Dang v. Commonwealth ( 2014 )

PRESENT: All the Justices
LAM DANG
OPINION BY
v. Record No. 130553 JUSTICE ELIZABETH A. McCLANAHAN
JANUARY 10, 2014
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
A jury convicted Lam Dang of one count each of murder and
violation of a protective order. Relying on Code § 19.2-169.1,
Dang argues on appeal that the circuit court erred in failing to
order a second competency evaluation after his counsel
discovered new information regarding Dang's life history and
physical trauma he suffered as a child. We reject Dang's
argument and will affirm his convictions.
I. BACKGROUND
A. Competency Evaluation Report
After Dang was charged with murder and felony protective
order violation for the death of Nguyet Lu, the Fairfax County
Juvenile and Domestic Relations Court granted Dang's motion for
a competency evaluation pursuant to Code § 19.2-169.1. On
January 12, 2011, Dr. Kristen A. Hudacek, a court-appointed
psychologist, submitted an evaluation of competency report in
which she found Dang competent to stand trial. Her evaluation
was based on the background information provided to her by Dang
and his counsel as well as her own clinical observations.
Because Dang's preferred speaking language is Vietnamese, an
interpreter assisted in translation during Dr. Hudacek's
evaluation. Dang, who was 40 years old at the time of the
evaluation, informed Dr. Hudacek that he was born in South
Vietnam and moved to Philadelphia at the age of 17. He denied
having any prior psychological problems or history of
hospitalization for mental health related issues. Dr. Hudacek
noted that despite her inability to gain additional information
from collateral sources, she "believes the information is an
accurate portrayal of [Dang's] current functioning as it relates
to the question of competency to stand trial."
In evaluating whether Dang was competent to stand trial,
Dr. Hudacek considered Dang's understanding of the legal
process, appreciation of the legal process as it applied to his
case, capacity to communicate with his counsel, and capacity to
make decisions. According to Dr. Hudacek, Dang understood he
was charged with "[m]urder, killing someone, second degree" and
could receive "up to 40 years in jail." 1 He also understood the
roles of the jury, the judge, his lawyer and the Commonwealth's
Attorney. Dang understood his attorney was "working on his
behalf" and "the importance of relaying information about the
1
Although the Commonwealth ultimately pursued a conviction
for murder in the first degree, Dang gave the correct sentence
for murder of the second degree. See Code § 18.2-32.
2
facts of his case." Dang stated "he would speak to his attorney
if he wanted to relay information about any concerns he had
during a hearing or trial." Although "Dang was mostly able to
provide a rational, logical, coherent explanation of facts that
would aid his attorney in defending him," Dr. Hudacek noted that
he "does become very focused on providing information that may
paint him in a favorable light." According to Dr. Hudacek, Dang
"was able to discuss his legal situation in a manner that
demonstrated weighing his options and basing decisions upon the
potential best outcome given the circumstances and after
conferring with counsel."
Dr. Hudacek stated that while Dang's speech was coherent,
"he frequently shifted topics to the time of the offense and
facts related to his relationship with the alleged victim." For
example, prior to the start of the interview, Dang "immediately
began speaking about his case after [Dr. Hudacek] introduced
herself" and "was asked three times to stop talking until his
interpreter arrived." The information Dang related to Dr.
Hudacek "included facts about the case that would have been best
kept for discussion with his attorney or following full
disclosure of the nature and purpose of the interview." Finding
it necessary to repeatedly re-direct Dang to the questions
posed, Dr. Hudacek noted Dang "seemed highly focused on
3
providing 'his side of the story'" and/or "worried about his
situation."
Dr. Hudacek reported that Dang "was highly concerned about
going to trial, as he believed [his life] would be over." He
presented "in a manner that appear[ed] related to anxiety about
the alleged charges and potential sentence he is facing." Dr.
Hudacek explained that his situational anxiety "does not suggest
that [he] suffers from a major mental illness that would affect
abilities relevant to competency to stand trial." Although she
noted that Dang tended to "become anxious and excitable" in
persisting to relay facts regarding his case, his impulse in
this regard "is consistent with most defendants who face legal
charges."
In determining that Dang was competent to stand trial, Dr.
Hudacek stated that "it does not appear that [Dang] currently
suffers from a mental illness and/or cognitive or intellectual
impairment." Furthermore, Dr. Hudacek did not believe that
"Dang's capacity to communicate with counsel is impaired by
mental illness." Based on Dr. Hudacek's evaluation and the
information available to her, she concluded that "Dang has
sufficient, present ability to consult with his attorney with a
reasonable degree of rational understanding," "possesses a
rational as well as factual understanding of the proceedings
4
against him," and "is able to assist in preparing for his own
defense."
B. Motion for Second Competency Evaluation Before Trial
Dang's counsel moved for a second competency evaluation on
December 1, 2011, eleven months after the first evaluation and
four days prior to his trial, which was scheduled to begin on
December 5. 2 According to the motion, on November 30, 2011,
Dang's counsel learned "extensive information about Mr. Dang's
history, family, and childhood which dramatically differs from
the versions previously provided by Mr. Dang" giving counsel
reason to believe that Dang "has over a 30 year history of
suffering from developmental disabilities, cognitive functioning
difficulties, effects of traumatic brain injury, and mental
illness including but not limited to post-traumatic stress
disorder."
