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State v. Harrison

Court of Appeals of Kansas.
Apr 5, 2013
298 P.3d 1137 (Kan. Ct. App. 2013)

Opinion

No. 107,633.

2013-04-5

STATE of Kansas, Appellee, v. Leon J. HARRISON, Jr., Appellant.

Appeal from Shawnee District Court; Nancy E. Parrish, Judge. DebraJ. Wilson, of Capital and Conflicts Appellate Defender, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Shawnee District Court; Nancy E. Parrish, Judge.
DebraJ. Wilson, of Capital and Conflicts Appellate Defender, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION


PER CURIAM.

Under Kansas law, defendants are incompetent to stand trial when they cannot assist in making their defense because of their mental illness. Leon J. Harrison, Jr., who has a history of mental illness, was noncompliant with his prescribed psychotropic medication before and during his jury trial. During the trial, he was observed “responding to unseen stimuli” on several occasions. His speech was often incoherent, disorganized, and nonsensical. The court saw him “mouthing” words in an incomprehensible manner. Four times during the trial, his defense counsel asked for a competency evaluation because she could not communicate with Harrison and he was incapable of assisting in his defense. We hold the district court abused its discretion in ruling that Harrison was competent to stand trial because substantial competent evidence does not support a finding that Harrison could communicate with his defense counsel and assist in his defense. We reverse and remand.

Harrison engages in violent behavior.

In the early afternoon hours of April 24, 2010, Harrison, armed with a hammer, entered the bedroom where the victim, M.F., was taking a nap. Harrison threatened her with the hammer, proceeded with a sexual assault, and then forced intercourse with M.F. While this was going on, Brinda Flanagan entered the room. M.F. told Flanagan she was being raped. Flanagan told Harrison to stop and that she was calling the police. Harrison did not stop, and Flanagan called the police. A few moments later, police officers arrived. Harrison, still engaged in forced intercourse, finally got off of the victim and eventually dropped to the floor only after the second command of a police officer, who had pointed his service firearm at him. Harrison told the officer, “I paid for it. This is mine. I paid for it.”

Harrison's competency to stand trial becomes an issue.

The State charged Harrison with rape in violation of K.SA. 21–3502(a)(1)(A), aggravated criminal sodomy in violation of K.S.A. 21–3506(a)(3), aggravated burglary in violation of K.S.A. 21–3716, and aggravated assault in violation of K.S.A. 21–3410(a). Doubts about Harrison's competency to stand trial immediately arose. His competency to stand trial was evaluated five different times before his trial. A brief review of each is important to understand the context of this issue.

At a preliminary hearing in May 2010, the district court granted defense counsel's request for a competency evaluation of Harrison. During the hearing, the district court reprimanded Harrison after being told he was seen smiling and waving at the victim. Dr. David Blakely examined Harrison on this occasion.

In his assessment, Dr. Blakely reported Harrison had a previous diagnosis of bipolar or schizoaffective disorder and had received psychiatric treatment for years, including hospitalization for over a year. Dr. Blakely noted Harrison had been on several medications in the past but was not currently taking any. Dr. Blakely conceded Harrison's competence “is a difficult question” but declared Harrison “is competent in terms of understanding what the charges are, and if his lawyer has patience, he can help in his own defense.” Dr. Blakely summarized: “It will be a difficult defense, because [Harrison] tends to use his own language and insists on that rather than following conventions. Whether [Harrison] can then effectively help defend himself will remain to be seen. Whether he can help his lawyer defend him also needs to be ascertained.” Dr. Blakely forewarned: “Whether [Harrison] falls apart between now and the trial is to be watched. He is not on medication.” (Emphasis added.) Dr. Blakely recommended that Harrison would benefit from being back on medications and psychiatric treatment. Based on Dr. Blakely's assessment, the district court ruled Harrison competent to stand trial.

