State of Maine v. Travis R. Gerrier , 2018 ME 160 ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 160 Docket: Ken-17-526
Argued: July 18, 2018
Reargued: October 25, 2018
Decided: December 6, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
TRAVIS R. GERRIER
HUMPHREY, J.
[¶1] Travis R. Gerrier appeals from a judgment of conviction of gross
sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2017), unlawful sexual
contact (Class B), 17-A M.R.S. § 255-A(1)(E-1) (2017), and furnishing liquor to
a minor (Class D), 28-A M.R.S. § 2081(1)(A)(1) (2017), entered by the court
(Kennebec County, Mullen, J.) after conditional guilty pleas. Gerrier primarily
challenges the court’s determination that he was competent to stand trial.1 We
affirm the judgment.
1 Gerrier also challenges the court’s (Fowle, J.) denial of his motion to suppress statements he
made and physical evidence he gave to the Maine State Police detective. We do not find his arguments
on that issue to be persuasive, and therefore we do not address that issue further.
2
I. BACKGROUND
[¶2] The following facts are drawn from the docket entries and the
court’s findings set out in its competency order, which are supported by the
record, viewing the evidence in the light most favorable to the State. See State
v. Gurney, 2012 ME 14, ¶ 2, 36 A.3d 893.
[¶3] On June 12, 2015, Gerrier was charged by complaint with (1) gross
sexual assault (Class A), 17-A M.R.S. § 253(1)(C); (2) unlawful sexual contact
(Class B), 17-A M.RS. § 255-A(1)(E-1); and (3) furnishing liquor to a minor
(Class D), 28-A M.R.S. § 2081(1)(A)(1). He was arrested that day and released
on bail with conditions. Gerrier was indicted on those charges on
September 23, 2016.2
[¶4] Gerrier has had a long history of mental health issues and treatment,
and has limited cognitive and intellectual abilities. At Gerrier’s request, a
competency evaluation was conducted in October 2016. During the pendency
of this case, Gerrier also underwent psychological, psychosexual, and
neuropsychological evaluations. A competency hearing was held on
2 This case has a long procedural history. During the pendency of this case, Gerrier was charged
in a separate action with violating conditions of release and tampering with a witness—the victim.
Before Gerrier was indicted in September 2016, the State had offered Gerrier a plea deal, and a
Rule 11 hearing was scheduled, but the State later withdrew that offer.
3
December 5, 2016, and on December 14, the court (Mullen, J.) issued an order
in which it determined that Gerrier was competent to stand trial.
[¶5] Gerrier ultimately entered conditional guilty pleas on all three
charges, preserving his right to appeal from the order finding him to be
competent and the order denying his motion to suppress. See supra n.1. The
court (Marden, J.) sentenced Gerrier to a term of seven years for the gross sexual
assault charge followed by twenty years of supervised release with conditions,
and concurrent terms of five years for the unlawful sexual contact charge and
364 days for the charge of furnishing liquor to a minor. Gerrier timely appealed.
See M.R. App. P. 2B(b)(1).
II. DISCUSSION
[¶6] Gerrier argues that the court (Mullen, J.) erred when it determined
that he was competent to stand trial. Before addressing Gerrier’s arguments,
we take this opportunity to clarify Maine law regarding the burden of proof and
the evidentiary standard that attends a pretrial competency determination.
[¶7] Whether a person is competent to stand trial implicates his or her
due process rights. See Thursby v. State, 223 A.2d 61, 66 (Me. 1966). Article 1,
section 6 of the Constitution of Maine provides, “In all criminal prosecutions,
the accused shall have a right to be heard by himself and his counsel, or either,
4
at the election of the accused.” See also State v. Dyer, 371 A.2d 1079, 1085
(Me. 1977). In order to safeguard this constitutional right, the defendant must
be “capable of understanding the nature and object of the charges and
proceedings against him, of comprehending his own condition in reference
thereto, and of conducting in cooperation with his counsel his defense in a
rational and reasonable manner.” Thursby, 223 A.2d at 66; see also Dusky v.
United States, 362 U.S. 402 (1960); Haraden v. State, 2011 ME 113, ¶ 7, 32 A.3d
448.