At the hearing on the motion, counsel stated that the new
information regarding Dang's history was discovered when plans
were being made for Dang's family to travel from Pennsylvania
for the trial. In particular, Mrs. Hoa Pham, who identified
2
The motion was filed on Thursday and noticed for hearing
on the Friday before the trial's commencement on the ensuing
Monday. The motion also included a request for a second
evaluation of sanity at the time of the offense. The request
for the evaluation of sanity at the time of the offense is not
before us on appeal.
5
herself as Dang's biological mother, told defense counsel that
beginning at the approximate age of 6 years, Dang was subjected
to repeated physical assaults from teenagers and young adults as
a result of "his appearance as someone who was American." 3 Mrs.
Pham said she found Dang "beaten in the head with rocks," and
"there were times when she was afraid his brain was going to
come through his skull." By Mrs. Pham's account, the beatings
continued until Dang was in sixth or seventh grade at which
point he stopped going to school. She believed the history of
physical trauma to Dang adversely affected his mental health and
potentially caused traumatic brain injury impairing his
cognitive functioning. Counsel also informed the court that
Dang's sister "confirmed that she saw Mr. Dang exhibiting
symptoms of mental illness or similar trauma as well."
3
Defense counsel explained that Dang had informed counsel
he lived with an adoptive family and had never met his
biological mother. While he had been reluctant to share names
and contact information of any family members, he eventually
provided counsel with the name of a family member from whom
counsel obtained contact information for Mrs. Pham. Counsel
initially relied upon a family member to relay information from
Mrs. Pham, who resides in Philadelphia and speaks only
Vietnamese. However, when the defense team sentencing advocate
spoke directly to Mrs. Pham, by telephone through an
interpreter, she provided new information. According to Mrs.
Pham, Dang's father was an American serviceman, and when Dang
began attending school, he "began to appear to be more American
physically."
6
As a result of the information learned from Mrs. Pham and
Dang's sister, counsel spoke with the mental health professional
who conducted the evaluation of Dang's sanity at the time of the
offense. According to counsel, this individual indicated that
such trauma could support a potential diagnosis of post-
traumatic stress disorder and, in a severe case, it would not be
uncommon for the patient to develop delusions of his life to
replace the actual traumatic life history. Counsel also
informed the court that communications with Dang had been
difficult during the three months defense counsel had been
working with him, that Dang was repeatedly confused and unable
to recall recent discussions, and unable to focus conversations
on issues that are relevant. Based on the newly reported
history of head trauma and counsel's concern that Dang might be
"operating under some delusion," counsel asked for an evaluation
to determine "whether [Dang] is able to effectively communicate
with us and assist us in preparing his defense."
Finding no probable cause to believe that Dang "lacks
substantial capacity to understand the proceedings against him
or to assist his attorney in his own defense," the circuit court
denied the motion. The court explained that the report of the
competency evaluation previously conducted indicated that Dang
understood the proceedings against him and was able to assist
his attorney in his own defense. According to the court, while
7
there appeared to be "an element of a lack of candor," it found
no basis in the record to grant the motion.
C. Plea Colloquy 4
On the morning of trial, the circuit court conducted a plea
colloquy with Dang, in which Dang pled not guilty to the charges
of murder and violation of a protective order. 5 During the
colloquy, Dang provided his name and date of birth, denied being
under the influence of alcohol or drugs, stated that he
understood the charges against him and had discussed these
charges with his counsel. Dang told the court he had given his
attorneys the names of any witnesses who could testify on his
behalf, that he was satisfied with the services provided by his
attorneys, and that he voluntarily made the decision to plead
not guilty.
Dang also stated that he understood he had a right not to
testify on his own behalf or to testify if he so chose, and that
his counsel had discussed with and advised him regarding the
question of whether he should testify or not. In response to
the court's inquiry as to his decision to have his case tried by
a jury or judge, Dang expressed his desire to be tried by a
4
Interpreters were present throughout the trial
proceedings.
5
Prior to conducting the plea colloquy, defense counsel
renewed the motion for a competency evaluation, which the
circuit court denied for the reasons given at the hearing.
8
jury. Dang acknowledged that if the jury found him guilty, the
jury would also determine the appropriate punishment. Dang
confirmed that he understood all of the questions from the court
and had no questions of his own for the court.
During the plea colloquy, there were instances in which
Dang responded to the court's questions by providing facts or
explanation regarding the murder. For example, when asked if
Dang had given his counsel the names of witnesses, Dang
initially replied that he had and that he "was drunk." The
court interrupted Dang and explained that Dang was not being
asked for his defense but whether he had given the names of
witnesses to his counsel and whether they were present. A
discussion then ensued between the court and Dang as to the
witnesses that might testify on Dang's behalf. Additionally, in
response to the court's inquiry as to whether Dang's plea of not
guilty was voluntarily made, Dang stated that he saw "the
video," referring to a security camera recording of the murder.
