People v. Lindsey , 2018 COA 96 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 12, 2018
2018COA96
No. 15CA1368 People v. Lindsey — Criminal Law —
Competency to Proceed — Retrospective Competency Hearings
In this direct criminal appeal, a division of the court of appeals
considers the proper remedy where a trial court fails to follow the
applicable statutory procedure when a defendant’s competency is
raised by motion before trial. In People v. Presson, 2013 COA
120M, ¶ 26, the division ordered a remand for the trial court to
determine the defendant’s current competency and conduct a new
trial if the defendant was found currently competent. Division in
this case departs from the Presson decision because the trial court
is better positioned than the court of appeals to first determine if a
retrospective competency determination is feasible. Thus, this
division vacates and remands for such a determination and for
further proceedings based on that threshold inquiry.
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COLORADO COURT OF APPEALS 2018COA96
Court of Appeals No. 15CA1368
Jefferson County District Court No. 12CR1487
Honorable Todd L. Vriesman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
William Arthur Lindsey,
Defendant-Appellant.
JUDGMENT VACATED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE FOX
Webb and Richman, JJ., concur
Announced July 12, 2018
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Ridley, McGreevy & Winocur, PC, Robert T. Fishman, Denver, Colorado, for
Defendant-Appellant
¶1 William Arthur Lindsey appeals the judgment of conviction
entered on jury verdicts finding him guilty of eight counts of
securities fraud and four counts of theft. We vacate and remand
the case for proceedings consistent with this opinion.
I. Background
¶2 Over a thirteen-month period, Lindsey persuaded six
individuals to invest $3 million in new technology that would
allegedly use algae-based bioluminescent energy to light signs and
panels. Lindsey told his investors he had contracts to sell his
lighted signs and panels to the United States Department of
Defense, U-Haul, PetSmart, and the Super Bowl. As it turns out,
neither the technology nor the contracts ever existed, and Lindsey
allegedly spent the money on repaying other investors and on
personal expenses.
¶3 The People charged Lindsey with eight counts of securities
fraud and four counts of theft. After lengthy pretrial proceedings
that included multiple changes in Lindsey’s counsel, a jury
convicted him as charged. The judge sentenced Lindsey to twenty-
four years in the Department of Corrections’ custody.
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II. Competency
¶4 Lindsey’s primary contention is that the trial court erred in
refusing to order a competency evaluation where the issue was
raised by his counsel’s motion before trial. Because the trial court
failed to follow the applicable statutory procedure and the trial
court is better positioned to first determine if a retrospective
competency determination is feasible, we vacate the judgment and
remand for such a determination and for further proceedings based
on that threshold inquiry.
A. Applicable Law and Standard of Review
¶5 We review a trial court’s determination of a defendant’s
competency for an abuse of discretion. People in Interest of W.P.,
2013 CO 11, ¶ 10. A trial court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, or unfair, id., or it
misapplies the law, People v. Garrison, 2017 COA 107, ¶ 30.
Whether the court should have ordered a competency evaluation is
a question of law we review de novo. See W.P., ¶ 10.
¶6 The People’s primary argument on appeal is that the standard
to determine competency is whether the judge has a “reason to
believe” the defendant is incompetent. Lindsey responds that the
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applicable statute provides different ways to raise competency —
under section 16-8.5-102(2)(a), C.R.S. 2017, the judge may raise
competency if he has reason to believe the defendant is
incompetent, or under section 16-8.5-102(2)(b), the defense or
prosecution, having reason to believe the defendant is incompetent,
may raise competency. The plain language of section 16-8.5-
102(2)(b) does not require that the judge have a reason to believe
the defendant is incompetent. See People v. Nagi, 2014 COA 12,
¶¶ 9, 14 (using “reason to believe” as the applicable standard in a
case where the judge raised the issue of the defendant’s competency
after the defendant chose to proceed pro se), aff’d, 2017 CO 12.
But, as discussed below — and as the prosecution conceded at trial
— the motion the People now challenge on appeal was facially valid
and raised Lindsey’s competency.
