May 20, 2019

Colorado Supreme Court: Trial Court Erred by Concluding Ex Parte Review of Defense’s Competency Motion Prohibited

The Colorado Supreme Court issued its opinion in In re People v. Roina on Monday, March 25, 2019.

Competency Proceedings.

The supreme court addressed whether a trial court erred in requiring the defense to provide a copy of its sealed motion raising competency to the prosecution before conducting an initial competency evaluation of defendant. Because C.R.S. § 16-8.5-102(2)(b) requires trial courts to consider defense motions raising competency without disclosing that motion to the prosecution, the court determined that the trial court erred in concluding that Rule 2.9(A) of the Colorado Code of Judicial Conduct prohibits the trial court from conducting an ex parte review of the defense’s motion. Accordingly, the court made its rule to show cause absolute.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Then-Applicable Competency Statute for Juveniles Not Unconstitutional Facially or As Applied

The Colorado Court of Appeals issued its opinion in People in Interest of A.C.E.-D. on Thursday, November 15, 2018.

Juvenile Delinquency—Competency—Evidence.

Following a complaint of shoplifting, police officers contacted A.C.E-D. He confessed, led them to the merchandise, and was charged with misdemeanor theft. In a separate case, A.C.E-D. was charged with misdemeanor harassment based on Facebook messages sent to his ex-girlfriend. In both cases, A.C.E-D. pleaded guilty. Before sentencing, he moved to determine competency and later moved to withdraw his guilty pleas. The court ordered a competency evaluation, found A.C.E-D. competent, allowed A.C.E-D. to withdraw his guilty pleas, and conducted a bench trial. The court found A.C.E-D. guilty of the charges and adjudicated him a juvenile delinquent.

On appeal, A.C.E-D. argued that the previous iteration of the competency statute for juveniles, C.R.S. § 19-2-1301(2), was facially unconstitutional or unconstitutional as applied because it incorporated the definition of “incompetent to proceed” for adults in criminal proceedings set out in C.R.S. § 16-8.5-101(11), which did not allow the court to consider A.C.E-D.’s age and maturity. A juvenile adjudication need only be fundamentally fair, and using the same competency test for both juveniles and adults is fundamentally fair. Because A.C.E-D. failed to show that under no set of circumstances would the statute be constitutional, the trial court’s finding that the statute was not facially invalid was proper.

A.C.E-D. also argued that that statute was unconstitutional as applied to him because the trial court’s application precluded him from being declared incompetent since he didn’t prove he had a mental or developmental disability. Sufficient evidence in the record supports the trial court’s finding of competency under Dusky v. United States, 362 U.S. 402, 402 (1960), and thus A.C.E-D. did not prove beyond a reasonable doubt that the trial court unconstitutionally applied the statute to him.

A.C.E-D. also argued that the trial court erred in admitting Facebook messages because the prosecution did not provide sufficient evidence to show that he wrote and sent the Facebook messages. The prosecution met the heightened standard for Facebook messages, and A.C.E-D’s contrary evidence goes to the weight of the messages. The trial court did not abuse its discretion in admitting the messages.

The adjudications were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Competency Records of Other Defendant in Related Case were Protected by Privilege

The Colorado Supreme Court issued its opinion in Zapata v. People on Monday, October 15, 2018.

Physician-Patient Privilege—Psychologist-Client Privilege—Competency Evaluations—Res Gestae.

In this case, the trial court declined to give defendant access to, or to review in camera, competency reports regarding another defendant in a factually related but separate case. Over objection, the trial court also admitted uncharged misconduct evidence as res gestae.

The supreme court held that competency reports are protected by the physician-patient or psychologist-client privilege and that the examinee did not waive the privilege as to defendant when he put his competency in dispute in his own case. The court also held that defendant’s confrontation right was not implicated and that defendant did not make a sufficient showing that the competency reports contained exculpatory evidence to justify their release to him or review by the trial court pursuant to due process or Crim. P. 16.

The court further held that any error in admitting the uncharged misconduct evidence as res gestae was harmless given the strong evidence of defendant’s guilt.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Must Determine Whether Retrospective Competency Evaluation Feasible

The Colorado Court of Appeals issued its opinion in People v. Lindsey on Thursday, July 12, 2018.

Competency—Jury Instructions—Unanimity Instruction.

