Opinion
NO. 2018-CA-000706-MR
02-28-2020
ANDRE MORRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Shannon Dupree Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky William Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE TIMOTHY KALTENBACH, JUDGE
ACTION NOS. 16-CR-00293 & 16-CR-00295 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Andre Lamar Morris was found guilty of third-degree burglary, second-degree trespass and being a persistent felony offender in the second degree. The sole issue presented is whether the trial court's finding that Morris was competent to stand trial is supported by substantial evidence. We conclude the testimony of the evaluating psychologist that Morris was competent to stand trial constitutes substantial evidence and affirm.
Morris was found in the Easter Seals Center, after it had closed. The Easter Seals Center is operated by a non-profit organization that provides adult day care services to adults with mental and physical disabilities. Morris had also broken into the building the night before and used personal hygiene products left in the building by Easter Seals Center participants. Further facts as to the circumstances of Morris's crimes are unnecessary as the only issue on appeal is his competency to stand trial. We do note that the evidence of Morris's guilt at trial was overwhelming, including his presence in the building on the night of his arrest and his confession to police that he entered the building the night before.
The issue of Morris's competency arose shortly after his arrest and after Morris would not or could not communicate with his attorneys. By agreed order, Morris was scheduled for a competency evaluation at the Kentucky Correctional Psychiatric Center (KCPC) and Dr. Steven Sparks, a licensed psychologist, performed the evaluation. The trial court conducted a competency hearing on December 4, 2016, at which Morris and his counsel were present and Dr. Sparks testified.
Dr. Sparks testified that Morris responded to questions concerning his understanding of a criminal proceeding including that his guilt would be determined by a judge or jury and the role of his attorney in seeking a not guilty verdict. Although Morris had some difficulty in performing the neurological exam, Dr. Sparks could not recall anything more specific. Dr. Sparks testified that Morris had moderate deficiencies and Morris said little to him. Dr. Sparks opined that Morris could reason through a plea offer.
Dr. Sparks did not see any evidence that Morris was malingering but opined that Morris was lackadaisical. On the Evaluation of Competency to Stand Trial test, Morris demonstrated moderate deficits on the "consult with counsel" subtest. However, he did not demonstrate significant deficiencies in his understanding of courtroom proceedings. Morris's results on the Minnesota Multiphasic Personality-2-Restructured Form Test were invalid because he was indiscriminate in his answers, which Dr. Sparks attributed to either his difficulty reading the questions or because he was not cooperating. Dr. Sparks testified that the results of the Wechsler Adult Intelligence Scale indicated Morris's intellectual ability was in the extremely low to borderline range. However, Dr. Sparks did not believe Morris was putting forth his best effort. Morris demonstrated reading abilities in the extremely low to borderline range on the Kaufman Functional Academic Skills Test.
Dr. Sparks testified that Morris met the criteria for antisocial personality disorder. Combined with Morris's low intellectual functions, that disorder could cause Morris to believe it was in his best interest to be uncooperative with his attorney. However, Dr. Sparks opined that although Morris might choose not to work with his attorney, nothing prevented him from doing so.
Dr. Sparks obtained Morris's ninth-grade school records. Although the records showed Morris had behavioral issues, there was no indication that he had any mental illness.
Dr. Sparks opined that to a reasonable degree of psychological certainty, Morris had the capacity to appreciate the nature and the consequences of the proceedings against him and to participate rationally in his defense. The trial court found Morris was competent to stand trial and the case against him proceeded.
A plea agreement was negotiated pursuant to which the persistent felony offender charge would be dismissed, and Morris would be sentenced to one year on each count of third-degree burglary, to run concurrently. At the time the plea agreement was brought to the trial court's attention, Morris would have served the proposed sentence out in twenty-one days.
At the plea hearing, Morris was nonverbal and would not respond to the trial court's questions. Consequently, the trial court did not accept his plea.
During subsequent hearings, defense counsel indicated that the ability to communicate with Morris had further deteriorated. At those hearings, Morris continued to be unresponsive to the trial court and rambled aloud. Believing there to be reasonable grounds that Morris was then incompetent, the trial court ordered a second competency evaluation.
Dr. Sparks performed a second competency evaluation. A second hearing was held at which Morris and his counsel were present. Dr. Sparks testified telephonically.
Dr. Sparks testified that he met with Morris the second time for about fifty minutes. Although he usually meets longer with a client, Morris was uncooperative, and the session was discontinued. On various tests performed by Dr. Sparks, Morris answered some questions but then refused to continue. On the second evaluation, Dr. Sparks found evidence of malingering, including that at the first evaluation Morris had an IQ of 71 and at the second, his IQ tested at 40.
When asked by the trial court if Morris was competent to stand trial, Dr. Sparks responded:
Well, your honor. I can't say I have no question. He is an unusual individual. Even the first time we met, there was a latency that you noticed as well . . . questions and answers. I wondered about a learning disability the first time I met with him. I can't say I have no question. But I can say taking all the information into account, looking at the majority of information that I have, I believe there is a likelihood that he does have the capacity. . . .The trial court found Morris competent to stand trial.
The Commonwealth made another plea offer, this time for three years. Morris again did not acknowledge its terms or respond to the trial court's inquiries. Defense counsel again informed the court that Morris was uncooperative.
