Petition — Auger v. Collins

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FILED

AUG @ 1978

MICHAEL PODAK JR , CLERK "

In The

Supreme Court of the United States

October Term, 1978

i wee219

CALVIN AUGER, Warden,

Iowa Men’s Reformatory,

Petitioner,

vs.

GARY JAMES COLLINS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

ft).

RICHARD C. TURNER

Attorney General of Iowa

RAY SULLINS

Assistant Attorney General

THOMAS D. McGRANE

Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

Attorneys for Petitioner

COCKLE PRINTING CO., 1822 St. Mary’s Ave., Omaha

TABLE OF CONTENTS

Pages

LE LEE RO

ie anlaiaidieilaninkians ae

Constitutional Provisions and Statutes sssicakiiigedibipines 3

SELLE A

Reasons for Granting the Writ:

I. To enable this Court to correct the erroneous de-

termination that respondent’s failure to specific-

ally object to the admissibility of a confession

in trial Court on due process grounds would not

preclude the Federal Court from finding an ade-

quate contemporaneous objection so as to rule

on such grounds om appeal). ne ccee cence 7

II. To enable this Court to further define and prop-

erly apply an adequate test of the prejudice that

must be shown to overcome the bar of federal

| review as set out in Wainwright v. Sykes. —.. 11

III. To enable this Court to correct the erroneous

holding that a defendant’s right to due process

under the Fourteenth Amendment to the Consti-

tution of the United States is violated when de-

fendant’s incriminating admissions to a _ psy-

chiatrist during a psychiatric examination are

admitted in evidence as part of the prosecution’s

case to establish defendant’s guilt. 00. 15

IV. To enable this Court to correct the erroneous

conclusion that petitioner conceded in Federal

| renin

TABLE OF CONTENTS—Continued

Pages

District Court that respondent had exhausted

his state remedies on the Constitutional issues

_ raised in respondent’s Petition for Writ of Ha-

beas Corpus. _..... 20

Conclusion. ................ Ls tis artes steed Sethe ahT 25

Appendix:

A. Opinion and Judgment of Court of

Appeals App. 1

B. District Court Memorandum Opinion

and Order App. 10

C. Opinion and Judgment of the Supreme .

Court of Iowa App. 22

D. Constitutional Provisions App. 38

E. Certificate of Service 26

CASES CITED

Brady v. United States, 397 U. S. 742 (1970) 16

Bromwell v. Williams, 445 F. Supp. 106 (D. Md.

1977) 14

Brown v. United States, 356 U. S. 148 (1958) ..__. 19

Brown v. Walker, 161 U. S. 591 (1896) 19

Chapman v. California, 386 U. S. 18 (1967) ...... aon

Crowell v. Zahradnick, 571 F. 2d 1257 (4th Cir. 1977) 15

Fitzpatrick v. United States, 178 U. S. 304 (1900)... 19

TABLE OF CONTENTS—Continued

Pages

Francis v. Henderson, 425 U. S. 536 ( pe 11, 12

Garner v. United States, 424 U. S. 648 (1976) 0. 18

Harris v. New York, 401 U. S. 222 (1971) 19

Hurtado v. California, 110 U. S. 516 (1884) 0. 23

Jenkins v. Fitzberger, 440 F. 2d 1188 (4th Cir. 1971)... 23

Jiminez v. Estelle, 557 F. 2d 506 (5th Cir. 1977) ....... 9, 15

Kotteakos v. United States, 328 U. S. 750 (1946) 12

McGautha v. California, 402 U. 8S. 941 18

Middendorf v. Henry, 425 U. S. 25 (1976) 17

Miranda v. Arizona, 384 U. S. 436 (1966)....7, 19, 21, 24, 25

Parker v. North Carolina, 397 U. S. 790 (1970) . 16

Picard v. Connor, 404 U. S. 270 (1971)... .20, 23, 24, 25

Pobliner v. Fogg, 438 F. Supp. 890 (S. D. N. Y.

1977) 9, 10

Rinehart v. Brewer, 561 F. 2d 126 (8th Cir. 1977) 14

Simmons v. United States, 390 U. S. 377 (1968)...16, 18, 23

Spencer v. Texas, 385 U. S. 554 (1967) 0. ees 19

State v. Droste, 232 N. W. 2d 483 (Iowa 1975) 8

State v. Entsminger, 160 N. W. 2d 480 (Iowa 1968) ..... 8,9

State v. Harmon, 238 N. W. 2d 139 (Iowa 1976) _.. 8

State v. Miller, 204 N. W. 2d 834 (Iowa 1973) 00... 8

State v. Nowlin, 244 N. W. 2d 596 (Iowa 1976) ....... .- &

TABLE OF CONTENTS—Continued

Pages

Tyler v. Swenson, 483 F. 2d 611 (8th Cir. 1973) ——. 20

United States v. Agurs, 427 U. S. 97 (1976). 13, 14, 15

United States v. Calderon, 386 U. S. 160 (1954) ~. 20

United States v. Parr, 516 F. 2d 458 (5th Cir’ 1975)... 20

United States v. Patton, 436 F. Supp. 881 (E. D.

aS AEs eee a Le CA

United States v. Underwood, 440 F. Supp. 499

SE ay. | RAR ee enema

Wainwright v. Sykes, 433 U. S. 72 (1977)....3, 11, 12, 13 ,14

White v. Estelle, 566 F. 2d 500 (Sth Cir. 1978). 14

Whitus v. Georgia, 385 U. S. 545 (1967) 012

Williams v. Florida, 399 U. S. 78 (1970) 20

STATUTES CITED

Iowa Post-Conviction Relief Act, lowa Code § 663A

(1973) iil 20

CONSTITUTIONAL PROVISIONS CITED

Fifth Amendment to United States Constitution 3, 24

Sixth Amendment to United States Constitution. +3

Fourteenth Amendment to United States Consti-

PIII scicsincsslitesliteisDaseesindiatiodaplenieiiiniandiindaameme 3, 7,15

In The

Supreme Court of the United States

October Term, 1978

fy.

No.

CALVIN AUGER, Warden,

Iowa Men’s Reformatory,

Petitioner,

vs.

GARY JAMES COLLINS,

Respondent.

>...

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR T? * EIGHTH CIRCUIT

—

The Petitioner, State of Iowa, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Eighth Circuit entered in this proceeding on May 8, 1978.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Highth Circuit, not yet reported appears as Ap-

pendix A hereto. The opinion of the District Court of the

Southern District of Iowa is reported, Collins v. Auger,

428 F. Supp. 1079 and appears as Appendix B hereto.

The opinion of the Supreme Court of Iowa has also been

published, State v. Collins, 236 N. W. 2d 376 (1975) and

appears as Appendix C hereto.

JURISDICTION

The Judgment of the Court of Appeals for the Highth

Circuit was entered on May 8, 1978. This petition for

certiorari was filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U. S. C. § 1254.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Eighth Circuit erred in its deter-

mination that Respondent’s failure to specifically object

to the admissibility of a confession in trial court on due

process grounds would not preclude the federal court from

finding an adequate contemporaneous objection so as to

sustain a writ of habeas corpus.

2. Whether the Eighth Cireuit Court of Appeals

properly applied an adequate test of the prejudice that

must be shown to overcome the bar of federal review as

set out in Wainwright v. Sykes.

3. Whether the Eighth Circuit erred in holding that

Respondent’s right to due process under the Fourteenth

Amendment to the United States Constitution was violated

when Respondent’s incriminating admissions to a psychi-

atrist during a psychiatric examination were admitted in

evidence as part of the prosecution’s case to establish

Respondent’s guilt.

4. Whether the Eighth Circuit erroneously concluded

the Petitioner conceded in federal district court that Re-

spondent had exhausted his state remedies on the con-

stitutional issues raised in Respondent’s petition for writ

of habeas corpus.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendments V, VI, and XIV of the Constitution of

the United States are set forth in Appendix D.

j-)

STATEMENT OF THE CASE

Respondent, Gary James Collins, was convicted in

state court on July 18, 1974, of the crime of assault with

intent to commit rape in violation of § 698.4 of the Iowa

Code (1973). The Iowa Supreme Court affirmed the con-

viction. State v. Collins, 236 N. W. 2d 376 (Iowa 1975).

A petition for a writ of certiorari was denied by the

United States Supreme Court. Collins v. Iowa, 426 U.S.

948 (1976).

On July 1, 1976, Respondent filed a petition for writ of

habeas corpus alleging that the admission of a confession

in his trial was in violation of the Supreme Court’s decision

in Miranda v. Arizona, 384 U.S. 436 (1966) and his rights

guaranteed under the Fifth, Sixth, and Fourteenth Amend-

ments to the United States Constitution. On March 30,

1977, the federal district court granted the petition on the

ground that the use of Respordent’s ‘incriminating ad-

missions to a psychiatrist during a psychiatric examina-

tion as part of the prosecution’s case to establish his

guilt’? was in violation of his right to due process under

the Fourteenth Amendment to the United States Consti-

tution. The Respondent’s petition for writ of habeas

corpus was sustained on the condition that it would be

suspended in the event of an appeal being taken by Peti-

tioner.

On April 29, 1977, Petitioner did appeal to the United

States Court of Appeals for the Eighth Circuit which,

following the intervening decision by the Supreme Court

in Wainwright v. Sykes, 433 U.S. 72 (1977), remanded

the cause to the district court for a certification of find-

ings on the following questions:

‘‘1. Whether petitioner made an adequate contem-

poraneous objection in the state court to the use of

the psychiatrist’s statements containing his admission

of guilt in order to preserve his constitutional objec-

tions now asserted in this proceeding; and

“9. Tf not, whether under the Wainwright rule and

as earlier defined in Francis v. Henderson, 425 U. S.

536 (1976), petitioner has shown ‘cause’ and ‘actual

prejudice’ in not making such objection.”

Upon remand, the district court certified that Respondent

did not make an adequate contemporaneous objection in

the State court to the use of the psychiatrist’s statements

containing his admission of guilt in order to preserve con-

stitutional objections asserted in the habeas corpus peti-

tion. Although the district court did find Respondent had

shown sufficient ‘‘cause’’ for failure to make a proper

objection, the district court found that Respondent failed

to reveal any ‘‘actual prejudice’’ which may have resulted

from the introduction of defendant’s statement’s in evi-

dence.

Upon appeal, the United States Court of Appeals for

the Eighth Circuit reversed the findings made by the dis-

trict court, ordered the judgment vacated, and further

ordered the cause to be remanded for further. proceedings

consistent with its opinion. Collins v. Auger, — F. 2d —

(8th Cir., filed May 8, 1978). It is from this decision

which Petitioners seek a review by this Court.

The events leading to the trial and conviction of

Respondent, Gary James Collins are as follows:

Mrs. Jessie Andrews, prosecutrix, an 82-year old

resident of Newton, Iowa, admitted a man into her apart-

ment on the evening of January 6, 1974, so that he might

use her telephone to call a friend to come to pick him up in

his car. While the man was using the telephone, Mrs.

Andrews prepared two peanut butter sandwiches which

she gave the man, saying, ‘‘This will get you started on

your way.’’ The man made a statement to the effect that

he was going to rape Mrs. Andrews, and she ordered him

out of the house. The man then grabbed the front of

Mrs. Andrews’ dress and ripped the dress off of her. He

beat the prosecutrix severely, bruising her chest, knocking

out several teeth, and rendering her unconscious. She re-

quired hospitalization, did not fully regain consciousness

for several days, and continues to suffer lapses of memory.

However, no actual rape was ever completed.

Respondent was arrested for public intoxication while

walking on foot in the vicinity of Mrs. Andrews’ apart-

ment shortly after the crime was committed. Subsequent

investigation revealed that Respondent’s footprints match-

ed those found in the snow outside Mrs. Andrew’s home.

Respondent’s fingerprint matched a latent print found in

the apartment, and Mrs. Andrews identified Respondent

as her assailant.