He added, "I don't believe that I killed her," "I did not intend
[to kill her]," and "She hit me." Upon being redirected by the
court to the question asked, Dang responded appropriately.
THE COURT: Mr. Dang, that's not what I'm asking
you. The question I'm asking you is this: You
are pleading not guilty; is that correct?
THE DEFENDANT: Yes.
9
THE COURT: Are you pleading not guilty because
you think that's what you ought to do and it's a
voluntary decision on your part?
THE DEFENDANT: Yes.
Following the colloquy, the circuit court accepted Dang's
plea of not guilty, finding it had been made freely and
voluntarily. Because Dang told the court there was information
he still would like to share with his counsel, the circuit court
took a recess at the conclusion of the colloquy to afford Dang
an opportunity to meet with counsel and "see if there's anything
else he wants to tell you."
D. Renewed Motion for Competency Evaluation and Second
Colloquy
Upon returning from the recess, Dang's counsel renewed,
again, the motion for an evaluation of Dang's competency to
stand trial. According to counsel, Dang expressed feeling that
"he is not normal right now," is "forgetting things," and "only
understands a little bit about what is happening." In addition,
counsel told the court that Dang expressed "for the first time
ever in our communications with him that he believes he is
facing capital punishment." Counsel believed that Dang's
"mental status is deteriorating, which is not unusual for people
who suffer from mental illness." Counsel stated that "as of
just a few minutes ago – during this recess – in counsel's
opinion, there's probable cause to believe that Mr. Dang both
10
does not understand the nature of the proceedings against him
and is unable to effectively communicate with counsel in order
to assist in his defense and is, in fact, unable to participate
in his defense in several critical ways."
In response to counsel's motion, the circuit court stated:
But I also have the advantage of additional
information now [than at the hearing], and that
is that I've done the not-guilty colloquy with
your client, and what strikes me is that he
certainly was able to understand my questions –
in some cases I had to explain them, but that's
not unusual – and his responses were intelligent.
And, it is true, he wanted to tell me more than I
was asking him, but that's also not unusual.
So, I also have the benefit of having now
heard from your client directly for the first
time, and what strikes me is that he came across
to me as entirely rational. There was something
he wanted to tell you, which I gave him the
opportunity to do, so you could talk with him.
At defense counsel's request, 6 the circuit court conducted
an additional colloquy with Dang:
THE COURT: Do you understand who I am?
THE DEFENDANT: Why?
THE COURT: No. Do you understand who the judge
is?
6
Before the circuit court conducted the colloquy, it
expressed concern to Dang's counsel regarding the risk that
statements made by Dang could be used by the Commonwealth during
trial. While acknowledging that risk, Dang's counsel confirmed
the request for an inquiry "into Mr. Dang's appropriateness for
an evaluation of his competency to stand trial."
11
THE DEFENDANT: Yes, I do.
THE COURT: And what role does the judge play in
the case?
THE DEFENDANT: To listen to the case.
THE COURT: And what do I do after I listen to
the case?
THE DEFENDANT: I don't know.
THE COURT: Do you understand that you're on
trial today?
THE DEFENDANT: Yes, I know.
THE COURT: Do you know what you're charged with?
THE DEFENDANT: Yes. Murder.
THE COURT: And do you know what else you're
charged with?
THE DEFENDANT: No.
THE COURT: Do you know what the sentence is that
if you're found guilty that a jury might impose
in this case or might decide was the appropriate
sentence for murder?
THE DEFENDANT: Yes, but it was not my intention
–
THE COURT: No, but I'm asking you, what is the
most sentence that a jury could impose in this
case? Do you know?
THE DEFENDANT: Yes. My lawyer did mention to me
that maybe thirty years.
THE COURT: Who are your lawyers?
THE DEFENDANT: Right here next to me.
THE COURT: Do you know their names?
12
THE DEFENDANT: Sarah.
THE COURT: And what about the other attorney?
THE DEFENDANT: Robert. 7
THE COURT: Okay. And do you know that there is
also a prosecutor in the courtroom who is
involved in the case?
THE DEFENDANT: I have never heard the word
"prosecutor."
THE COURT: What about the Commonwealth Attorney?
Have you ever heard that phrase?
THE DEFENDANT: No.
THE COURT: Now, how are you feeling today?
THE DEFENDANT: I feel okay, but since I've been
here I haven't been normal. I feel kind of
weird. I feel sometimes I'm okay, but I'm not
crazy. But my mind sometimes is not here in some
situations. It doesn't seem right to me.
I just want you to know that I do kind of
understand, but I just don't feel okay today.
I've never known about the law or anything. I
just know I go to work, I go home to my family
and take care of myself. Other than that, I
never, like, know anything about the law.
THE COURT: Do you know that the maximum penalty
for murder is life in prison if the Commonwealth
is not seeking the death penalty?
THE DEFENDANT: I don't know. I don't know why I
even kill people.
THE COURT: You don't know what?
7
Dang's trial attorneys were Lysandra Pachuta and Robert
Frank.
13
THE DEFENDANT: I don't know why I even kill. I
don't know why.
THE COURT: Do you know that you're also charged
with violating a protective order?
