COURT OF APPEALS DECISION DATED AND RELEASED November 9, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
94-1817-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Appellant,
v.
DEAN GARFOOT,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Dane County:
STUART A. SCHWARTZ, Judge. Reversed
and remanded with directions.
Before Gartzke, P.J.,
Sundby and Vergeront, JJ.
GARTZKE, P.J. The State appeals from an order dismissing a
criminal complaint against Dean Garfoot, a mentally retarded man. We conclude that when ruling that the State
failed to prove that Garfoot was competent to stand trial, the trial court did
not apply the statutory standard to determine Garfoot's competency, and relied
too heavily on the medical testimony.
The court should have considered Garfoot's competency in view of the
kind of trial likely to take place and possible modifications to the trial
procedure to improve his understanding of the proceedings and his ability to assist
in his defense. We therefore reverse
and remand for further proceedings.
1. FACTUAL BACKGROUND
The complaint charges
Garfoot with attempted first-degree sexual assault, §§ 940.225(1)(b) and
939.32(1), Stats., as a result of
an incident that took place on April 27, 1993.
Dr. Spierer, one of the two court-appointed competency evaluators,
described the incident on the basis of police reports he reviewed as
follows:
Donna W. went to
Garfoot's family home in response to Garfoot's invitation. She was a family friend. Garfoot, then age 27, had said he had a
present for her. At his request, she
went alone. When she arrived, Garfoot
handed her a note written in a child-like scrawl instructing her:
1) not
tell no one about it
2) to
go to my bedroom and set on it
3) to
take your shoe and socks off
because my gift go on your feet
4) to
close your eyes
5) to
not say noth
6) to
do every thing I tell you to do.
Dean Garfoot
Garfoot
accompanied her to the bedroom. After
she removed her shoes and socks, closed her eyes, and stood next to the bed, he
grabbed her around the neck. She opened
her eyes and saw that he held a knife.
She unsuccessfully tried to pull his arm away, and asked him to give her
the knife but he refused. Then she said
she had a present for him in her car and promised to return with it. Garfoot let her go to get the present. She got to her car and drove home.
At the preliminary
hearing, when defense counsel questioned Garfoot's competency to stand trial,
the trial court ordered a competency examination by Dr. Patricia Jens, a
psychiatrist. Dr. Jens concluded that
Garfoot lacks competency to stand trial.
The court then granted the State's motion for an examination by Dr.
Michael Spierer, a psychologist. Dr.
Spierer concluded that Garfoot is marginally competent to stand trial.
At the competency
hearing Garfoot claimed he is not competent to stand trial. Dr. Jens and Dr. Spierer testified regarding
their examinations of Garfoot and their opinions.
The trial court
summarized Dr. Spierer's testimony as follows:
Garfoot scored eighteen on a competency test on which a score below
twenty suggests incompetency. Based on
Garfoot's performance on a different competency test, and despite his impaired
intellectual functioning, he showed a rudimentary understanding of the judicial
process and an adequate ability to participate in a trial. Although Garfoot's memory is acceptable, his
fund of knowledge is limited. Unless
defense counsel prompts Garfoot, no response would be forthcoming. Because Garfoot has less grasp of the
abstract than the concrete, the best his attorney could anticipate is a
marginal understanding of possible defenses.
Dr. Spierer concluded that Garfoot is competent to stand trial but only
marginally so.
The trial court
summarized Dr. Jens's testimony as follows:
Garfoot has difficulty understanding the meaning of a no contest plea
and a plea of not guilty by reason of mental disease or defect. While able to express an understanding of
the role of the courtroom participants, Garfoot has difficulty with the
sequence of courtroom events. He
comprehends the best and worst outcomes of trial but lacks understanding of
other possibilities such as plea bargains.
After numerous repetitions, his grasp of information improves but his
retention ability is suspect. He cannot
understand what is going on in the courtroom.
Garfoot's retardation will prevent him from following and understanding
testimony. He cannot process testimony
without long pauses for his lawyer to repeat and explain it. He can perceive simplistic concepts, but he
cannot grasp their implications--in other words, while he can make a choice, he
cannot understand the implications or ramifications of his choice. He lacks the ability to think
abstractly. He is incapable of telling
his attorney if something stated by a witness is false. Dr. Jens concluded Garfoot is not competent
to stand trial.