On January 31, 1974, Respondent filed an application

for a medical examination to determine his competency to

stand trial and his mental condition at the time of the

offense. Pursuant to court order, Respondent was ad-

mitted for psychiatric evaluation at the Iowa Security

Medical Facility at Oakdale and was examined there by

Dr. Romullo Lara, a staff psychiatrist. During these

examinations, Respondent confessed that he was Mrs.

Andrews’ attacker and provided accurate details of the

crime. At Appellee’s trial, Dr. Lara related the substance

of these statements during examination by the prosecutor.

Dr. Lara also testified that he did not seek this informa-

tion, and that at no time did he indicate to Respondent

that his statements would not be repeated.

REASONS FOR GRANTING THE WRIT

I. To enable this Court to correct the er-

roueous determination that Respondent’s failure

to specifically object to the admissiblity of a con-

fession in trial court on due process grounds

would not preclude the Federal Court from find-

ing an adequate contemporaneous objection so as

to rule on such grounds on appeal.

A review of the decisions of the Supreme Court of

the United States indicates that the question as to what

constitutes an adequately specific contemporaneous ob-

jection to preserve error of constitutional issues asserted

in a federal habeas corpus petition has yet to be decided.

However, the decision reached in the instant case by the

United States Court of Appeals for the Eighth Circuit is

contrary to the body of law in both the state and federal

courts. Collins v. Auger, No. 77-1469, 8th Cir. Ct. of Ap-

peal, May 8, 1978.

Counsel for Respondent interposed objections at tria]

asserting, on different occasions, three grounds: (a) that

the statements were in viclation of Petitioner’s Miranda

rights, (b) that the statements were hearsay and (c) that

part of the statements revealed the commission of a c1ime

for which Respondent was not charged. On appeal to the

Iowa Supreme Court, the only issue before that court was

whether the admission of the statements into trial violated

Respondent’s Miranda rights. It was not until this case

was brought before the federal district court that Re-

spondent alleged the admission of the statements violated

fundamental due process in violation of the Fourteenth

Amendment to the United States Constitution. Collins v.

Auger, 428 F. Supp. 1079 (S. D. Towa 1977).

Under Iowa law, to be sufficient an objection must be

specific aim! timely. The specificity demanded must sig-

nify that the,c is an issue of law and then give notice of

the terms of that issue. State v. Miller, 204 N. W. 2d 834,

841 (Iowa 1973). In State v. Droste, 2832 N. W. 2d 483

(Iowa 1975) the Iowa Supreme Court stated:

‘‘The Court to which the evidence is offered is en-

titled to know on what grounds it is challenged and

should not be left to speculate as to whether the evi-

dence is in fact subject to some infirmity which the

evidence does not point out. A specific objection, if

overruled, cannot avail the objector except as to the

ground specified since the court is not bound to look

beyond the ground of the objection thus stated. Every

ground of exception which is not particularly specified

is considered as abandoned. (Cited omitted)’ 232

N. W. 2d at 487.

The Iowa Courts have strictly enforced the rule that

sufficient and specifie objection to evidence must be made

contemporaneously with the offer of the evidence. For

example, in State v. Harmon, 238 N. W. 2d 139 (lowa

1976), an objection to evidence at trial urged that the pro-

ferred statement was hearsay and prejudicial. On appeal

it was urged the evidence was so prejudicial as to out-

weigh its probative value since although it was offered to

impeach it would be considered by the jury as substantive

evidence. The Supreme Court held the hearsay objection

at trial! did not raise the issue urged on appeal. 238 N. W.

2d at 143. In State v. Entsminger, 160 N. W. 2d 480

(lowa 1968) the Supreme Court stated an objection,

‘there had been no showing the evidence was legally ob-

tained”, was insufficient to raise on appeal the question

of illegal search and seizure. 160 N. W. 2d 482-483. (The

court in Entsminger ruled on the merits however because

of the importance the question presented to law enforce-

ment agencies).

The United States Court of Appeals for the Fifth

Circuit was presented with a similar issue in Jiminez v.

Estelle, 557 F. 2d 506 (5th Cir. 1977). In Jiminez, de-

fendant objected to admission in evidence of his prior

convictions on the grounds that it was hearsay and that

it violated his confrontation rights under the Sixth

Amendment to the United States Constitution. Defendant

did not assert objections at trial based on violation of his

due process rights under the Fourteenth Amendment.

However, the alleged due process violations were later

asserted by the defendant on appeal. Relying on the

United States Supreme Court’s decision in Wainwright

v. Sykes, 433 U. 8. 72 (1977), the court on Jiminez, supra,

held that defendant’s failure to object on the specific due

process grounds at trial precluded its assertion on appeal

absent a showing of ‘‘cause’’ and ‘‘prejudice’’, The court

noted that the failure to raise specific objections to alleged

constitutional errors at trial precluded its assertion on ap-

peal because the defendant had not complied with the con-

temporaneous objection standards set forth by the state.

Jiminez v. Estelle, supra at 510,

In Pobliner v. Fogg, 488 F. Supp. 890 (S. D. N. Y.

1977), defendant’s counsel made both pre-trial and trial

objections raising Fourth Amendment claims to certain

allegedly tainted evidence and testimony. Although de-

fendant made specific objections to the testimony of two

of the State’s witnesses, defendant failed to assert any

objection to the testimony of a third State’s witness. De-

fendant attempted to assert alleged constitutional errors

as to the introducion of the testimony of the third wit-

ness on appeal. The Court in Pobliner, supra, held that

defendant had an obligation as the trial progressed to

raise specific objections to the introduction of testimony

as it was presented. Failure to make the same specific

objections as to the testimony of the third witness as was

accomplished with previous State’s witnesses precluded

the appeal because of non-compliance with the State’s con-

temporaneous objection standards.

In the instant case, the United States Court of Ap-

peals for the Kighth Cireuit held as follows:

‘‘Although defense counsel did not specifically

challenge the admissibility of the confession in the

trial court on due process grounds, the fact remains

that repeated objections were nade at trial to the ad-

mission of the statements. The record thus indicates

that the trial court, as well as the Supreme Court of

Iowa, was alerted to evidentiary and constitutional

issues pertaining to the confession’s admissibility.

As Judge Stuart recognized, since one member of the

Supreme Court of Towa dealt with the due process

issue, it must have been brought to the state court’s

attention. We conclude that petitioner asserted an

adequate contemporaneous objection in the state pro-

ceedings.”

To equate an adequate contemporaneous objection with

the number of objections raised at trial pertaining to

specific evidence or testimony is clearly erroneous. An

adequate contemporaneous objection must be one which

alerts trial court to specific alleged errors at the time they

occur.

II. To enable this Court to further define

and properly apply an adequate test of the preju-

dice that must be shown to overcome the bar of

federal review as set out in Wainwright v. Sykes.

The Supreme Court of the United States has explic-

itly declined to define ‘‘cause’’ or ‘prejudice’? under

their decision in Wainwright v. Sykes, 433 U. S. 72 (1977).

In Wainwright this Court said (433 U.S.) :

‘*The ‘cause’ and ‘prejudice’ exception of the Francis

rule will afford an adequate guarantee, we think, that

the rule will not prevent a federal habeas court from

adjudicating for the first the federal constitutional

claim of a defendant who in the absence of such an

adjudication will be the victim of a miscarriage of

justice. Whatever precise content may be given those

terms by later cases, we feel confident in holding

without further elaboration that they do not exist

here.” :

Noticeably the issue arises in Wainwright because of

a failure by the Petitioner: no contemporaneous objec-

tion was made to evidence offered at trial. Thus even

in a situation where the error would call for an automatic

reversal had the error been preserved, the showing of

prejudice is required. In Francis v. Henderson, 425 U. 8.

536 (1976), the immediate precursor of the Wainwright

rule, a habeas corpus Petitioner was sent back to District

Court to determine if there was actual prejudice, despite

the District Court’s earlier finding that Negroes had been

impermissibly excluded from the grand jury that had

returned the indictment Francis, supra, 425 U. S. at 538.

This despite the fact that automatic reversal of convic-

tions resulting from trials heard by juries from which

Negroes have been excluded is the rule. See Whitus v.

Georgia, 385 U.S. 545 (1967).

Francis additionally uses the term actual prejudice,

which leaves no doubt that the prejudice referred to in

Wainwright is not one that is presumed but can be over-

come by a state showing it is harmless, but rather one

that must affirmatively appear in the record or be shown

by the Petitioner. Kotteakos v. United States, 238 U. S.

750 (1946) appears te provide some guidance in presenting

the question.

‘*{1]t would seem that any attempt to create a gen-

eralized presumption to apply in all cases would be

contrary not only to the spirit of § 269 [28 USC

2111] but also to the expressed intent of its legisla-

tive sponsors. Indeed, according to their explicit

statement, whether the burden of establishing that

the error affected substantial rights or, conversely

the burden of sustaining the verdict shall be imposed,

turns on whether the error is ‘technical’ or is such

that its natural effect is to prejudice a litigant’s sub-

stantial rights.’ (Emphasis added.)

328 U.S. at 765.

Under the Wainwright ani Francis rule we can

clearly state that the burden ‘‘of establishing that the

error affected substantial rights” is on the Petitioner. The

reference to actual prejudice in those cases gives rise to

the conclusion that the ‘‘natural effect’’ is not to be given

to the alleged error even if that natural effect would be

prejudicial but that the prejudicial effect must be shown.

This does not mean prejudice cannot be read from facts

on record. It does mean that the natural effect of a

confession, which is clearly to influence a jury, will not

be entertained, unless it is shown that the effect was

prejudicial and the conviction probably was a result of

that confession. This does not mean that the conviction

had to rest solely on the confession, but that without the

confession a conviction would probably not have resulted.

This brings us around to the test for prejudice which is

urged by the Petitioner, and the distinction of prejudice

from harmless error. If there is sufficient evidence to

support a conviction without the challenged evidence, then

the conviction should not be reversed.

Arguably this is too high a standard as it might not

take into account the special circumstances of certain evi-

dence which might inflame a jury. As an example, a con-

fession might contain details of the crime which put the

defendant in a particularly bad light even though they

add no ‘‘facts” necessary to substantiate the fact that

the defendant committed the crime. There is no such

inflammatory evidence in the testimony regarding the

instant Respondent’s confession.

In U. S. v. Agurs, 427 U. S. 97 (1976) the Court

presents a test clearly usable under the Wainwright rule.

The question in Agurs is the omission of evidence rather

than the admission of evidence and the test stated is

burden on the Petitioner to show the materiality of the

omitted evidence.

“The proper standard of materiality must reflect our

overriding concern with the justice of the finding of

guilt. Such a finding is permissible only if sup-

ported by evidence establishing guilt beyond a rea-

sonable doubt. It necessarily follows that if the

omitted evidence creates a reasonable doubt that did

not otherwise exist, constitutional error has been

committed.” (Emphasis added.)

Agurs, supra, 427 U.S. at 112.

Applying this test to the present cause obviously

requires some adjustment since we are here talking

about alleged error in admitting evidence not in omitting

evidence. But the test has special virtue which makes

it proper to apply to a Wainwright situation. First, it

was made to apply where there was some failure by a

defendant. Second, it requires consideration of more

than the bald facts included in the evidence. In an Agurs

situation consideration must be given not only to what

the facts themselves prove, but also to what an attorney

eould develop from them. In a Wainwright situation,

consideration must be given to what the facts prove, and

to the other effects the facts had on a jury.

The test then should be: Whether the deletion of

the challenged evidence would give rise to a rezsonable

doubt as to guilt, where a reasonable doubt did not exist

with the challenged evidence. In the instant case there

would not be such a reasonable doubt absent the admis-

sion of the statement made to the doctor. The other

evidence of guilt presented at trial, moreover, was sub-

stantial to a degree that would negate any possibility

of actual prejudice. Respondent was arrested in the vi-

cinity of the victim’s apartment shortly after the crime

was committed. Footprints which matched Respondent’s

were found in the snow outside the victim’s home. Re-

spondent’s fingerprint was found in the victim’s apart-

ment, and the victim identified Respondent.