Next, defense counsel requested another competency evaluation based upon Harrison's “statements and behaviors.” Citing Dr. Blakely's concerns that Harrison's competency could change before trial because Harrison was not on medication for a serious psychiatric condition, the district court ordered a second evaluation by Dr. Blakely. After this evaluation, Dr. Blakely stated that Harrison “has talked in so many neologisms and such personalized language that he is not competent to help his lawyer in his defense.” Dr. Blakely recommended hospitalization. The district court ruled Harrison incompetent to stand trial and ordered him committed to the Larned State Security Hospital according to K.S.A. 22–3302.

At the hospital, Harrison's evaluation was completed in January 2011. The forensic evaluation report filed by Dr. Kelly Edison noted Harrison exhibited neologisms during speech such that his communication “was only relevant and coherent during small portions of the interview,” and Harrison had been observed numerous times at the hospital “having conversations with unseen stimuli.” Dr. Edison found Harrison incompetent to stand trial, concluding he “does not have an adequate understanding of the roles of individuals involved in the legal proceedings, would not be able to testify in his defense, and would not be able to effectively communicate with counsel.” Accordingly, the district court found him incompetent to stand trial and ordered him to remain committed to the hospital for up to 90 days for evaluation and treatment under K.S.A. 22–3303.

After that, the staff at the Larned Security Hospital submitted a report to the district court recommending continued treatment for a second 90–day term. In response, the district court ordered Harrison to remain at the Security Hospital until he either gained competency or for 6 months from the date of the original commitment, whichever occurred first.

Before the 6 months had expired, the hospital staff submitted in June 2011 a forensic evaluation report stating that Harrison fulfilled the criteria to be considered competent to stand trial at that time. The report diagnosed Harrison as having symptoms consistent with “Schizoaffective Disorder, Bipolar Type due to the combination of hallucinations, disorganized speech, and mood symptoms.” The report attributed a significant decrease in Harrison's symptoms to the “extended period of time for medication stabilization” between the January 2011 evaluation and the second evaluation. According to the report, Harrison was taking four different medications—Vistaril, Depakote Plain, Zoloft, and Abilify. After making its recommendation, the report stated the following caveat: “However, based upon [Harrison's] history as well as his presentation during the hospitalization, it is likely that if Mr. Harrison does not consistently take his psychiatric medications as prescribed, he would decompensate and his mental health would deteriorate.” (Emphasis added.)

At that point, the hospital discharged Harrison to the district court in July 2011. At a July 18, 2011, hearing, the district court found Harrison competent to stand trial. Harrison's case was set for trial in September.

Just before the trial started, defense counsel renewed her concerns regarding Harrison being unable to help with his defense because of his competency, psychiatric issues, and inability to communicate effectively. Defense counsel also expressed concerns that Harrison was not taking his medications.

The district judge questioned Harrison. The district judge told Harrison it was important according to the Larned Security Hospital staff that he continues to take his medications and then asked Harrison if he was currently taking them. Harrison replied, “No, I'm not,” and then explained that he “volunteered” to take his medications at Larned “because it's a medical hospital.” The district judge asked Harrison, “When did you last take some medications?” Harrison responded, “I took them [at Larned]. When I got back here, I didn't take any.” When asked if he had refused to take his medications since coming back from Larned, Harrison stated,” I told them I didn't want them. It's not like I refused.” The district court inquired if Harrison had been able to talk to defense counsel about the charges against him. Harrison replied, “I talked continually with her, yeah, yeah, on a proper basis, yeah. She would come in and I've talked with her but we never really gotten too many places, but I've spoken on my behalf.”

Defense counsel elected to question Harrison. The following exchange occurred:

“MS. SEWELL [defense counsel]: ... You and I have not seen eye to eye on a couple things; we argue, right?

“THE DEFENDANT: I mean, shit.

“MS. SEWELL: We shouldn't but we do.