We add that Dr. Spierer
and Dr. Jens agreed that if Garfoot testifies he can recount the facts of the
incident, but he would have difficulty responding to rapid-fire
cross-examination. Dr. Jens reported
that during her evaluation, Garfoot could not grasp information when it was
offered at a faster pace. Dr. Spierer
testified Garfoot would have difficulty comprehending "higher order
questions, complicated questions," and there "will be certain issues
that he may not follow. There may be
certain lines of testimony that he may not follow."
Dr. Jens testified that
Garfoot could not assist his attorney on points to challenge during the
trial. She stated that he might be able
to if he had weeks to go over it with his attorney step by step, but not in the
courtroom. The trial court noted that
Garfoot's attorney stated that his client "cannot process information as
fast as it comes in at a trial even if I slow down the proceedings...."
After the competency
hearing, the trial court found that Garfoot functions in the intellectually
deficient range, the lowest 2.2% of the population. He has an IQ of 64 and functions below the level of a third grader
except that he functions as a beginning fourth grader in mathematics. He is oriented to time, place and person. His thoughts appear to be organized and not
psychotic. He does not appear confused
even when questioning shows that he is.
He cannot interpret proverbs and is not capable of doing serial
sevens. He has little understanding of
the implications of what he has done and cannot comprehend any motivation for
his behavior. When the pace of judicial
proceedings increases, he cannot grasp information as it is presented. He understands the roles of the various
courtroom participants and he has great confidence in his attorney. During the competency proceedings, Garfoot
frequently put his head down on the table or fell asleep.
The trial court
concluded that given the testimony of both doctors, the State had failed to
meet its burden of proof to overcome Garfoot's assertion of incompetency. The court held that the State had met its burden
with respect to "the objective criteria," but had not met its burden
to prove that Garfoot was competent.
The court said:
I don't believe the testimony today
convinces me of that as to the second part, which is Mr. Garfoot's ability to
assimilate information and have a meaningful import or meaningful discussion
during the course of a trial with Mr. Connors [his attorney] has been met ....
[T]he facts of this case as they've been
presented by the professionals don't meet that burden, and what we have here is
a battle of professionals, and in a battle of professionals where I have one
doctor that says "X" and another doctor that says "Y," I'm
in no position to choose. That's what
the burden of proof is about, and at least in my mind on a factual basis, I
don't believe that the State has met the burden of proof by the greater weight
of the credible evidence that the defendant is competent.
At a later hearing the
trial court took testimony on whether Garfoot is likely to become competent
with appropriate treatment within the period specified in § 971.14(5)(a), Stats.,[1] and concluded he will not. After noting that the State could seek
Garfoot's involuntary commitment under ch. 51, Stats., a guardianship under ch. 880, Stats., or protective services and placement under ch. 55, Stats., the court dismissed the complaint. The State appeals.
2. STATUTORY STANDARD FOR COMPETENCY AND BURDEN
OF PROOF
Section 971.13(1), Stats., provides: "No person who lacks substantial mental
capacity to understand the proceedings or assist in his or her own defense may
be tried, convicted or sentenced for commission of an offense so long as the
incapacity exists."[2] Competency proceedings must be initiated
whenever reason exists to doubt a defendant's competency to proceed. Section 971.14(1)(a), Stats.
The law requires
competency to safeguard the integrity and legitimacy of the judicial process,
ensure the accuracy of verdicts, protect apparent fairness by ensuring defendants
themselves can make important decisions, avoid bizarre behavior in the
courtroom, and comply with an ethical imperative that the defendant understand
why he is being punished. Note, Incompetency to Stand Trial,
81 Harv. L. Rev., 454, 457-59
(1967).
To determine competency,
the court must appoint one or more examiners who must report to the court in
writing their clinical findings and their opinion regarding the defendant's
"present mental capacity to understand the proceedings and assist in his
or her defense." Sections
971.14(2) and (3), Stats. The matter then proceeds to hearing. If, as here, defendant claims to be
incompetent, the State must prove the defendant is competent "by the
greater weight of the credible evidence."
Section 971.14(4)(b).
Whether the State met
its burden of proof in a competency hearing is a question of law. State v. Leach, 122 Wis.2d
339, 346, 363 N.W.2d 234, 237 (Ct. App. 1984), overruled on other grounds,
124 Wis.2d 648, 370 N.W.2d 240 (1985).
Our review of the trial court's ruling is therefore de novo.
