PEOPLE v. BRYANTAppellant, Leroy Wheeler, Referee’s ReportCal.Sep 17, 2013 SUPREME COURTCOPY Che Superior Court LOS ANGELES, CALIFORNIA 90012 CRIMINAL COURTS BUILDING 210 WEST TEMPLE STREET (213) 974-1234 CHAMBERS OF GEORGER. G. LOMELI JUDGE August 19, 2013 heyphe v. Prgint, Smith & Wheeler 19596 Re: People v. Leroy Wheeler et.al. No. S049596 (Superior Court No. A711739) Ms. Mary Jameson Automatic Appeals Unit Supervisor Earl Warren Building S@ f 350 McAllister Street San Francisco, CA. Dear Ms. Jameson: Enclosed please find the report/findings generated pursuantto order ofthe California Supreme Court directing this court to act as referee regarding the above-referenced matter. The report was prepared following an evidentiary hearing which addressedthe specific issues outlined in the Supreme Court’s order. $049596 Ruling/Findings Report Following An Evidentiary Hearing on the Matter of the People versus Leroy Wheeler (Superior Court Nos. A711739 and A713611) (SA049596) This matter is before this court pursuant to an order by the California Supreme Court appointing this court to act as referee in the above- referenced proceeding. The order specifically authorized this court to preside over discovery issues, if necessary, supervise the appointment of experts, take evidence, and makefindingsoffact and recommendations.In particular, the Supreme Court requested that this court determine whether: (1)Appellant Leroy Wheeleris presently unable, as a result of a mental disorder, to understand the nature of appellate counsel’s attempts to investigate groundsfor thefiling of a Petition for a Writ of Habeas Corpus; and (2) whether appellant Wheeler’s counsel, Conrad Petermann,should be appointed as guardian ad litem for purposes of preparing and pursuing appellant Wheeler’s habeas corpuspetition. The Supreme Court further ordered this court prepare and submita report of the proceedings conducted pursuant to this appointment, the evidence adduced, and the findings of fact made. The referee’s findings and recommendations must be basedsolely on the record of the proceedings beforeit. In keeping with the Supreme Court’s order, this court has appointed the necessary experts, presided over discovery issues, and has taken evidence by wayofhearings conducted on June 29, July 27, September 6, and December 14, 2012. Additionally, a final hearing was conducted on April 19, 2013. Following completion of the evidentiary hearing regarding the issues in question, and having considered counsels’ respective summationbriefs on the matter as well as all exhibits introduced, this referee submits the following report and findings for consideration by the California Supreme Court.--1 1. The witnessesthat testified in the evidentiary hearing consisted of Dr. Gregory Cohen, a witness for the Appellant whose cross-examination consisted oflive testimony, while his direct examination was by way of Declaration( identified as Appellant’s Exhibit 1); Additional testimony included that of Drs. Kaushal Sharma and Michael Maloney, witnesses for the Respondent. Based Upon the Evidence Adducedin the Hearing, this Referee is Not Convinced that Appellant Leroy Wheeler is Presently Unable, as a Result of a Mental Disorder to Understand the Nature of Appellate Counsel’s Attempts to Investigate Groundsfor the Filing of a Petition for a Writ of Habeas Corpus and Consequently HisCounsel Should Not be Appointed as Guardian Ad Litem After consideration of the overall evidence presented at the evidentiary hearing, as well as all referenced documents, declarations and exhibits introducedat the hearing, this referee finds that underthetotality of the circumstances, the appellant has failed to ‘demonstrate by a preponderanceofthe evidencethat he is presently unable, due to a mental disorder to understand the nature of his counsel’s attempts to investigate grounds for the filing of a Petition for a Writ ofHabeas Corpus. This referee is not persuaded from the evidence that appellantis afflicted with a mental deficiency to the extent that it would prevent him from understanding the necessary efforts his attorney must undertake in orderto file the petition in question and/or cooperate with his attorney’s efforts to do so. Even assuming arguendo,that the appellant suffers from a mental disorder, the evidencereflects that his lack of cooperation is not caused byoris a productofthat mental disorder, rather, should the appellant