THE DEFENDANT: I don't know. I didn't know.
THE COURT: Well, when I asked you questions a
little while ago, you said you were aware of the
fact that you were charged with violating a
protective order. You pled not guilty to it.
THE DEFENDANT: I know I killed someone, but I
plead not guilty because it was not my intention
– because they hit me, they attacked me, and I
couldn't take it no more. And I have evidence –
I have the work from the doctor, that I had stab
wounds.
And I was drunk, and then I had a knife and
I just went after her. And I stabbed and I threw
the knife away. I put the knife down, and I
don't know what else happened. And then the
police took me to the hospital, and then the next
day is when I realized that I killed someone.
THE COURT: Okay. Have a seat.
Following the colloquy, the circuit court denied the
renewed motion for a second competency evaluation, explaining,
certainly the answers the Defendant gave were not
by any means a showing of perfect clarity, but I
believe he understands why he's here today and he
understands what we're doing.
He certainly has a – he articulates a
defense to the offenses – the principal offense
with which he's charged, which is the first-
degree murder. In the colloquy he both pled not
guilty and confirmed that he was the person
charged with that event.
And when I combine everything I've heard
today from the Defendant, I do not see a basis to
14
order the competency exam – in other words, to
change the decision that I made last Friday – and
that will remain my decision.
At trial, the evidence proved Dang entered into a
restaurant in Fairfax County where Nguyet Lu was eating with her
boyfriend and another individual. Dang approached Lu and
stabbed her with a knife. Lu died from stab wounds to her neck
and abdomen, and was pronounced dead at the scene. Upon
completion of the three-day trial, the jury found Dang guilty of
first-degree murder and violation of the protective order. In
accordance with the verdict, the circuit court imposed sentences
of life and five years' imprisonment on the two convictions.
Dang appealed his convictions to the Court of Appeals, which
denied his petition for appeal by per curiam order and again by
a three-judge panel.
II. ANALYSIS
On appeal, Dang argues the Court of Appeals erred in
denying his appeal because there was probable cause to believe
he was incompetent to stand trial under Code § 19.2-169.1(A).
A. Code § 19.2-169.1(A)
"It is well established that the Due Process Clause of the
Fourteenth Amendment prohibits the criminal prosecution of a
defendant who is not competent to stand trial." Medina v.
California, 505 U.S. 437, 439 (1992); see also Drope v.
Missouri, 420 U.S. 162, 171-72 (1975); Pate v. Robinson, 383
15
U.S. 375, 385(1966). Therefore, due process requires that
states provide criminal defendants "access to procedures for
making a competency evaluation." Medina, 505 U.S. at 449. 8
The General Assembly has provided criminal defendants
access to such procedures in Code § 19.2-169.1. Pursuant to
this statute, "the court shall order that a competency
evaluation" of the defendant be performed by a mental health
expert if "there is probable cause to believe that the defendant
. . . lacks substantial capacity to understand the proceedings
against him or to assist his attorney in his own defense." Code
§ 19.2-169.1(A). This language reflects the standard for
competency articulated by the Supreme Court of the United
States, which is "whether the defendant has 'sufficient present
ability to 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.'" Godinez v.
Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. United States,
362 U.S. 402, 402 (1960)). See Orndorff v. Commonwealth, 271
8
The Supreme Court of the United States has held that a
state procedure requiring a hearing on competency where the
evidence raises a "bona fide doubt" as to the defendant's
competency is constitutionally adequate, as is a state procedure
requiring an examination where there is "reasonable cause" to
believe that the defendant is incompetent. Drope, 420 U.S. at
172-73.
16
Va. 486, 500, 628 S.E.2d 344, 351 (2006) (discussing ultimate
determination of whether defendant is competent pursuant to Code
§ 19.2-169.1(E) in light of constitutional standard of
competency).
When the defendant has already been afforded a competency
evaluation in which he is found competent, the circuit court
need not order a second evaluation unless it is presented with a
substantial change in circumstances. See Drope, 420 U.S. at 181
(trial court required to order competency examination when there
were "circumstances suggesting a change that would render the
accused unable to meet the standards of competence to stand
trial"); Senna v. Patrissi, 5 F.3d 18, 20 (2d Cir. 1993) (no
constitutional requirement for additional competency hearing
where there is "no substantial change" in defendant's
condition); People v. Kelly, 822 P.2d 385, 412 (Cal. 1992)
(where defendant has already been found competent, it is
unnecessary to conduct a second hearing on competency unless the
court is presented with a "substantial change of circumstances"
or new evidence "casting a serious doubt on the validity of that
finding"); State v. Lafferty, 20 P.3d 342, 360 (Utah 2001)
(same); State v. Sanders, 549 S.E.2d 40, 52 (W. Va. 2001)(same).
B. Standard of Review
The statutory mandate, that an evaluation be ordered if
there is "probable cause to believe" that the defendant is
17
incompetent to stand trial, Code § 19.2-169.1(A), involves the
exercise of discretion by the circuit court in weighing the
facts presented on the question of competency. See Orndorff,
271 Va. at 500, 628 S.E.2d at 351 (determination of competency
is a question of fact that will not be disturbed on appeal
unless plainly wrong); see also Johnson v. Commonwealth, 53 Va.
