MEMORANDUM AND RECOMMENDATION
This case is before the court, after conduct of a competency hearing pursuant to 18 U.S.C. § 4247(d), for ruling on whether defendant is competent within the meaning of 18 U.S.C. § 4241(a), that is, whether he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense. For the reasons set forth below, it will be recommended that defendant be found competent.
I. PROCEDURAL BACKGROUND
On 19 December 2018, defendant was indicted by a federal grand jury for four counts of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Indict. (D.E. 1) 1-2. On 11 January 2019, the court held defendant's initial appearance (see D.E. 9) and on 17 January 2019 his detention hearing (see D.E. 17), which resulted in his being detained pending trial (see D.E. 18). On 30 July 2019, defendant filed an uncontested motion (D.E. 27), pursuant to 18 U.S.C. §§ 4241 and 4247, to determine his competency. The following day, 31 July 2019, the court allowed defendant's motion and submitted him to the Federal Bureau of Prisons ("BOP") for a mental examination. See D.E. 29.
Page citations to the record are to the page numbers assigned by the court's CM/ECF electronic filing system.
On 10 October 2019, the report on the examination was filed. See D.E. 33. Entitled "Forensic Evaluation," the report had been prepared by forensic psychologist Heather H. Ross, Ph.D. and was dated 3 October 2019 ("Ross Evaluation") (comprising pp. 2-12 of D.E. 42-1).
The copy of the Ross Evaluation at D.E. 42-1 is the copy attached to the exhibit list for the competency hearing (D.E. 42). The cover letter transmitting the Ross Evaluation from the Warden of the Federal Correctional Institution at Butner, North Carolina ("FCI-Butner"), where defendant was examined, to the court is at page 1 of D.E. 42-1. The copy of the Ross Evaluation as originally filed is at D.E. 33.
At the 31 October 2019 session of court, to which defendant's arraignment had been continued (see D.E. 20, 22, 25, 30), the court directed defendant to file within a week a notice setting out three proposed dates for his competency hearing that were mutually convenient to the parties and continued the arraignment to the 9 December 2019 term. See D.E. 36. Defendant filed the notice as directed (D.E. 37), and the court scheduled the competency hearing for 6 December 2019 (see D.E. 39).
The hearing was held as scheduled. See D.E. 41. Following the hearing, on 13 December 2019, the court allowed defendant's motion to continue his arraignment and scheduled it for the 18 February 2020 term, the current setting for it. See D.E. 44. The transcript of the competency hearing ("Tr.") (D.E. 45) was filed on 3 January 2020.
II. PROCEEDINGS AT THE COMPETENCY HEARING
At the competency hearing, the government was represented by Assistant United States Attorney Donald R. Pender and defendant, who was present in the courtroom, was represented by Assistant Federal Defender Joseph L. Ross, II. Tr. 1. The court advised defendant of his rights under 18 U.S.C. § 4247(d). Id. at 4:16 to 5:4. The government presented the testimony of Dr. Ross (see Tr. 5:14 to 34:13) and defendant the testimony of defendant (see id. at 34:25 to 42:18). After defendant testified, the court recalled Dr. Ross for additional examination (see id. at 42:24 to 44:7). The government (see id. at 44:11 to 48:21) and defendant (see id. at 48:22 to 50:4) each presented oral argument. There was no post-hearing briefing.
The court admitted two exhibits at the hearing without objection: the Ross Evaluation, which was offered by the government (see Tr. 8:24 to 9:5); and a psychological evaluation by licensed psychologist James H. Hilkey, Ph.D., dated 31 July 2019 ("Hilkey Evaluation") (D.E. 42-2), which the court directed be admitted (Tr. 50:15-23). Dr. Ross reviewed the Hilkey Evaluation in preparing her evaluation (e.g., Ross Eval. 2 no. 3) and provided testimony regarding it (see Tr. 9:24 to 10:13; 18:16-25; 20:9 to 21:19; 29:21 to 34:13).