“THE DEFENDANT: It's more supposed to be consistent, a constant understanding that I can only tell whether it's truthful, whether it's not truthful, anything or something that while I am locked up and what had happened there during the time, I was there, the individuals was there, these individuals was there, these individuals approached and became a part of there and we could just tell those that wasn't there. Only our understanding includes what is, is not to be, and what has had not happened, because you—all weren't there, I was there, this individual was there and the law approached and became part of being there. So we all have our sides and whatnot to tell. Who was there, the actual eyewitnesses and the ones that are here, eyewitnesses to what all adds up to be

“MS. SEWELL: When you and I would talk, I would get frustrated because I didn't understand some words you would use.

“THE DEFENDANT: No. I mean, okay. It's more that those are vocabulary and those are English terms in words, you know. I don't make up any and we all don't know each and all the vocabulary in the dictionary, but we do know some things of the dictionary and vocabulary. When I did say these vocabulary terms, I told you in a sense what they meant from the capitalism of them.

“MS. SEWELL: You said capitalism.

“THE DEFENDANT: Because if—when I do talk these vocabularies and terms in a sentence, it's just saying them, but then if you know them, yeah, but if I say what it is and what it means to what I am and why I am saying it, it means an even more clear viewpoint. That's what I always did and done.

“MS. SEWELL: You haven't been on meds for how long?

“THE DEFENDANT: Okay. I don't know, about three months or so. Those facts why I haven't been on meds does not mean why I do and don't understand, why I'm on and why I can and can't explain why I am or am not locked up.”

For its part, the State argued it “did not hear anything inconsistent with the [June 30, 2011,] evaluation from Larned” and was ready to proceed. The district court ruled that Dr. Blakely would evaluate Harrison's competency again. Dr. Blakely evaluated Harrison that same day.

Dr. Blakely's September 27, 2011, assessment report first noted that Harrison “had some psychotic disorders in the past but they are now pretty well controlled. He is now on medication:Zyprexa 20 mg a day, Divalproex 500 mg BID, Sertraline 100 mg a day.” (Emphasis added.) Dr. Blakely stated Harrison clearly understood he had been charged with a crime. In doing so, however, Dr. Blakely noted Harrison's difficulties communicating when pressed:

“We talked further about the case and what the issues might be. [Harrison] had a tougher time. He started using words that only he knows the meaning of. He would get irritated with me when I said I didn't know what words he was using. He would then say that there are a lot of words in the English dictionary and not everybody knows all of them.”

Dr. Blakely opined that the fact Harrison both understood he had been charged with a crime but has difficulties communicating is what made evaluating Harrison difficult. Dr. Blakely noted:

“[Harrison] has a different way of talking.... He is hard to understand. He makes up his own words.... His words are somehow related to the thing he wants to say but is not quite the same either. The longer we talked and the more upset he became the more he used his own words. Initially, when things were pretty clear cut, he was able to be fairly conventional, but as the pressure mounted, he became a lot more idiosyncratic.”

When stating Harrison had a “clear idea of how he wants to defend himself,” Dr. Blakely cautioned:

“The problem is going to be whether [Harrison] can speak in a way that a jury will understand or that his attorney will understand. On balance 1 think he knows what he wants to get across. Therefore, I think he is competent. His word usage is odd and strange. This will put a real test on the Court, on the jury, and on his attorney to help him present his case.”

Before Dr. Blakely stated his conclusion that Harrison was competent to help in his own defense, Dr. Blakely explained: “This is, again, a very difficult case of a man with a psychiatric disorder, a schizoaffective diagnosis, who is on medication.” (Emphasis added.) Finally, Dr. Blakely concluded: “[W]hile it is a close call, I believe [Harrison] is competent under Kansas law.”

Based on its questioning of Harrison, the Larned report, and Dr. Blakely's September 27, 2011, report, the district court denied defense counsel's motion for another evaluation at Larned and declared Harrison competent to stand trial.

