Grant (Gregory) v. State ( 2015 )

 Substantial evidence supports the district court's competency finding
Grant first contends that substantial evidence does not
support the district court's conclusion that Grant was competent to stand
trial.
A criminal defendant is competent to stand trial if he
understands the charges and proceedings and "has sufficient present
ability to consult with" and assist his counsel in his defense. Dusky v.
United States, 362 U.S. 402, 402 (1960) (internal quotation marks
omitted); see also NRS 178.400(2) (defining "incompetent"). Grant does
not claim that he did not understand the charges or proceedings, so the
only issue is whether substantial evidence supports the district court's
finding that Grant was able to consult with and assist his counsel.
Several facts weigh against the district court's competency
finding. These facts include the bizarre circumstances of the underlying
crimes, previous diagnoses and findings of incompetency, the existence of
a special guardian empowered to make Grant's medical decisions, Grant's
refusing to speak to counsel outside of court, and Grant's trial testimony
that he believed counsel was involved in the cult. At the final competency
hearing, Dr. Norton Roitman testified that Grant suffered from paranoid
delusions, rendering him incapable of assisting his counsel.
That being said, several facts weigh in favor of the district
court's competency finding. Grant spoke with and passed notes to his
counsel in court and spoke with the district court on multiple occasions.
One doctor from Lake's Crossing Center, where Grant went for
competency evaluations and treatment, testified that the failure of
antipsychotic medications to produce any beneficial effect suggested that
Grant was not, in fact, psychotic. Further, four doctors from Lake's
Crossing found Grant competent at various times in the months and years
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preceding the final competency hearing in January 2012. All four of these
doctors came to the same conclusion: Grant was able to assist his counsel
but chose not to do so. At the January 2012 competency hearing, Lake's
Crossing doctors testified that Grant suffered from a paranoid personality
disorder that made him distrustful but did not prevent him from
cooperating with counsel. Grant could "turn[] off his" suspiciousness at
will to meet his needs. One doctor testified that Grant bragged that he
had Lake's Crossing "in a scramble" and said a speedy trial was not
necessarily a good thing. These statements gave the doctors the
impression that Grant chose not to cooperate with his counsel or the
competency evaluation process to delay the proceedings and exert control
over his circumstances. The doctors did not observe any symptoms of
paranoid delusions that might prevent Grant from cooperating with his
counsel.
Although Dr. Roitman testified that Grant's refusal to
cooperate with his counsel was beyond Grant's control, the Lake's
Crossing doctors testified that Grant simply chose not to cooperate and
could change his mind. It is the district court's task to resolve conflicts in
the evidence regarding competency, Tanksley v. State, 113 Nev. 844, 847,
944 P.2d 240, 242 (1997), and we conclude that substantial evidence
supports the district court's competency finding, see Calvin v. State, 122
Nev. 1178, 1182, 147 P.3d 1097, 1099 (2006).
To the extent Grant argues that the district court abused its
discretion by failing to hold another competency hearing closer to trial, we
disagree. Grant's counsel expressed ongoing competency concerns, but
Grant's condition and behavior had not changed, and we cannot conclude
that the district court abused its discretion by refusing to hold another
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competency hearing simply because Grant continued his difficult
behaviors. See Melchor-Gloria v. State, 99 Nev. 174, 180, 660 P.2d 109,
113 (1983).
The district court properly allowed Grant to prevent his counsel from
pleading not guilty by reason of insanity on Grant's behalf
Grant next contends that even if the district court properly
found him competent to stand trial, he was incompetent to decide whether
to plead not guilty by reason of insanity.
As an initial matter, Grant argues that preventing his counsel
from pleading not guilty by reason of insanity on his behalf turned the
trial into a farce. Because the jury found Grant not guilty of attempted
murder and did not find the deadly weapon enhancement on the
kidnapping or assault charges, we reject this argument.
We have stated "that if a defendant is mentally competent to
stand trial, . . . the defendant has the absolute right to prohibit defense
counsel from interposing an insanity defense." Johnson v. State, 117 Nev.
153, 163, 17 P.3d 1008, 1015 (2001) (emphasis added). "[T]he forced
imposition of the insanity defense over the express objections of the
defendant is structural error requiring reversal." Id.Grant argues that Johnson is distinguishable because the
defendant in that case claimed self-defense, whereas Grant offered no
alternative theory of the case. Our decision in Johnson, however,
depended on the "grave and personal" nature of risking long-term
institutionalization and social stigma by pleading not guilty by reason of
insanity, not the existence of an alternative theory of the case. Id.(internal quotation marks omitted). We therefore reject this argument.
Grant also asks this court to overrule Johnson. Grant relies
on Indiana v. Edwards, 554 U.S. 164, 178 (2008), wherein the United
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States Supreme Court held that states may compel defendants who are
"competent enough to stand trial under Dusky but who. . . are not
competent to conduct trial proceedings by themselves" to be represented
by counsel. Whether to plead not guilty by reason of insanity may be a
complicated choice, but it is not nearly as nuanced as "the significantly
expanded role required for self-representation." Id. at 176 (internal
quotation marks omitted). We therefore conclude that Edwards does not
require us to revisit Johnson.