III. EVIDENCE ON COMPETENCY
A. Evaluation by Dr. Ross
Dr. Ross, an employee of BOP working at the FCI-Butner, conducted her evaluation of defendant between 7 August 2019 and 20 September 2019. Ross Eval. 1; Tr. 6:1. Her assessment included: at least 7 meetings with defendant usually lasting 1 hour each; administration of the Forced Choice Competency Test, Inventory of Legal Knowledge ("ILK"), and 3 other measures; review of 15 other items of information regarding defendant, including the Hilkey Evaluation; and telephone conversations with AUSA Pender, defendant's girlfriend, and the girlfriend's mother. Ross Eval. 1-2; Tr. 16:20 to 17:17. Dr. Ross diagnosed defendant with post-traumatic stress disorder ("PTSD"), noting that he "reported he has been exposed to several potentially traumatic events, including the death of his cousin when he was an adolescent, and violence in the jail system," and unspecified depressive disorder. Ross Eval. 9.
Dr. Ross did not make a diagnosis on defendant's intellectual capacity, explaining as follows:
Diagnoses reflecting borderline intellectual functioning or intellectual disability were considered as pan of this evaluation. While in school, Mr. Sutton carried a
special education classification of "Intellectual Disability - Mild." Some collateral informants also indicated the defendant had difficulty with comprehension. Intelligence testing completed by Dr. Hilkey was reflective of extremely low IQ. However, testing during the current evaluation reflected low effort/deliberate suppression of abilities. Similarly, mental health records from the community do not reflect concern by treatment providers that the defendant had significant intellectual deficits. Mr. Sutton's presentation during a video recorded interview with law enforcement was not consistent with an individual with significant cognitive limitations. Although it is likely that Mr. Sutton has at least below average intellectual functioning, a more accurate assessment of his intellect could not be undertaken at this time. Thus, any diagnosis reflecting intellectual deficits is deferred.Id.
Dr. Ross concluded that defendant is competent. Id. at 12. She explained her opinion, in part, as follows:
Throughout this evaluation period, Mr. Sutton displayed an ability to communicate adequately and to cooperate. However, he appeared to feign a lack of knowledge about general legal terms, in addition to feigning cognitive impairment on effort testing. Following confrontation about this response style, he demonstrated adequate factual and rational understanding of the legal system and his case. This is much more consistent with his prior exposure to the legal system on multiple occasions, rather than his feigned presentation of not having a basic understanding of legal terms and the roles of courtroom personnel.Id. at 12.
Based on the ahove information, it is this writer's opinion that, despite his reported difficulties and feigned lack of knowledge, Mr. Sutton is competent to the extent he is able to understand the nature and consequences of the proceedings against him and assist properly in his defense. It is this writer's opinion he is competent to proceed.
B. Evaluation by Dr. Hilkey
Defendant was referred for a psychological evaluation to Dr. Hilkey, who ostensibly has his own psychological practice, by AFPD Ross. Hilkey Eval. 1. Dr. Hilkey previously worked for the BOP. Tr. 32:17-18. The assessment procedures Dr. Hilkey used included: in-person evaluations of defendant on 13 May 2019 and 3 July 2019, totaling about five hours, at the Edgecombe Detention Center; the Wechsler Adult Intelligence Scale, Fourth Edition ("WAIS-IV"); the Rey 15-item Test, which measures effort; and the Competence Assessment for Standing Trial for Defendants with Mental Retardation ("CAST*MR"). Hilkey Eval. 1-2, 4. Dr. Hilkey also considered the following information: law enforcement investigative reports; Duplin County school records; mental health records from Port Health Services in Kinson, North Carolina; an interview of defendant's girlfriend; and consultations with AFPD Ross and a paralegal apparently in AFPD Ross's office. Id. at 2.
On the WAIS-IV, defendant's scores were in the extremely low range. Id. at 4. Dr. Hilkey found that, regardless of any impact of clinical depression, "these scores, along with Mr. Sutton's deficits in his activities of daily living, support a diagnosis of intellectual disability." Id. Dr. Hilkey further found that defendant was appropriately motivated on the WAIS-IV, having tested at the borderline acceptable level on the Rey 15-item Test. Id.