Recent lower court decisions which have applied the

“cause” and “prejudice” test left undefined in Wain-

wright, supra, have regrettably declined to fashion any

“precise content” to the terms “cause” or “prejudice”,

Rinehart v. Brewer, 561 F. 2d 126 (8th Cir. 1977); White

v. Estelle, 566 F. 2d 500 (5th Cir. 1978); Bromwell v.

Williams, 445 F, Supp. 106 (D, Maryland 1977); United

States v. Patton, 436 F, Supp, 881 (B.D, Pa, 1977),

At least one Court interpreta the term “prejudice”

as requiring a Petitioner “simply to show that the aup-

pressible evidence could have contributed to the jury

verdict, thus incorporating the harmless error standard

of Chapman v. California, 386 U.S, 18, 87 8, Ct, 824, 17

L, Ed, 2d 705 (1967)." United States v. Underwood, 440

F, Supp. 499, 503 (D, R. 1, 1977),

At least two circuits have indicated that “prejudice”

will be found where the evidence waa clearly unconati-

tutionally admitted and constituted the sole evidence

which convicted him, Crowell vu, Zahradnick, 571 F. 2d

1257 (4th Cir, 1977); Jimines v, Betelle, 657 F, 2d 606

(5th Cir, 1977),

In the inatant case, the Eighth Circuit failed to apply

the prejudice standard correctly, The State of Iowa

urges the Agure test should provide that standard, and

that a showing of prejudice haa not been made,

III, To enable this Court to correct the er:

roneous holding that a defendant's right to due

process under the Fourteenth Amendment to the

Constitution of the United States is violated

when defendant's incriminating admissions to a

psychiatrist during a psychiatric examination are

admitted in evidence as part of the prosecution's

case to establish defendant's guilt,

The admission of Dr, Lara's testimony as to peti-

tioner’s statements during the paychiatrie examination

did not undermine the fundamental fairness of potl-

tioner’s trial,

As the District Court correctly noted, and which was

cited by the Eighth Cireuit, petitioner had a constitu.

tional right to raise a defense of insanity and a right

not to be a witness againet himeelf, The Court rea.

aoned on the basia of Simmons v, United States, 300

U.S. 877 (1968) that petitioner could not be placed in

a situation where one constitutional right conld be exer.

cised only at the expense of another, and therefore the

Court concluded that the “tension” between the due

process right to assert a defense and the Filth Amend.

ment privilege againet self-inerimination was constitu.

tionally impermissible, This rationale, while initially

appealing, nae been seriously questioned by the Supreme

Court in decisions following Simmons, and Petitioner

suggests that the proposition on which the District Court

and the United States Court of Appeals for the Bighth

Circuit based its decision is no longer favored by the

Supreme Court,

In the 1970 guilty plea trilogy (Brady v, United

States, 807 U.S, 742; MeMann v, Richardson, 307 US.

750; Parker v. North Carolina, 897 U.S, 790), the Court

indicated that the threat of increased punishment for

pleading not guilty or the promise of leniency in return

for a guilty plea was not an overbearing of the will

which would render a guilty plea involuntary, Brady;

Parker, eupra, and that where a defendant pleade guilty

on the reasonably competent advice of counsel in order

to obtain such leniency, the defendant is bound by that

advice, although it later ie found to be incorreet, Me-

Mann; Parker, supra, A defendant who follows the

reasonably competent advice of counsel in choosing be-

tween exercising hie Fifth and Sixth Amendment rights

by demanding a jury trial in which he would probably

be convicted and waiving those rights in hope of a moro

lenient sentence will not be heard to complain that the

advice later proved to be incorrect and the atrategy

selected waa not the better of the alternatives, Clearly,

the trilogy stands for the proposition that a defendant

can be made to choose in the exercise of his constitutional

righta,

Middendorf v. Henry, 425 U.S, 25 (1976), ia addi.

tional support for this proposition, In that ease, peti-

tioners who had been convicted and sentenced by sum-

mary court-martial sought a declaratory judgment that

the Sixth Amendment right te cou sel applied to such

proceedings, an injunction to bar the military from vio-

lation of thie right, and write of habeas corpus to free

them from eustody, The District Court granted all re-

lief sought, The Court of Appeale granted relief only

in cases where the defendant had made a timely and

colorable claim that he had a defense or that there were

mitigating cireumatances the presentation of whieh re:

quired the assistance of counsel bh Supreme Court

reversed, finding counsel wae + reqiined in summary

court-martial, The Court rew acd that to the extent

that the conditions of the Cov ¢ of Ajpeala order were

watiafied the defendant cour. @ the summary

courtemartial and be tried in. © general court:

martial where an absolute right to counsel attaches, The

Court acknowledged that such a decision would subject

the defendant to the possibility of a more swvere punish:

ment if eonvieted, but held thie situation ix no different

than that facing the defendants in the guilty plea trilogy,

Middendorf demonstrates that the possibility of adverse

consequences of a strategic decision by a defendant does

not make the decision iteelf unconatitutional, again con:

trary to the “tension” rationale of Simmons,

Garner vu. United States, 4284 U.S, 648 (1970), in

further support for the Petitioner’a position, In that

case, Garner's income tax returna, whieh liated hia occu:

pation ae “professional gambler” and showed’ substantial

income from such activities, were introduced againat hin

in his trial for conspiracy to uae interstate tranaporta

tion and communication facilities to “fix” sporting ¢on-

texte to demonstrate that hie contacta with other mem.

bere of the conspiracy were not innocent onea, Garner

claimed that the use of the tax returna violated hia priv:

ilege against self-inerimination and that he could not

effectively exercise his right to remain silent because to

do so would risk eonvietion for wilfully failing to file

a return, The Court rejected thia argument, finding the

risk of a prosecution for ineorrectly claiming a Fifth

Amendment privilege wae not such a burden on the priv.

ilege as to require the establiahment of a preliminary

ruling procedure for testing the validity of a claim of

privilege, Thus, even the risk of conviction of a erime

dovs not ereate constitutionally Lnpermisaible choice for

a defendant, 7

The moat explicit rejection of the Simmons theory

is found in MeGautha v, California, 402 U.S, 188 (1971),

vacated in light of Furman v, Georgia, 407 U.S, 941

(1972), MeGautha involved the claim by eco-petitioner

Crampton that the Ohio procedure of holding a unitary

trial in capital cases was fundamentally unfair since the

oxorciae of his right to present a defenae of mitigating

circumstances to reduce the sentence to life imprison:

ment would necessarily involve the waiver of his Fifth

Amendment privilege against self-inerimination on the

issue of guilt, The Court noted that the guilty plea

trilogy had rejected thia conception of fundamental fair:

newa and atated;:

“While we have no occasion to queation the sound.

hoa of the reault in Simmons and do not do ao, to

the extent that ita rationale waa based on a ‘tension’

botween constitutional righta and the policies behind

them, the validity of that reasoning muat now be re-

garded aa open to question and it certainly cannot

be given the broad scope attributed to it by Cramp-

ton in the present case.” 402 U.S, at 212.213,

Reapondent’s claim ia atrikingly similar to Cramp-

ton’s, Both men sought to raise a defense which could

only be exercised at the expense of the privilege againat

wolf-inerimination, Both men were convicted, Like

Crampton, Reapondent should be bound to the conse.

quences of his cholee and habeus relief should not be

granted,

A defendant in a criminal case ia necessarily faced

with a number of hard choices involving the exercixe or

waiver of constitutional righta, A defendant who exer:

cises his right to teatify on hia own behalf alao waives

hia Fifth Amendment privilege aa to croaa-examination

on reasonably related mattera, Brown v, United States,

856 U.S, 148 (1958); Fitepatrich vo, United States, 178

U.S, 804 (1900); Brown vo, Walker, 161 U.S, 591 (1896),

A defendant who exercises hia right to testify may be

impeached by evidence of his prior criminal convictions,

Spencer v, Tewas, 885 U.S, 554 (1967), or by a confen-

sion obtained in violation of Miranda, Harris vo. New

York, 401 U.S, 222 (1971), A defendant whose motion

for a directed verdict at the close of the State’s evidence

in denied must decide whether to present a defense and

to aaaume the riek that something may go awry and

thereby bolater the atate’a case, United States v. Pare,

516 BF, 2d 458 (Sth Clr, 1975); United States v, Calderon,

886 U.S, 160, 164 (1954), A defendant who complion

with a state notice-of-alibi rule riaka having the wit:

neados lated therein used againat him, Williamy eo. lor

ida, 899 U.S, TS (1NTO), Reapondent’® choice waa no

more difficult than thowe permitted in the foregoing

cases, Clearly, the Bighth Cireuit erred in holding that

it waa fundamentally unfair to force Reapondent to make

a tactical decision involving the exercise of hia conati-

tutional righta,

IV. To enable this Court to correct the er

roneous conclusion that Petitioner conceded in

Federal District Court that Reapondent had ex:

hausted his State remedies on the constitutional

isaue raised in Reapondent's Petition for Writ of

Habeas Corpus,

It in well-wettled law that a federal habeas petitioner

must have exhausted hia state remediea in order to be

granted federal relief, Picard vo, Connor, 404 U.S, 270

(1971); Tyler v. Swenson, 483 F. 2d G11 (Sth Cir, 1973),

Petitioner contends that Reapondent haa not sought state

review of the claima relied upon by the HKighth Cireuit,

that auch a remedy ia available, and that thia Court

should allow the Towa courts to decide whether there wae

wufficient reason for the failure to raiae the elaima in

the atate courte, Thia eould be done under the Lowa

Poat-Convietion Relief Act, Towa Code § 668A,

The petition in this case was vague, but seemed to

raise only the issue of whether petitioner should have

been given Miranda warninga prior to the payehiatric

examination, The District Court appeared to agree,

aince it stated “[pletitioner presenta in thia Court the

wame inaue that waa presented to the trial court in the

form of motions and objections, to the Lowa Supreme

Court on appeal, and in the petition for certiorari,”

Collins v, Auger, Civil No, 76-215-1 (8, D, Towa, filed

March 80, 1977), p. 1, The Towa Supreme Court clearly

indicated that only a Miranda claim waa before that

Court;

“The sole issue raised in defendant's assignment of

error is whether atatementa made by a defendant

to a atate psayehiatriat examining him pursuant to

a court order entered upon the defendant's applica.

tion are admissible at trial when the statements

were made without prior Miranda warninga to the

defendant by the payehiatriat.” S/ate vo, Collins, 286

N, W, 2d 876, 878 (Lowa 1975),

Tt ia anomolous that the District Court would quote

this passage (Collins v. Auger, supra at 5) and yet con-

clude that atate remedies had been exhauated aa to isaues

which the Iowa courta found were not raised at trial or

on direet appeal, The Diatriet Court found exhauation

on ita own and attributed to the Petitioner a concession

of exhaustion, Collins v. Auger, 428 F.Supp, 1079, L080

(1977), The United Statea Court of Appeala for the

Highth Cireuit alao found a concession of exhaustion,

Collins vo. Auger, No, 77-1469, 8th Cir, Ct. of Appeal,

May 8, 1978, p. 4, fn. 1, Petitioner contends that sueh

a finding is absolutely contrary to the facta,

The pleadings reveal the following pertinent allega-

tions: the petition stated the issue as:

“a, That without the benefit of appropriate warn-

ings pursuant to Miranda v. Arizona, 384 U.S. 436

(1966), a state psychiatrist interviewed the Peti-

tioner while in custody of a state security medical

facility during the course of a Court ordered medical

examination on competency to stand trial and testi-

fied at trial during the State’s case in chief regard-

ing the Petitioner’s confession to him during the

course of the competency examination.

