indictment was defective in that it read

“* * * Jerry Timothy Jones did murder Ronnie Wayne

Cook by shooting him * * *.”” Appellant claims that be-

cause the words “feloniously’” and “willfully’’ were not

present the indictment was defective. The record indi-

cates that Jones did not object to this so-called defective

indictment at any time prior to or during the trial and

did not raise it in his motion and grounds for new trial.

Failure to raise this objection prior to this appeal con-

stituted a waiver, and the issue is not reviewable by this

court. Vickers v. Commonwealth, Ky., 472 S.W.2d 469

(1971).

(2) It was error for the court to overrule Jones’ mo-

tion for a continuance to allow a psychiatric examination.

This motion was made on the day before the trial date.

RCr 8.06 requires that the motion be made at the time

of arraignment. The court did not abuse its discretion in

overruling the motion. Hicks v. Commonwealth, Ky., 488

S.W.2d 703 (1972); Russell v. Commonwealth, Ky., 482

S.W.2d 584 (1972).

(3) ‘The court’s instruction on insanity did not con-

form to the laws of the Commonwealth. It is true that the

instruction did not specifically contain certain wording as

found in Terry v. Commonwealth, Ky., 371 $.W.2d 826

(1963). However, the instruction, as given, adequately

and accurately reflects the law of the Commonwealth.

(4) The court erred in not submitting to the jury an

instruction advising that extreme intoxication is a factor

BEST COPY AVAILABLE

10a

that would reduce the crime from willful murder to a

lesser offense, and (5) the court erred in overruling de-

fendant’s motion for a reduction of the charge from will-

ful murder to manslaughter as a matter of law. Objec-

tions 4 and 5 both deal with the fact that Jones claimed

to have been extremely intoxicated. The court instructed

the jury on willful murder, voluntary manslaughter, and

involuntary manslaughter. This gave the jury an option

to convict Jones of any degree of the crimes charged, de-

pending upon the evidence. Therefore, no instruction on

intoxication was necessary. Whether the defendant was

guilty of willful murder or manslaughter was a question

for the jury. Abbott v. Commonwealth, 305 Ky. 620, 205

S.W.2d 348 (1974).

(6) The verdict is not sustained by the evidence and

is contrary to law. The record shows that Jones was carry-

ing a gun on the night of the murder, and he admitted

the gun was in his hand when it went off and that one or

more of the shots so fired hit Ronnie Cook. There was

more than enough evidence to take the case to the jury.

(7) The constitutional rights of Jones were violated

by the delay in taking him before a magistrate contrary to

RCr 3.02, during which time he made statements pre-

judicial to his interests without first receiving the Miranda

warning. We find that Jones first raised the question con-

cerning this alleged delay upon this appeal. Therefore, the

issue is not now reviewable.

(8) The court erred in the manner of selection of the

jury in failing to sustain Jones’ motion to discharge the

panel on the ground that by a systematic process black

people were excluded. The record does not show that any

such motion was made by Jones, this ground being first

mentioned in his motion and grounds for new trial. No

lla

showing was made as to the method used to exclude blacks,

even though Jones was required to make a showing of a

concrete nature through affidavits, testimony, or other evi-

dence that the exclusionary tactics occurred. Martin v.

Commonwealth, Ky., 361 S.W.2d 654 (1962); Alexander

v. Louisiana, 405 U.S. 625 (1971).

(9) Finally, the court abused its discretion in allow-

ing the Boone County trial commissioner to testify in the

case after the rule as to separation of witnesses was in-

voked. This ruling addresses itself to the sound discre-

tion of the court. Dennis v. Commonwealth, Ky., 464

S.W.2d 253 (1971). An examination of the testimony of

the trial commissioner is sufficient to determine that there

was no abuse of discretion on the part of the court.

The judgment is affirmed.

All concur.

ATTORNEYS FOR APPELLANT:

Howell W. Vincent

130 Park Place

Covington, Kentucky 41011

E. Andre’ Busald

11 Locust Street

Florence, Kentucky 41042

ATTORNEYS FOR APPELLEE:

Ed W. Hancock, Attorney General

John C. Ryan, Special Asst. Attorney General

Capitol Building

Frankfort, Kentucky 40601

12a

APPENDIX D

BOONE CIRCUIT COURT

COMMONWEALTH OF KENTUCKY,

PLAINTIFF,

vs.

JERRY TIMOTHY JONES,

DEFENDANT.

JUDGMENT

INDICTMENT 71-49

The above defendant having been found guilty by a

jury on the 25th day of August 1972, of the crime of wil-

ful murder and the jury having fixed the punishment at

confinement in the penitentiary for and during his natural

life,

I'l IS THEREFORE the judgment of this court that

the defendant, Jerry Timothy Jones, is guilty of the jury

verdict of guilty of the crime of wilful murder as charged

in the indictment and his punishment is fixed at confine-

ment in the penitentiary for and during his natural life and

the imposition of sentence herein is suspended pending an

appeal to the Court of Appeals.

ENTERED IN ORDER

BOOK 4 PAGE 225

DATE 8-29, 1972

Given under my hand this 29th

day of August 1972.