On the CAST*MR, defendant's scores "fell in the range typically found among [a] defendant with intellectual disabilities and were found incompetent." Id. Dr. Hilkey also determined that "[b]ased on clinical interviews and a review of [defendant's] history, there is sufficient evidence to support a diagnosis of a persistent major depressive disorder." Id.
Dr. Hilkey concluded that defendant is incompetent, stating:
. . . . A review of Mr. Sutton's history supports evidence of intellectual limitations with very poor academic performances, limitations in Mr. Sutton's abilities to function independently in the community, and susceptibility to the influence of others. Mr. Sutton was raised in a highly chaotic home environment with a mother and father who were alcoholic, factors that further added to his other limitations.
Based on this assessment that included clinical interviews and formal assessment of his competency, it is my opinion that Mr. Sutton does not have the requisite abilities to consult with his attorney with a reasonable degree of rational understanding and otherwise to assist in the defense. Factors that impede his competency include both an intellectual disability and clinical depression. Based
on these findings, it is the undersigned['s] recommendation that Mr. Sutton undergo[ ] an inpatient forensic evaluation at a designated [BOP] facility.Id. at 5.
C. Testimony by Dr. Ross
At the hearing, Dr. Ross first reviewed her qualifications. Tr. 5:24 to 7:20. She was first licensed as a psychologist in 2006 (id. at 7:13-16) and is employed as a forensic psychologist at FCI-Butner performing evaluations of criminal defendants for competency to stand trial, criminal responsibility, dangerousness, and civil commitment under the Adam Walsh Act (id. at 6:1-11). She has not done any special education teaching, but has worked in special education classrooms. Id. at 21:20-22. Defendant did not dispute that Dr. Ross is an expert in forensic psychology. Id. at 6:12-14.
Dr. Ross described the assessments she performed on defendant, including her at least seven meetings with him and her review of various materials. Id. at 9:7 to 10:2. Among these materials were Dr. Hilkey's evaluation, a 2009 Individualized Education Plan ("IEP") for defendant, additional school records regarding him, and monitored telephone calls by him with his girlfriend. Id. at 9:24 to 10:2; 16:20 to 18:25; 43:25 to 44:1. Dr. Ross did not test defendant's reading ability and at times explained words to him, although he rarely asked her questions. Id. at 19:6-24.
Dr. Ross stated that on many of the assessment measures defendant did not give or appear to he giving full effort and that several instruments showed that he appeared to be suppressing his knowledge of the subject matter. Id. at 10:14 to 12:16. She testified, in particular, that through most of the evaluation, defendant presented as though he was unclear about the roles of most individuals in the court system. Id. at 12:17 to 13:13. At the last interview, however, Dr. Ross explained to defendant that a finding by the court that he was incompetent would not result in dismissal of the charges against him, but likely commitment to a BOP hospital for restoration of competency and then continuation of the prosecution. Id. at 13:14 to 14:1. Defendant was then able to explain the roles of various individuals in the courtroom and provide other information relating to his case that he had previously stated he was unsure about or stated incorrectly. Id. at 14:2 to 15:6.
After referencing her diagnoses of defendant with PTSD and a depressive order and her inability to make a diagnosis regarding his intellectual capacity (id. at 15:7-16), Dr. Ross stated her conclusion that defendant was competent (id. at 15:17-19). She explained as follows:
I believe he has a factual understanding of the courtroom process, he does understand the roles of the major participants. He understands who his attorney is and that he is working towards his best interest in trying to keep him out of jail or get him a shorter sentence. He understands the AUSA's role in trying to get a conviction with him and the Judge's role is to hear the evidence and make decisions. He understands what he's charged with. He had at least a basic understanding of the sentence that he's looking at. He was able to — I believe he's able to work with his attorney just — in general, he was able to work with me in the testing process, although he wasn't necessarily fully honest at the beginning. So I think overall, those factors all suggest that he's competent to stand trial.Id. at 15:19 to 16:11.
Dr. Ross further opined that defendant comprehends things more slowly than people with average IQs. Id. at 19:1-7. She also noted that in her experience people with lower IQs, lower education, and lower understanding of concepts tend to listen to and respect people who have more education and to indicate that they understand when they actually do not. Id. at 20:20 to 22:11.