We nevertheless decline
to make the competency determination without giving the trial court the
opportunity to apply the proper standard to the facts. Competency determination is not a pure
question of law. It is intertwined with
the facts. When a trial court is
required to make an intertwined finding of fact and law, we give weight to the
trial court's decision, even though the decision is not controlling. See Wassenaar v. Panos,
111 Wis.2d 518, 525, 331 N.W.2d 357, 361 (1983) (reasonableness).[3]
3.
EXPERT TESTIMONY
Judges determine
competency to stand trial, not psychiatrists or psychologists. See State ex rel. Haskins v.
Dodge County Court, 62 Wis.2d 250, 264-66, 214 N.W.2d 575, 582-83
(1974) (a competency determination is a judicial decision not to be made by
rubber stamping the report of a psychiatrist).
See also § 971.13, Stats.,
Judicial Council Note, 1981 ("Competency is a judicial rather than a
medical determination.").
Competency to stand trial is therefore a legal rather than a medical
issue. For that reason, a trial court
may not rely so extensively upon medical testimony as to commit the competency
issue to a physician. State v.
Bennett, 345 So.2d 1129, 1137 (La. 1977).
The defendant should
understand the substance of the charge, the defenses available to him, and the
essentials of criminal trial proceedings.
State v. Leach, 122 Wis.2d 339, 345, 363 N.W.2d 234, 237
(Ct. App. 1984). The constitutional
scope of competency includes such conditions as are discussed in United
States v. Passman, 455 F.Supp. 794, 796-97 (1978). Leach, 122 Wis.2d at 344 n.1,
362 N.W.2d at 236. The Passman
court lists the following conditions as indicative of competency: the defendant's ability to remember, to
review and evaluate written evidence, to appreciate, with the help of counsel,
the strength of the government's case and the wisdom of standing trial, to
testify in an intelligent, coherent and relevant manner, to follow and
recognize discrepancies in the testimony of witnesses, to discuss testimony
with his attorneys, and to postulate questions, through counsel, to the
witnesses.
When ruling that the
State had not met its burden of proof, the trial court in effect adopted Dr.
Jens's standard of competency. Her
standard is too high for judicial purposes.
Dr. Jens testified that to be competent, defendants must
have
an understanding in a basic way of ... certain concrete ideas about the legal
system which many people can be taught, and in addition to that, they have to
be able to use that information in, as they think about the problems that they
are involved in in terms of the law. They have to be able to use that concrete information and then
act in their own best interest and cooperate with their attorney. (Emphasis added.)
She
concluded that Garfoot's ability to help his attorney and "behave in a
way that's in his own best interest is substantially
impaired...." (Emphasis
added.) Jens contrasted her views on
Garfoot's competency with those held by Dr. Spierer as follows:
I
think that Dr. Spierer and I have the same opinion about the degree of
intellectual functioning. Dr. Spierer
did the IQ testing, and Dean Garfoot tested as mild mental retardation. I think that where we differ is the effect
that that developmental delay has on his functioning.... I place importance on the ability ... to
understand the gray, and then to be able to act in your own best interest. And my understanding in listening to Dr.
Spierer is that he places importance on the abilities of the client to
understand the facts and to behave in a way which indicates that he has a
rational understanding. (Emphasis
added.)
She
testified that Garfoot could decide whether to testify at trial, but he would
not understand the implications and ramifications of making such a decision.
In her written
competency evaluation, Dr. Jens concludes that Garfoot is incompetent. "[T]he level of intellect and
sophistication required to be effective in a courtroom is far beyond his grasp
intellectually."
For purposes of
determining competency to stand trial, the competency threshold is neither
demanding nor exacting. State v. Shields,
593 A.2d 986, 1012 (Sup. Ct. Del. 1990).
"Requiring that a criminal defendant be competent has a modest
aim: It seeks to ensure that he has the
capacity to understand the proceedings and to assist counsel." Godinez, 509 U.S. at ___, 113
S.Ct. at 2688 (1993). The standard is
not that of the reasonable person.
Incompetency
must be a relative judgment which takes into account the average level of
ability of criminal defendants. Many
defendants lack the intelligence or the legal sophistication to participate
actively in the conduct of their defense.