¶7 A defendant is incompetent to proceed if, “as a result of a
mental disability or developmental disability,” he lacks “sufficient
present ability to consult with [his] lawyer with a reasonable degree
of rational understanding in order to assist in the defense, or . . .
does not have a rational and factual understanding of the criminal
proceedings.” § 16-8.5-101(11), C.R.S. 2017.
3
¶8 When the question of a defendant’s competency is raised, the
court makes a preliminary finding of competency. § 16-8.5-103(1),
C.R.S. 2017. The preliminary finding becomes a final determination
unless a party objects within fourteen days. Id. If the court lacks
the information necessary to make a preliminary finding of
competency or incompetency, or if either party objects to the court’s
preliminary finding, the court must order a competency
evaluation. § 16-8.5-103(2); W.P., ¶ 16 (discussing the 2008
statutory amendments that now “mandate[] that a court order a
competency evaluation upon either party’s timely objection to its
preliminary finding of competency or incompetency”).
B. Additional Background
¶9 The attorney who ultimately represented Lindsey at trial,
David G. Tyler, entered his appearance in the case in May 2014,
just days before Lindsey’s trial setting. The court granted Tyler a
continuance to allow him time to prepare. At the end of the
continuation period, Tyler filed a motion to withdraw, which the
court denied. With Lindsey’s trial set to start on April 20, Tyler filed
the competency motion at issue on April 16, 2015.
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¶ 10 The motion alleged that Lindsey displayed “irrational” behavior
and that Lindsey was unable to appreciate the nature and
consequences of the trial and could not assist Tyler in defending
him. Tyler later added that on numerous occasions
I have repeatedly been assured with regard to
this matter about testimony, witnesses, the
furnishing of new witnesses, money for the
hiring of experts, expert names, addresses,
assured that this will be furnished to me.
None of it has happened. I’ve been told a
number of things which are contradictory . . . .
[Lindsey] cannot help me, and has not helped
me. I believe it’s delusional. . . .
[T]here are elements to this that are just not
what a normal person would do. And as a
result of that, I am in a position where I
cannot rely on what Mr. Lindsey tells me[.]
¶ 11 Tyler’s motion alleged that Lindsey lacked “sufficient present
ability to consult with [his] lawyer with a reasonable degree of
rational understanding in order to assist in the defense.” § 16-8.5-
101(11).
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¶ 12 At the hearing concerning Tyler’s motion, the court determined
Lindsey was competent to proceed.1 But, the judge also determined
that the motion did not fall under section 16-8.5-101(11):
I hereby find that the motion . . . does not fall
within that definition. I am emphasizing the
words “present ability to consult with the
defendant’s lawyer.” In fact, [what] is being
alleged here is that there hasn’t been a
consultation, but what is extremely important
for any motion under this statute, to come up,
is to talk about the ability, and the present
ability, to understand not simply because . . .
there has been some lack of communication or
non-preparation, as much as defense counsel
would like. Defense counsel cannot make a
claim of alleging competency of his client
based upon a client’s refusal to cooperate with
his counsel. That doesn’t go to the issue of
present ability to understand, with a
reasonable degree of rational understanding in
the proceedings that are before us.
1 The judge explained how a competency evaluation would proceed
and asked Lindsey if he wanted to join the motion to determine
competency, to which Lindsey replied, “No.” Under the statute, the
defendant is not required to join a competency motion, and the
defendant’s preferences do not dictate whether a competency
evaluation will be conducted. § 16-8.5-105(2), C.R.S. 2017 (the
defendant is required to cooperate with the competency evaluator);
cf. § 16-8.5-106(1), C.R.S. 2017 (the defendant may move to be
examined “by a competency evaluator of his or her own choice in
connection with any proceeding under this article”). The judge also
asked Lindsey, “Do you believe you have that mental competence to
understand what’s going on today?” Lindsey replied, “I honestly
don’t know because I’ve never been — I’ve never had an evaluation.”
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¶ 13 Tyler then tried to proceed to the second step of the statute —
objecting to the court’s finding and prompting an evaluation. § 16-
8.5-103(1)-(2). The prosecution agreed to this reading of the
statute:
[Prosecutor]: So after the preliminary finding is
made, the [c]ourt would go on to the second
step. Does the [c]ourt agree with me?