App. 79, 93, 669 S.E.2d 368, 375 (2008) ("We review a circuit
court's decision not to order a competency evaluation only for
abuse of discretion."). This is so because the circuit court
"will often prove best able to make more fine-tuned mental
capacity decisions, tailored to the individualized circumstances
of a particular defendant." Indiana v. Edwards, 554 U.S. 164,
177 (2008); see also United States v. Mason, 52 F.3d 1286, 1289
(4th Cir. 1995) (whether "reasonable cause" to believe a
defendant may be incompetent exists under 18 U.S.C. § 4241(a) is
a question left to the discretion of the trial court). 9
9
See also Denes v. State, 508 N.E.2d 6, 9-10 (Ind. 1987)
(decision of whether to order competency hearing reviewed for
abuse of discretion); State v. Barnes, 262 P.3d 297, 309 (Kan.
2011) (decision of whether to order competency evaluation
reviewed for abuse of discretion); State v. Hewett, 538 A.2d
268, 269 (Me. 1988) (decision of whether to order competency
hearing reviewed for abuse of discretion); Morales v. State, 992
P.2d 252, 254 (Nev. 2000) (decision of whether to order
competency evaluation reviewed for abuse of discretion); People
v. Morgan, 662 N.E.2d 260, 261 (N.Y. 1995) (same); State v.
Drayton, 243 S.E.2d 458, 459 (S.C. 1978) (same); Garza v. State,
522 S.W.2d 693, 694 (Tex. Crim. App. 1975) (decision of whether
to order competency hearing reviewed for abuse of discretion);
18
We have held that a circuit court abuses its discretion
"when a relevant factor that should have been given significant
weight is not considered; when an irrelevant or improper factor
is considered and given significant weight; and when all proper
factors, and no improper ones, are considered, but the court, in
weighing those factors, commits a clear error of judgment."
Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346,
352, 717 S.E.2d 134, 137 (2011) (quoting Kern v. TXO Production
Corp., 738 F.2d 968, 970 (8th Cir. 1984)); see also Drope, 420
U.S. at 179 (reviewing whether state courts failed "to give
proper weight" to evidence regarding competency to stand
trial). 10
C. Circuit Court's Finding of No Probable Cause
In re Fleming, 16 P.3d 610, 615 (Wash. 2001) (decision of
whether to order competency evaluation reviewed for abuse of
discretion); United States v. Davis, 61 F.3d 291, 304 (5th Cir.
1995) (decision of whether to order competency hearing under 18
U.S.C. § 4241 reviewed for abuse of discretion); Zapata v.
Estelle, 588 F.2d 1017, 1020-21 (5th Cir. 1979) (decision by
state court of whether to order competency hearing reviewed for
abuse of discretion); United States v. Andrews, 469 F.3d 1113,
1121 (7th Cir. 2006) (decision to hold hearing or order
examination under 18 U.S.C. § 4241 reviewed for abuse of
discretion).
10
Although the dissent agrees that a circuit court's
finding that probable cause did not exist to order a competency
evaluation should be reviewed for an abuse of discretion, it
seems to review the circuit court's decision here de novo. Under
an abuse of discretion standard of review, it is neither our
function to “consider” the evidence, nor to determine that “the
facts here are sufficient to meet the probable cause standard
fixed by Code § 19.2-169.1(A).”
19
Applying these principles, we do not believe the circuit
court abused its discretion in finding that there was no
probable cause to believe that Dang "lack[ed] substantial
capacity to understand the proceedings against him or to assist
his attorney in his own defense." Code § 19.2-169.1(A).
1. Family Information and Past Trauma
First, Dang argues that the circuit court failed to give
due weight to the information regarding Dang's family history
that came to light shortly before trial.
According to Dang, "[t]he most significant factor in this
case that established probable cause for a competency evaluation
was that Mr. Dang appeared to have constructed a completely
false life history, or at least one that significantly deviated
from his mother's recollection as expressed to defense counsel."
Because Dang failed to disclose the history of serious head
trauma suffered during his childhood in Vietnam and the
existence of his biological family in Philadelphia, defense
counsel suggests Dang may have constructed "an entire delusion
about his past life to replace his real, traumatic life."
Relying on defense counsel's conversation with the evaluator who
performed Dang's sanity at the time of the offense evaluation,
Dang contends that such a delusion would not be unusual if he
had suffered post-traumatic stress disorder, and the trauma
20
reportedly experienced by him could support such a potential
diagnosis.
Furthermore, citing treatises discussing the relationship
between traumatic brain injury and violent criminal behavior,
Dang argues this information may have "substantiated an
evaluation" of Dang for traumatic brain injury or another form
of organic brain injury. Thus, according to Dang, while his
failure to communicate about his life history could have been
characterized as a lack of candor, it could also have been "a
symptom of an underlying mental illness or organic brain injury
that was affecting his competence."
We disagree that the circuit court failed to give proper
weight to the information learned by defense counsel from Mrs.