But enlarging the class of persons considered incompetent to stand trial
to include all such defendants would fundamentally alter the administration of
the criminal law. The standard of
rational understanding emphasized in Dusky must be taken to mean
no more than that the defendant be able to confer coherently with counsel and
have some appreciation of the significance of the proceeding and his
involvement in it. Many defendants who
have some intellectual or physical handicap or emotional disturbance preventing
them from functioning at their normal level of effectiveness can still meet
such a standard. The question is one of
degree; the purpose of the law is not to attempt to compensate all the inevitable
disparities in innate abilities among defendants, but to identify those
instances where the purposes of incompetency law are most directly relevant.
Note,
Incompetency to Stand Trial, 81
Harv. L. Rev. 454, 459 (1967).
We conclude that the
level of rational understanding required of Garfoot is whether he can confer
with counsel and have some appreciation of the significance of the proceeding
and his involvement in it. His rational
understanding need not reach the higher level of "effectiveness in the
courtroom" or the ability to act "in his best interest."
4. TYPE
OF TRIAL
"Competency is a
contextualized concept; the meaning of competency in the context of legal
proceedings changes according to the purpose for which the competency
determination is made." State
v. Debra A.E., 188 Wis.2d 111, 124-25, 523 N.W.2d 727, 732 (1994). Numerous authorities have agreed with that
proposition.
The
decision as to a defendant's competency to stand trial should not turn solely
upon whether he suffers from a mental disease or defect, but must be made with
specific reference to the nature of the charge, the complexity of the case and
the gravity of the decisions with which he is faced.
State
v. Bennett, 345 So.2d at 1138, citing Note, 6 Loyola Univ. L.J. at 684; Note, 4 Columb. Hum. Rights L.Rev. at
245. See also United
States v. Passman, 455 F.Supp. 794, 796-97 (1978) (factors used to
weigh defendant's competence "merit different rankings of importance,
depending on the factual and legal complexity of the particular case, the
projected length of the trial and the number of witnesses to be called").
"[P]sychiatrists
have little familiarity with either trial procedure or the complexities of a
particular indictment." State
v. Bennett, 345 So.2d at 1138, quoting Note, Incompetency to
Stand Trial, 81 Harv. L. Rev. 454,
470 (1967). The record again
reveals the dangers of over-reliance on expert testimony. Dr. Jens testified as follows:
But
the part that I think for me was the thing that made me decide he was not
competent is the fact that I don't think that he is ever going to be able to be
part of a proceeding that is sophisticated, that goes quickly, that he really
was to understand and be able to respond to so that he can defend himself.
The factual issues
appear straightforward. Police reports
indicate that Garfoot described to them the details of the incident. Few witnesses will likely be called. This is not likely to be a sophisticated
proceeding. The trial court should
consider Garfoot's abilities with reference to the trial likely to take place.
5. MODIFICATIONS TO TRIAL PROCEEDING
The expert witnesses
agreed that the type and pace of questions and testimony could affect Garfoot's
ability to testify and comprehend the trial.
The trial court did not fully consider its power to modify the
proceedings to compensate for Garfoot's disability.
On remand, the court
should determine guidelines for counsel when examining and cross-examining
Garfoot, should he take the stand. Just
as courts have the "power, within constitutional limits, to alter
courtroom procedures to protect the emotional well-being of the child
witness," State v. Gilbert, 109 Wis.2d 501, 517, 326 N.W.2d
744, 752 (1982), so courts may alter those procedures to protect the rights of
mentally retarded persons.
The court, for instance,
may fashion rules to protect the defendant "from unduly vigorous
cross-examination." See State
v. Gollon, 115 Wis.2d 592, 601-02, 340 N.W.2d 912, 916 (Ct. App.
1983). The court may direct that the
proceedings be slowed and that simple language be used. See Sims v. State of South
Carolina, 438 S.E.2d 253, 256 (S.C. 1993), United States v.
Glover, 596 F.2d 857, 867 (1979) (that defendant might not understand
the proceedings around him unless they are explained to him in simple language
would burden counsel, but does not establish that defendant is incompetent to
stand trial).
6. MODIFICATION OF COMPETENCY FINDING
At this stage the burden
is on the State to prove Garfoot's competency to stand trial by "the
greater weight of the credible evidence."
Section 971.14(4)(b), Stats. If the trial court concludes at this stage
that the State has met this least onerous of all burdens, it can later change
its decision during the course of the trial.
Just as the trial court
should consider the type and complexity of the future trial, if on remand the
court finds that Garfoot is competent, the trial itself at any stage may cause
the court to change its conclusion and to dismiss the action on grounds that he
is incompetent to stand trial.