Four times during the trial Harrison's counsel asks for a competency evaluation.

During the morning of the first day of trial, defense counsel made a motion requesting a competency examination, repeating her assertion that Harrison was still unable to communicate to the extent necessary to defend him. When the district court asked defense counsel if there was any “big difference” in Harrison from the last 2 days, defense counsel responded, “No.” The district court denied the motion.

That afternoon, defense counsel renewed the motion requesting a new competency examination, stating, “Judge, I would point out that in one of the Larned reports, .... they noted that [Harrison] was often seen on the ward responding to unknown stimuli. All afternoon he's been responding to unknown stimuli....” The district court denied the motion.

The following morning, defense counsel notified the district court that she had just received an addendum Dr. Blakely filed to his September 27, 2011, report. In the addendum signed the day before, Dr. Blakely stated that he had just learned from a social worker at the jail that Harrison “has been refusing his medication for at least 10 days.” Dr. Blakely had warned that “[i]f [Harrison] continues to refuse, he may become less competent over time, perhaps even quickly.” Defense counsel renewed the motion to have Harrison's competency evaluated, noting the inconsistencies between the report and addendum regarding Dr. Blakely's knowledge as to whether Harrison was on medication at the time of the evaluation. Defense counsel also noted that Harrison was continuing to make the same noises as the day before, seemed to be responding to unknown stimuli, and appeared to have decompensated over the last 2 to 3 days. The district court denied the motion.

On October 3, 2011, before closing arguments, defense counsel once again renewed the motion for a competency evaluation at Larned. Counsel noted that she had briefly spoken with Harrison and his concern that day was not closing arguments but the fact that “he had been moved in the jail and was denied his commissary last Friday .” The district court denied the motion.

Harrison was convicted on all counts, and he is now serving a prison sentence for his crimes. In this appeal, he raises four issues. First, he contends the district court erred in finding him competent to stand trial. Second, he argues the State failed to present sufficient evidence of each alternative means of committing the aggravated criminal sodomy charge described in the jury instruction. Third, he contends the district court erred in failing to give a unanimity instruction for the charge of rape. Finally, Harrison argues the district court erred in denying his motion for commitment under K.S.A. 22–3430 in lieu of incarceration. Because we are holding that the court erred when it found Harrison competent to stand trial and, thus, reversing his convictions, we will not address the three remaining issues he raised.

This is a matter of discretion with the district court.

We use an abuse of discretion standard when reviewing a district court's decision about competency of a defendant to stand trial. State v. Hill, 290 Kan. 339, 366, 228 P.3d 1027 (2010). Judicial discretion is abused if judicial action is (a) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (b) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. Fischer v. State, 296 Kan. ––––, Syl. ¶ 8, 295 P.3d 560 (2013).

Some general points of law about competency to stand trial are useful.

Under Kansas law, a defendant is presumed competent to stand trial. State v. Hedges, 269 Kan. 895, 912, 8 P.3d 1259 (2000). Determining whether a defendant is competent to stand trial is governed by K.S.A. 22–3301 et seq. A person is “incompetent to stand trial” when he or she is charged with a crime and, because of mental illness or defect, is unable to understand the nature and purpose of the proceedings against him or her or to make or assist in making his or her defense. K.S.A. 22–3301(1).

In State v. Foster, 290 Kan. 696, 703, 233 P.3d 265 (2010), the Kansas Supreme Court reiterated that Kansas' incompetency standard under K.S.A. 22–3301 is in accord with Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). In Dusky, the Court held the “ ‘test must be whether [the 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.’ “ 362 U.S. at 402.

We examine the arguments of the parties.

Harrison does not challenge the district court's finding that he understood the nature and purpose of the proceedings against him. Instead, Harrison argues the district court failed to consider whether Harrison's inability to communicate with defense counsel made him unable to assist or participate in his defense. In other words, Harrison is arguing the district court did not consider both parts of K.S.A. 22–3301(1) when making its competency determination. We agree.