The court disagreed, stating,
It does not. Did you not hear what I said? I
said that your motion was not filed on a proper
basis under the statute itself.
So apparently your mistake is that you
presumed by simply following the procedures
in this statute, that you, in your mind, have
questioned the present ability of your client to
proceed here today, is wrong. So the motion is
being dismissed.
So now we’re going to have a trial. Do you
understand that, sir?
¶ 14 After a week of trial, Tyler renewed his competency motion,
but the court’s ruling remained unchanged: “I’m denying your
renewed motion to consider incompetency. I’m not going to hear
any more of this. If you believe that I’m wrong under the statute
. . . then you have the ability to go over my head after whatever
verdicts are rendered.”
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C. Analysis
¶ 15 In misapplying the law, the court abused its discretion. See
Garrison, ¶ 30. The plain language of the statute requires the court
to order a competency evaluation if, within fourteen days of the
court’s preliminary finding, either party objects to its preliminary
determination of competency. § 16-8.5-103(1)-(2); W.P., ¶ 16.
Although counsel filed his motion on the eve of trial, thus giving the
court grounds for reasonable skepticism on the underlying
motivation, counsel met the statutory requirements for the motion
— including providing the court and prosecutor with copies of the
motion, § 16-8.5-102(2)(b), so the motion was facially valid. The
court further abused its discretion in concluding that a facially
valid motion on competency did not fall under the competency
statute.
¶ 16 Having determined there was error, we now consider what
remedy is required. Lindsey argues that this error constitutes a
violation of his right to due process, thus requiring a new trial. See
People v. Presson, 2013 COA 120M, ¶ 16. The People assert that
there was no error because the trial court has discretion in deciding
whether to grant a competency hearing. We need not resolve
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whether this is constitutional or nonconstitutional trial error,
because under either standard vacating the conviction and remand
is appropriate. See id. at ¶ 17. However, and for reasons explained
below, we prescribe a different remedy than that ordered in Presson,
¶ 26. See People v. Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008)
(one division of this court is not bound by another division’s
decision).
¶ 17 Tyler’s motion alleged that Lindsey lacked the ability to
consult with him to assist in his own defense. Tyler’s allegations
that Lindsey avoided communication with him, lied about procuring
funds and expert witnesses, attempted to fire him, and seemed to
be operating under “significant delusions about the reality and the
status of this matter” raised legitimate doubts about Lindsey’s
competence. At trial, the difficulties with Lindsey that Tyler
described came to light:
[Prosecutor]: Do you have any more
information on [your witnesses] like date of
birth or address or anything? . . .
[Tyler]: I really, frankly, don’t. . . . I’m trying to
determine . . . I have to talk with Mr. Lindsey
about exactly how we’re going to proceed to
put on his testimony . . . . I don’t know that
yet. . . .
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[The Court]: I’ve heard . . . that your client
supposedly isn’t communicating with you . . .
and I won’t go off on that again. There is no:
[m]y client refuses to communicate with me, so
I don’t have to comply with the rules of
procedure or exception to the criminal rules of
procedure. . . . So I know that you’re doing
your best, but I need for you to explain, as
fully as you possibly can, the names and
identifying information of the witnesses that
you are calling in your defense.
¶ 18 The possibility that an incompetent person, incapable of
rationally assisting in his own defense, may have been forced to
stand trial could have infected the fairness of the trial proceedings.
See Nagi, ¶ 15 (considering a trial court raising the issue of
competency on its own initiative under section 16-8.5-102(2)(a) and
stating that “the standard of ‘reason to believe’ presents a low
threshold”). While we do not condone counsel filing a motion on the
eve of trial raising concerns that had been ongoing for months, the
trial court’s failure to comply with section 16-8.5-103 requires the
judgment to be vacated and the case to be remanded for further
proceedings.
¶ 19 The harder question is how to deal with Lindsey’s competency
on remand. After all, he has not been determined to be
incompetent. And at oral argument, his appellate counsel conceded
10
that absent a retrospective determination of incompetency or a new
motion questioning competency, the issue of Lindsey’s competency
need not be addressed on remand.
¶ 20 The Presson division held that “[o]n remand, the court shall
conduct further competency proceedings, in accordance with
applicable statutory procedures and this opinion, to ascertain
whether defendant is properly oriented to time, place, and person,
and her perceptions are rational and grounded in reality.” ¶ 26
(citing People v. Mondragon, 217 P.3d 936, 940 (Colo. App. 2009)).
The record evidence on Lindsey’s mental state is sparse — no
witnesses testified about Lindsey’s competency, and no relevant
medical records were included in our record. Thus, we adopt the
remedy other states and United States v. Bergman, 599 F.3d 1142,
1148 (10th Cir. 2010), have employed: the case is remanded for the
trial court to determine if a retrospective competency hearing,
including the opportunity to present additional evidence, on
Lindsey’s competency at the time of the 2015 trial is feasible. See,
e.g., State v. Bostwick, 988 P.2d 765, 772-73 (Mont. 1999); see also
Odle v. Woodford, 238 F.3d 1084, 1090 (9th Cir. 2001) (discussing,
in the context of defendant’s request for habeas corpus relief, the
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propriety of allowing the state court to cure its omission of a
competency hearing by conducting one retroactively if the record
contained sufficient evidence to make one feasible); People v. Ary,
246 P.3d 322, 329 (Cal. 2011).
¶ 21 “Retrospective competency hearings are generally ‘disfavored’
but are ‘permissible whenever a court can conduct a meaningful
hearing to evaluate retrospectively the competency of the
defendant.’” McGregor v. Gibson, 248 F.3d 946, 962 (10th Cir.
2001) (quoting Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir.
1999)); see also Pate v. Robinson, 383 U.S. 375, 387 (1966); People
v. Pendleton, 2015 COA 154, ¶¶ 11-12, 17 (approving of the
postconviction court conducting a retrospective competency hearing
and determining that a five-year gap between the trial and the
hearing did not invalidate the court’s findings); Edwards v. State,
902 N.E.2d 821, 825 n.3 (Ind. 2009) (collecting cases). But see
Greene v. State, 264 S.W.3d 271, 273 (Tex. App. 2008) (declining to
order a retrospective competency hearing because the defendant
had possessed no meaningful level of competency since being
convicted).
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¶ 22 On remand, the trial court must weigh four factors when
considering whether a meaningful retrospective competency hearing
can be held:
(1) the passage of time, (2) the availability of
contemporaneous medical evidence, including
medical records and prior competency
determinations, (3) defendant’s statements in
the trial record, and (4) the availability of
individuals and witnesses who interacted with
the defendant before and during trial,
including the trial judge, both counsel, and jail
officials.
People v. Corichi, 18 P.3d 807, 811 (Colo. App. 2000); see also
Clayton, 199 F.3d at 1169.
¶ 23 If the court determines (1) it is not able to make a retrospective
competency determination, or (2) it can make a retrospective
competency determination and finds Lindsey was not competent
during the 2015 trial, then the judgment shall remain vacated and
a new trial will be required. Bergman, 599 F.3d at 1149; Bostwick,
988 P.2d at 773. If a new trial is warranted because the court is
unable to make a retrospective competency determination, the
court on its own or either counsel may question Lindsey’s
competency at that new trial, thus triggering the statutory
procedures discussed above. If a new trial is warranted because
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the court finds that Lindsey was not competent during the 2015
trial, the prosecution must prove that Lindsey has been restored to
competency before he can be retried.
¶ 24 If the court concludes a retrospective competency
determination is feasible and further finds Lindsey was competent
during trial in 2015, then the court shall reinstate the judgment of
conviction, subject to his right to appeal that determination. See
Bostwick, 988 P.2d at 773. But cf. Bergman, 599 F.3d at 1149
(even if the defendant was competent at the time of the original
trial, “the court may still, in its discretion, vacate [the defendant’s]
conviction and conduct a new trial”).
III. Lindsey’s Other Contentions
¶ 25 We address Lindsey’s other contentions to the extent that
similar issues may arise in the event of retrial. People v. Rios, 2014
COA 90, ¶ 39. Because we remand on the competency issue, we
need not address Lindsey’s arguments on the prosecutor’s cross-
examination or merger because the issues were not raised at trial
and they are unlikely to arise on remand — particularly the merger
issue, on which the parties agree. If Tyler represents Lindsey on
remand, the court must take up Lindsey’s argument that his right
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to conflict-free counsel is violated if Lindsey’s competency is raised
and Tyler discloses confidential information that could impeach
Lindsey’s trial testimony without Lindsey being advised of and
waiving the conflict.2
¶ 26 Lindsey next argues that the trial court erred by (1) instructing
the jury that “any note” constitutes a security and (2) giving an
improper unanimity instruction. Lindsey did not preserve this
issue so we review for plain error. People v. Carter, 2015 COA 24M-
2, ¶¶ 50, 52 (“A court’s improper instruction ‘does not constitute
plain error if the relevant instruction, read in conjunction with
other instructions, adequately informs the jury of the law.’” (quoting
People v. Garcia, 28 P.3d 340, 344 (Colo. 2001))).
¶ 27 As to the first contention, Lindsey’s trial was conducted before
People v. Mendenhall, 2015 COA 107M, was decided. The trial
court and parties now have the benefit of that case and can apply
2 According to Tyler’s motion on competency, counsel was semi-
retired as of 2015, so it would seem unlikely he would represent
Lindsey once more, especially since he will likely be called on to
testify at any competency hearing. See People v. Delgadillo, 2012
COA 33, ¶ 14 (discussing the conflict of interest created where
counsel testified, in a case where he was representing the
defendant, about communications he had with the defendant).
15
the four-factor test in crafting new jury instructions. See People v.
Thompson, 2018 COA 83, ¶¶ 14-17.
¶ 28 As to the second contention, we conclude the instructions as
to counts 1, 2, 4, 9, and 10 were proper because each count was
based on its own individual transaction.3 The instruction as to
count 6 was improper because the pertinent investments involved
three separate transactions.
When evidence of many acts is presented, any
one of which could constitute the offense
charged, the trial court must take one of two
actions to ensure jury unanimity: (1) require
the prosecution to elect the transaction on
which it relies for the conviction, or (2) if there
is not evidence to differentiate between the
acts and there is a reasonable likelihood that
jurors may disagree on the act the defendant
committed, instruct the jury that to convict it
must agree unanimously that the defendant
committed the same act or that the defendant
committed all of the acts included within the
period charged.
People v. Greer, 262 P.3d 920, 925 (Colo. App. 2011). But, when “a
defendant is charged with crimes occurring in a single transaction,
3 While the payment at issue in count 10 was made in four separate
transfers, those transfers constituted one payment for a single
transaction induced by a single statement.
16
the prosecutor need not elect among the acts, and the trial court
need not give a modified unanimity instruction.” Id.
¶ 29 Here, the unmodified jury instruction provided:
In order to convict a defendant in each count
of Securities Fraud based upon a material
untrue statement or omission you must be
unanimous in finding that the defendant made
at least one specific material untrue statement
or omission on or about the dates charged, in
each count.
Each of counts 1, 2, 4, 9, and 10, was based on a unique
transaction, so this unmodified unanimity instruction was
sufficient. But, the three transactions in count 6 were induced
through different statements: the first was based on Lindsey’s claim
he needed money to buy equipment to fulfill his Super Bowl
contracts, and the second and third were based on separate claims
that he needed cash to make payroll and meet other regular
operating expenses. To be proper, the instruction needed to specify
that the jury “must agree unanimously that the defendant
committed the same act or that the defendant committed all of the
acts included within the period charged.” Id. In the event of retrial,
we direct that the instructions be modified accordingly. If Lindsey’s
convictions are reinstated following a retrospective competency
17
hearing, the conviction on count 6 must remain vacated and the
mittimus corrected accordingly because the jury instruction did not
adequately inform the jury of the law. Carter, ¶ 52.
IV. Conclusion
¶ 30 The judgment is vacated, and the case is remanded for further
proceedings consistent with this opinion.
JUDGE WEBB and JUDGE RICHMAN concur.
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