Thus, the court should
take into account that a finding that Garfoot possesses capacity to understand
the proceedings and to assist in his own defense, as required by
§ 971.13(1), Stats., is not
only a statement of his present condition but a prediction. If the prediction, based upon a finding of
competency, is proved wrong during the trial, the court may declare the
defendant incompetent to stand trial and dismiss the proceedings.
7. CONCLUSION
We conclude that the
trial court did not apply the appropriate standard to the testimony by the
expert witnesses concerning Garfoot's competency, did not consider Garfoot's
abilities with reference to the trial likely to take place, and did not
consider fully its power to modify the proceedings. We reverse and remand for further proceedings.
By the Court.—Order
reversed and remanded with directions.
Recommended for
publication in the official reports.
No. 94-1817-CR(D)
SUNDBY, J. (dissenting). In
these criminal proceedings against defendant Dean Garfoot, reason to doubt his
competence to proceed arose. The trial
court therefore proceeded under § 971.14, Stats., to determine his competence and, if incompetent, the
likelihood that he would become competent to proceed within the time prescribed
in § 971.14(5)(a). Pursuant to that procedure, the trial court
appointed Dr. Patricia Jens, a psychiatrist, to examine Garfoot and report her
conclusions to the court. Upon the
State's motion, the trial court also ordered that Garfoot be examined by Dr.
Michael J. Spierer, a psychologist.
A competency hearing was
held February 4, 1994, at which Dr. Jens and Dr. Spierer testified. The trial court concluded that the State did
not prove by the greater weight of the credible evidence that Garfoot was
competent to proceed. Section
971.14(4)(b), Stats., provides in
part: "If the defendant ... claims
to be incompetent, the defendant shall be found incompetent unless the state
proves by the greater weight of the credible evidence that the defendant is
competent." The trial court then
held a second hearing at which the issue was whether Garfoot was likely to
become competent within the period specified in § 971.14(5)(a) if provided
with appropriate treatment.[4] The trial court determined that it was unlikely
that Garfoot would become competent within the commitment period and suspended
the proceedings and released Garfoot.
Section 971.14(4)(d) provides:
"If the court determines that the defendant is not competent and
not likely to become competent within the time period provided in sub. (5)(a),
the proceedings shall be suspended and the defendant released, except as
provided in sub. (6)(b)."
Subsection (6)(b) does not apply.
At the
likelihood-of-competency hearing, Dr. Spierer, Dr. Gary Maier, a forensic
psychiatrist employed at Mendota Mental Health Institute, and Gail Ann Brown, a
sex offender treatment specialist, testified on the question of whether it was
likely that Garfoot could, with appropriate treatment, gain competency to
proceed. Garfoot offered no
evidence. The trial court found that
the State had not met its burden to prove that Garfoot could gain competency to
proceed, even with appropriate treatment.
The trial court stated, "and that's a finding of fact."
The trial court assumed
that the State had the same burden of proof--the greater weight of the credible
evidence--that it was likely that Garfoot would gain competence as it had with
respect to the determination of competency.
That seems to be a sensible construction of the competency proceedings
prescribed in § 971.14, Stats.
GARFOOT'S COMPETENCE TO PROCEED
The State does not
question the factual conclusions of Dr. Patricia Jens, the court-appointed
psychiatrist. However, it argues that
the trial court applied the wrong legal standard. The majority concludes that the trial court committed the
determination of Garfoot's competency to Dr. Jens. Maj. Op. at 9-10. I
disagree.
The State argues that
the standard for competency in Wisconsin "is minimal and not
optimal." That standard is derived
from Dusky v. United States, 362 U.S. 402 (1960), and is stated
in State v. Leach, 122 Wis.2d 339, 344, 363 N.W.2d 234, 236-37
(Ct. App. 1984), overruled on other grounds, 124 Wis.2d 648, 370 N.W.2d
240 (1985), as follows: "[T]he
test for competency is whether the accused `has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding--and
whether he has a rational as well as factual understanding of the proceedings
against him.'" (Quoting Dusky,
362 U.S. at 402). The Leach
court said: "At the very least,
the accused ought to understand the essence of the charge against him, the
defenses available, and the essentials of the criminal proceeding." 122 Wis.2d at 345, 363 N.W.2d at 237. Garfoot and the majority agree that Dusky/Leach
state the test for competency to proceed.