Lindsey persuaded six individuals to invest $3 million in new technology that would allegedly use algae-based bioluminescent energy to light signs and panels. Lindsey told his investors that he had contracts to sell his new technology. Neither the technology nor the contracts ever existed, and Lindsey allegedly spent the money on repaying other investors and on personal expenses. A jury convicted Lindsey of eight counts of securities fraud and four counts of theft.

On appeal, Lindsey contended that the trial court erred in refusing to order a competency evaluation where the issue was raised by his counsel’s motion before trial. Here, the trial court failed to comply with the statutory procedure. The motion was facially valid, and the trial court abused its discretion in concluding that a facially valid motion on competency did not fall under the competency statute.

Lindsey next argued that the trial court erred by (1) instructing the jury that “any note” constitutes a security, and (2) giving an improper unanimity instruction. As to the first argument, Lindsey’s trial was conducted before People v. Mendenhall, 2015 COA 107M. In the event of retrial, the trial court and parties should apply Mendenhall’s four-factor test in crafting new jury instructions. As to the second contention, regarding Count 6, which included three separate transactions, the unanimity instruction should be modified to specify that the jury must agree unanimously that defendant committed the same act or that defendant committed all of the acts included within the period charged.

The judgment was vacated and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Indefinite Stay of Appeal Denied where Defendant Found Legally Incompetent After Notice of Appeal Filed

The Colorado Court of Appeals issued its opinion in People v. Liggett on Thursday, June 12, 2018.

Competency to Proceed—Stay of Appellate Proceedings—Jurisdiction—Restoration Proceedings—Right to Counsel—Waiver.

This is a direct appeal of two cases, first degree murder after deliberation and revocation of probation (based on the murder conviction). Based on Liggett’s incompetence, his counsel requested an indefinite stay of the appellate proceedings, a stay of the ruling on Liggett’s request to terminate counsel’s representation and to dismiss the appeal, and a remand of the cases to the district court for competency restoration proceedings.

On appeal, Liggett’s counsel contended that the direct appeal should be stayed indefinitely because proceeding while Liggett is incompetent will violate his Sixth Amendment right to counsel and his Fifth and Fourteenth Amendment rights to due process of law. An incompetent defendant’s direct appeal should proceed, despite incompetence, if the defendant is provided a postconviction remedy to raise issues not raised in the direct appeal due to his incompetence. The court of appeals held that Liggett must be permitted to raise in a postconviction motion any matter not raised in the direct appeal due to his incompetence.

The People contended that the direct appeal divested the district court of jurisdiction and that the appeal and restoration proceedings cannot occur simultaneously. They also argued that the district court has no authority to order the Department of Corrections (DOC), in whose custody Liggett resides, to restore him to competency. The People agreed that Liggett is incompetent and that an incompetent defendant cannot waive the right to counsel on direct appeal. Thus, Liggett’s incompetence precludes the court from ruling on his pending requests to terminate counsel and dismiss the appeal, and a limited remand to restore Liggett’s competence is necessary.

A stay of the ruling on Liggett’s requests to terminate counsel and dismiss the appeal was granted. The request for indefinite stay of the appellate proceedings was denied. The request for limited remand to restore Liggett to competence was granted and the case was remanded to the district court for that limited purpose.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Competency Evaluation Properly Excluded from Speedy Trial Calculation

The Colorado Supreme Court issued its opinion in Nagi v. People on Tuesday, February 21, 2017.

Criminal Trials—Continuances—Speedy Trial.

Defendant sought review of the Colorado Court of Appeals’ judgment affirming his conviction and sentence for sexual assault on a child by one in a position of trust. See People v. Nagi, 2014 COA 12. In addition to rejecting his challenge to the legality of his sentence, the court of appeals rejected defendant’s assertion that he was denied his statutory right to a speedy trial, as prescribed by C.R.S. § 18-1-405. Defendant had argued that the district court lacked sufficient grounds to justify ordering a competency evaluation, and that the period during which defendant was under observation or examination was therefore not properly excluded from the calculation of the time within which trial was statutorily required. With one member of the panel dissenting, the appellate court found that the district court did not abuse its discretion in ordering the evaluation, notwithstanding its reference to defendant’s choice to proceed pro se as at least one of the reasons for questioning his competency, and that the evaluation period was therefore properly excluded and defendant’s statutory speedy trial right was not violated.

Summary provided courtesy of The Colorado Lawyer.

SB 17-012: Specifying Procedures for Restoring Competency in Juvenile and Criminal Justice Systems

On January 11, 2017, Sen. Beth Humenik and Rep. Pete Lee introduced SB 17-012, “Concerning Competency Restoration Services for Defendants Deemed Incompetent to Proceed.”

Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems.

The bill addresses various issues relating to the restoration of competency for juveniles and adults in the juvenile and criminal justice systems, including:

  • Requiring the court to consider whether restoration to competency services should occur on an outpatient basis if the defendant is on bond or summons;
  • Requiring that, in addition to providing competency restoration services in the least restrictive environment, the provision of such services and a juvenile’s participation in those services occur and are reviewed by the court in a timely manner;
  • Establishing the unit within the department of human services that administers behavioral health programs and services, including those relating to mental health and substance abuse, also known as the office of behavioral health (office), as the entity responsible for the oversight of restoration education and the coordination services necessary to competency restoration; and
  • Setting forth the duties of the office related to competency restoration services and education.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 6 at 1:30 p.m.

Tenth Circuit: District Court Did Not Abuse Discretion by Denying Competency Based Stay of Habeas Proceedings

The Tenth Circuit Court of Appeals issued its opinion in Ryder v. Warrior on Monday, January 11, 2016.

In 1999, James Ryder killed Daisy Hallum and her adult son Sam in a dispute over personal property. Mr. Ryder had been storing supplies at the Hallum residence for his upcoming move to the Yukon Territory, where he was planning to flee and live in the wild in order to avoid an impending apocalypse, but when he went to collect them the Hallums refused to give him his supplies so he murdered them. The State of Oklahoma charged him with two counts of first degree murder. Before trial, psychologist Dean P. Montgomery issued a report to Mr. Ryder’s trial counsel expressing his belief that Mr. Ryder suffered from a longstanding schizoid personality disorder and was incompetent to stand in his own defense. Mr. Ryder’s trial counsel did not inform the court of Dr. Montgomery’s conclusions, however, because based on his own interactions with Mr. Ryder counsel did not have a “good faith doubt” as to Mr. Ryder’s competency to stand trial.

Mr. Ryder was convicted on both counts. Before the penalty phase of the trial, Mr. Ryder’s counsel filed an application for determination of competency supported by Dr. Montgomery’s report. The trial court held a hearing outside the presence of the jury, and denied the request for a separate competency hearing, instead questioning Mr. Ryder. Mr. Ryder assured the court that he understood that he had been convicted of two counts of first degree murder and the state was pursuing the death penalty. He testified that he understood the purpose of mitigation evidence and did not want to present any, and informed the court that he had never been treated for mental illness. During this hearing, the court questioned Mr. Ryder’s counsel about the mitigation witnesses he wished to call. Mr. Ryder became upset and exclaimed that he did not want anyone to testify and did not want a second stage. He left the courtroom. After Mr. Ryder returned, the court ruled he was competent to stand trial and to waive his right to present mitigation evidence. Mr. Ryder’s counsel requested leave to present mitigation evidence anyway, arguing that Mr. Ryder had a Sixth Amendment right to effective representation. The court granted counsel’s request. Mr. Ryder was eventually given a sentence of life without parole for Sam’s death and the death penalty for Daisy’s.

On direct appeal to the OCCA, Mr. Ryder was represented by different counsel. Appellate counsel argued that the trial court erred in failing to make a proper competency determination prior to the sentencing phase and the trial counsel was ineffective for failing to apprise the court of Mr. Ryder’s competency issues before trial. The OCCA remanded to the trial court to determine whether a retrospective competency evaluation was feasible and, if so, to conduct the evaluation. The trial court determined it was feasible and held a retrospective competency evaluation. During voir dire, defense counsel told the jury that Mr. Ryder was on death row, and prospective juror asked the prosecutor about it. The court instructed the jurors that their only task was to determine whether Mr. Ryder was competent. During trial, defense counsel called one witness—Dr. Montgomery. Dr. Montgomery testified that he believed Mr. Ryder suffered from a serious delusional disorder under the schizophrenic group of disorders. The State called three witnesses, who all testified as to their interactions with Mr. Ryder and their perceptions of those interactions. The jury found Mr. Ryder had been competent at the time of his first trial. Mr. Ryder appealed to the OCCA, which affirmed. He then filed a motion for postconviction relief with the OCCA, which was denied, and petitioned the U.S. Supreme Court for certiorari, which was also denied.