[¶8] In the majority of states, a defendant in a criminal case is presumed
competent to stand trial.3 Although Maine’s competency statutes do not state
the presumption outright, we infer its existence from our case law and the
procedures established by the Legislature through which a defendant’s
3 See, e.g., Alaska Stat. § 12.47.100 (2017); Cal. Penal Code § 1369(f) (Deering 2017); Conn. Gen.
Stat. § 54-56d(b) (2017); Mass. Ann. Laws ch. 123, § 15(d) (2017); Mich. Comp. Laws Serv. § 330.2020
(2017); Ohio Rev. Code Ann. § 2945.37(G) (LexisNexis 2017); Okla. Stat. tit. 22 § 1175.4 (2017); 50
Pa. Cons. Stat. § 7403 (2017); 40.1 R.I. Gen. Laws § 5.3-3(b) (2017); Utah Code Ann. § 77-15-5
(LexisNexis 2017); Cage v. State, 528 S.W.3d 825, 827 (Ark. 2017); People v. Stephenson, 165 P.3d
860, 866 (Colo. App. 2007); Hargraves v. United States, 62 A.3d 107, 111 (D.C. 2013); Gilbert v. State,
220 S.E.2d 262, 263 (Ga. 1975); People v. Davis, 468 N.E.2d 172, 174 (Ill. App. Ct. 1984); State v. Hunt,
801 N.W.2d 366, 371, (Iowa Ct. App. 2011); State v. Barnes, 262 P.3d 297, 309 (Kan. 2011); Jackson v.
Commonwealth, 319 S.W.3d 347, 350 (Ky. 2010); State v. Jackson, 707 So. 2d 990, 995 (La. Ct. App.
1997); Colbert v. State, 308 A.2d 726, 731-732 (Md. Ct. Spec. App. 1973); Commonwealth v. Crowley,
471 N.E.2d 353 (Mass. 1984); Evans v. State, 226 So. 3d 1, 14 (Miss. 2017); State v. Chapman, 1983
N.M. App. LEXIS 828, at *10-11; People v. Kot, 4 N.Y.S.3d 714, 716 (N.Y. App. Div. 2012); State v. Heger,
326 N.W.2d 855, 857 (N.D. 1982); State v. Johnson, 401 S.W.3d 1, 17 (Tenn. 2013); Smith v. State, 51
S.W.3d 806, 811 (Tex. Crim. App. 2001); State v. Hurst, 269 P.3d 1023, 1027 (Wash. 2012); Cullen v.
State, 133 N.W.2d 284, 287 (Wis. 1965).
5
competency may be challenged. See Thursby, 223 A.2d at 69 (“When counsel at
no time suggests to the trial court the probability of the accused’s incompetence
to stand trial, a reviewing court is justified in assuming, unless the contrary
appears, that counsel was satisfied that no such impairment existed.”). See also
15 M.R.S. § 101-D (2017). Because “the initial responsibility of raising the
question of incompetence of the accused to stand trial is on his counsel,” it
becomes his duty to “promptly bring the matter to the attention of the court.”
Thursby, 223 A.2d at 68. That responsibility is not limited to defense counsel,
however, because the court also has a duty to order an inquiry into the
defendant’s ability to proceed with the case if it “learns from observation,
reasonable claim or credible source that there is genuine doubt of defendant’s
mental condition to comprehend his situation or make his defense.” Id.; see also
15 M.R.S. § 101-D(1). Ultimately, if the defendant’s competency is challenged,
the court must determine whether the defendant is incompetent pursuant to
15 M.R.S. § 101-D(5).
[¶9] Under section 101-D(5), the court is obligated to make a
competency determination “upon the motion of the attorney for the defendant
or upon the court’s own motion.” If, after conducting a hearing, the court
determines that the defendant is incompetent to stand trial, it “shall continue
6
the case until such time as the defendant is determined by the court to be
competent.” Id. The statute is therefore framed in terms of a finding of
incompetency, further demonstrating a legislative approach that in Maine an
accused is presumed to be competent. At the hearing, the burden of proof falls
on the party seeking the determination of incompetency. It is likely that in most
cases that party will be the defendant. See Medina v. California, 505 U.S. 437,
446 (1992) (stating that placing this burden on the defendant does not offend
the principles of due process). In the event that the court raises the issue sua
sponte, both parties have the opportunity to present evidence of the
defendant’s mental condition. If, for whatever reason, the defendant disagrees
with the court’s concerns, he is not obligated to present evidence of his own
incompetence and may choose to present evidence showing the contrary, or
may present no evidence at all. See State v. Nickerson, 2013 ME 45, ¶¶ 5-6, 66
A.3d 568. We recognize that a defendant may have reasons, tactical or
otherwise, for choosing not to contest the presumption of his competence.
[¶10] The party seeking the determination of incompetence must prove
by a preponderance of the evidence that the defendant is incompetent to
proceed. Although the Legislature did not articulate this burden in section
101-D(5), we determine that a preponderance of the evidence is the
7
appropriate burden.4 The Supreme Court of the United States has reviewed the
appropriate burden in pretrial competency proceedings on several occasions.
First, in Medina v. California, the Court upheld a statute requiring the defendant
to prove his incompetence by a preponderance of the evidence. 505 U.S. at
452-53. The Court articulated that the burden of proof must be analyzed with
regard to whether the practice “offends some principle of justice so rooted in
the traditions and conscience of our people as to be ranked as fundamental.” Id.
at 445-46 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). The
Medina Court reviewed the historical treatment of the burden of proof in
competency proceedings and concluded that allocating to the defendant the
burden to prove incompetence by a preponderance of the evidence does not
offend the principle of fundamental fairness. Medina, 505 U.S. at 452.
[¶11] Second, in Cooper v. Oklahoma, 517 U.S. 348, 369 (1996), the
Supreme Court struck down a statute requiring the defendant to prove his
incompetence by clear and convincing evidence. In that case, the Court relied
on the analytical test affirmed in Medina, and concluded that imposing a higher
4 Many state legislatures have chosen to include the presumption of competency, the allocation
of the burden to prove incompetence, and the applicable evidentiary standard in their competency
statutes. See, e.g., Conn. Gen. Stat. § 54-56d(b); Mass. Ann. Laws ch. 123, § 15(d); 40.1 R.I. Gen. Laws
§ 5.3-3(b).
8
evidentiary burden on the defendant—one that would, in effect, allow a state to
prosecute a defendant who has shown that he is more likely than not
incompetent—is contrary to the historical treatment of incompetent
defendants, offends principles of justice and fundamental fairness, and is
unnecessary to strike an appropriate balance between the “State’s interest in
prompt and orderly disposition of criminal cases” and the defendant’s due
process right not to be tried while incompetent. Id. at 360-62. In reaching this
conclusion, the Court observed that the use of the standard of clear and
convincing evidence represented a decidedly minority view—only four of fifty
states at that time imposed the heightened burden—and that use of such a
burden of proof was unnecessary, even given the “inexactness and uncertainty
that characterize competency proceedings.”5 Id. at 361, 361 n.17, 365. “For the
defendant, the consequences of an erroneous determination of competence are
dire. . . . By comparison to the defendant’s interest, the injury to the State of the
opposite error—a conclusion that the defendant is incompetent when he is in
fact malingering—is modest.” Id. at 364-65. The Court made clear the risk
5 Following the decision in Cooper, at least three
of the four jurisdictions that required the
defendant to prove incompetence by clear and convincing evidence amended their statutes to require
a showing of incompetence by only a preponderance of the evidence. See Conn. Gen. Stat. §54-56d(b);
Okla. Stat. tit. 22, § 1175.4; 40.1 R.I. Gen. Laws § 5.3-3(b).
9
associated with competency determinations: “[b]ecause he lacks the ability to
communicate effectively with counsel, he may be unable to exercise other
rights deemed essential to a fair trial.” Id. at 364 (quotation marks omitted).
The Court held that imposing on the defendant the burden to prove his
incompetence by clear and convincing evidence increases the risk of an
erroneous competency determination, a risk that is unnecessary when the
lower standard of preponderance of the evidence adequately protects the
delicate balance of interests involved in competency determinations.
[¶12] Based on these precedents, we conclude that the standard of
preponderance of the evidence is sufficient and appropriate.6 It is the standard
that is best suited to determinations of competency, which involve complex
questions of cognitive ability, and it is the standard that appropriately balances
the interests of the State and the due process rights of the criminal defendant.
[¶13] In this case, the trial court correctly allocated the burden of proof,
applied the appropriate evidentiary standard, and did not err in finding Gerrier
competent to stand trial. The court’s determination of a defendant’s
6 The standard of preponderance of the evidence is consistent with the burden required by the
Juvenile Code for competency proceedings, see 15 M.R.S. 3318-A (2017), and is applied in the
majority of states, see, e.g., Cal. Penal Code § 1369(f); Conn. Gen. Stat. § 54-56d(b); Mass. Ann. Laws
ch. 123 § 15(d); Ohio Rev. Code Ann. § 2945.37(G); 40.1 R.I. Gen Laws § 5.3-3(b); Cooper v. Okla., 517
U.S. 348, n.7 (1996); Crowley, 393 Mass. at 401-02.
10
competency is a factual one that we review for clear error. See State v. Lewis,
584 A.2d 622, 624-25 (Me. 1990). We will affirm a determination of
competency “if the record contains competent evidence supporting the lower
court’s ruling.” See State v. Knights, 482 A.2d 436, 439 (Me. 1984). As stated
above, a defendant is competent if he is “capable of understanding the nature
and object of the charges and proceedings against him, of comprehending his
own condition in reference thereto, and of conducting in cooperation with his
counsel his defense in a rational and reasonable manner.” Thursby, 223 A.2d at
66. In determining whether a defendant is able to assist counsel, a court may
consider
the ability of the defendant to communicate and cooperate with
counsel; his ability to maintain a collaborative relationship with his
attorney and assist in planning legal strategy; whether he
maintains a consistent defense; his ability to recall and relate facts
concerning his actions and whereabouts at certain times; his ability
to identify witnesses and help counsel locate and examine them;
his ability to comprehend instructions and advice, and make
decisions based on well-explained alternatives, including the
entering of pleas and waiving of rights; his ability to follow and
interpret witnesses’ testimony to inform counsel of contradictions
or errors; and his ability to testify himself, if necessary, and be
cross-examined.
Haraden, 2011 ME 113, ¶ 7 n.3, 32 A.3d 448 (alterations omitted) (quotation
marks omitted).
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[¶14] Here, the court considered the reports from Gerrier’s
psychological, psychosexual, neuropsychological, and competency
evaluations—conducted between September 2015 and October 2016—as well
as the testimony of the psychologist who performed the neuropsychological
and competency evaluations. The court acknowledged the psychologist’s
concerns that Gerrier’s “combination of intellectual disability, autism spectrum
disorder, and significant mood issues do significantly impair his ability to
demonstrate the full range of trial competence skills needed for this complex
situation.” After considering the psychologist’s concerns, however, the court
determined that Gerrier “demonstrated an ability to perform each function set
forth in Haraden.”
[¶15] The court’s finding that Gerrier was competent to stand trial is
supported by evidence in the record that Gerrier (1) was capable of
understanding the nature and object of the charges against him; (2)
demonstrated an understating, albeit somewhat limited, of the potential
consequences of the charges against him, see Lewis, 584 A.2d at 624; (3)
understood the difference between the sentence contemplated by the original
plea offer that the State rescinded and the possible sentence he could receive if
he were found guilty after trial; and (4) had a basic understanding of the
12
consequences of being on the sex offender registry. Finally, there is nothing in
the record to suggest that Gerrier was incapable of cooperating with counsel to
conduct a defense. See id.; see also Haraden, 2011 ME 113, ¶ 7 n.3, 32 A.3d 448.
The experts who evaluated Gerrier commented on his strong memory and his
ability to understand the difference between a plea bargain and proceeding to
trial. Gerrier demonstrated “some elementary skills associated with trial
competence, including some factual understanding of his case.” As we have
held on many occasions, “a defendant may be both mentally ill and competent
to stand trial.” See State v. Ledger, 444 A.2d 404, 419 (Me. 1982). Based on the
weight of the evidence presented, we conclude that the trial court did not err,
much less clearly err, when it determined that Gerrier was competent to stand
trial. See Lewis, 584 A.2d at 624-25.
The entry is:
Judgment affirmed.
Harold J. Hainke, Esq. (orally), Hainke & Tash, Whitefield, for appellant Travis
R. Gerrier
Maeghan Maloney, District Attorney, and Kristin Murray-James, Asst. Dist. Atty.
(orally), Prosecutorial District IV, Augusta; and Janet T. Mills, Attorney General,
and Leanne Robbin, Asst. Atty. Gen. (orally), Office of the Attorney General,
Augusta, for appellee State of Maine
Kennebec County Unified Criminal Docket docket number CR-2015-592
FOR CLERK REFERENCE ONLY