refuse to assist his counsel, said action and/or conduct would be theresult of a volitional choice to not cooperate with his attorney as opposed to being attributed to a mental condition. Moreover,as this referee has madesuch a finding, this necessarily provides a response to the Supreme Court’s secondinquiry, namely, that the appellant’s attorney should not be appointed as guardian ad litem for purposes of pursuing a habeas corpuspetition. Dr. Gregory Cohen’s Evaluation of the Appellant Failed to Convince this Referee that His Reluctance to Assist His Appellate Counsel is Due to a Mental Disorder As a witness for the appellant on the issue of his mental status, his counsel presented the testimony of Dr. Gregory Cohen. Dr. Cohen, whois not a forensic psychologist nor board-certified as a forensic psychologist, evaluated appellant one time, consisting of a total period of three hours. (Reporters Transcript, hereinafter “R.T.” at pages 65 and 70, dated June 29 and July 27, 2012). Although Dr. Cohen concludedthat the appellantis presently unable, as result of a mental disorder, to assist his attorney in connection with the filing of a Petition, a review of the overall evidence presented in the evidentiary hearing on that issue suggests to this referee that appellant’s refusal to cooperate with his counselis not as a result of a mental disorder, but rather, is a volitional decision on his part, as well as the result of his seemingly antisocial personality. This personality trait was noted as far back as 1986, when he was evaluated by Dr. W. Wittner, who concluded in part: “Based on today’s interview, I consider Leroy [the appellant] to be a somewhat odd person.It was very hard to obtain information from him. He did not want to reveal much. I also noted that Leroy was touchy andirritable. He was annoyed by someofmy questions. I woundup treating him with kid gloves. Leroy did not exhibit unusual or bizarre behavior. He was ‘standoffish’ and uninvolved. I sensed authority conflict within him, as well as a general aversion to interpersonalrelationships and contacts. Affect was bland, except for the anger andthe notedirritability.” (R. T. at page 71, dated June 29 and July 27, 2012). . Thus, Dr. Wittner’s evaluation did not conclude that appellant suffered from a major mental illness of a psychotic nature, but rather found a conduct disorderthat, if carried out to adulthood, would lead to a diagnosis of antisocial personality disorder.(R. T.at pages 79-80). In sum, Dr. Wittner’s psychiatric diagnoses was of a conductdisorderof adolescence and aggression. Moreover, appellant’s history of noncooperationis reflected in other evaluations performed on him overthe years. (Refer to Exhibit F, pages 000064; 000119-000122; Exhibit J, at page 00986-00987). Further, in an evaluation performed on the appellant in 2011 by the Los Angeles County Sheriff's Department Inmate Mental Health (identified as Exhibit M, at page T0034), psychiatrist, Dr. Kim Guynotedthat the patient [appellant] was “very evasive [he] does not currently appear psychotic, manic,or depressed.” The doctor noted no evidence of hallucinations or other psychotic symptoms. Similarly, in an evaluation performed in 1995 by Adrienne Davis, PhD,she stateed in | part, “there was no evidenceof a thought disorder. Mr. Wheeler’s associations’ were tight. He is not hallucinating, delusional or paranoid and he denies such history. Overall, Mr. Wheeler seemedto be a bright, articulate young man with a good command ofthe language,interactive and responsive. He did not seem to be suffering from any gross cognitive deficits.” (Exhibit I, at page 8). Likewise in a 1995 psychological evaluation at San Quentin state hospital Dr.Litwile, indicated that the appellant did not have any indicia ofpsychosis, delusions, or thought disorder, an opinion also shared by a Dr. Lyons. Furthermore, this referee noted that Dr.Gregory Cohen’s three hourevaluation of Mr. Wheeler was without the administration of any type of psychological testing, which the doctors at Vacaville prison whoevaluated the appellant overa period of time opinedthat“in the absence of formal psychological tests data, few reliable diagnostic conclusions can be made....” (R. T. at pages 189 - 190, dated December 14, 2012). In fact, according to psychologists Lois Armstrong, who evaluated the appellant in 2002 at the Vacaville facility, in order to makereliable diagnostic conclusions