The trial court concluded, however, that since Leach,
Wisconsin
courts have provided little more guidance on how to evaluate whether a person
has the requisite capacity to assist in and understand legal proceedings
against him. Other state courts and
federal courts that have struggled with the issue of competency may help inform
our court.
The trial court relied
extensively on United States v. Passman, 455 F. Supp. 794, 796
(D.D.C. 1978). The majority adopts the Passman
factors to determine competence. Maj.
Op. at 10.
It is, however, very
important to keep in mind that the trial court did not determine whether
Garfoot was competent to proceed; the trial court concluded that the State had
failed to prove by the greater weight of the credible evidence that Garfoot was
competent; there is a difference.
Section 971.14(4)(b), Stats.,
provides in part: "If the
defendant ... claims to be incompetent, the defendant shall be found
incompetent unless the state proves by the greater weight of the credible
evidence that the defendant is competent." (Emphasis added.) The
majority faults the trial court for not "fully consider[ing] its power to
modify the proceedings to compensate for Garfoot's disability." Maj. Op. at 14. The majority instructs the trial court on remand to alter the
courtroom procedures to protect the rights of mentally retarded persons. Id. at 15. There is nothing in § 971.14 which
requires (or permits) the trial court to alter trial procedures to accommodate
defendant's lack of competence to proceed.
Section 971.14(4)(d) provides:
"If the court determines that the defendant is not competent and
not likely to become competent within the time period provided in sub. (5)(a),
the proceedings shall be suspended and the defendant released, except as
provided in sub. (6)(b)." Section
971.14(6)(a) provides:
If the court determines that it is unlikely
that the defendant will become competent within the remaining commitment
period, it shall discharge the defendant from the commitment and release him or
her, except as provided in par. (b).
The court may order the defendant to appear in court at specified
intervals for redetermination of his or her competency to proceed.
Paragraph (b) permits
the trial court to order the defendant to be taken into custody by a law
enforcement official and detained for treatment.
On the question of
Garfoot's competence, the trial court applied the Passman test
that whether, "in the light of the personal, intellectual or emotional
deficiencies of the accused, he can perform the functions essential to the
fairness and accuracy of the particular proceedings in which he is presently
involved." 455 F. Supp. at 796
(quoting Wilson v. United States, 391 F.2d 460, 463 (D.C. Cir.
1968)). The trial court reviewed the
testimony of the expert witnesses, who concluded that Garfoot's overall
functioning is in the intellectually deficient range, the lowest 2.2% of the population. The court concluded that Garfoot has little
understanding of the implications of what he has done and cannot assign any
motivation for his behavior; he needs careful instruction as to what is going
on in a criminal trial. The State's
witness administered to Garfoot a Competency To Stand Trial Screening
Test. The test related to courtroom
procedures. A score below twenty
suggests incompetency; Garfoot scored eighteen. The State's witness also administered a Competency To Stand Trial
Assessment Test. This test evaluates a
defendant's overall understanding of the charges against him, the potential
penalties, courtroom practices, roles of the participants, and ability to
relate in a meaningful way to defense counsel.
The State's witness concluded that Garfoot showed a rudimentary level of
understanding of the judicial process and a marginal ability to participate in
a trial.
The court-appointed
witness, Dr. Jens, employed more verbal tests.
She testified that Garfoot has difficulty understanding the meaning of
pleas, particularly a not guilty plea based upon mental disease or defect. While he understands the role of the
parties, he has difficulty with the sequence of courtroom events. His retention ability is suspect and in
order to process information, he requires numerous repetitions. Dr. Jens concluded that Garfoot was not
competent to proceed because he would not be able to understand what was going
on in the courtroom and would not be able to relate in a meaningful way with
his attorney.
It is not necessary to
recite the further testimony of the witnesses; it is sufficient to conclude, as
I do, that the trial court clearly understood the State's burden and concluded
that the State had failed to meet its burden, based on the testimony not only
of Dr. Jens but of the State's psychological witness.
LIKELIHOOD OF GAINING COMPETENCE
A determination of
incompetence does not end the trial court's inquiry. The majority emphasizes the alteration of the trial proceedings
to accommodate Garfoot's deficiencies.
