Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 81-Cr-10039 -- Robert D. Morgan, Judge.
Cummings, Chief Judge, Coffey, Circuit Judge, and Irving Hill, Senior District Judge.*fn*
HILL, Senior District Judge.
After a jury trial in which he was represented by appointed counsel, appellant Metcalfe was convicted of armed bank robbery of a Peoria, Illinois, bank and sentenced to 15 years in prison. He raises three contentions on appeal:
1. A "motion" for the appointment of a psychiatrist to examine Metcalfe prior to trial to determine his competency to stand trial was erroneously denied;
2. The government's use of testimony of a jail cellmate violated his constitutional rights as defined in Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), and United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980); and
3. His representation by appointed trial counsel did not meet the minimum professional standard required under the Sixth Amendment.
We will discuss each contention separately.
I. COMPETENCY TO STAND TRIAL
On the date set for trial of the case, Metcalfe appeared in chambers with his appointed counsel and government counsel for an on-the-record conference. Defense counsel told the court that 3 days before, the defendant had inquired of him about having a mental examination under 18 U.S.C. Sec. 4244, and he had told Metcalfe that he, counsel, did not feel that he could file such a motion in good faith. They had left it that Metcalfe wanted to think some more about the matter. Counsel said he was bringing it up again at the chambers conference because he wanted it clear on the record that Metcalfe did not want to raise the question any further. However, Metcalfe then told the trial judge that he wanted to talk about it some more. The court then asked Metcalfe if he wanted to make some statement in regard to a possible mental examination. In reply, Metcalfe said that he was "emotionally unstable" and wanted his problem to be "recognized by the courts" so perhaps the court "could do something about it". He said that he had been in a mental institution before coming to Peoria. He said he was taken to that institution by his father because his mental problems went back into his childhood, but he did not know the name of the psychiatrist that they had seen because he was so young at the time. For further details, he referred the court to his father who was in the courtroom outside chambers. This colloquy between the court and Metcalfe is characterized by Metcalfe's present lawyer (who did not represent him at that time) as a "motion" under 18 U.S.C. Sec. 4244. The so-called motion was entirely oral.
In his colloquy with the judge, Metcalfe asserted that while he had had serious drug problems in the past, he had not been addicted to drugs since 1978 and had not "messed" with drugs in "quite some time".
Before summoning the father, the trial judge had a brief discussion with the defendant as to whether he understood the charge against him. That discussion revealed that the defendant clearly understood that he was being charged with a bank robbery and that he knew the elements and nature of the alleged robbery. Defendant had previously tendered an alibi defense and during the discussion, he complained that his defense had not been properly prepared, which he laid to the fact that he had been incarcerated and "[hadn't] had a chance to get in contact with anyone."
The trial judge then called the father into chambers and asked the father to describe the mental treatment given to defendant in the past. The father denied that there had been any. He said he had tried to get some mental treatment for his son but was unsuccessful because the son was over 21 and he, the father, was informed that treatment would not be provided unless the son himself asked for it. Apparently the son had declined to do so. The father did say that he continued to feel that his son needed a psychiatrist but gave no details whatever of any event or events which underlay that feeling.
The court then turned to defense counsel and sought from him an opinion as to whether the defendant was able to cooperate in conducting his defense. Defense counsel answered that he had not found the defendant unable to cooperate in planning his ...