“bh, That the introduction as a part of the State’s

ease in chief of the Petitioner’s confession to a state

psychiatrist made while the Petitioner was in custody

in a state security medical facility during the course

of a Court ordered medical examination violated Pe-

titioner’s rights under the Fifth, Sixth, and/or Four-

teenth Amendments to the Constitution of the United

States.’’

The Return stated in pertinent part:

“Respondent admits that the Petitioner has exhausted

his state remedies on the specific issue here raised.”

Respondent’s brief and argument asserted there was not

a concession of exhaustion of state remedies.

The pleading is, as stated above, vague. The consti-

tutional challenge in Paragraph 3, subparagraph (b) of

the Petition appears to be a catch-all pleading of con-

stitutional violation. The only specific pleading of a

specific constitutional violation was in Paragraph 3,

subparagraph (a) which was the Miranda challenge. The

Return answered that the “specific issue” raised had

been raised in state court. It then went on to a general

denial of the seeming general catch-all with an answer

that was believed to be equivalent.

In the brief to the Court of Appeals for the Eighth

Cireuit and on oral argument, the State asserted there

was no concession. Petitioner would accept an accusa-

tion of unclear pleading in the Return, but believes Re-

spondent’s petition was equally unclear. The lack of

specificity is made clear by the Reply to the Return in

which Petitioner states

“Further, the Petitioner should not be forced to

elect between his Sixth Amendment rights as to

competency to stand trial and effective assistance of

counsel and his Fifth Amendment right against self-

inecrimination. Simmons v. U.S., 390 U.S. 377, 394

(1968).”

Reply in District Court, filed August 27, 1976. This

specificity was clearly lacking in the original petition,

and is the clear issue on which this case has proceeded

in Federal court.

This issue was not raised in the State Court, and

no such concession was ever made much less intended.

The Eighth Cireuit in accepting the alleged concession,

cited Jenkins v. Fiteberger, 440 F. 2d 1188 (4th Cir.

1971). In that case the state attorney general “expressly

requested” the federal court to reach the merits of the

ease. The State of Iowa has no such intention in this

case and strenuously reasserts that there is no conces-

sion of exhaustion in fact or in intent.

Picard v. Conner, 404 U.S. 270 (1971), presented

the Supreme Court which an analogous situation. Peti-

tioner raised challenges to the legality of his indictment

primarily on state grounds. The only federal question

presented in his petition was to challenge the continued

vitality of Hurtado v. California, 110 U.S. 516 (1884),

which held that the Fifth Amendment Grand Jury Clause

did not apply to the States. On appeal from the Dis-

trict Court’s denial of his petition, the same argument

was made. There was no issue of concession in Picard

but on its own motion the First Cireuit Court raised

the question of whether the state proceedings denied

the petitioner equal protection of the laws., The State

did not raise it initially. The Cireuit Court gave the

State the opportunity to submit a brief on this issue,

in which the State raised the nonexhaustion issue. The

Court decided that the State courts had had the oppor-

tunity to apply the equal protection principles to the

facts of the case and granted the writ on the Fourteenth

Amendment basis. The Supreme Court reversed on the

exhaustion issue, holding that the claim must have been

“fairly presented to the state courts,” 404 U.S. at 275,

in order to be raised in a federal habeas proceeding.

In this case, as in Picard, the bases upon which the

writ was granted were neither advanced in the state

courts nor specifically pleaded in the federal petition.

Moreover, in the instant case the State was not even

permitted the opportunity to respond te these new theo-

ries, as was the respondent in Picard. The policy of

comity enunciated in Picard requires reversal of the

District Court and of the three judge panel of the United

States Court of Appeals for the Eighth Circuit.

Nor is there exhaustion to be found on the basis of

the Iowa Supreme Court treatment of the issue. The

special concurrence of Justice Rawlings is not sufficient

to indicate that petitioner exhausted his state remedies.

The majority opinion clearly indicates that only the

Miranda issue was considered. Justice Rawlings him-

self stated, “Confining myself, as does the majority, to

the sole Miranda warning issue asserted by defendant

in support of a reversal, I too find an affirmance is in

order.” State v. Collins, supra, at 379. (Emphasis

added.) The Iowa Supreme Court indicated that the

question raised by the special concurrence in State v.

Collins, has not yet been reached by the Court when

they stated in State v. Nowlin, 244 N.W. 2d 596, 603

(Iowa 1976): “We need not decide in this case whether

the trial court was required to follow the standard ad-

vocated in the Collins special concurrence.” It is clear

that the issues relied upon by the District Court were

not “fairly presented to the State courts.” Picard, supra,

at 275.

Petitioner did not present his due process, equal

protection and voluntariness claims to the Iowa courts,

and thus has not exhausted his state remedies.

CONCLUSION

This Court should grant certiorari and find that

there has been no exhaustion of remedies and that the

contemporaneous objection rule requires more than sim-

ple notice that a person seeks to object to evidence. It

is also necessary to define further the cause and preju-

dice standard and determine whether they were properly

applied. The State urges that the Court of Appeals for

the Eighth Circuit erred in their determinations on those

questions, and in the interest of justice in this ease, and

to prevent further problems caused by the erroneous

precedent, the decision of the Eighth Circuit should be

overturned.

CERTIFICATE OF SERVICE

I, Thomas D. McGrane, Assistant Attorney General

for the State of Iowa, hereby certify that on the 5

day of August, 1978, I mailed three (3) copies of Brief

for Petitioner, correct 1st class postage pre-paid to:

Keith Uhl

Sealise, Scism, Gentry, Brick & Brick

909 Fleming Building

Des Moines, Iowa 50309

I further certify that all parties required to be

served have been served.

THOMAS D. McGRANE

Assistant Attorney General

State Capitol

Des Moines, Iowa 50319

App. 1

APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 77-1469

In the Matter of the Application of

Gary James Collins for a Writ of Habeas Corpus.

Gary James Collins,

Appellee,

Vs.

Calvin Auger, Warden,

Iowa Men’s Reformatory,

Appellant.

Appeal from the United States District Court

for the Southern District of Iowa.

Submitted: March 15, 1978

Filed: May 8, 1978

Before LAY and ROSS, Circuit Judges, and LARSON,*®

Senior District Judge.

LAY, Circuit Judge.

* Earl R. Larson, Senior District Judge, District of Minnesota,

sitting by designation.

App. 2

Gary James Collins was convicted of assault with-intent

to commit rape, in the lowa state court; his conviction was

affirmed on direct appeal. State v. Collins, 236 N. W. 2d

376 (Iowa 1975), cert. denied, 426 U. S. 948 (1976). He

thereafter sought a writ of habeas corpus in the federal

district court, alleging that the admission of a confession

in his state trial was in viclation of Miranda,v. Arizona,

384 U. S. 436 (1966), and resulted in a denial of his con-

stitutional rights under the Fifth, Sixth and Fourteenth

Amendments. The district court, the Honorable William

C. Stuart presiding, found that admission of the confes-

sion did not violate the Miranda rule but was a denial of

due process. Collins v. Auger, 428 F. Supp. 1079 (S. D.

Iowa 1977). In view of the intervening decision of Wain-

wright v. Sykes, 433 U. S. 72 (1977), this court on appeal

remanded the cause to the district court to certify its

findings as to whether there had been a contemporaneous

objection in the state trial court as to the due process is-

sue and, if not, whether petitioner demonstrated ‘‘cause”

and ‘‘prejudice’’ under the new standards adopted in

Sykes, as originally set out in Francis v. Henderson, 425

U. S. 536 (1976). Upon remand the district court vacated

its prior order and denied relief.

Prior to his state trial petitioner filed an application

for a mental evaluation to determine his competency to

stand trial. The application was granted, and petitioner

was interviewed a number of times by Dr. Romullo Lara

at the Iowa Security Medical Facility at Oakdale. During

the course of the interviews, petitioner confessed to Dr.

Lara that he had committed the crime for which he was

charged.

App, 3

At petitioner's trial the statements made to Dr, Lara

were admitted into evidence despite defense counsel's re-

peated objections on the basis of physician-patient priv-

ilege, the hearsay rule, and self-inerimination, In affirm.

ing the conviction the Supreme Court of Lowa held that

admission of the statements made to Dr, Lara did not

violate Collins’ rights despite the absence of Miranda

warnings prior to the interviews, Justice Rawlings filed

& special concurring opinion in which he agreed that no

Miranda violation had occurred but indicated that admis.

sion of the statements may have been a violation of due

process, 236 N, W, 2d at 379,

Contemporaneous Objection Rule,

The State contends that during the proceedings in

the state trial court and on direct appeal, defense counsel

did not specifically object to admission of the confession

on due process grounds, Prior to Franciy and Sykes,

counsel's failure to object to constitutional error would

not preclude habeas corpus relief in federal court unless

a knowing, deliberate waiver was shown, Fay v. Noia, 872

U.S. 891 (1963); Harris v. Brewer, 434 ¥, 2d 166, 168 (8th

Cir, 1970), Only where it could be shown that the failure

to make an objection was deliberate, for reasons such as

trial strategy, was the defendant held to have waived the

objection, Cf, Pope v. Swenson, 395 F, 2d 821, 322-28

(8th Cir, 1968), The fact that the state had a procedural

forfeiture rule which required a contemporaneous objec.

tion before trial errors could be later asserted on collat-

eral attack did not limit a petitioner's right to assert con-

stitutional issues in a federal habeas corpus action, See

Harris v. Brewer, supra at 168,

App. 4

In Francia and Sykea, the Supreme Court narrowed

the application of the deliberate bypass doctrine, holding

that, absent compliance with an applicable state contem-

porancous objection rule, a atate prisoner could assert

alleged trial errors in a federal habeas corpus action only

after showing ‘‘cause'’ for not making a contemporaneous

objection and ‘‘prejudice” from the alleged error, In

reaching thie conclusion the Court recognized that, under

principles of federaliam, atate procedural forfeiture rules

are entitled to greater reapect than that granted by the

deliberate bypass rule, 433 U, 8, at 88-89,

On remand in the present case, the district court

found that petitioner had failed to make an adequate con-

temporaneous objection to the admission of his statements

to Dr. Lara and thus was required to establish both cause

for his failure to object and prejudice from the erroneous

admission, The court found that cause had been shown

but concluded that, although admission of the testimony

was not harmless error, no prejudice had been established,

The district court therefore vacated its prior order and

refused to grant the writ of habeas corpus. We now va-

cate the district court's order and direct that the court

conditionally grant a writ of habeas corpus,

Although defense counsel did not specifically chal-

lenge the admissibility of the confession in the trial court

on due process grounds, the tact remains that repeated

objections were made at trial to the admission of the

statements. The record thus indicates that the trial court,

as well as the Supreme Court of Lowa, was alerted to

evidentiary and constitutional issues pertaining to the

confession’s admissibility, As Judge Stuart recognized,

App, 5

since one member of the Supreme Court of Towa dealt

with the due process issue, it must have been brought to

the state courts’ attention, We conclude that petitioner

asserted an adequate contemporaneous objection in. the

state proceedings,'

Since we find petitioner made a sufficient objection,

he is entitled to review of his constitutional claims on

the merita, The district court found that admission of

the statements to Dr, Lara violated petitioner's due proc.

eas righta:

[1jt is fundamentally unfair to use defendant's in-

oriminating admissions to a psychiatrist during a

psychiatric examination aa part of the prosecution's

case to establish his guilt... .