However, I find nothing in § 971.14, Stats.,
which requires (or permits) a trial court to make such modifications of the
trial procedure. If the trial court
finds the defendant is not competent to proceed and is not likely to become
competent within the time specified in § 971.14(5)(a), it must release the
defendant.
DISPOSITION OF CHARGES
The State argues that
the trial court's Order For Dismissal entered May 31, 1994, precludes the State
from ever again raising the issue of Garfoot's competence to proceed in this
matter. The order reads in part: "NOW, THEREFORE, it is hereby ordered
that this matter be suspended and the defendant be released pending
any further legal action by the State." (Emphasis added.)
Assertions such as the State makes with respect to this order can lead
this court into error. We have not had
twenty years of experience in this field, as has the trial court. Therefore, before we conclude that the trial
court erred when it entered its Order For Dismissal, we should carefully
examine the trial court's oral explanation of the effect of its order. At the hearing on the question of the
likelihood of Garfoot becoming competent to proceed, the trial court stated:
If there were another doctor who had come in
here today and said, "I've interviewed Mr. Garfoot, and it is my opinion
that if he receives additional education, he will be able to assist [his
lawyer]," then I've got something more than I had before, but all I have
here is Dr. Spierer ... saying, "I think Mr. Garfoot is competent,"
and today he comes in and says, "I think he's really competent."
The trial court plainly
was aware that in possible future proceedings evidence could be introduced
which would prove Garfoot was competent to defend himself against criminal
charges.
BATTLE OF PROFESSIONALS
There is another area in
which I believe the State has unfairly characterized the trial court's
decision. At the dispositional hearing,
the trial court stated: "What we have
here is a battle of professionals, and in a battle of professionals where I
have one doctor that says `X' and another doctor that says `Y,' I'm in no
position to choose. That's what the
burden of proof is about ...."
The State says that the trial court thus "revealed that it abused
its discretion by essentially failing to exercise its discretion." The statement of the trial court as
presented in the State's brief is incomplete.
The trial court's complete statement was:
At least in my mind, based on over twenty years
of working in the mental health area, the facts of this case as they've been
presented by the professionals don't meet [the State's] burden, and what we
have here is a battle of professionals, and in a battle of professionals where
I have one doctor that says "X" and another doctor that says
"Y," I'm in no position to choose.
That's what the burden of proof is about, and at least in my mind on a
factual basis, I don't believe that the State has met the burden of proof by
the greater weight of the credible evidence that the defendant is competent as
it relates to both prongs.
Plainly, the trial court
was saying: "I do not have to
decide that Garfoot is competent to proceed; the State has to prove to me by
the greater weight of the credible evidence that Garfoot is competent to proceed;
it has failed to meet its burden."
Because I agree with the
trial court, I respectfully dissent.
[1] Section
971.14(5)(a), Stats., provides in
relevant part as follows:
If the court determines that the defendant is not competent but is likely to become competent within the period specified in this paragraph if provided with appropriate treatment, the court shall suspend the proceedings and commit the defendant to the custody of the department of health and social services for placement in an appropriate institution for a period of time not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less.
[2] The competency standard in § 971.13, Stats., conforms with Dusky v. United States, 362 U.S. 402 (1960) (per curiam) (test for competency to stand trial is whether defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "whether he has a rational as well as factual understanding of the proceedings against him"). Section 971.13, Judicial Council Committee's Note, 1981. In Godinez v. Moran, ___ U.S. ___, ___, 113 S.Ct. 2680, 2685 (1993), the Court cited Dusky as in accord with the competency definition used in Drope v. Missouri, 420 U.S. 161, 171 (1975) ("[A] person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist him in preparing his defense may not be subjected to trial.").
[3] It may be that the special nature of a competency finding is the reason why only two published cases appear to exist in which an appellate court has reversed a trial court's determination that a defendant is incompetent to stand trial. State v. Hebert, 174 So. 369 (La. 1937); State v. Guatney, 299 N.W.2d 538 (Neb. 1980). In our view, the scope of review of a trial court's intertwined findings of fact and law is such that we should treat the trial court's finding, one way or the other, with a greater regard, if the trial court applied the appropriate legal standard.
[4] Section
971.14(5)(a), Stats., provides in
part:
If the court determines that the defendant is not competent but is likely to become competent within the period specified in this paragraph if provided with appropriate treatment, the court shall suspend the proceedings and commit the defendant to the custody of the department of health and social services for placement in an appropriate institution for a period of time not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less....