In further testimony, Dr. Ross stated that the classification of a person as having "intellectual disability, mild" in an IEP, as appeared in the IEP she had for defendant, usually signifies somewhat lower IQ and struggling in coursework overall; the IEP for defendant also indicated defendant's attendance and behavior affected his performance; and the classification of a person as having "intellectual disability, mild" does not in itself mean that the person is incompetent. Id. at 23:15 to 26:14; see also id. at 48:6-20 (AUSA Pender noting in his argument that he was a special education teacher and that based on his experience with "many, many, many students who were intellectual disability, mild" that classification is "very broad in that, in and of itself, [it] docs not mean you cannot appreciate the proceedings and cannot appreciate what is happening").
Dr. Ross further testified about her diagnosis of defendant with PTSD and depressive disorder, the associated symptoms, and the medication he has taken for these conditions. Id. at 27:3 to 29:9. She stated that these conditions can affect a person's ability to think and make decisions. Id. at 29:10-17.
Dr. Ross testified that she disagreed with Dr. Hilkey's opinions that defendant is incompetent and that an intellectual disability and clinical depression contribute to his incompetency:
So I believe that Mr. Sutton does have the requisite abilities for competence. I do believe he suffers from depression, I do believe that he may have some disability intellectually, in that, I don't believe he's of average intelligence. But I don't think those conditions are so impairing that they're affecting his competence at this time. I believe — my assumption is that he was presenting to Dr. Hilkey similar to how he did for most of our evaluation at FCI Butner, in that he was presenting as more impaired than he truly was. So I don't believe that IQ testing was probably valid that Dr. Hilkey gave, I don't think a 55 IQ is an accurate representation of Mr. Sutton's intellectual abilities.Id. at 30:21 to 31:8; see also id. at 20:9 to 21:19 (Dr. Ross's testimony acknowledging low scores obtained by Dr. Hilkey on intellectual testing of defendant).
Dr. Ross also explained that she based her disagreement with Dr. Hilkey's conclusions
[p]artially . . . [on] my interviews, partially on the testing results that showed that he was not giving full effort. And that was also confirmed on video I was given
of an interview by law enforcement, where Mr. Sutton's presentation with me, where he presented as having a very poor memory, he couldn't remember anything between one session and the next, whereas, in the interview with law enforcement, he was able to repeat — he was trying to provide evidence in order, I believe, to get a lighter sentence. And he was giving evidence of information from the neighborhood he lived in that went back several years, he was referencing information that he's overheard in the jail, people bragging about their crimes. So he certainly seemed to have a much better memory and ability to share information on that video than he ever presented to me. So that, too, informed my opinion.Tr. 33:17 to 34:7. After noting that Dr. Hilkey met with defendant two times as opposed to at least seven times with her, Dr. Ross stated that it was unclear whether Dr. Hilkey's recommendation for a further inpatient evaluation of defendant at a BOP hospital referred to an evaluation of the type she had performed under 18 U.S.C. § 4241(a) or a restoration evaluation under 18 U.S.C. § 4241(d). Id. at 31:21 to 34:9.
Dr. Ross saw and heard defendant testify. Id. at 43:6-8. She stated that his testimony did not change any of her opinions. Id. at 43:9-12. She also said that, while she could not opine on defendant's reading aloud because she had not had him do that for her, his speech during his testimony was more hesitant than when she interviewed him, different than during his conversations with his girlfriend in recorded jail calls, and inconsistent with his presentation in the law enforcement video. Id. at 43:18 to 44:3.
D. Testimony by Defendant
During his testimony, defendant stated that he was scared (id. at 42:12-13); repeatedly spoke too softly to be heard (see, e.g., id. at 35:11-12; 37:6-9; 40:19; 41:8-9); was at times apparently crying (see id. at 38:12-18; see also id. at 35:6-25 (testifying to crying in jail two days earlier)); and spoke of having difficulty sleeping (id. at 38:10-11). When initially asked what his attorney's job was, defendant said it was to help him, but then stated that he did not know what that meant. Id. at 36:16-20. Defendant later testified that his attorney could help him by obtaining for him less time by defendant's cooperating, which he stated meant snitching or tattling on somebody. Id. at 41:20 to 42:11. Defendant testified that the prosecutor's job was "[a]gainst me" and the judge's job was "keeping the time." Id. at 36:21 to 37:2.
Defendant stated that he finished the ninth grade in special education classes, which had about six to ten students, and did not go further because he "couldn't hardly read or do nothing." Id. at 37:11-20; see also id. at 37:4-9 (defendant's testimony that his reading was "[n]ot good"). He did not read aloud accurately an excerpt from Dr. Ross's evaluation (id. at 40:9 to 41:19), and when asked whether he knew what "presentation," "rudimentary," and "difficulty" meant, he stated he did not understand their meaning (id. at 39:7-9, 17-20). Defendant also testified that he can hardly count and that his girlfriend helps him with counting. Id. at 37:21 to 38:9. Defendant was able to give his correct age, 27, and the correct name of his counsel. Id. at 38:19 to 39:3.
Defendant stated that he understood he could ask his counsel questions about what his counsel says to him, although he did not always understand the explanations his counsel provides. Id. at 39:4-16.
IV. APPLICABLE LEGAL STANDARDS
Section 4241 of title 18 of the United States Code provides that a defendant is incompetent if he is "suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." 18 U.S.C. § 4241(a). Conversely, the courts have held that a defendant is mentally competent if "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and if "he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (internal quotation marks omitted). "[T]he defendant has the burden, 'by a preponderance of the evidence [to show] that the defendant'" is incompetent. United States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005) (quoting 18 U.S.C. § 4241(d)); United States v. Brown, No. 5:08-CR-369-FL-2, 2009 WL 4906572, *1 (E.D.N.C. 18 Dec. 2009); see also Cooper v. Oklahoma, 517 U.S. 348, 362 (1996) ("Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence.").
Psychological and psychiatric evaluations arc a means of demonstrating a defendant's incompetence. See United States v. Mason, 52 F.3d 1286, 1290 (4th Cir. 1995) ("Medical opinions are 'usually persuasive evidence on the question of whether a sufficient doubt exists' as to the defendant's competence." (quoting Griffin v. Lockhart, 935 F.2d 926, 930 (8th Cir. 1991))). Where multiple experts offer medical opinions regarding a defendant's competency, "a district court may find a defendant competent by adopting the findings of one expert and discounting the contrary findings of another." United States v. Mitchell, 706 F. Supp. 2d 1148, 1151 (D. Utah 1 Mar. 2010) (citing Miles v. Dorsey, 61 F.3d 1459, 1472-74 (10th Cir. 1995)); see also United States v. Cristobal, 293 F.3d 134, 144 (4th Cir. 2002) ("Assessing and evaluating the strength and weaknesses of two experts' conflicting testimonies is a task particularly within the fact finder's province . . . ."); United States v. Speelman, No. 7:11-CR-69-FL-1, 2016 WL 3129180, at *6 (E.D.N.C. 2 June 2016). When assessing opinions on competency,
[n]ot every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges. United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984). Likewise, neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial.Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000).
The court may also rely on lay witness testimony, especially "where evidence indicates a defendant may be malingering or manipulating the system." Mitchell, 706 F. Supp. 2d at 1151; see, e.g., United States v. Gigante, 925 F. Supp. 967, 976 (E.D.N.Y. 1996) (relying on lay witness testimony in concluding that defendant's "actions and decisions were wholly inconsistent with the behavior observed by the doctors").
If the court finds defendant incompetent, he must be hospitalized for treatment in a suitahle facility for a specified period. 18 U.S.C, § 4241(d). If the defendant is found competent, the case proceeds against him. See United States v. Ramsey, 786 F. Supp. 2d 1123, 1128 (E.D. Va. 17 May 2011) (directing that an arraignment and detention hearing be scheduled upon finding defendant competent); United States v. Brown, No. 5:08-CR-369-FL-2, 2009 WL 4906572, at *1 (E.D.N.C. 18 Dec. 2009) (noting that the court would turn its attention to trial after finding defendant competent).
The court finds that defendant has failed to meet his burden of demonstrating by a preponderance of the evidence that he is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to either understand the nature and consequences of the proceedings against him or to effectively assist in his defense. He has therefore failed to show that he is incompetent.