The State contends in response that the district court's determination of Harrison's competency correctly relied on its own observations and consideration of the June 30, 2011, and September 27, 2011, evaluation reports.

To support his argument, Harrison claims his situation is analogous to McGregor v. Gibson, 248 F.3d 946 (10th Cir.2001), and State v. Davis, 277 Kan. 309, 85 P.3d 1164 (2004). The State makes no effort to distinguish either case.

The first case, McGregor, concerned a habeas petitioner in Oklahoma seeking relief for a procedural incompetency claim at the time of conviction after having been found competent at a hearing prior to trial. The Tenth Circuit Court of Appeals held that the petitioner's procedural due process rights were violated:

“A reasonable judge should have had a bona fide doubt concerning [petitioner's] continued competency to stand trial in light of the inconsistent evidence concerning whether [he] was properly medicated throughout trial, counsel's repeated and vehement contentions that his client was unable to assist in his own defense, [his] odd behavior at trial and, of course, [his] substantial history of mental illness.” McGregor, 248 F.3d at 955.

The Tenth Circuit found that the totality of the circumstances indicated (1) petitioner had a long documented history of serious mental illness; (2) the evidence presented both at the competency proceeding and at trial was that the petitioner would remain legally competent so long as the petitioner remained medicated; (3) whether petitioner continued to take the proper medication was called into doubt several times at trial; (4) petitioner exhibited unusual and inappropriate behavior during trial; and (5) trial counsel made frequent assertions on the record throughout trial that petitioner was incompetent. McGregor, 248 F.3d at 955–62.

Of note, the Tenth Circuit distinguishes competency claims as being either procedural or substantive due process violations. “A procedural competency claim is based upon a trial court's alleged failure to hold a competency hearing, or an adequate competency hearing, while a substantive competency claim is founded on the allegation that an individual was tried and convicted while, in fact, incompetent.” McGregor, 248 F.3d at 952. The Tenth Circuit reviews each type of claim under differing evidentiary standards. “ ‘[A] petitioner raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his or her incompetency by a preponderance of the evidence.’ “ Walker v. Attorney General for State of Oklahoma, 167 F.3d 1339, 1344 (10th Cir.1999). To prevail on a procedural competency claim, “the petitioner must establish that a reasonable judge should have had a bona fide doubt as to his competence at the time of trial.” To do so, a petitioner “need not establish facts sufficient to show he was actually incompetent or to show he was incompetent by a preponderance of the evidence.” McGregor, 248 F.3d at 954.

McGregor concerned a procedural competency claim. 248 F.3d at 951, 955. Accordingly, Harrison fails to recognize that McGregor held the petitioner to a lower burden of proof than Kansas requires for the party at trial who raises the issue of competence under K.S.A. 22–3302.

Under Kansas law, Harrison must establish the district court abused its discretion when faced with a preponderance of the evidence as to his incompetence at the time of trial. See State v. Barnes, 293 Kan. 240, 256, 262 P.3d 297 (2011). On appeal, Harrison does not challenge the district court's independent duty to have sua sponte ordered a competency evaluation. See Foster, 290 Kan. at 704, where the court held that a judge's failure to further inquire into a defendant's competency sua sponte under K .S.A. 22–3302(1) when evidence raises a bona fide doubt as to the defendant's competency is a denial of due process. As a result, Harrison has waived this issue. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). McGregor, however, is still instructive.

On the other hand, like McGregor, Harrison clearly has a long history of mental illness. Before trial, two separate evaluation reports forewarned the importance of Harrison being on medication and he would likely decompensate without his medications. Immediately prior to trial, defense counsel made the district court aware of her concerns that Harrison was not taking his medications. The district court spoke directly to Harrison about this. And based on Harrison's response that he had not taken any medications since returning to the county jail approximately 2 1/2 months earlier, the district court had Dr. Blakely evaluate Harrison a third time. During the same hearing, the State conceded that “based on [Harrison's] own representation today he is not taking his medication as prescribed.” Dr. Blakely's addendum submitted on the second day of trial also noted Harrison was not medicated and warned Harrison might become less competent quickly if he continued refusing his medications.