Pham and Dang's sister. In response to defense counsel's
argument that Dr. Hudacek made note of the fact that she did not
have access to collateral sources, the circuit court pointed to
Dr. Hudacek's conclusion that despite her inability to gain
additional information from collateral sources, she "believes
the information is an accurate portrayal of [Dang's] current
functioning as it relates to the question of competency to stand
trial." As the circuit court explained at the hearing, it
reviewed Dr. Hudacek's report, noting that the evaluation was
"thorough" and the report "goes into great detail as to the
21
defendant's understanding of the proceedings against him and his
ability to assist his attorney in his own defense."
As the circuit court properly recognized, the issue before
it was Dang's present ability to understand the proceedings and
assist his counsel as was addressed in Dr. Hudacek's report. A
history of mental illness does not necessarily render a
defendant incompetent to stand trial. See Bramblett v.
Commonwealth, 257 Va. 263, 273, 513 S.E.2d 400, 407
(1999)(defendant diagnosed as presently suffering from
delusional disorder competent to stand trial). As the Fourth
Circuit Court of Appeals has explained, "neither low
intelligence, mental deficiency, nor bizarre, volatile, and
irrational behavior can be equated with mental incompetence to
stand trial." Walton v. Angelone, 321 F.3d 442, 460 (4th Cir.
2003) (citation omitted). Rather, as noted above, the legal
test for competency is "whether the defendant has 'sufficient
present ability to 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.'"
Godinez, 509 U.S. at 396 (quoting Dusky, 362 U.S. at 402)
(emphasis added). Therefore, the evidence supporting probable
cause must be directed to the question of defendant's competency
at the time of trial.
22
Thus, even if Dang's failure to disclose an accurate history
to his counsel and his evaluator was, as he posits, an
indication of an underlying mental illness or brain injury,
there was no information before the circuit court to relate any
possible mental illness or injury to Dang's present competence.
In light of Dr. Hudacek's opinion that was addressed to Dang's
"current functioning," the circuit court appropriately inquired:
Focusing on his competency today, is it not fair
to say that what you're identifying is that your
client has not been candid with you, which does
not seem to me to be a competency issue, and then
beyond that, you're just speculating about what
effect it could – it might have?
(Emphasis added.)
The circuit court was properly focused on the issue of
Dang's present competence. The information gained from Mrs.
Pham related to injuries reportedly sustained by Dang decades
prior to the murder and did not provide evidence of a
substantial change in Dang's competence. With nothing more than
counsel's speculation that the information from Mrs. Pham and
Dang's sister could potentially change Dr. Hudacek's opinion or
otherwise bear on Dang's present ability to understand the
proceedings or assist in his defense, we do not believe the
circuit court failed to give proper weight to such information.
2. Dang's Responses at Trial
23
Dang also contends the circuit court neglected to afford
due weight to the answers given by him during the colloquies
conducted by the court on the morning of trial. According to
Dang, throughout the plea colloquy and the subsequent colloquy
conducted by the court at defense counsel's request, Dang gave
nonresponsive answers indicating his lack of comprehension of
the criminal proceedings against him.
While many of Dang's responses to the circuit court's
questions were indeed nonresponsive, as the circuit court
recognized, Dang's tendency to shift focus to the facts
regarding the murder and explain "his side of the story" was
addressed extensively by Dr. Hudacek in her report. According
to Dr. Hudacek, Dang's behavior in this regard was "related to
anxiety about the alleged charges and potential sentence he is
facing," "does not suggest that [he] suffers from a major mental
illness that would affect abilities relevant to competency to
stand trial," and "is consistent with most defendants who face
legal charges." In other words, the responses Dang gave to the
circuit court were consistent with the behavior he exhibited
during his evaluation. Despite this behavior, Dr. Hudacek
concluded that "Dang has sufficient, present ability to consult
with his attorney with a reasonable degree of rational
understanding," "possesses a rational as well as factual
24
understanding of the proceedings against him," and "is able to
assist in preparing for his own defense."
During the plea colloquy, Dang certainly gave appropriate
and rational answers to the court's initial inquiry regarding
his understanding of the charges against him, the role of
defense counsel, his discussions with counsel regarding possible
witnesses on his behalf, his right to testify and be tried by a
jury, and the voluntariness of his plea. Although Dang
attempted to interpose his explanation for the murder, when
redirected to the question, he gave appropriate responses.
During the subsequent colloquy, Dang's propensity to
interject and explain his actions became more pronounced. This
was entirely in accord with Dr. Hudacek's opinion that Dang's
inclination toward nonresponsive answers reflected apprehension
"about going to trial" and the "potential sentence he is
facing." As Dang told the court during the second colloquy, "I
feel okay, but since I've been here I haven't been normal."
Dang also stated, "I just want you to know that I do kind of
understand, but I just don't feel okay today." Dang's increase
in anxiety after the plea colloquy was evidenced by defense
counsel's observation that Dang's mental status had deteriorated
"as of just a few minutes ago – during this recess." It was
reasonable, therefore, to conclude that Dang's responses during
the second colloquy were a reflection of heightened apprehension
25
of going to trial, rather than a sudden deterioration in his
understanding of the nature of the proceedings on the morning of
trial. 11 In fact, as the circuit court remarked, Dang was
sufficiently competent to "articulate[] a defense" to the murder
charge.