The defendant is entitled to raise his mental con.

dition at the time of the offense as a defense, He is

alwo entitled, under proper circumstances, to an ox.

amination to determine his competency to stand trial,

Paychiatric examinations are essential to the proof

of his mental condition, An indigent must seek a

court order authorizing the examination and the pay-

ment of ite coat, If the giving of a Miranda warning

satiafied requirements of the Fifth Amendment and

the Fourteenth Amendment and made the defendant's

incriminating admissions admissible, the defendant

would be placed in a situation where he must sacrifice

one Constitutional right to claim another,

If a defendant cooperated with the paychiatriat

and made a full disclosure of his thinking processes

1 The State of lowa has conceded in federal district court that

the petitioner had exhausted his state remedies on the con-

stitutional issue raised, Federal courts may in interest of

justice and expedition accept waiver of exhaustion by the

state, Jenkins v. Fitzberger, 440 F. 2d 1188, 1189 (4th Cir,

1971), because the doctrine of exhaustion is one of comity,

App, 6

and hia background, including ineriminating atate-

mente and if he failed to establish hia lack of mental

capacity, he would be faced with these admissions on

trial, Jf a defendant exerciaed hia right to remain

ailent and refused to cooperate with the paychiatriat

the likelihood of a meaningful and reliable examina:

tion would be considerably decreased and his oppor:

tunity to urge a possible defense thwarted, <A de-

fendant should not be compelled to chooae between

exercising his Fifth Amendment right not to incrim-

inate himeelf and hia due process right to seek out

available defenses,

rho v. Auger, 428 F. Supp, 1079, 1082-88 (8, D, Towa

N77),

See alwo State v, BRvana, 104 Arig, 484, 454 P. 2d 976

N78 (1969) (en bane), Cf, Simmons vo, United States,

800 U.S. 377, 8939-94 (1968); United States v, Reifsteck,

635 FF, 2d 1080, 1084 n, 1 (8th Cir, 1976), We agree with

this reasoning and with Judge Stuart’s conclusion that

the error was not harmless,

Cause and I'rejudice,

Kiven assuming, however, that petitioner did not

properly challenge the admission of the statements and

the “cause” and “prejudice” teat required by Sykes is

properly before ua, we find the writ should nonetheless

imme,

We agree with Judge Stuart’s finding that cause

for failure to specifically object on due process grounds

was established’ However, we find that the district

2 The district court found that defense counsel's failure to as-

sert an objection based on due process was not a matter of

trial strategy, but was the result of counsel’s unawareness of

the due process violation, The court concluded that “lack

of knowledge of the facts or law would be sufficient cause

for failure to make the proper objection within the ‘cause

and prejudice’ test of the Francis rule,”

~__ _*

App. 7

court’s conclusion that no prejudice had been established

waa clearly erroneous,

The Supreme Court did not define the term preju-

dice in Sykes, See 483 U.S, at 90-01, Two Justices

indicated that prejudice was to be determined under the

harmloas error teat, See 433 U.S, at 97-98 (White, J,,

concurring); 488 U.S, at 117 (Brennan, J,, dissenting),

Under the harmless error standard, prejudice could be

established by showing that it is reasonable to assume

the evidence wrongfully admitted influenced the trior of

fact in determining the issues of the ease, See Chapman

v. California, 386 U.S, 18, 898 (1967); Kotteakos v, United

States, 828 U.S, 750, 764-65 (1946), It is urged by the

State that the majority of the Court in Sykes intended

the term prejudice to encompass a more rigorous test,

One such test is set out in United States v. Agurs, 427

U.S, 97 (1976), and establishes a standard to be applied

in determining the materiality of an omission of excul-

patory evidence which the prosecution has failed to

disclose to defense counsel, The Court found that in

order to require a new trial

the omission must be evaluated in the context of

the entire record, If there is no reasonable doubt

about guilt whether or not the additional evidence

ia considered, there ia no justification for a new

trial, On the other hand, if the verdict is already

of questionable validity, additional evidence of rela-

tively minor importance might be sufficient to create

a reasonable doubt.

Td, at 112-18 (footnote omitted),

Thia view, in contrast to the harmless error teat, requires

& subjective evaluation of guilt by the appellate court

App, 8

based on the overall record, Jd, at 118-14, Assuming

the Supreme Court intended that thia standard be ap-

plied in determining the existence of prejudice as re-

quired by Sykes, we nonethelesa find on the basia of the

overall state record that prejudice haa been established,

Applying the Sykes language to the record here, we are

unable to conclude that “[t]he other evidence of guilt

presented at trial... waa subatantial to a degree that

would negate any possibility of actual prejudice result-

ing... from the admission of [the] inculpatory state-

ment,” 483 U.S, at 91,

The record showa the vietim waa unable to positively

identify the petitioner as her assailant; other evidence

consisted of a latent fingerprint of petitioner lifted from

an unknown location in the victim's home and a foot-

print found near the victim's home which was not clearly

identified as petitioner’s but was made by the “same type

of shoe,” Under the circumstances we hold that, even

if application of the cause and prejudice test of Sykes

was required in this ease, both have been established

regardless of whether prejudice is to be defined accord.

ing to the harmless error standard or a more strict

atandard, We therefore conclude that the writ of habeas

corpus should issue,

3 We have on prior occasions recognized the speculative na-

ture of footprint evidence, especially where, as in the pres-

ent case, no expert testimony clearly establishes a link be-

tween the footprint and the shoes worn by the defendant.

See McDonnell v, United States, 455 F, 2d 91, 94-95 (8th

Cir, 1972), See also MeClard v, United States, 386 F, 2d

495, 506-07 (8th Cir, 1967) (Lay, J., dissenting), cert, denied,

393 U, S, 866 (1968),

App, 9

The trial court's supplementary order denying the

writ is vacated; the cause ia remanded to the district

court, The State of Towa ia entitled to a reasonable

time to retry petitioner for the crime charged, Pending

retrial by the State, the district court is inatructed to

atay further proceedings, Upon retrial, the present pe-

tition for habeas corpua should be diamiased, If retrial

ia not granted within a reasonable time, to be deter-

mined on remand by the federal district court, the court

ia directed to grant the petition for a writ of habeas

corpua,

The judgment is vacated and the cause remanded

for further proceedings consistent with this opinion,

A true copy.

Atteat:

Clerk, U, 8, Court of Appeals, Bighth Cireuit,

App. 10

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

GARY JAMES COLLINS,

Petitioner,

vs.

CALVIN AUGER, :

Respondent.

(Filed: March 80, 1977)

MEMORANDUM OPINION AND ORDER

STUART, District Judge.

The matter before the Court concerns the applica-

tion of state prisoner, Gary Collins, for habeas corpus

relief pursuant to 28 U.S.C. § 2254. On July 18, 1974

petitioner was convicted by a jury of assault with intent

to commit rape in violation of section 698.4 of the Iowa

Code (1973). On appeal to the Supreme Court of Iowa

the conviction was affirmed, State v. Collins, 236 N. W.

2d 376 (lowa, 1975). <A petition for certiorari was filed

with the United States Supreme Court but subsequently

denied. See Collins v. Iowa, 426 U.S. 948, 96 8, Ct. 3166,

49 L, Ed, 2d 1184 (1976). Although petitioner has made

no application for post conviction relief the Court be-

lieves and the State concedes that he has adequately

exhausted his state remedies as is required under 28

U.S.C. § 2254. Petitioner presents in this Court the

same issue that was presented to the trial court in the

form of motions and objections, to the Iowa Supreme

Court on Appeal, and in the petition for certiorari. See

Wilwording v. Swenson, 404 U.S. 249, 92 8. Ct. 407, 30

App. 11

L.Ed 2d 418 (1971); Coney v. Wyrick, 582 F, 2d 94,

99-100 (8th Cir., 1976); Rice v. Wolff, 518 F. 2d 1280

(8th Cir., 1975), reversed on other grounds (filed July

6, 1976), 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067,

Petitioner was arrested in January of 1974 and sub-

sequently indicted by County Attorney Information on

January 28, 1974. On January. 31, 1974 petitioner filed

an application for a mental evaluation regarding both

competency to stand trial and possible medical treat-

ment. Pursuant to Court Order on February 20, 1974

petitioner was admitted for psychiatric evaluation at the

Iowa Security Medical Facility at Oakdale and remained

in such institution, under examination, until May of 1974,

During this period petitioner was interviewed, apparently

with some degree of frequency, by Dr. Rumullo Lara.

In the course of these interviews approximately seven

hours were devoted to eliciting and developing back-

ground information. Four to five days after his initial

admittance petitioner began receiving prescription tran-

quilizers because of his nervous state.

During the course of Dr. Lara’s questioning certain

facts were elicited dealing with both petitioner’s knowl-

edge of the contents of the County Attorney’s Informa-

tion and his own version of the factual background of

the alleged offense for which he was in custody. It is

conceded by respondent that no “formal” Miranda warn-

ings were given during any part of the questioning. Dr.

Lara, over numerous objections, testified in the State’s

case in chief as follows:

App. 12

Could you relate to us the, doctor, your conver-

sations with Gary as to what his opinion was

as to the fact which occurred on January 6,

1974?

I need clarification if I may, when you say what

his opinion was.

What did he relate to you happened on January

6th that occasioned him to be taken into custody?

I’ll quote from the history.

Mr. Krohn: This is objected to again as

hearsay.

The Court: Overruled.

This is a quote from the psychiatric history.

App. 13

responded, “I think you have overstayed your

welcome”, and had opened the door for him to

leave. This angered him and he had bolted the

door shut. He threw her in bed and remarked,

“I’m going to ball you”, and she began scream-

ing and he slapped her. She bit his little finger

drawing blood. This further angered him and

he beat her and stripped off her clothing. He

says that at that time he was both angry and

lustful willing to get his pleasures from anyone

available. No rape was completed, however, say-

ing that when he had stripped her it was sick-

ing to see. Feeling afraid of himself, he ran

away by the backyard.

‘Since November, 1973, he had been employed Q. With the investigations, tests, and observations

in Iowa working for Confinement Construction you've told us about with regard to Mr. Collins,

Company. He shared a room with a co-employee also were you present in the Courtroom when

in Lambs Grove, and this friend would drive Mrs. Andrews testified?

him to work. Since his birthday was nearing,

he decided to take off from work for three days A. I was.

between January 4 and January 6, finding lodg- Q. Did you hear her testify in full as to what oc-

ing in the Churchill Hotel in Newten, and he had curred in her opinion at her apartment on the

been drinking in that town, and after returning night in question?

to Lambs Grove that particular evening, Janu- ;

ary 6th, he had been hitchhiking along Highway A. For the most part, yes. Her voice tended to

6 at about ten p.m., and caught sight of a home falter a little bit.

which is three units housing different families. Q. Are the facts which you heard from Mrs. An-

Feeling quite cold, he had approached this resi-

dence going up the stairs and knocking on the

door. The victim accommodated him and he had

requested to use her telephone so he could call

his friend “Deano” to fetch him. His friend,

however, was unavailable. Mrs. Andrews, in the

drews the same facts which you were advised

by my office and the same facts upon which you

particularly based your conclusion? Specifically

I’m referring to the telephone cord having been

ripped out, the conversation that took place be-

tween she and Mr. Collins, these areas?

meantime, had served him a cup of coffee and

peanut butter sandwich. He introduced himself

and told her where he was employed. It was

then that he asked, “What do you think of rape?”

She was startled and seemed panic-stricken. She

A. That is correct.

The record is also clear that petitioner did volun-

tarily disclose to Dr. Lara the facts surrounding the al-

leged offense.

App. 14

Q. Did you at any time assure him that the state-

ments that he made about these events on the

6th day of January would not be repeated?

A. No. As a matter fact he wanted it divulged at

that time.

Petitioner urges that his current twenty year period

of incarceration is unlawful in that the conviction was

obtained in violation of his Fifth, Sixth and Fourteenth

Amendment rights because: (1) He was not given proper

“Miranda” warnings prior to the questioning by the state

psychiatrist during the course of the psychiatric evalua-

tion; and (2) His incriminating statements made to the

psychiatrist during the course of his psychiatric exami-

nation were introduced by the state in his trial to prove

his guilt.

Miranda

The Court agrees with Iowa Supreme Court that the

prophylactic rules of Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and its progeny

should not be extended to encompass the kind of situa-

tion involved herein. State v. Collins, supra, 236 N. W.

2d at 378. The giving of the Miranda warnings prior to a

psychiatric examination would be highly inappropriate.

The full and free disclosure of information and the pa-

tient’s thinking processes, so essential to a meaningful

psychiatric examination, would be frustrated if the pa-

tient were advised of his right to counsel and his right

to remain silent and informed that his statements could

be used against him in a criminal trial to prove his guilt.

The importance of psychiatric testimony in resolving the

issues of defendant’s sanity at the time of the offense

or his ability to aid in his own defense has been firmly

App. 15

established. The defendant should not be placed in the

position of either refusing to give full cooperation to the

psychiatrist or waiving his objection to the introduction

of incriminating admissions. The Court concludes that

the manner in which the statements were elicited were

thoroughly proper. This does not, however, preclude

consideration of the impact of the use of those statements

at trial.

Fundamental Fairness

The majority opinion in Collins’ appeal to the Su-

preme Court of Iowa, State v. Collins, supra, limited the

court’s decision to the inapplicability of Miranda, which

was the sole issue raised in defendant’s assignment of

error, stating the issue as follows:

[Whether statements made by a defendant to a

state psychiatrist examining him pursuant to a court

order entered upon the defendant’s application are

admissible against the defendant at trial when the

statements were made without prior Miranda warn-

ings to the defendant by the psychiatrist.

Id., at 378.

The question of fundamental fairness under the Four-

teenth Amendment to the United States Constitution was

not discussed in the majority opinion. However, Justice

Rawlings in his special concurrence expressed deep con-

cern about the effect of the introduction into evidence of

self incriminating statements elicited during a psychiatric

examination. He thoroughly discussed the problems in-

cluding that of fundamental fairness and analyzed the

eases. The fact that the lowa Supreme Court was thus

alerted to the issue, but did not consider it, is farther sup-

App. 16

port for the court’s position that all practical state reme-

dies have been exhausted.

It is well established that a mere evidentiary error

committed in the course of a state criminal trial will not

constitute such a fundamental deprivation of the guaran-

tees of a fair trial as to rise to a deprivation of due proc-

ess of law. But varying with the circumstances, errors

which operate to affect the jury’s consideration of the

evidence presented may be so egregious as to deprive a

defendant of a fair trial. Where criminal trials in state

courts are conducted in such manner so as to disregard

that fundamental fairness essential to the very concept of

justice, due process is offended and federal court interven-

tion is warranted. ‘‘The aim of the requirement of due

process is not to exclude presumptively false evidence, but

to prevent fundamental unfairness in the use of evidence

whether true or false.” Lisenba v. California, 314 U. S.

219, 236, 62 S. Ct. 280, 290, 86 L. Ed. 166 (1941).

In this Court’s opinion, it is fundamentally unfair

to use defendant’s incriminating admissions to a psychia-

trist during a psychiatric examination as part of the pros-

ecution’s case to establish his guilt. It is immaterial in

this regard whether the court ordered examination was

at the request of defendant or the prosecution or whether

it was to determine his capacity to aid in his own defense

or his mental condition at the time of the crime. The

fundamental unfairness of the introduction of such evi-

dence violates defendant’: right to due process under the

Fourteenth Amendment to the Constitution of the United

States.

The defendant is entitled to raise his mental condi-

tion at the time of the offense as a defense. He is also

App. 17

entitled, under proper circumstances, to an examination

to determine his competency to stand trial. Psychiatric

examinations are essential to the proof of his mental con-

dition. An indigent must seek a court order authorizing

the examination and the payment of its cost. If the giv-

ing of a Miranda warning satisfied requirements of the

Fifth Amendment and the Fourteenth Amendment and

made the defendant’s incriminating admissions admissible,

the defendant would be placed in a situation where he

must sacrifice one Constitutional right to claim another.

If a defendant cooperated with the psychiatrist and

made a full disclosure of his thinking processes and his

background, including incriminating statements and if

he failed to establish his lack of mental capacity, he would

be faced with these admissions on trial. If a defendant

exereised his right to remain silent and refused to co-

operate with the psychiatrist the likelihood of a meaning-

ful and reliable examination would be considerably de-

creased and his opportunity to urge a possible defense

thwarted. A defendant should not be compelled to choose

between exercising his Fifth Amendment right not to in-

eriminate himself and his due process right to seek out

available defenses.

The situation is analogous to the attempt to use de-

fendant’s testimony at a suppression hearing in a trial

to determine guilt. In Simmons v. U. S., 390 U. S. 377,

88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), the Supreme Court

said:

Thus, * * * Garett was obliged either to give up

what he believed * * * to be a valid Fourth Amend-

ment claim or, in legal effect, to waive his Fifth

Amendment privilege against self-incrimation. In

App. 18

these circumstances, we find it intolerable that one

constitutional right should have to be surrendered in

order to assert another. We therefore hold that when

a defendant testifies in support of a motion to sup-

press evidence on Fourth Amerdment grounds, his

testimony may not thereafter be admitted against him

at trial on the issue of guilt unless he makes no ob-

jection.

Congress solved this problem for federal courts in

psychiatric examinations to determine a defendant’s men-

tal capacity to stand trial by providing:

No statement made by the accused in the course

of any examination into his sanity or mental compe-

tency provided for in this section, whether the exam-

ination shall be with or without the consent of the

accused, shall be admitted in evidence against the

accused on the issue of guilt in any criminal proceed-

ing.

18 U.S.C. § 4244.

In U. S. v. Albright, 388 F. 2d 719, 725 (4th Cir.,

1968), a similar restriction was imposed upon disclosures

made by a defendant during the course of a court ordered

mental examination to determine his criminal responsibil-

ity for the act. Many courts have held that admissions

made under similar circumstances are not admissible on

the question of guilt. U. S. v. Reifsteck, 535 F. 2d 1030,

1034 (8th Cir., 1976); U. 8. v. Alvarez, 519 F. 2d 1036,

1042 (3rd Cir., 1975); U. S. ex rel. Smith v. Yeager, 451 F.

2d 164, 165 (3rd Cir., 1971); U. S. v. Bohle, 445 F. 2d 54, 66-

67 (7th Cir., 1971); State v. Evans, 104 Ariz. 434, 454 P.

2d 976, 978 (1969); People v. Stevens, 386 Mich. 579, 194

N. W. 2d 370, 371-373 (1971); People v. Martin, 26 Mich.

App. 467, 182 N. W. 2d 741, 743; Williamson v. State,

App. 19

Miss., 330 So, 2d 272, 275 (1976); State v. Obstein, 52 N.

J. 516, 247 A. 2d 5, 11-12 (1968); State v. Whitlow, 45

N. J. 3, 210 A. 2d 763, 770 (1965); Lee v. County Court of

Erie County, 27 N. Y. 2d 432, 318 N. Y. S. 2d 705, 267

N.E. 2d 452, 457; People v. McKinney, 62 Misc. 2d 957,

310 N. Y. S. 518, 520 (1970).

Some courts have indicated they would exclude psy-

chiatrist’s testimony regarding admissions made to him

by defendant during the course of a psychiatric examina-

tion as a violation of defendant’s privilege against self

incrimination. U.S. v. Reifsteck, supra, 535 F. 2d at 1034;

U. 8. v. Alvarez, supra, 519 F. 2d at 1042; U. S. ex rel.

Smith v. Yeager, supra, 451 F. 2d at 165; U. 8. v. Albright,

supra, 388 F. 2d at 726. There is merit in this position

if it is based on involuntariness rather than the failure

to give Miranda warnings. Statements to a psychiatrist,

which appear to have been made willingly and without co-

ercion, should not be considered as voluntary under the

**totality of circumstances’’ test stated in Greenwald v.

Wisconsin, 390 U. S, 519, 520-521, 88 S. Ct. 1152, 20 L. Ed.

2d 77. Psychiatrists are trained to create an atmosphere

that is conducive to full and free disclosure of whatever

is on the patient’s mind. The psychiatrist attempts to

lull the defendant into divulging all information which

might be helpful in determining his mental condition

whether incriminating or not. Stultz v. State, Tex. Cr.

App., 500 S. W. 2d 853, 854-855 (1973). The examination

is intimate, personal and highly subjective. In re Spencer,

63 Cal. 2d 400, 46 Cal. Rptr. 753, 406 P. 2d 33, 40.

Even though Collins’ statements were not made in

response to questions and he apparently felt he wanted

App. 20

to talk about the incident, there was ‘[NJo suggestion

that he intended to make a confeasion which would inerim-

inate him with the authorities or that he was aware his

course of action would be the ceuse of his conviction in

439 F. 2d 553, 560 (1970).

The object of the privilege against self incrimination

is to:

{I]nsure that a person should not be compelled,

when acting as a witness in any investigation, to give

testimony which might tend to show that he himself

had committed a crime. The privilege is limited to

criminal matters, but it is as broad as the mischief

against which it seeks to guard.

Counselman v. Hitchcock, 142 U.S. 547, 562, 12 8. Ct. 195,

198, 35 L. Ed. 1110 (1892). See also Maness v. Meyers,

419 U. S. 449, 461, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975).

Surely the mischief against which the Fifth Amend-

ment seeks to guard can best be avoided under the cir-

cumstances here, not by advising defendant of his right

to remain silent, but by permitting him to talk freely with

the psychiatrist without running the risk that any incrim-

inating statements can be used against him on the issue

of his guilt. Any waiver of his rights suggested by such

free disclosure should be limited to issues regarding his

mental condition. This is not to suggest that the court

believes instructions limiting the purposes for which in-

criminating statements could be considered would satisfy

the requirement of fundamental fairness. A separate

hearing might be called for.

In addition to the due process and self incrimination

issues, there are strong equal protection arguments which

App. 21

could be urged in the inatant situation, Tf a eriminal de-

fendant could afford a private psychiatric examination,

the physician-patient relationship might foreclose the

disclosure of incriminating statements made during the

course of the examination. See State v. Evans, 104 Ariz.

434, 454 P. 2d 976, 978 (1969); City & County of San

Francisco v. Superior Court, 37 Cal. 2d 227, 231 P. 2d 26.

Such relationship is not created when a psychiatrist ex-

amines an indigent defendant under court appointment.

In re Spencer, supra, 63 Cal. 2d at 410, 46 Cal. Rptr. at

760, 406 P. 2d at 40. The Court reaches no decision on

this point here.

Notwithstanding the court’s strong feeling that the

admission of the psychiatrist’s testimony was not consist-

ent with the principles of fundamental] fairness and conse-

quently denied Collins due process, the court is reluctant

to require a new trial. There was ample evidence to sus-

tain a conviction without these admissions. But, I cannot

say that the admission of statements of defendant confirm-

ing in detail the testimony of the victim was harmless er-

ror.

IT IS ORDERED that the petition for writ of habeas

corpus is sustained on the condition that the writ for

petitioner’s release shall not issue if the state within

ninety (90) days from the filing hereof takes the initial

steps necessary to retry Gary James Collins.

IT IS FURTHER ORDERED that in the event the

State of Iowa files a timely appeal from this Memorandum

Opinion and Order, the issuance of the writ shall be stayed

pending the outcome of such appeal.

App, 22

APPENDIX ©

IN THE SUPREME COURT OF IOWA

Filed December 17, 1975

242

57558

STATE OF IOWA,

Appellee,

vs.

GARY JAMES COLLINS,

Appellant.

Appeal from Jasper District Court—M.J.V. Hayden,

Judge.

Appeal by defendant from conviction and sentence

for assault with intent to commit rape in violation of

§ 698.4, The Code.--AFFIRMED.

Frank M. Krohn, of Newton, for appellant.

Richard C. Turner, Attorney General, John G. Mul-

len, Assistant Attorney General, and Kenneth L. White-

head, County Attorney, for appellee.

Considered en banc.

MeCORMICK, J.