We recognize that the district court was confronted with a difficult problem. Before trial, the district court acknowledged the difficulty in understanding Harrison. In declaring Harrison competent to stand trial on September 28, 2011, the judge discussed Harrison's testimony the day before:

“Yesterday we had a short hearing where the Court did ask a few questions of Mr. Harrison and while there was some things that Mr. Harrison said that I believe were probably not understandable to any of us in the courtroom, it appeared that Mr. Harrison did have an understanding of the roles of various people who are part of a court proceeding, whether it be the judge, the jury, defense counsel, the assistant district attorney, that he certainly understood some things about the process.” (Emphasis added.)

It appears that the evidence of irrational behavior during this trial was weaker than in McGregor, which included throwing a temper tantrum because his shirt did not have a pocket, complaining of mental or medical problems, asking questions demonstrating potential disorientation, and challenging jurors to “one on one” basketball games. Nevertheless, here, defense counsel's renewal of her competency motion for the second and third time during trial informed the district court Harrison was responding to unknown stimuli. In denying the second motion, the district judge acknowledged that “[defense counsel] is accurate. [Harrison] is mouthing words and quietly hasn't made any noise that I've heard.” When denying defense counsel's third motion the next day of trial, the district judge clearly admitted to not understanding the nature of Harrison's behavior during trial:

I don't know what is going on with the mouthing of words that Mr. Harrison is doing, whether that is a symptom of his disease, whether this is something that he is doing for the jurors possibly. I do not know. I don't know what it is. I do know that at times, he does attend and listen. There have been some times, the 9–1–1 tape when it was played, Mr. Harrison ceased doing the mouthing of words. That is new as of yesterday.” (Emphasis added.)
Neither party suggests that Harrison was feigning a mental illness.

Finally, like McGregor, defense counsel made repeated assertions on the record throughout trial that Harrison was incompetent and unable to help in his defense.

The State's claim on this point is ineffective. For its part, the State contends “[t]he only evidence presented to support the argument that Harrison was incompetent to stand trial at that time was the assertions made by his own defense counsel.” Citing to Drope v. Missouri, 420 U.S. 162, 177, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the State argues “[t]he concerns of counsel alone are insufficient to establish doubt of a defendant's competency.” Drope states that any expressed doubt by defense counsel about a defendant's competency is a valid factor that should be considered. See 420 U.S. at 177–80. But in citing Drope to make its argument, the State directly cites Bryson v. Ward, 187 F.3d 1193, 1201–02 (10th Cir.1999), cert. denied529 U.S. 1058 (2000), and even acknowledges Bryson stated that “[d]efense counsel is often in the best position to determine whether a defendant's competency is questionable.” 187 F.3d at 1201; in accord, see State v. Davis, 281 Kan. 169, 178, 130 P.3d 69 (2006).

The record on appeal clearly indicates the district court was not limited to just considering defense counsel's repeated doubts. The district court also considered evidence of Harrison's mental illness, his irrational behavior, his courtroom demeanor, and prior medical opinions on Harrison's competence to stand trial. “[E]ven one of these factors standing alone may, in some circumstances, be sufficient.” Drope, 420 U.S. at 180;McGregor, 248 F.3d at 955.

In the second case Harrison cites, the Kansas Supreme Court in Davis, 277 Kan. 309, dealt with an ineffective assistance of counsel claim based on trial counsel's failure to request a second competency hearing. The record indicated the defendant had a long history of treatment for mental illness, including multiple hospitalizations. While in custody awaiting trial, the defendant was not consistently taking prescribed antipsychotic medication. The district judge initially found defendant incompetent to stand trial and committed the defendant to Larned. While there, the defendant complied with the medication regime and was eventually found competent 6 months before trial. The defendant returned to county jail. The district judge appointed new trial counsel. And, before trial, the defendant sent four incomprehensible notes to trial counsel, stopped taking his medication unbeknownst to his trial counsel, and begun having hallucinations.