Recognizing that circuit courts "are in the best position
to make competency determinations, which at bottom rely not only
on a defendant's behavioral history and relevant medical
opinions, but also on the [circuit] court's first-hand
interactions with, and observations of, the defendant and the
attorneys at bar, we appropriately afford them wide latitude."
United States v. Bernard, 708 F.3d 583, 593 (4th Cir. 2013). In
light of Dr. Hudacek's opinion that Dang's inclination to shift
focus represented situational anxiety regarding the proceedings
and potential punishment, we do not believe the circuit court
11
Given Dang's difficulty with the English language, it is
not surprising that he referred to his counsel, Lysandra
Pachuta, as "Sarah." Likewise, we do not find it remarkable
that Dang was unable to articulate the charge of violation of a
protective order or was unfamiliar with the terms "prosecutor"
and "Commonwealth Attorney." Based on Dang's responses during
the plea colloquy, he knew he was charged with murder and
violation of a protective order, understood he was in court to
be tried for those charges, and was well aware that he faced
substantial punishment if found guilty by the jury. It is also
evident from the record that Dang knew his defense counsel and
their role in assisting him with his defense.
26
failed to properly consider and weigh Dang's responses to the
court.
3. Defense Counsel's Concerns
Dang also argues that the circuit court failed to give
sufficient weight to defense counsel's concerns regarding his
competency.
As the Supreme Court of the United States has recognized,
due process does not require courts to "accept without
question[ing] a lawyer's representations concerning the
competence of his client." Drope, 420 U.S. at 177 n.13. "[A]n
expressed doubt" by defense counsel "is unquestionably a factor
which should be considered." Id. While "counsel's
representations deserve serious consideration" by the circuit
court, they "cannot, however, assume an importance not merited
by their content, particularly in those situations in which the
[circuit] court has had an opportunity to make its own
observations." People v. Morino, 743 P.2d 49, 52 (Colo. App.
1987). "We must also bear in mind the [circuit] court's
institutional advantage over [this Court] in evaluating the
demeanor of the defendant and the statements of counsel about
the defendant's mental state." United States v. Rickert, 685
F.3d 760, 767 (8th Cir. 2012).
Based on our review of the record, we believe the circuit
court gave defense counsel's concerns serious consideration.
27
During the hearing on the motion for a second evaluation,
defense counsel told the court that communications with Dang had
been "extremely difficult," that Dang was "repeatedly confused,"
and was "unable to focus conversations on the issues that are
relevant at the moment." After hearing argument, the circuit
court acknowledged its consideration of the "representations
made by [defense counsel]," but noted it did not have "any
evidence" or "any testimony" before it to find probable cause in
light of Dr. Hudacek's report that "goes into great detail as to
the defendant's understanding of the proceedings against him and
his ability to assist his attorney in his own defense."
On the morning of trial, when counsel requested that the
court conduct a colloquy with Dang to inquire into his
competency, the circuit court did not dismiss counsel's concerns
but granted counsel's request. In fact, seeking direction as to
counsel's specific concerns, the circuit court inquired of
counsel as to "what questions you want [the court] to ask him,"
commenting that "[i]t may strike you as obvious, but it doesn't
strike me as obvious." After defense counsel supplied the court
with suggested questions, the court conducted the colloquy in
accord with defense counsel's suggestions.
Furthermore, the concerns advanced by defense counsel at
the hearing and trial were the same concerns dating back to
previous counsel's representation and were, therefore, present
28
when Dr. Hudacek performed her evaluation. In Dang's initial
motion for a competency evaluation, which was granted, defense
counsel asserted that Dang spoke and understood "limited
English" and communicated to defense counsel with assistance of
an interpreter. According to the motion, Dang "was unable to
express an understanding of important aspects of the proceedings
against him and his rights related thereto, notwithstanding
defense counsel's efforts to inform him." Dr. Hudacek's report
addressed Dang's tendency to shift focus and give nonresponsive
answers, but concluded his behavior was a symptom of situational
anxiety not incompetence.
In sum, the record reflects that the circuit court
carefully considered the representations made by counsel both at
the hearing and at trial. However, the circuit court also had
the benefit of Dr. Hudacek's report addressing the issues of
concern to counsel and the opportunity to observe Dang and his
interaction with defense counsel. We cannot conclude that the
circuit court committed an abuse of discretion in weighing the
significance of these factors.
4. Timing of Dang's Motion
Finally, Dang argues that the circuit court erred in
placing significant weight on the timing of the motion for the
second competency evaluation.
29
At the December 2 hearing, when defense counsel explained
that the new information from Mrs. Pham was gained when counsel
used an interpreter to speak with her rather than relying on
family, the circuit court asked whether an interpreter could
have been used earlier. Specifically, the circuit court stated:
"[T]his matter has been continued several times and here we are,
literally on the eve of trial – trial is set for Monday – and
you're bringing things to my attention that there's just no
reason that I can see why they weren't raised in September or
October." Again, the circuit court asked, "If you had problems
communicating with your client back in October or September, why
were you not back in court then seeking a new competency
evaluation? Why now?" In response to the court's comments,
defense counsel explained that while it might have been possible
to discover the information earlier, counsel had not, and the
information learned from Mrs. Pham indicated potential causes
for counsel's concerns regarding Dang's mental health. This
discussion between the circuit court and counsel continued
intermittently throughout the hearing.