In reaching this determination, the court credits Dr. Ross's opinion that defendant is competent. Her opinion is based on her consideration of extensive information regarding defendant, including at least seven meetings with him at FCI-Butner, her observation of him at the hearing, and the numerous materials he reviewed. Defendant's ability at her final meeting with him at FCI-Butner to describe the roles of court personnel and his case substantiates his competency. As detailed by Dr. Ross in her evaluation, defendant
. . . identified the judge's role as, "Gives you time." He said his attorney's job is to "help;" he further clarified he helps to "get less time." He noted the prosecutor's role is to "make sure (the defendant] goes to jail." Mr. Sutton defined a guilty plea as "they did it" and a not guilty plea as "they didn't do it." He defined evidence as "whatever they got on you" and a witness as "somebody that seen it." He described a plea bargain as a "deal;" he further noted the defendant has to plead guilty as part of the deal. Mr. Sutton noted that he does not remember his attorney's name. He acknowledged that he understands some of what Mr. Ross says, and Mr. Ross would likely explain it to him further if asked. He said they have gone over the case and Mr. Ross believes the prosecution has a strong case against him. He denied being offered a plea bargain in this case. He said he is facing a minimum sentence of 56 of 57 months, with a maximum sentence of 10 years. Mr. Sutton remarked he has not yet decided on whether to plead guilty or go to trial, but he has discussed it with his girlfriend.Ross Eval. 11.
Further substantiating defendant's competency is his accurate testimony at the hearing about the role of his attorney and the prosecution and about cooperating with the government as a possible means of obtaining a lower sentence. He also demonstrated at the hearing in his interactions with his attorney an adequate ability to communicate and cooperate, just as Dr. Ross found he had done in his dealings with her.
Additionally, the court credits Dr. Ross's assessment in reaching her conclusion on defendant's competency that during most of her evaluation of him he was feigning lack of knowledge and cognitive impairment. This assessment by Dr. Ross is substantiated, as she found, by defendant's ability to provide accurate information about the roles of court personnel and his case after she confronted him with the consequences of being found incompetent. The assessment is also substantiated by the additional supporting evidence Dr. Ross cited, including defendant's presentation in a law enforcement video and during telephone calls with this girlfriend.
While finding defendant to be feigning, Dr. Ross convincingly found that defendant has below average intelligence and depression. She also convincingly determined, however, that these conditions do not deprive defendant of competency. The evidence supporting this determination includes the evidence supporting Dr. Ross's determination on feigning.
In crediting Dr. Ross's opinion on competency, the court rejects Dr. Hilkey's opinion that defendant is incompetent. Among other reasons, Dr. Hilkey did not see defendant as frequently as Dr. Hilkey did.
Further, Dr. Hilkey failed in his report to convincingly show that defendant did not engage in the same type of feigning Dr. Ross found. While Dr. Hilkey determined that defendant "appeared to be appropriately motivated" during his evaluation of him, Dr. Hilkey reported that defendant's effort testing on the Rey 15-item Test was merely within "borderline acceptable levels." Hilkey Eval. 4. Further, there is no indication that Dr. Hilkey confronted defendant with the consequences of being found incompetent or that defendant was otherwise aware of such consequences when Dr. Hilkey evaluated him. In addition, the record does not establish that Dr. Hilkey had available to him the video of the law enforcement interview that played a key role in Dr. Ross's evaluation. Nor does the record show that Dr. Hilkey had access to recordings of jail calls by defendant with his girlfriend, which also contributed to Dr. Ross's determination on defendant's feigning. Dr. Hilkey was also necessarily unaware of the ability defendant ultimately demonstrated during Dr. Ross's evaluation to provide accurate information about the court system and his case, because he evaluated defendant and issued his report before Dr. Ross even began her evaluation.