of appellant’s mental condition, formal psychological tests data is necessary. Dr. Armstrongultimately concluded that appellant’s “behavior/functioning...throughout his admission is not consistent with his self- report of psychotic symptoms....” Dr. Armstrong assessed Mr. Wheeleras having an 3 averageintellectual ability as well as an antisocial personality disorder. (Refer to Exhibit F, page 0000122). Although Dr. Armstrongstated that there was a possibility of some form of a mental condition regarding the appellant, the doctor ultimately indicated that there was no evidence to suggest that perhaps a diagnosis of psychosis may be applicable, however, there wasinsufficient data to make such a diagnosis withoutfurther evaluationto rule it in or out. (R. T. at page 228, dated December14, 2012). In the end, Dr. Armstrong described Mr. Wheeleras having no observable evidenceof delusionsor hallucinations and, finding among otherthings, an antisocial personality disorder. Overall, this referee carefully considered the testimony of appellant’s witness, Dr.Cohen ( including that which is contained in his Declaration identified as Exhibit 1), which, as has been stated, concludedthat although the appellant was of average intelligence, he could not because of a mental disorder, assist his attorneyin thefiling of a habeas corpus petition. However, this referee having had the opportunity to observe and hear the testimony of Dr. Cohen, finds that it suffered in a numberofrespects, in that for most part it consisted of unreliable opinions and/or conclusions. First, although Dr. Cohen,in rendering his conclusions did consider certain prior evaluations performed on the appellant by variousother clinicians, by his own admission, Dr. Cohenfailed to consider other several prior evaluations of the appellant which this referee found significant. Some examplesinclude the appellant’s mental health evaluation at the Los Angeles County Jail Reception Center performed in 2011, which concluded that the appellant did not appear psychotic, manic or depressed. (As previously referenced herein, Exhibit M,at page T0034; R. T. at pages 89-90, dated June 29 and July 27, 2012). Nor did he considerthe evaluation prepared in 1986 by Dr. W. Wittner, who, as previously noted, concludedthat the appellant was not suffering from any major mental illness of a psychotic nature, but rather, had an antisocial personality. (Exhibit J at page 00986). Additionally, Dr. Cohen did not consider the evaluation prepared by Dr. Michael Maloney.(R. T. at pages 99-100, ' dated June 29 and July 27, 2012). Likewise, Dr. Cohen failed to comment on Dr. Roy Johnson’s conclusion rendered in 2002, that Mr. Wheeler was not presenting a true case of psychosis, but rather was playing a game with thestaff. (R. T. at page 214, dated December 14, 2012). However, as reflected at pages 5 and 6 of his declaration, Dr. Cohen nonetheless is of the opinion that appellant suffers from a psychotic disorder and the doctor disagrees with certain opinions rendered byprison staff that the appellantis simply malingering. Although this referee heard evidence that an individual can develop a mental condition as an adult that may not have existed as an adolescentand that it is further possible to be psychotic one day and then a week later be nonpsychotic, based upontheentirety of the evidencepresented, this referee is not convinced that this is the situation with the case at hand. Dr. Kaushal Sharmagenerated evaluation reports on the appellant on March 29, 2012 and a follow-up on April 13, 2012. Dr. Sharmahas three boardcertifications, including one by the American Board of Psychiatry and Neurology. He has been a forensic psychiatrist over the last 30 years, during which time he has evaluated approximately 1700 individuals for mental competency. (R.T. dated December 14, 2012, 4 at pages 272-274). Dr. Sharmais ofthe opinion that although the appellant’s was given a diagnosis of psychotic disorder not otherwise specified in the past, he notes that the appellant denied any hallucinations and cannot be characterizedas being truly psychotic, in other words, suffering from psychosis. Unlike Dr. Cohen, Dr. Sharma reviewedall available materials for approximately 35 hours before reaching his conclusions. He noted that the appellant was more reluctant to meet for purposes of evaluation with doctors assigned by the respondent, versus those assigned by the appellant’s counsel, including Dr. Cohen and Freundlich, which action would suggest, according to Dr. Sharma, selective cooperation whichis volitional and shows reasoning andlogic,rather than crazy random thought on the appellant’s part.