Defendant avpeals his conviction and sentence for

assault with intent to commit rape in violation of § 698.4,

The Code. The questions presented are whether the trial

court erred (1) in overruling defendant’s motion to dis-

miss for want of a speedy trial, (2) in overruling his mo-

tion for mistrial, (3) in overruling his Miranda objection

App. 2

to testimony of a psychiatrist, and (4) in overruling

his motion for directed verdict made at the close of

the evidence.

The charge in this case was brought by county attor-

ney’s information filed January 28, 1974. Defendant filed

a motion to dismiss on July 8, 1974, alleging he had been

denied his right under § 795.2, The Code, to be brought

to trial within 60 days of the filing of the county attor-

ney’s information. The State contended good cause ex-

isted for the delay, and the trial court overruled the mo-

tion on that ground. Defendant’s trial commenced July

17, 1974.

Since defendant was not tried within 60 days after

the charge was brought in district court, he was entitled

to have the charge dismissed on his timely motion unless

the State demonstrated good cause for the delay beyond

that period.

Applicable principles are summarized in several re-

cent cases. See e.g., State v. Albertsen, 228 N. W. 2d 94,

97-98 (Iowa 1975). In this case, we agree with the find-

ing that good cause for delay was shown. The delay was

substantially attributable to defendant. The first three

months’ delay was caused by compliance with an order of

the court sustaining defendant’s motion for mental evalu-

ation. Defendant was admitted to the medical security

facility at Oakdale for mental examination and evaluation

in February and was not released until April 30, 1974.

He filed a demand for speedy trial seven days later, on

May 7, 1974. At his arraignment on May 13, 1974, he

App. 24

entered a plea of not guilty. On June 3, 1974, he filed

a notice of his intention to rely upon a defense of in-

sanity. § 777.18, The Code. One of the listed witnesses

was Dr. Romullo Lara, a psychiatrist who had examined

defendant at Oakdale. Two days later the State filed a

notice of additional testimony indicating its intention to

call Dr. Lara as a State witness. Additional time was

taken by a motion in limine filed by defendant. Further

delay was caused by fixing the trial date to accommodate

Dr. Lara’s schedule.

Under this record, the trial court did no err in over-

ruling defendant’s motion to dismiss,

II.

Defendant’s motion for mistrial resulted from testi-

mony of Dr. Lara as a witness for the State. The witness

recited the history taken from defendant. Included in the

history was a statement that, ‘‘He says * * * he is

charged with assault with intent to commit rape, as well

as aiding and abetting a jail break.” Later, out of the

presence of the jury, defense counsel moved for mistrial

on the ground this testimony improperly referred to an

escape charge for which defendant was not then on trial.

The trial court overruled the motion but admonished the

jury to disregard the challenged testimony.

A trial court has discretion in ruling upon a motion

for mistrial, State v. Cage, 218 N. W. 2d 582, 586 (Iowa

1974). The limits of that discretion were not exceeded

here,

IIT.

A second problem arose during Dr. Lara’s testimony.

He testified he did not require defendant as part of the

App. 25

psychiatric examination to relate his version of the events

upon the assault with intent to commit rape charge was

based, Nevertheless, he said defendant wished to explain

his version of the incident and did so. When Dr. Lara

was asked to repeat what defendant told him, defense

counsel objected on the ground defendant had not been

given Miranda warnings. The objection was overruled,

and Dr. Lara repeated defendant’s alleged statements.

The sole issue raised in defendant’s assignment of

error is whether statements made by a defendant to a

state psychiatrist examining him pursuant to a court or-

der entered upon the defendant’s application are admis-

sible against the defendant at trial when the statements

were made without prior Miranda warnings to the de-

fendant by the psychiatrist. Defendant contends Dr.

Lara should have advised him of his privilege against

self-incrimination before discussing the charge with him.

See Miranda v. Arizona, 384 U. 8S. 486, 86 S. Ct. 1602, 16

L, Ed. 2d 694 (1966).

In Miranda, the Supreme Court barred the use of

statements “stemming from custodial interrogation of the

defendant unless [the prosecution] demonstrates the use

of procedural safeguards effective to secure the privilege

against self-incrimination.” The court added, “By cus-

todial interrogation, we mean questioning initiated by law

enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action

in any significant way.” 384 U. S. at 444, 86 S. Ct. at

1612, 16 L. Ed. 2d at 706. We have held Miranda pro-

hibits law enforcement officials from eliciting incriminat:

ing statements by having a third party ask their questions

for them. State v. Flaucher, 223 N. W. 2d 239 (Iowa

App. 26

1974); State v. Cullison, 215 N. W. 2d 309 (Iowa 1974).

However, this case does not present that kind of situa-

tion. Defendant was not being subjected to custodial in-

terrogation nor was he being questioned in behalf of law

enforcement officers. The Miranda warnings were not

required. See Ramer v. United States, 411 F. 2d 30, 38

(9 Cir. 1969), cert. denied, 396 U. S. 965, 90 S. Ct. 445,

24 L. Ed. 2d 431 (“We are unwilling to expand the man-

date of Miranda to the extent sought by the appellant.”).

See generally, Marcus, Pre-Trial Psychiatric Examina-

tion: A Conflict With the Privilege Against Self-Incrim-

ination, 5 Crim. L. Bull., No. 10, 497.

The trial court did not err in overruling his defend-

ant’s objection to Dr. Lara’s testimony.

IV.

In contending the trial court erred in overruling his

motion for directed verdict made after both parties

rested, defendant asserts the evidence was insufficient

for jury consideration on the element of intent. The

same argument was made and rejected in State v. Baskin,

220 N. W. 2d 882, 887-888 (Iowa 1974). No useful pur-

pose would be served by reciting evidence in this case.

It suffices to say that here, as in Baskin, the evidence

was sufficient to support a fair inference by the jury

that defendant had in mind the procurement of sexual

intercourse by the use of such force as was necessary

to accomplish his purpose.

The trial court did not err in overruling his motion

for directed verdict.

App. 27

We find no merit in defendant’s assignments of

error.

AFFIRMED.

All Justices concur, except Rawlings, J., who con-

curs specially.

State v. Collins, No. 242

RAWLINGS, J., (concurring specially)

Confining myself, as does the majority, to the sole

“Miranda warning” issue asserted by defendant in sup-

port of a reversal, I too find an affirmance is in order.

On the other hand, the situation instantly involved

is to me of such magnitude as to justify if not necessi-

tate some overview regarding self-incriminating state-

ments made by an accused in course of a court-ordered

psychiatric examination as to sanity at time of the event.

At the outset most, if not all, courts have approached

the problem from two separate but interrelated avenues,

i. @., court-compelled vs. defense-invited evaluations. It

still remains, however, no meaningful evaluation can be

achieved in either such instance other than by a thorough,

wide-ranging and intimate discussion between an accused

and a psychiatrist, designed to elicit in-depth informa-

tion from the former regarding past crimes or antisocial

conduct, personality-molding experiences and subcon-

scious motivating ideas. See State v. Whitlow, 45 N. J. 3,

210 A. 2d 763, 771 (1965); Myers, “The Psychiatric Ex-

amination”, 54 J. Crim. L.C. & P.S. 431 at 435-438 (1963).

And any inhibition, direct or indirect, which may be fast-

App. 28

ened upon such essential dialogue is self-defeating’, at

the same tiue often beset with tangential troublesome

problems, illustratively coercion?, and possible confine-

ment in perpetuity for defendant’s noncooperation.?

II.

At this point the matter of self-accusation comes

into play.

Admittedly, Schmerber v. State of California, 384

U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) says the

Fifth Amendment protects an accused only from being

compelled to testify against himself, or otherwise pro-

vide the State with evidence of a testimonial or commu-

nicative nature, 384 U.S. at 760-761, 86 S. Ct. 1830-1831.

The Schmerber Court also distinguished between ad-

missibility of a blood test on one hand and “compelling

communications or testimony” or “compulsion which

makes a suspect or accused the source of real or physical

evidence.” 384 U.S. at 764, 86 S.Ct. at 1832.

It therefore follows, a blood sampling stands on a

different footing than does a psychiatric examination.

Further in that regard, any determination as to whether

statements made in course of the latter are testimonial

in nature depends upon usage of the information thus

obtained. When employed as evidence going to the issue

of guilt or innocence it can be nothing other than com-

1 26 Stan. L. Rev. 55, 66 (1973).

2 Leyra v. Denno, 347 U. S. 556, 559-560, 74 S. Ct. 716, 718,

98 L. Ed. 948 (1954).

3 Tippett v. State of Maryland, 436 F. 2d 1153, 1161 (4th Cir.

1971); 26 Stan. L. Rev. at 60. See also Code Chapter 665.

App. 29

municative or testimonial. See 5 Crim. L. Bull, 497, 501

(1969).

In this vein, most courts have adopted the view that

an accused must cooperate, if possible, in the conduct

of a psychiatric examination. And generally any state-

ments made by a defendant in couse thereof are deemed

admissible in evidence with regard to the matter or legal

responsibility. But when those relating to guilt are

admitted, several courts have held the jury must be in-

structed on the limited probative force of any such

self-incriminating statements, ie., that they are not to

be considered in resolving the guilt issue. See State v.

Obstein, 52 N.J. 516, 247 A. 2d 5, 11-12 (1968); State

v. Whitlow, supra. Noticeably, however, Whitlow recog-

nized the inherent difficulty juries would inevitably en-

counter in attempting to obey any such instructional

restriction. 210 A. 2d at 773.

Moreover, validity of the aforesaid procedure is at

best doubtful. In Jackson v. Denno, 378 U. W. 368, 388-

389, 84 S.Ct. 1774, 1786-1787, 12 L.Ed. 2d 908 (1964),

the Court unmistakably condemned the practice of sub-

mitting to a jury the question of voluntariness of a con-

fession together with the guilt issue. By the same token,

when a jury, as in the case at bar, has heard a psychi-

atrist relate incriminating statements made to him by

an accused during a mental examination, those utter-

ances unavoidably become so deeply implanted no juror

could disregard them even though told by the court to

do so. In any event, it will usually if not always, be

subconsciously the decisive factor whenever uncertainty

lingers in the mind of a juror as to proof of guilt be-

yond a reasonable doubt.

A few jurisdictions have attempted to circumvent

the above quandary by adoption of a bifurcated hearing

or “sequential order of proof” approach. Such is, how-

ever, a relatively cumbersome and expensive procedure

to be avoided where reasonably possible. See Louisell

& Hazard, Insanity as a Defense: The Bifurcated Trial,

49 Calif. L. Rev. 805 (1961); 5 Crim. L. Bull. 497, 504

(1969); 10 Am. Crim. L. Rev. 431, 458-463 (1972), I shall

later return to this subject.

Another proposed solution, voiced in Pope v. United

States, 372 F. 2d 710 (8th Cir. 1967), is adoption of the

“waiver” theory where an accused has requested the

psychiatric examination. See generally United States v.

Schultz, 431 F. 2d 907, 911 (8th Cir. 1970). But see

Commonwealth v. Por.poni, 447 Pa. 154, 284 A. 2d 708,

710-711 (1971). Several troublesome questions are also

here involved. Surely, an insanity plea cannot be equated

with intentional waiver of the Fifth Amendment privi-

lege against self-incrimination. Otherwise, a defendant

is placed on the horns of an imponderable dilemna. By

electing to assert an insanity defense he waives his priv-

ilege against self-incrimination. The unconscionability

of this paradox is self-evident. As observed in State v.

Raskin, 34 Wis. 2d 607, 150 N. W. 2d 318, 326 (1967):

“Tt is argued also by the state the filing of the

plea of insanity waives any privilege of self-incrimi-

nation and therefore the accused must answer ques-

tions in the examination even though the responses

may be incriminatory. We do not agree. This con-

cept puts a quid pro quo or price tag on the asser-

tion of the plea of insanity.”

Touching on the same point is Simmons v. United

States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L. Ed.