Grant also relies on Florida v. Nixon, 543 U.S. 175 (2004). In
Nixon, the Court held that the defendant's express consent was not
required for counsel to pursue a concession of guilt strategy. Id. at 189;
see also Armenta Carpio v. State, 129 Nev., Adv. Op. 54, 306 P.3d 395,
-
398-99 (2013). Nixon involved a defendant who neither consented nor
objected, whereas Grant expressly and repeatedly objected to pleading not
guilty by reason of insanity. Therefore, Nixon is inapposite, and we
decline to rely on it to overrule Johnson. See Armenta Carpio, 129 Nev.,
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Adv. Op. 54, 306 P.3d at 398.
In conclusion, after finding Grant competent to stand trial, the
district court properly protected Grant's "absolute right to prohibit defense
counsel from" pleading not guilty by reason of insanity. Johnson, 117 Nev.
at 163, 17 P.3d at 1015.
The State's cross-examination of Dr. Roitman did not implicate Grant's
right to post-arrest silence
Grant also argues that the State violated Grant's Fifth
Amendment right to post-arrest silence by asking Dr. Roitman whether he
spoke to Grant.
Although "a defendant has the Fifth Amendment right to
remain silent during a court ordered psychiatric interview," Gallego v.
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State, 117 Nev. 348, 361, 23 P.3d 227, 236 (2001) (emphasis added),
abrogated on other grounds by Nunnery v. State, 127 Nev., Adv. Op. 69,
263 P.3d 235, 253 n.12 (2011), Grant does not contend that Dr. Roitman
attempted to interview him pursuant to a court order. Moreover, "[d]ue
process restrictions apply only to activities which can be characterized as
state action," Tarkanian v. Nat'l Collegiate Athletic Ass'n, 103 Nev. 331,
335, 741 P.2d 1345, 1347 (1987), rev'd on other grounds, 488 U.S. 179, 199
(1988), and Grant fails to explain how Dr. Roitman, the defense-retained
psychiatrist, qualifies as a state actor. Grant relied upon the Fifth
Amendment in refusing to speak to Dr. Roitman, but the Fifth
Amendment did not in fact provide Grant the right to refuse to speak to
Dr. Roitman. Thus, the State's asking Dr. Roitman whether he spoke to
Grant did not implicate Grant's Fifth Amendment right to post-arrest
silence. See id.We also note neither the State's questions nor Dr. Roitman's
answers suggested that Grant refused to speak to Dr. Roitman, let alone
why he did so. Moreover, the State sought to impeach Dr. Roitman's
opinion on Grant's mental state, not Grant's own account of events. CI
Doyle v. Ohio, 426 U.S. 610, 616-19 (1976) (holding that the Fifth
Amendment prohibits cross-examining a defendant regarding his post-
arrest silence to impeach his trial testimony); People of Territory of Guam
v. Veloria, 136 F.3d 648, 651-52 (9th Cir. 1998) (holding that the Fifth
Amendment prohibits impeaching a defendant's trial testimony through a
police officer's testimony about the defendant's post-arrest silence). We
therefore conclude that the State did not violate Grant's Fifth Amendment
right to post-arrest silence by asking Dr. Roitman whether he spoke to
Grant.
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The district court did not err by failing to record bench conferences
Grant also claims that his convictions must be reversed
because the district court failed to record bench conferences. First, the
district court never prevented counsel from making a record regarding any
bench conference. See Preciado v. State, 130 Nev., Adv. Op. 6, 318 P.3d
176, 178 (2014) (stating a district court should allow parties to make a
subsequent record regarding unrecorded bench conferences). Second,
Grant fails to point to any specific bench conference, suggest how any
unrecorded bench conference relates to any other issues on appeal, or
show "the record's missing portions are so significant that their absence
precludes . . . meaningful review of the alleged errors. . . and the
prejudicial effect of any error." Id. Accordingly, Grant has failed to satisfy
his burden of demonstrating that the district court's failure to record
bench conferences mandates reversal.
The district court erred by shackling Grant during trial, but this error was
harmless
Finally, Grant argues that he is entitled to a new trial because
the district court improperly shackled Grant during trial. Although we
conclude that shackling Grant during trial was unconstitutional, this error
was harmless.
"A defendant has a constitutional right to appear before the
jury without physical restraints" absent "exceptional circumstances."
Chandler v. State, 92 Nev. 299, 300, 550 P.2d 159, 159 (1976). Rather
than finding exceptional circumstances, the district court blindly applied a
jail policy requiring defendants who chose to wear jail uniforms during
trial to also wear shackles. This policy cannot alone justify physically
restraining a criminal defendant in front of the jury. We therefore hold
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that the district court erred by requiring Grant to stand trial in shackles.
Nevertheless, we conclude this error was harmless.
Shackling is disfavored because "Mlle sight of physical
restraints may. . . erod[e] the presumption of innocence." Hymon v. State,
121 Nev. 200, 207-08, 111 P.3d 1092, 1098 (2005). Here, Grant chose to
wear his jail uniform at trial, so the jury already knew he was in custody.
Thus, unconstitutionally shackling Grant caused little—if any—additional
harm to the presumption of innocence. See id.; see also Wilkerson v.
Whitley, 16 F.3d 64, 68 (5th Cir. 1994) (holding that improperly shackling
a defendant throughout trial was harmless where the jury already knew
the defendant was an inmate and the evidence of guilt was overwhelming).
In addition, the evidence of Grant's guilt was overwhelming: there was no
dispute about Grant's identity or level of participation in the charged
crimes and Grant himself testified to many elements of the crimes. Thus,
we conclude that shackling Grant, although unconstitutional under these
circumstances, was harmless.
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
Douglas
01A"i
Cherry
c
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cc: Hon. James Crockett, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth Judicial District Court Clerk
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