The court held that the new trial counsel provided ineffective assistance. The combination of defendant's extensive history of mental illness and frequent commitments, the fact that the defendant was only found competent after a highly structured stay at Larned several months before trial, jail records indicating that defendant stopped taking his medication, evidence of recent hallucinations, the four incomprehensible letters sent to counsel before trial, and the medical reports indicating the defendant might remain competent with medication all meant trial counsel was required to seek a second competency hearing. The court noted that had trial counsel done so, the likelihood the defendant would have been found incompetent at trial “is very real.” Davis, 277 Kan. at 323–24. The court went on to state: “At the very least, there is a reasonable probability that but for counsel's error in not requesting a competency hearing the result would have been different .” 277 Kan. at 324.

We find this case persuasive. While Davis does not directly address whether the defendant was actually incompetent, the court does suggest that the evidence surrounding the defendant's competency should have been sufficient under the preponderance of the evidence standard to warrant another competency determination had trial counsel requested one. 277 Kan. at 324.

There are several similarities between the evidence of incompetency in Harrison's case and that in Davis. The expert in Davis, 277 Kan. at 323, opined that “it was unlikely that the defendant could remain competent throughout the stress of a trial.” Here, Dr. Blakely's September 27, 2011, report warned that “under the pressure of the Courtroom situation, [Harrison] may decompensate and not be able to express himself well. In which case, competence could become a real question.” More importantly, central to both cases is the functioning of a defendant fluctuating between competency and incompetency to stand trial who is ultimately found competent after improving with medication and whose continued competency was dependent on being medicated. We note that the State does not address the issue of Harrison's failure to take his prescribed medications.

In our view, what is most telling is the lack of evidence to support a finding that Harrison could help in his defense. All of the evidence indicates to the contrary—he was not able to communicate with his counsel. It was incumbent upon the trial court to determine that Harrison could assist in his own defense if it was to decide that he was competent to stand trial. In other words, that was a prerequisite finding for the court to make before finding Harrison competent. The test in Dusky, 362 U.S. at 402, was clear—“whether the defendant displayed a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” We see no evidence of that ability here with Harrison. Therefore, under Fischer, 296 Kan. ––––, Syl. ¶ 8, we must conclude the holding by the district court that Harrison was competent was an abuse of discretion because it was based on a prerequisite finding not supported by substantial competent evidence.

We recognize that we could remand this case for a retrospective competency hearing. See Davis, 281 Kan. at 180–81. The court stated four factors should be considered when making such a determination:

“(1)[T]he passage of time; (2)the availability of contemporaneous medical evidence; (3) any statements by the defendant in the trial record; and (4) the availability of individuals and trial witnesses, both experts and nonexperts, who were in a position to interact with the defendant both before and during trial.” 281 Kan. 169, Syl. ¶ 6.

Under the facts of this case, we are not convinced that a meaningful retrospective determination of Harrison's competency is possible. The record reflects that Harrison's continued competency at any specific point during his trial directly correlated with the increased negative effects of being off his prescribed medications and the continued pressure of trial.

Reversed and remanded.


Summaries of

State v. Harrison

Court of Appeals of Kansas.
Apr 5, 2013
298 P.3d 1137 (Kan. Ct. App. 2013)
Case details for

State v. Harrison

Case Details

Full title:STATE of Kansas, Appellee, v. Leon J. HARRISON, Jr., Appellant.

Court:Court of Appeals of Kansas.

Date published: Apr 5, 2013

Citations

298 P.3d 1137 (Kan. Ct. App. 2013)