App. 31

2d 1247 (1968) where the Court declared: “[I]t [is]

intolerable that one constitutional right should have to

be surrendered in order to assert another.” See also

10 Am. Crim. L. Rev. at 450-452.

I further find more than minimal cogency in this

statement by Black, J., dissenting in Williams v. Florida,

399 U.S. 78, 112, 90 S.Ct. 1893, 1912, 26 L.Ed. 2d 446

(1970):

“The defendant, under our Constitution, need not

do anything at all to defend himself, and certainly

he cannot be required to help convict himself. Rather

he has an absolute, unqualified right to compel the

State to investigate its own case, find its own wit-

nesses, prove its own facts, and convince the jury

through its own resources. Throughout the process

the defendant has a fundamental right to remain

silent, in effect challenging the State at every point

to: ‘Prove it!’ ”’

It is also well settled, in this jurisdiction, that if an

accused pleads not guilty by reason of insanity the State

must prove, beyond a reasonable doubt, all elements of

the offense charged, including defendant’s legal capacity

to commit the offense. See State v. Thomas, 219 N. W.

2d 3, 5 (Iowa 1974); case note, 24 Drake L. Rev. 246

(1974); Annot., 17 A. L. R. 3d 146. as

By virtue thereof it has been held that when a de-

fendant places his or her sanity in issue the State may

have benefit of a concomitant psychiatric examination.

See United States v. Schultz, 431 F. 2d at 910-911; United

States v. Albright, 388 F. 2d 719, 722-726 (4th Cir. 1968) ;

State v. Whitlow, supra; Lee v. County Court of Eric

County, 27 N.Y. 2d 432, 318 N. Y.S. 2d 705, 712, 267

N. E. 2d 452, 457, cert. denied 404 U. S. 823 (1971). See

App. 32

also Breitel, J., concurring in People v. Avant, 33 N.Y.

2d 265, 352 N.Y.S. 2d 161, 167, 307 N.E. 2d 230, 234

(1973); 26 Stan. L. Rev. at 63-65. But see United States

v. Davis, 496 F. 2d 1026, 1030-1031 (5th Cir. 1974) ; Com-

monwealth v. Pomponi, 284 A. 2d at 709-711. Here again,

the above noted coercion problem is involved. Addition-

ally, the defendant may be inclined to deceive and sup-

press evidence while being thus compulsorily examined.

See 26 Stan. L. Rev. at 66.

Finally, on this subject, it is questionable whether

the “waiver” concept is legitimately applicable in a situ-

ation such as instantly presented. See State v. Holder-

ness, 191 N. W. 2d 642, 646 (Iowa 1971). See also People

v. Avant, supra; 83 Harv. L. Rev. 648, 667 (1970).

Mindful of the foregoing, it is to me apparent the

unbridled testimonial use of a defendant’s self-incriminat-

ing statements to a psychiatrist in course of an examina-

tion as to the accused’s sanity at time of the event is

beset with unavoidable perplexities and an insurmount-

able fair-play barrier.

III.

The spotlight now focuses upon a defense-invited

psychiatric analysis as opposed to compelled evaluation

of defendant’s mental status stemming from a prosecu-

tion request or sua sponte court order.

First considered is the examination brought about by

reason of an indigent defendant’s request. See Hall,

Kamisar, LaFave and Israel, Modern Criminal Proced-

ure, 151-159 (3d ed 1969); Annot., 34 A.L.R. 3d 1256,

1275-1282. In such event the accused is supplied the

with be

App. 33

benefit of a medical diagnosis at State expense which

he, if affluent, could have otherwise obtained. See Grif-

fin v. People of the State of Illinois, 351 U.S. 12, 19,

76 S.Ct. 585, 591, 100 L. Ed. 891 (1956). And, as this

court said in State v. Bedel, 193 N. W. 2d 121, 124 (Iowa

1971):

“The physician-patient privilege is intended to

foster free and full communication between the physi-

eian and the patient in diagnosis or treatment of

the patient’s ills. This privilege is not designed, nor

will it be so extended, to act as a shield behind which

a patient may conceal information, though made to

his physician, which is not necessary and proper to

enable the physician to perform his profession skill-

fully. See Gibson v. Ladd, Blood Test to Determine

Intoxication, Physician-Patient Privilege, 24 lowa

L. Rev. 191, 255-256 (1939); Wigmore, Evidence,

§ 2380a, pp. 828-832.”

It could therefore be plausibly argued the physician-

patient privilege is applicable to any such defense-invited

examination. Supportively, the court said in State v.

Evans, 194 Ariz. 434, 454 P. 2d 976, 978 (1969):

“The obvious policy underlying the physician-

patient privilege is that patients should be encour-

aged to make full and frank disclosures to those

who are attending them. While we do not believe

that allowing [a doctor] to testify about his conclu-

sions concerning defendant’s sanity derogates from

this policy, we do think that to permit even a psy-

chiatrist acting for the court to transmit a defend-

ant’s incriminating statements to a jury is funda-

mentally unfair. In Lisenba v. People, 314 U.S. 219,

62 S.Ct. 280, 86 L. Ed. 166 (1941), Justice Roberts

stated: ‘The aim of the requirement of due process

is * * * to prevent fundamental unfairness in the

use of evidence whether true or false.’ 314 U.S. at

236, 62 S. Ct. at 290.”

App. 34

Understandably, the defendant may waive any such

privilege, either intentionally or by invitation, i.e., “open-

ing the door” in course of trial. See United States v.

White, 377 F. 2d 908, 911 (4th Cir. 1967), cert. denied,

389 U.S. 884, 88 S.Ct. 143. See generally McCormick

on Evidence, $134 (2d ed 1972). But as to waiver by

absence of testimonial objection see United States v.

Davis, 496,F. 2d at 1030-1031.

Next entertained is the matter of compulsory psy-

chiatric examination of an accused, either upon request

by the prosecution or sua sponte order of the court. Here

the psychiatrist becomes an agent for the State. Singu-

larly pertinent is this statement from In re Spencer, 46

Cal. Rptr. 753, 406 P. 2d 33, 40 (1965) :

“In Massiah v. United States, supra, 377 U. S.

201, 206, 84 S. Ct. 1199, 1203, 12 L. Ed. 2d 246, the

United States Supreme Court held that ‘the petitioner

was denied the basic protection of thal guarantee [uf

counsel] when there was used against him at his trial

evidence of his incriminating words, which federal

agents had deliberately elicited from him after he had

been indicted an: in the absence of his counsel.’ Al-

though the court-appointed psychiatrist, an agent of

the court, does not necessarily seek to elicit incrimin-

ating statements for use by the prosecution as did

the agent in Massiah, he does question a defendant

about the facts of the crime, and any incriminating

statements of a defendant so procured may be utilized

by the prosecution at the guilt trial.

‘The fact that the purpose of the psychiatric

interview is not to gather evidence for the prosecu-

tion serves to compound the unfairness of the psy-

chiatrist’s testimony; an agent of the court in reality

lulls a defendant into making incriminating state-

ments that may be used against him at the guilt trial.

App. 35

(Cf. Leyra v. Denno (1954) 347 U. S. 556, 74 S. Ct.

716, 98 L. Ed. 948; Diamond & Louisell, The Psychi-

atrist as an Expert Witness: Some Ruminations and

Speculations (1965) 63 Mich. L. Rev. 1335, 1349). The

psychiatric examination occurs during a ‘ “critical

period of the proceedings”’ (Massiah v. United

States, supra, 377 U. S. 201, 205, 84 S. Ct. 1199, 12

L. Ed. 2d 246); if defendant’s statements to the psy-

chiatrist may be introduced at the guilt trial, defend-

ant’s need of counsel is as acute during the psychiat-

ric interview as during the police interrogation.”

See also Marshall, J., dissenting to dismissal of certiorari

in Miller v. State of California, 392 U. S. 616, 88 S. Ct.

2258, 20 L. Ed. 2d 1332 (1968); ef. State v. Cullison,

215 N. W. 2d 309, 314-315 (Iowa 1974).

It may therefore be reasonably contended the Fifth

Amendment privilege becomes applicable in the above

noted situation. See Harlan, J., concurring in California

v. Byers, 402 U. S. 424, 435-437, 91 S. Ct. 1535, 1541-1542,

29 L. Ed. 2d 9 (1971); United States v. Albright, 388 F.

2d at 726; State v. Obstein, 247 A. 2d at 10-11; Haskett

v. State, 255 Ind. 206, 263 N. E. 2d 529, 531 (1970); 8

Wigmore on Evidence, §§ 2251-2252 (McNaughton rev.

1961); 10 Am. Crim. L. Rev. at 434-458; 5 Crim. L. Bull.

at 500-506.

There may also be some degree of authenticity in an

argument to the effect the physician-patient privilege is

here again applicable. See State v. Evans, supra.

The foregoing panoramic backdrop of untoward ele-

ments makes it to me evident the problem at hand can

App. 36

and should be resolved by adoption of a suitable, inof-

fensive and realistic standard.

I would therefore hold that where a defendant is ex-

amined as to his or her sanity as bearing upon the ac-

cused’s criminal responsibility for the act charged, wheth-

er such be initiated by the defendant, the prosecution or

sua sponte order of the court, any self-incriminating in-

formation obtained from an accused in course thereof

shall not be admitted in evidence, over appropriate ob-

jection, during trial of the examined defendant in which

guilt or innocence is to be determined. See United States

v. Davis, 496 F. 2d at 1030-1031; People v. Stevens, 386

Mich. 579, 194 N. W. 2d 370, 371-373 (1972). The afore-

said objection can, of course, be effectively voiced before

trial. See State v. Untiedt, 224 N. W. 2d 1, 3 (Iowa

1974).

It is understood, however, that if defendant (1) first

knowingly consents to the introduction of such otherwise

precluded testimony or (2) opens the door to the subject

matter in course cf trial, he may not then effectively com-

plain since his own strategy has invited presentation of

such evidence. See United States v. Davis, 496 F. 2d at

1030.

The foregoing standard is, in my humble opinion, es-

sential to a fair trial while still permitting introduction

of other admissible opinion evidence regarding a defend-

ant’s sanity at time of the event.

If, however, it be found that a psychiatrist is unable

to testimonially evaluate defendant’s legal responsibility

App. 37

absent reference to incriminatory statements made by the

accused, then a bifureated hearing would be unavoidable

and appropriate. In that event, trial on the guilt issue

should be first held and if the accused is found guilty a

jury determination as to legal responsibility would follow.

See generally Contee v. United States, 410 F. 2d 249, 250

(D. C. Cir. 1969); Holmes v. United States, 363 F. 2d 281,

282-283 (D. C. Cir. 1966) ; State v. Raskin, 150 N. W. 2d

at 326; 10 Am. Crim. L. Rev. at 458; 5 Crim. L. Buil. at

504; 1964 Wis. L. Rev. at 681.

Of course, justice would be better served and the pro-

cedural process expendited by a pretrial ascertainment re-

garding the psychiatrist’s ability to express his or her

opinion as to defendant’s legal responsibility without ref-

erence to self-incriminating statements by the accused.

See State v. Peterson, 219 N. W. 2d 665, 668-669 (lowa

1974).

Whether separate juries must be provided should a

bifurcated hearing be necessary is a question which need

not be now resolved. Compare 10 Am. Crim. L. Rev. and

5 Crim. L. Bull., both swpra, with 1964 Wis. L. Rev. cited

above. See also State v. Monroe, — N. W. 2d — (lowa,

November 1975).

App. 38 App. 39

APPENDIX D | State wherein they reside. No state shall make or

ear enforce any law which shall abridge the privileges or

Constitution of the United States, Amendment V: immunities of citizens of the United States; nor shall

any state deprive any person of life, liberty, or pro-

perty, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger;

nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall pri-

vate property be taken for public use, without just

compensation.”

Constitution of the United States, Amendment VI:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained hy law, and to be

informed of the nature and cause of the accusation

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defense.”

Constitution of the United States, Amendment XIV:

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

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