In contrast to Dr. Hilkey's not having access to Dr. Ross's evaluation, Dr. Ross did have access to and considered Dr. Hilkey's evaluation. This fact further tends to detract from Dr. Hilkey's opinion on competency and bolster Dr. Ross's. The court's rejection of Dr. Hilkey's opinion that defendant is incompetent finds further support in Dr. Ross's disagreement with it. Lastly, Dr. Ross appeared at the hearing and the court had the benefit of her testimony, including that given in cross-examination, in assessing her opinions. Of course, Dr. Hilkey did not appear at the hearing.
The argument by AFPD Ross at the close of the hearing focused on his concern that decisions made by defendant regarding his case reflect defendant's actual will and not merely defendant's deferring to AFPD Ross's recommendations as a result of his intellectual deficiency. See Tr. 48:23 to 50:3. His full argument reads:
AUSA Pender's argument appears at Tr. 44:10 to 48:21.
You know, I'm actually well aware that learned counsel was a special ed teacher. I know that takes a lot of hard work. And here's the situation that I want to present to the Court, I'm not disputing what Dr. Ross saw, I'm not even disputing what Dr. Hilkey saw, my concern is, I am not the one who's going to call the strength or the foul on this situation. What I do know is, experience tells me that people who have these intellectual disabilities tend, in my experience, to follow along with somebody who seems like they know everything. And I want to make sure that my client is the one that's making that decision and not me. I don't want my will to be placed on Mr. Sutton.
So I think in asking this Court to have him evaluated, I've done my due diligence. In finding a doctor to evaluate him, I've done my due diligence. And. finally, having the BOP to look at Mr. Sutton, that has been done as well. I will have many concerns as to everything Mr. Sutton does. If this Court does finds him to be competent, so be it. If the Court decides to send him off for another evaluation, so he it as well. I just wanted to make sure before we go anywhere else in this case, someone else has looked over my back, has looked at Mr. Sutton, has evaluated him and in a respectful way, so that hopefully he can make that decision.
I have someone who is 26 years old, and we know this from many of the cases in which we've handled in 4248, they talk about brain development goes all the way up until you're 26 years old. So at this point, his brain should be fully
developed. But I am no expert. I ask this Court to look at this seriously and if the Court finds him to be competent, so be it. Thank you.Tr. 48:23 to 50:3.
As noted, defendant was 27 years old at the time of the hearing. See Tr. 38:19-20; Ross Eval. 1 (listing defendant's birthdate)
But the record makes clear that Dr. Ross considered defendant's potential susceptibility to the influence of others in her evaluation and found it not to render him incompetent. See, e.g., id. at 20:20 to 22:11. While Dr. Hilkey appears to find defendant's susceptibility to the influence of others a basis for his conclusion that defendant is incompetent (see Hilkey Eval. 5), the court finds this aspect of his evaluation unconvincing for the same reasons stated with respect to his overall opinion on defendant's competency.
Moreover, at the hearing, when asked by AFPD Ross for suggestions on how he could help defendant and defendant could help AFPD Ross, she responded with advice responsive to the concern that defendant be the actual decision maker in the handling of his case:
. . . . So as his attorney, checking in often about his understanding of concepts, having him say the things back to you in his own words so that he's not just nodding and agreeing and saying that he understands, but actually confirming that understanding.Tr. 22:22 to 23:9. These suggestions should help ensure that defendant understands the nature and consequences of the proceedings against him and to assist properly in his defense, as the record shows he has the ability to do.
And for Mr. Sutton, I would strongly encourage him to ask questions if he doesn't understand things, to clarify. That was one of the things we talked about on that last day, he said he hasn't asked questions of you and he doesn't understand things but that you probably would answer them if he did ask. So I encouraged him at that time and I would encourage him again to ask questions if he doesn't understand so that he can better help you with his defense.
Although defendant did not request an additional competency evaluation, the court has considered whether one is warranted in light of the differing conclusions reached in the two evaluations that were performed. The court concludes that that an additional evaluation is not warranted based on the same reasons and evidence supporting Dr. Ross's evaluation. --------
For the foregoing reasons, IT IS RECOMMENDED that defendant be found: (1) not presently to be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense; and (2) therefore to be competent to proceed in this case.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 4 February 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Any response to objections shall be filed within 14 days after filing of the objections.
SO ORDERED, this 21st day of January 2020.
James E. Gates
United States Magistrate Judge