Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


November 30, 1973


The opinion of the court was delivered by: Austin, District Judge.



The motion to dismiss for failure to state a claim is granted as to the following points raised by petitioner:

A. Illegally Seized Evidence

Petitioner objects to the admission at his trial of certain articles which were obtained by a warrantless illegal search of the home of his codefendant, Mrs. Weinstein. This evidence had been suppressed at Mrs. Weinstein's severed trial. People v. Weinstein, 105 Ill. App.2d 1, 245 N.E.2d 788 (1st Div. 1968). Nevertheless, petitioner's objection is clearly without merit, since a criminal defendant has no standing to assert the illegality of a search of his codefendant's home in which he had no expectation of privacy. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Nasse, 432 F.2d 1293, 1302-1303 (7th Cir. 1970), cert. denied, 401 U.S. 938, 91 S.Ct. 927, 28 L.Ed.2d 217 (1971). Accordingly, petitioner fails to state a claim as to this issue.

B. Mental Incompetency of Petitioner

Petitioner further objects to his conviction on the ground that a transcript of his self-incriminatory testimony in support of his codefendant's motion for a new trial was admitted in evidence at his own trial. He contends this was improper because he was incompetent at the time he testified; and, therefore, despite the fact he was advised by the court of his right to remain silent, he was not able to knowingly, intelligently and voluntarily waive that right. Petitioner concedes that his defense counsel's vigorous objections to his testifying were not on the ground of his mental incompetence to waive his rights. Nevertheless, he argues that the question of his competency should have been raised by the court sua sponte; for he asserts that he had been in a state mental institution from 1951 to 1953, and that the trial judge was aware of this fact.

In essence, petitioner's position is that, coupled with his mental illness in the distant past, his disregard of defense counsel's advice was sufficient to raise a substantial and bona fide doubt in the judge's mind as to his competence; and therefore the judge was required to raise the issue sua sponte under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

It is recognized that incriminating statements made by an incompetent person can hardly be the product of any meaningful act of volition, and that therefore, such statements are inadmissible as evidence against him in a criminal trial, see Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); and in determining whether or not the right against self-incrimination was voluntarily waived, the court must look to the totality of the facts and circumstances. See, e. g., Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). Nevertheless, petitioner's contention is clearly without merit under the circumstances of this case. In the first place, mere disregard of the advice of counsel simply is not an indication of a defendant's incompetency to voluntarily and knowingly waive his right against self-incrimination. In fact, in some situations, such rejection may be a good indication of the defendant's ability to exercise his own judgment in a rational way. In the present case, petitioner's decision to reject his attorney's advice to keep silent is a neutral fact which is not probative as to whether he was competent to waive his rights.

Secondly, assuming he knew of petitioner's history of mental illness, the trial judge did have the opportunity to observe petitioner's demeanor throughout the proceedings and particularly when petitioner waived his right to remain silent. It is well established that raising the issue of incompetency sua sponte is within the sound discretion of the trial judge; and failure to raise the issue does not violate due process unless he abused that discretion. See Green v. United States, 128 U.S.App.D.C. 408, 389 F.2d 949, 953 (1967).

Petitioner has not alleged circumstances so unfair that it could be said the discretion to raise the issue of incompetency sua sponte was abused. Therefore, he was properly permitted to waive his right against self-incrimination; and admission of the transcript of his testimony at his own trial was not in error.

C. Incompetency of Appointed Counsel

Petitioner further objects to his conviction on the ground that his court-appointed attorneys were incompetent. Specifically, he asserts that trial counsel failed to object to certain items of evidence and then elected to present no evidence on petitioner's behalf. Did this constitute a denial of petitioner's Sixth Amendment right to effective counsel? Clearly not. Although the right to counsel is a fundamental right which is essential to a fair trial, and consequently, applicable to the states under the due process clause of the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it does not follow that perfection is required. Rather, this constitutional guarantee is satisfied when the conduct of counsel is such that the essential integrity of the proceedings as a trial is preserved and the trial has not made a travesty of justice. United States v. Stahl, 393 F.2d 101, 104 (7th Cir. 1968). United States v. Dilella, 354 F.2d 584, 587 (7th Cir. 1965). Errors of judgment of counsel, if any, whether of omission or commission, do not constitute a deprivation of effective representation at trial within the constitutional concept. Id. The trial in this case ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.