Mr. Ryder then filed a habeas petition in the U.S. District Court for the Eastern District of Oklahoma. He raised eleven grounds for relief and asked that the petition be held in abeyance based on his incompetency. The district court ordered an evidentiary hearing and referred the matter to a magistrate judge for a determination of competency. After a court-ordered competency evaluation and its follow up, the state and defense counsel entered into a stipulation that each of their experts would testify that Mr. Ryder was not competent. The magistrate judge entered an order that Mr. Ryder was not competent, and the district court thereafter ordered an evidentiary hearing to determine whether Mr. Ryder was competent when the statute of limitations ran on his habeas proceedings. After a hearing, the court concluded that Mr. Ryder had failed to show he was incompetent when the statute of limitations ran. The district court subsequently entered an order denying habeas relief. The Tenth Circuit later granted a COA on three grounds, which are the subject of this appeal.

The Tenth Circuit first addressed the district court’s denial of a competency-based stay to the habeas proceedings. The Tenth Circuit noted that the Supreme Court recently determined that there is no right to competency during habeas proceedings, but district courts retain discretion to issue stays where proper. The Tenth Circuit noted that the merits of Mr. Ryder’s claims were adjudicated in the OCCA, and therefore were subject to the limits imposed in § 2254. The Tenth Circuit concluded the district court did not abuse its discretion in denying a competency based stay.

The Tenth Circuit next addressed the merits of Mr. Ryder’s habeas claims, noting that its review was constricted by AEDPA. In reviewing his ineffective assistance of counsel claim during the retrospective competency evaluation, the Tenth Circuit found that Mr. Ryder could not prove deficient performance, because his counsel’s strategic decisions were reasonable and well within the broad spectrum of competent representation. The Tenth Circuit thoroughly evaluated each of Mr. Ryder’s claims and denied relief as to each one. The Tenth Circuit similarly rejected Mr. Ryder’s ineffective assistance of trial counsel claims, thoroughly examining each one and denying relief.

The Tenth Circuit remarked that the tragic reality in this case is that Mr. Ryder’s untreated mental illness likely influenced his decision to withhold mitigating evidence from the jury, and the condition responsible for Mr. Ryder’s unwillingness to present mitigating evidence may have been the very evidence that could have persuaded the jury to have leniency. However, the Tenth Circuit could only presume that Mr. Ryder’s mental condition had not yet deteriorated to the point of incompetency by the time he made the decision to withhold mitigating evidence from the jury.

The Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Defendant Has No Right to Access Witness’s Competency Evaluation

The Colorado Court of Appeals issued its opinion in People v. Zapata on Thursday, May 19, 2016.

Defendant’s ex-girlfriend claimed the owner of the convenience store at which she worked had sexually harassed her, including grabbing her crotch, buttocks, and breasts. Defendant and his friend of six months, Murillo, went to the convenience store late one night, and Murillo quickly walked behind the counter and stabbed the owner’s son with a knife. A high-quality surveillance video showed the ensuing struggle, with Defendant watching from the other side of the counter. When the owner’s son began hitting Murillo on the head with a hammer, he pleaded with Defendant for help, and Defendant turned and ran.

Defendant was charged with conspiracy to commit first degree murder, attempted first degree murder, and first degree assault. Murillo, who suffered permanent brain damage as a result of the incident, was charged separately. He pleaded guilty in his case and testified at Defendant’s trial, remarking that he was testifying against Defendant because Defendant had left him at the store to die. The jury found Defendant guilty of attempted second degree murder and first degree assault.

He appealed, contending the district court erred by not requiring the prosecution to disclose statements Murillo made during competency evaluations in his separate trial and by admitting res gestae evidence of defendant’s controlling and threatening behavior with his ex-girlfriend. The court of appeals found no error. As to the competency evaluations, the district court ruled that Defendant was not entitled to them as a matter of law, and the court of appeals agreed. The court noted that Murillo had a valid privilege that he did not waive. The court further found that Defendant’s Confrontation Clause rights did not trump Murillo’s privilege.

The court of appeals also found that if there was error in admitting the res gestae evidence regarding Defendant’s controlling behavior, it was harmless. The court noted that even without the res gestae evidence, the prosecution’s evidence in the case was strong and the defense theory was weak, therefore even if the evidence was erroneously admitted, any error was harmless.

The judgment of conviction was affirmed.

Colorado Court of Appeals: Retrospective Competency Evaluation Showed Defendant’s Plea Knowing, Intelligent, and Voluntary

The Colorado Court of Appeals issued its opinion in People v. Pendleton on Thursday, October 22, 2015.

Retrospective Competency Determination—Ineffective Assistance of Counsel.

Defendant gave birth in a public restroom and discarded her newborn son in the trash, where he was later found dead. In exchange for accepting a plea to the child abuse charge, the prosecution dismissed the murder charge and agreed to a sentencing range of between 16 and 40 years in prison. The trial court accepted the agreement and sentenced defendant to 40 years in prison. Almost three years later, defendant filed a motion for post-conviction relief under Crim.P.35(c), seeking to withdraw her plea. The motion was denied.

On appeal, defendant claimed that the post-conviction court erred when it retrospectively determined that she was competent at the time she entered her guilty plea. The Court of Appeals disagreed, finding that (1) the nature of defendant’s post-conviction claims made it necessary for the post-conviction court to evaluate defendant’s competency at the time of her plea; (2) the court had enough information to make a retrospective competency determination; and (3) the record supported the finding that defendant was competent. The Court also rejected defendant’s argument that her guilty plea was not knowing, voluntary, and intelligent, because this claim hinged on defendant’s contention that she was not competent when she entered her plea.

Defendant also argued that the post-conviction court erred when it denied her motion for post-conviction relief on the ground that her plea counsel was ineffective. Defendant’s claim failed because she did not show both deficient performance and prejudice. Counsel’s advice to defendant to abandon her insanity defense in favor of the plea offer, as well as decisions counsel made regarding investigation of the case and defenses, did not fall outside the wide range of reasonable professional assistance. Further, counsel argued effectively on defendant’s behalf at the sentencing hearing. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Clean Slate Rule Renders Moot Ineffective Assistance Claim Regarding First Trial

The Colorado Court of Appeals issued its opinion in People v. Chipman on Thursday, October 8, 2015.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Mootness—Expert—Statements—Impeach—Competency.

Defendant lived with his wife and the victim in this case. After defendant’s wife filed for divorce and had defendant removed from the home, defendant returned to the home two times with a gun, shooting the victim the second time. A jury convicted defendant of several felonies based on these incidents. He appealed. A division of the Court of Appeals affirmed some of his convictions and reversed others. On retrial, a second jury convicted him of lesser, although related, charges. The same attorney represented defendant at both trials. Defendant contended in a Crim.P. 35(c) motion that his trial counsel had been ineffective. The post-conviction court denied the motion.

On appeal, defendant contended that the post-conviction court erred when, without a hearing, it denied his three Crim.P. 35(c) claims of ineffective counsel. Defendant’s post-conviction claim in the first trial was moot because the appellate court had granted defendant relief in a previous direct appeal. Because defendant received all the relief to which he was entitled when the division reversed the convictions, the post-conviction court could not have given him anything more. Therefore, defendant’s appeal of this issue was dismissed.

Defendant next contended that he was prejudiced at his second trial because his counsel did not retain an expert to test the blood on his clothing, which would have showed that the blood was his and he was there to commit suicide and not hurt the victim. However, defendant failed to show how this evidence would have changed the outcome of the trial.

Defendant also contended that certain statements he made should not have been admitted during his second trial because they were obtained in violation of his Miranda rights. The record, however, shows that defendant’s statements were not the product of police interrogation. Because defendant could not prove his suppression claim, he could not prove that his counsel was ineffective in this regard.

Defendant further argued that his counsel was ineffective because he did not impeach the victim. This argument failed because counsel did try to impeach the victim and defendant’s claim was speculative.

Defendant also argued that he was incompetent during his first trial. A psychiatrist performed a retroactive competency evaluation and formed the opinion that defendant had been competent during the first trial. Therefore, the trial court did not abuse its discretion in denying a second competency evaluation.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Existing Two-Part Framework Sufficient to Evaluate Waiver of Counsel

The Colorado Supreme Court issued its opinion in People v. Davis on Monday, June 1, 2015.

Competency to Waive the Right to Counsel—Double Jeopardy—Merger.

The Supreme Court declined to adopt a new competency standard, pursuant to Indiana v. Edwards, 554 U.S. 164 (2008), for mentally ill defendants who wish to waive the Sixth Amendment right to counsel. Accordingly, the Court reversed the court of appeals’ decision to adopt an Edwards standard. In addition, the Court held that double jeopardy and merger principles require the trial court to vacate Davis’s possession conviction because the evidence at trial did not support a finding, beyond a reasonable doubt, that Davis possessed a quantum of drugs different from the one he distributed to an undercover officer. As such, the Court reversed the court of appeals’ decision to uphold Davis’s possession conviction.

Summary and full case available here, courtesy of The Colorado Lawyer.