/s/ JAMES R. FORD

JUDGE

13a

BOONE CIRCUIT COURT

INDICTMENT NO. 71-40

COMMONWEALTH OF KENTUCKY,

PLAINTIFF,

vs.

JERRY TIMOTHY JONES,

DEFENDANT.

MOTION

OVERRULED

Defendant, Jerry Timothy Jones, moves the Court to

enter an Order allowing and granting to the defendant

psychiatric examination and evaluation by two competent

psychiatrists to be chosen by the Court and requiring such

examining authority to make and file with this Court a

written report embodying the findings which shall include,

but not be limited to, a finding and declaration of whether

or not defendant is mentally competent to stand trial on

the charges set forth in the Indictment or is able to par-

ticipate properly in his defense.

In support of this Motion, defendant attaches hereto and

makes a part hereof, the same as if set out in full herein,

the Affidavit of Bertha Edith Jones, natural mother of the

defendant.

WHEREFORE, defendant demands that this Motion be

sustained.

FILED 8-23-72

MABEL BENSON, Clerk

BY M. B.

l4a

/s/ HOWELL W. VINCENT

130 Park Place

Covington, Kentucky

/s/ E. ANDRE’ BUSALD

11 Locust Street

Florence, Kentucky

ATTORNEYS FOR

DEFENDANT

A copy of the foregoing Motion and Affidavit was served

by delivering the same to Hon. Otis P. Lanter, Common-

wealth’s Attorney, Courthouse, Burlington, Kentucky, this

24th day of August, 1972.

/s/ HOWELL W. VINCENT

Of Counsel for Defendant

STATE OF KENTUCKY )

) AFFIDAVIT

COUNTY OF KENTON )

Afhant, Bertha Edith Jones, being first duly sworn, de-

poses and states that she is the natural mother of Jerry

Timothy Jones, Defendant in Indictment No. 71-49, now

pending in the Boone Circuit Court; that Jerry Timothy

Jones was born on May 3, 1941; that seventeen years after

the birth of Jerry Timothy Jones the said Jones began to

manifest highly nervous tensions and emotional disturb-

ances, and that shortly thereafter Doctor Thomas A. Wel-

don, a regular practicing psychiatrist in the City of Cov-

ington, Kentucky, was called upon to treat the said Jerry

Timothy Jones; that the said Jones was hospitalized and

placed in the psychiatric ward at St. Elizabeth Hospital for

Pe pce

l5a

a period of several days; that thereafter and periodically

from 1962 up to and including 1966, Jerry Timothy Jones

was treated by another outstanding psychiatrist, Doctor R.

Charles Smith, of Newport, Kentucky, and was confined

to St. Elizabeth Hospital and Booth Hospital at Covington,

Kentucky, on more than one occasion.

That during this period from 1962 to 1964 and on Sep-

tember 21, 1964, Jerry Timothy Jones was seen by Doctor

Charles Baron of Covington, Kentucky, who examined and

treated the said Jerry Timothy Jones on several occasions;

the last date of the period of treatment being December

21, 1964; that thereafter; the condition attending said

Jerry Timothy Jones, to-wit: alcholism and emotional in-

stability persisted and progressed to the point that he

called upon Doctor Huey of Walton, Kentucky, in the year

of 1968; during the examination and treatment of the said

Jones it was discovered that he was possessed with a seri-

ous disease commonly known as “diabetes millitus’’; that af-

ter this discovery, the defendant Jones returned for ex-

amination, treatment and guidance by Doctor Charles

Baron who has continuously been his physician and psy-

chiatrist ever since: that Doctor Baron examined and treat-

ed defendant Jon. on October 19, 1968, wherein he had

blood sugar of 180; that from and since December 13, 1971,

the defendant Jones was admitted to St. Elizabeth Hospital

and discharged on the following dates:

Admitted Discharged

13/13/71 12/21/71

12/18/ 12/21/71

12/30/71 1/ 9/72

8/ 4/72 8/15/72

8/17/72 3/20/72

4/17/72 4/27/72

8/14/72 (emergency) 8/14/72

l6a

That on July 7, 1972, defendant Jones was admitted to

Booth Hospital and discharged July 11, 1972.

Affiant further states that the defendant Jones did not

possess sufficient mental capacity at the time of the alleged

crime due to acute alcoholism and diabetes millitus to know

right from wrong or being able to know right from wrong

was unable to control or resist an emotional impulse and

that because of the conditions existing in the mental and

physical makeup of the defendant Jones, as is revealed by

his medical history in and out of the hospitals as herein

set out, said defendant is now incapable of aiding or as-

sisting in his defense upon the charge of Murder in the

Boone Circuit Court; that this Affidavit is made for the

purpose of supporting a Motion to have the said defendant

Jones examined by two competent psychiatrists and after

reviewing his medical history, examination and diagnosis,

to make a written report to the Court on his mental and

physical condition.

Further Afhant saith not.

/s/ BERTHA EDITH JONES

AFFIANT

Subscribed and sworn to before me this 23rd day of

August, 1972.

/s/ LYNDA J. ANDERSON

Notary Public, State at Large

SEAL

My comm. expires: 12/18/74.