At trial, Morris would not indicate whether he wanted to testify. He would not indicate whether the PSI was correct and refused to participate in the restitution hearing. At final sentencing, Morris asked the trial court if defense counsel was his daughter and unintelligibly rambled. This appeal followed the entry of a judgment of conviction and sentence.
"Incompetent to stand trial" is defined by statute to mean that a defendant is incompetent if, "as a result of mental condition, [the defendant lacks the] capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one's own defense[.]" Kentucky Revised Statute (KRS) 504.060(4). The United States Supreme Court has held that "due process requires an evidentiary hearing whenever there is sufficient doubt of competency as to require further inquiry on the question." Gilbert v. Commonwealth, 575 S.W.2d 455, 456 (Ky. 1978) (citing Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). Our statutory law and rules of criminal procedure embody that same requirement.
KRS 504.100 states:
(1) If upon arraignment, or during any stage of the proceedings, the court has reasonable grounds to believe the defendant is incompetent to stand trial, the court shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant's mental condition.
(2) The report of the psychologist or psychiatrist shall state whether or not he finds the defendant incompetent to stand trial. If he finds the defendant is incompetent, the report shall state:
(a) Whether there is a substantial probability of his attaining competency in the foreseeable future; and
(b) What type treatment and what type treatment facility the examiner recommends.
Kentucky Rule of Criminal Procedure (RCr) 8.06 provides:
(3) After the filing of a report (or reports), the court shall hold a hearing to determine whether or not the defendant is competent to stand trial.
If upon arraignment or during the proceedings there are reasonable grounds to believe that the defendant lacks the capacity to appreciate the nature and consequences of the proceedings against him or her, or to participate rationally in his or her defense, all proceedings shall be postponed until the issue of incapacity is determined as provided by KRS 504.100.
A competency hearing must be conducted in compliance with KRS 504.080 which provides in part:
(3) The defendant shall be present at any hearing on his mental condition unless he waives his right to be present.
(4) The examining psychologist or psychiatrist shall appear at any hearing on defendant's mental condition unless the defendant waives his right to have him appear.When a hearing is held, "it must be an evidentiary hearing with the right to examine the witnesses[,]" including the examining psychiatrist. Gabbard v. Commonwealth, 887 S.W.2d 547, 551 (Ky. 1994). When the trial court concludes that there are reasonable grounds to hold a competency hearing, there is no longer a presumption that a defendant is competent to stand trial. Id.
(5) A psychologist or psychiatrist retained by the defendant shall be permitted to participate in any examination under this chapter.
The trial court ordered that two competency evaluations be conducted and held two evidentiary hearings. Although Dr. Sparks testified telephonically at the second hearing, Morris does not challenge that procedure on appeal and his counsel raised no objection before the trial court. For clarification, we briefly comment on the procedure used in this case.
We are compelled to comment because the trial court cautiously cancelled the first scheduled competency hearing after learning Dr. Sparks would testify telephonically and Morris would not respond to the trial court's request for him to verbally consent to Dr. Sparks's physical absence. --------
Although KRS 504.080(4) provides that the examining psychologist or psychiatrist shall appear at the competency hearing, the statute also provides that the defendant may waive the expert's appearance. Because Morris was unresponsive to questions from counsel and the trial court, Morris himself did not expressly waive Dr. Sparks's appearance at the hearing. However, we see no reason why such a waiver would be necessary.
The requirement of the statute that the expert shall attend the hearing is subject to waiver and was waived by defense counsel. In Fugate v. Commonwealth, 62 S.W.3d 15, 20 (Ky. 2001), the Kentucky Supreme Court held that defense counsel can waive his client's presence at a competency hearing. It was presumed that defense counsel was competent to determine whether his client was needed at the hearing and the Court declined to create a rule that counsel cannot act on his client's behalf when waiving the appearance of his client at a competency hearing. Id. The same reasoning is applicable here when only the physical appearance of Dr. Sparks was waived.
Whether reasonable grounds existed to hold a competency hearing is not an issue in this case because the trial court found there were reasonable grounds to believe Morris was incompetent on two occasions and held two competency hearings. The only issue raised in this appeal is whether the evidence was sufficient to support the trial court's conclusion that Morris was competent to stand trial.
"A competency determination is based on the preponderance of the evidence standard." Chapman v. Commonwealth, 265 S.W.3d 156, 174 (Ky. 2007) (footnote omitted). The trial court has the authority to determine the weight and credibility of the evidence and this court "may disturb a trial court's competency determination only if the trial court's decision is clearly erroneous (i.e., not supported by substantial evidence)." Id. (footnote omitted).
Morris was unresponsive to his counsel and the trial court. He also exhibited bizarre behavior at the various hearings and at trial. His unresponsiveness to the trial court prompted the trial court to not enter two guilty pleas, either one of which would have resulted in much more favorable sentences than that which Morris received. The indications that Morris was incompetent prompted the trial court on two occasions to have him evaluated and conduct two hearings. After both evaluations, Dr. Sparks opined Morris was competent to stand trial. That expert testimony constitutes substantial evidence to support the trial court's conclusion that Morris was competent to stand trial.
The judgment of the McCracken Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Shannon Dupree
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky