Bishop v. Caudill ( 2003 )

GRAVES, Justice.

Appellant, Dwayne Earl Bishop, has been indicted in the Floyd Circuit Court for the September 2000 murder of his estranged wife. The Court of Appeals denied Appellant’s petition for a writ to prohibit the respondent judge from enforcing an order directing Appellant to submit to an independent competency examination by a mental health professional selected and compensated by the Commonwealth. Appellant appeals to this Court as a matter of right.

In response to defense counsel’s motion, the trial court ordered the staff of the Kentucky Correctional Psychiatric Center (KCPC) to “examine and treat the Defendant for both mental and physical conditions, as determined by the medical judgment of the examining personnel” and, upon completion of examination and treatment, to prepare a report addressing his competency to stand trial. The trial court initially ordered both a competency and criminal responsibility evaluation but, on defense counsel’s request, issued an amended order limiting the evaluation to Appellant’s competency to stand trial.

After the KCPC report was completed, and Appellant was returned to custody in Floyd County, the matter came before the trial court for a hearing on Appellant’s competency to stand trial. However, the trial court did not actually conduct a competency hearing because a collateral issue arose concerning the possible removal of Appellant’s trial counsel. Instead, the trial court ordered the parties to brief the removal issue. Regarding the competency issue, the order also provided: “FURTHER, Counsel for both the Commonwealth and the defendant should, if they wish, move within that time period for their own evaluation of the Defendant.” (Emphasis added).

Both the Commonwealth and Appellant moved for independent evaluations. Appellant objected to the Commonwealth’s motion on the grounds that the defense did not intend to introduce evidence of Appellant’s mental health at the time of the offense, and the Commonwealth was not otherwise authorized to obtain its own examination. Following a hearing, the trial court ruled that the Commonwealth was entitled to an independent competency examination. Appellant thereafter filed a petition for a writ of prohibition in the Court of Appeals. In denying such, the Court of Appeals explained:

The petition recites no authority for denying the Commonwealth the opportunity to conduct the examination. The petition does raise the possibility of misuse of information obtained in the evaluation. However, the petitioner has not shown that the judge would permit such misuse of information nor has he shown that an appeal of any conviction would not provide an adequate remedy.

Appellant argues that while an independent examination by the Commonwealth would be warranted if he were asserting a defense of insanity or mental illness, such an examination solely for the purpose of ascertaining competency to stand trial is not authorized by the Kentucky Revised Statutes or our Rules of Criminal Procedure. We agree.

Criminal Rule 8.06, Incapacity to stand trial, provides:

If upon arraignment or during the proceedings there are reasonable grounds to believe that the defendant lacks the capacity to appreciate the nature and consequences of the proceedings against him or her, or to participate rationally in his or her defense, all proceedings shall be postponed until the issue of the incapacity is determined as provided by KRS 504.100. .

KRS 504.100 sets forth the procedure when the trial court has “reasonable grounds” to believe competency is an issue:

(1) If upon arraignment, or during any stage of the proceedings, the court has reasonable grounds to believe the defendant is incompetent to stand trial, the court shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant’s mental condition.

(2) The report of the psychologist or psychiatrist shall state whether or not he finds the defendant incompetent to stand trial. If he finds the defendant is incompetent, the report shall state:

(a) Whether there is substantial probability of his attaining competency in the foreseeable future; and

(b) What type treatment and what type treatment facility the examiner recommends.

(3) After the filing of a report (or reports), the court shall hold a hearing to determine whether or not the defendant is competent to stand trial.

It is within the trial court’s discretion to determine whether there are “reasonable grounds” to believe a defendant may be incompetent to stand trial. Dye v. Commonwealth, Ky., 477 S.W.2d 805 (1972). However, once facts known to the trial court are sufficient to place a defendant’s competency in issue, an evaluation and evidentiary hearing are mandatory. Mills v. Commonwealth, Ky., 996 S.W.2d 473 (1999), cert. denied, 528 U.S. 1164, 120 S.Ct. 1182, 145 L.Ed.2d 1088 (2000). Further, pursuant to KRS 504.090, “No defendant who is incompetent to stand trial shall be tried, convicted or sentenced so long as the incompetency continues.”

In contrast, KRS 504.070, which pertains to evidence of mental illness or insanity, provides:

(1) A defendant who intends to introduce evidence of his mental illness or insanity at the time of the offense shall file written notice of his intention at least twenty (20) days before trial.

(2) The prosecution shall be granted reasonable time to move for examination of the defendant, or the court may order an examination on its own motion.

(3) If the Court orders an examination, it shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant’s mental condition. If it appears the examination will not be completed before the trial date, the court may, on its own motion or on motion of either party, postpone the trial date until after the examination.

(4) No less than ten (10) days before trial, the prosecution shall file the names and addresses of witnesses it proposes to offer in rebuttal along with reports prepared by its witnesses. (Emphasis added)

In Coffey v. Messer, Ky., 945 S.W.2d 944, 945 (1997), we noted that “evidence of mental illness or insanity” includes evidence that a defendant was acting under extreme emotional disturbance (EED) at the time of the offense. See also Stanford v. Commonwealth, Ky., 793 S.W.2d 112, 115 (1990). Similarly, RCr 7.24(3) imposes pretrial notice requirements when a defendant intends to introduce evidence at trial as to mental state at the time of the offense:

(B)(i) If a defendant intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of his or her guilt, the defendant shall, at least 20 days prior to trial, or at such later time as the court may direct, notify the attorney for the Commonwealth in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

(ii) When a defendant has filed the notice required by paragraph (B)(i) of this rule, the court may, upon motion of the attorney for the Commonwealth, order the defendant to submit to a mental examination. No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, shall be admissible into evidence against the defendant in any criminal proceeding. No testimony by the expert based upon such statement, and no fruits of the statement shall be admissible into evidence against the defendant in any criminal proceeding except upon an issue regarding mental condition on which the defendant has introduced testimony.

(C) If there is a failure to give notice when required by this rule or to submit to an examination ordered by the court under this rule, the court may exclude such evidence or the testimony of any expert witness offered by the defendant on the issue of his or her guilt.

Competency to stand trial is not to be confused with the defense of mental illness or insanity. Competency to stand trial pertains to the defendant’s mental state at the time of trial, whereas an insanity defense concerns the defendant’s mental state at the time of the commission of the crime. A defendant may be sane at the time of the offense but incompetent to stand trial; or he may be insane or mentally ill at the time of the offense, yet competent to stand trial. KRS 504.060 defines these concepts as follows:

(4) “Incompetency to stand trial” means, as a result of a mental condition, lack of capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one’s own defense;

(5) “Insanity” means, as a result of mental condition, lack of substantial capacity either to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of law;

(6) “Mental illness” means substantially impaired capacity to use self-control, judgment, or discretion in the conduct of one’s affairs and social relations, associated with maladaptive behavior or recognized emotional symptoms where impaired capacity, maladaptive behavior, or emotional symptoms can be related to physiological, psychological, or social factors.

The inquiry into a defendant’s competency to stand trial is very different and distinct from an inquiry into whether the defendant is criminally responsible for the acts with which he is charged. In Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993), the United States Supreme Court held that a defendant is competent if he can “consult with his lawyer with a reasonable degree of rational understanding” and has “a rational as well as factual understanding of the proceedings against him.” The Court noted that a competent defendant can make a “reasoned choice” among the alternatives available to him when confronted with such crucial questions as whether he should testify, waive a jury trial, cross-examine witnesses, put on a defense, etc. Id. at 397-98, 118 S.Ct. at 2686. As further explained by Professors Fortune and Lawson in Kentucky Criminal Law, § 5-4(b) p. 210 (Lexis 1998):

The focus in these determinations is on the defendant’s mental condition at the time of the proceeding (not at the time of the criminal act). The following statement describes the nature of the inquiry:

‘Under this test, there are two distinct matters to be determined:

(1) whether the defendant is sufficiently coherent to provide his counsel with information necessary or relevant to constructing a defense; and

(2) whether he is able to comprehend the significance of the trial and his relation to it. The defendant must have an ‘ability to confer intelligently, to testify coherently, and to follow the evidence presented.’ It is necessary that the defendant have a rational as well as a factual understanding of the proceedings.’

Would defendant recognize false testimony by a witness and would he know to advise counsel of that fact? Does he understand the roles of trial participants (i.e. that the prosecutor is his adversary, that the judge decides his fate, that his counsel acts in his best interest, etc.)? Does he understand that convictions will result in sanctions? The inquiry is a factual one that necessarily depends upon the peculiar facts and circumstances of the case. (quoting LaFave & Scott, Criminal Law, 338-34 (2d ed.1986)).

As provided in KRS 504.100, the determination of competency is made by the trial court. If the trial court has reasonable grounds to believe that a defendant’s competency to stand trial is at issue, the statute mandates that a psychologist or psychiatrist be appointed to examine, treat, and report on the defendant’s condition. A competency examiner is working for the court, not necessarily the defense or the Commonwealth. Binion v. Commonwealth, Ky., 891 S.W.2d 383 (1995). Thereafter, the statute requires an eviden-tiary hearing at which all parties — the court, the defendant, and the prosecution — are entitled to examine the evaluator and the basis of the report. Gabbard v. Commonwealth, Ky., 887 S.W.2d 547 (1994). However, nothing in the language of the statute or criminal rules authorizes an independent evaluation by the Commonwealth.

The policy reasons behind prohibiting the Commonwealth from obtaining its own competency evaluation are clear. Compelling someone accused of a crime to submit against his or her will to a psychological examination could likely produce testimony, the effect of which could not be obliterated by appellate remedies. That is, an unauthorized psychological examination by the Commonwealth’s agent could result in the disclosure of prior conduct that would not otherwise be accessible to the prosecution. For example, the prosecution’s mental health examiner may learn that a defendant engaged in the commission of crimes for which he had never been charged. The adverse consequences are particularly evident in this case since defense counsel moved for the competency evaluation because Appellant has been actively working against his trial attorneys. Counsel has expressed concern that Appellant would disclose key defense strategies to a Commonwealth’s examiner.

We are cognizant of the language contained in RCr 7.24(S)(B)(ii) which protects a defendant’s Fifth Amendment rights in that it provides that “[n]o statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, shall be admissible into evidence against the defendant in any criminal proceeding.” Nonetheless, in the context of an examination for the sole purpose of ascertaining competency, especially if ordered against a defendant’s wishes, we are of the opinion that the Commonwealth would gain the inherent and possibly unfair advantage of gleaning insight as to the defense strategy.

Furthermore, we are persuaded by the Legislature’s plain inclusion of the Commonwealth’s right to an independent examination when evidence of mental health at the time of the offense is to be introduced, and its plain exclusion of a similar right when only competency to stand trial is at issue. KRS 504.070 clearly authorizes an examination by the Commonwealth if the defendant gives notice of his intent to introduce evidence of mental illness or insanity at trial. RCr 7.24(3)(B)(i) and (ii) further “authorize a mental examination of the defendant if he gives notice of his intention to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of his guilt.” Coffey, supra, at 945.

A criminal responsibility evaluation, even if performed by the Commonwealth’s examiner, is not a compelled examination as it is initiated by the defendant. By asserting the defense of mental illness or insanity, a defendant is claiming lack of criminal responsibility for the crime. KRS 504.020 provides that “mental illness” and “insanity” exculpate criminal behavior:

(1) A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental illness or retardation, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

Similarly, while a finding that a defendant acted under extreme emotional disturbance does not exculpate criminal behavior, “it is, in fact and principle, a defense against the higher charge” which bears upon the issue of the defendant’s guilt. Coffey, supra.

The issue of whether a defendant is criminally responsible for the offense with which he is charged is a fact for the jury to decide. Accordingly, the Commonwealth must have the right to rebut this position, a right which necessarily includes obtaining its own independent examination of the defendant. Since the results of the Commonwealth’s examination are admissible only to rebut the mental health evidence introduced by the defense, Appellant can preclude introduction of the Commonwealth’s evidence by declining to assert such evidence on his own behalf.

We note that other jurisdictions addressing this issue have similarly held that an independent competency examination of the defendant is not available to the prosecution in the absence of statutory authority. In State v. Zapetis, 629 So.2d 861, 861-862 (Fla.Dist.Ct.App. 4th Dist.1993), the Florida court held that, “unlike the rule on the insanity defense, the rules governing the determination of the defendant’s competency to stand trial do not specifically authorize the State to call its own expert at the competency hearing.” See also State v. Garcia, 128 N.M. 721, 998 P.2d 186 (App.2000); State v. Patty, 563 S.W.2d 911 (Tenn.Crim.App.1977).

For the reasons stated herein, we conclude that the Commonwealth does not have the right to obtain an independent competency evaluation of Appellant. Accordingly, we reverse the decision of the Court of Appeals and grant Appellant’s petition for a writ of prohibition.

COOPER, GRAVES, STUMBO and JOHNSTONE, J.J., concur. KELLER, J., concurs by a separate opinion. WINTERSHEIMER, J., dissents in a separate opinion in which LAMBERT, C.J., joins.