( R.T. December 14, 2012, at pages 276-279). Ultimately, Dr. Sharma’sprofessional opinionis that the appellant is competentto assist his counsel and that he may choosenotto for other reasons, but in the end, he has “what it takes mentally” and that if he choosesto assist or cooperate with his counselor notis not the product of a mental illness. Specifically, Dr. Sharmastates that the appellantis mentally capableofassisting his attorney with respect to the filing of a writ of habeas corpus and any noncooperation would bevolitional and not due to a mental deficiency. (R.T. dated December 14, 2012,at pages 280-284). Further, Dr. Sharmais of the opinion that appellant’s noncooperation is partly due to his wanting to be his own attorney and not because he is psychotic. (R.T. at page 319). Again, an example of the appellant’s noncooperation can beseen by his actions not to cooperate with Dr. Michael Maloney in 2012 for purposesofevaluation, as well as his refusal to meet with Dr. Sharma himself which suggests to Dr. Sharmaa willful choice on the part ofthe appellant. (Refer to Dr.Sharma’sreport identified as Respondent’s Exhibit A). Furthermore, appellant’s refusal to take letters from the Supreme Court or from his assigned counsel, indicates his desire to be pro per andthatheis “a spoiled child wanting to do things his way ever since he was 10 years old.” (R.T.at p.289; also refer to Dr. Sharma’s report at page 2, Exhibit A). Additionally, in a report prepared by Dr. Michael Maloney, dated April 15, 2012, at page 8, the doctor points out that after reviewing voluminous documents in the case,it is his opinion that the appellant’s behavior has a strong volitional component. However, he was unable to conclude, because of the appellant’s noncooperation, whether he has a serious mental illness wihich would preclude him from proceeding with a habeas corpuspetition. (Respondent’s Exhibit D). Although appellant refused to meet with Dr. Maloney in 2012 for evaluation, in an evaluation performed on him by Dr. Maloney in 2011, the doctor opinedthat the appellant’s responses to the doctor’s questions were indirect and gave the suggestion of being rehearsed or premeditated. The doctorstated that there wasa clear game playing quality in the appellant’s response to the examination. This same conduct was noted in mental health reports at San Quentin and Vacaville. (R.T. at pages 277-278, transcript dated December 14, 2012). Moreover, even if one were to accept the appellant’s contention that in an evaluation for competency to pursue federal habeas relief in a death penalty case requires that a given petitioner possess essentially the same mental capacity that renders him competent to stand trial, specifically, the ability to 5 understand and communicate rationally with counsel when necessary, again, from the overall evidence, this referee concludes that any such refusal in the instant case by the appellant to cooperate with his counsel is volitional in nature and not due to a mental disorder. In the end, Dr. Cohen’s overall conclusions and assessment regarding the appellant’s mental condition left a lot to be desired. This refereenoted that Dr. Cohen’s demeanor and responses to questions posedin the course of the underlying hearing reflected some degree of uncertainty with respect to some of his responses, as well as exhibiting some difficulty in answering certain questions propounded,and at times, also exhibited a degree ofhesitation in explaining the basis for rendering certain conclusions regarding his three hour evaluation of the appellant. Consequently, when weighed against the overall evaluations ofthe appellant performed over the years, as well as considering the conclusions of Dr. Sharmaandall exhibits introduced at the hearing for this referee’s © consideration, this referee concludes that the appellant’s unwillingness toassist his counsel for purposesoffiling a Petition for a Writ ofHabeas Corpusis based upon nonpsychotic reasons and not due to a mental disorder. As such,this referee is also of the opinion that the appellant’s counsel should not be appointed as guardian ad litem for purposesofpreparing and pursuing the petition in question.