After defense counsel concluded argument in support of the
motion for a second competency evaluation, the circuit court
noted that it had "focused considerably on the fact that this is
occurring on the eve of trial" and "whether the information that
was brought to my attention yesterday could have been available
30
months ago." Nevertheless, the circuit court acknowledged that
defense counsel was "correct that the focus is on whether or not
there's probable cause at this time, regardless of whether it
could have been produced to the [c]ourt at an earlier point in
time."(Emphasis added.) The circuit court then proceeded to
discuss the standard set forth in Code § 19.2-169.1 and, in
particular, whether there was probable cause to conclude that
Dang lacked substantial capacity to understand the proceedings
or assist his counsel.
It is clear, then, that while the circuit court was
understandably concerned about the timing of the motion and why
counsel had not obtained the information at an earlier time if
communications had, in fact, been difficult, it was properly
focused on the question of Dang's competency as of the date of
trial. Furthermore, the circuit court made no comment regarding
the timing of the motion when it was renewed at trial.
Therefore, we reject Dang's underlying premise that the circuit
court placed significant weight on the timing of his motion.
III. CONCLUSION
In sum, we conclude the circuit court did not abuse its
discretion in finding there was no probable cause to order a
second competency evaluation. Accordingly, we will affirm the
judgment of the Court of Appeals.
Affirmed.
31
JUSTICE MIMS, dissenting.
The majority determines that the circuit court did not
abuse its discretion when it failed to order a second competency
evaluation for a defendant with possible organic brain injury
who displayed signs of confusion and incoherence at trial. In
my view, that conclusion does not comport with the evidence in
the record and the controlling precedent in Drope v. Missouri,
420 U.S. 162 (1975). I therefore must dissent.
A court is required to order a competency evaluation if it
finds “at any time after the attorney for the defendant has been
retained or appointed and before the end of trial . . . that
there is probable cause to believe that the defendant . . .
lacks substantial capacity to understand the proceedings against
him or to assist his attorney in his own defense.” Code § 19.2-
169.1(A) (emphasis added). *
*
The statutory mandate coincides with defendants’ Fourteenth
Amendment due process rights. See Medina v. California, 505
U.S. 437, 439 (1992); compare Code § 19.2-169.1(A) with Godinez
v. Moran, 509 U.S. 389, 396 (1993) (stating the inquiry for
competency “is whether the defendant has sufficient present
ability to consult with his lawyer with a reasonable degree of
rational understanding and has a rational as well as a factual
understanding of the proceedings against him.”) (internal
quotation marks omitted).
We review a trial court’s ruling whether such probable
cause exists for abuse of discretion. Johnson v. Commonwealth,
53 Va. App. 79, 93, 669 S.E.2d 368, 375 (2008). A court abuses
its discretion in three principal ways: “when a relevant factor
that should have been given significant weight is not
considered; when an irrelevant or improper factor is considered
and given significant weight; and when all proper factors, and
no improper ones, are considered, but the court, in weighing
those factors, commits a clear error of judgment.” Lawlor v.
Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847, 861 (2013)
(quoting Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va.
346, 352, 717 S.E.2d 134, 137 (2011)), cert. denied ___ U.S.
___, 134 S. Ct. 427 (2013).
In Drope, the Supreme Court of the United States set forth
the factors relevant to a court’s consideration of whether an
inquiry into a defendant’s competency is necessary. They
include “evidence of [his] irrational behavior, his demeanor at
trial, and any prior medical opinion on competence to stand
trial.” 420 U.S. at 180. “[E]ven one of these factors standing
alone may, in some circumstances, be sufficient.” Id. The
Court also made clear that when the signs of incompetency
manifest themselves is not an appropriate factor for
33
consideration. See id. at 181 (“Even when a defendant is
competent at the commencement of his trial, a trial court must
always be alert to circumstances suggesting a change that would
render the accused unable to meet the standards of competence to
stand trial.”).
The majority determines that the circuit court did not
abuse its discretion when it declined to order a second
competency evaluation because the report following the first
evaluation concluded that Dang was competent. It holds that a
new evaluation was necessary only if there was a substantial
change in circumstances after the initial evaluation. In my
view, there was a substantial change in circumstances and the
circuit court therefore abused its discretion in its application
of the Drope factors.
On the surface, the circuit court’s consideration of the
report corresponds to the third Drope factor. However, the
value of the report was substantially undermined by the
subsequent revelation that Lang had endured physical abuse
during childhood, which may have resulted in organic brain
injury. This information was not known at the time of the
evaluation. Thus, the report could not take it into account.
Moreover, the fact that Dang was unable or unwilling to disclose
34
it to the evaluator may itself have been symptomatic of an
underlying disorder impacting his competence to stand trial.
Similarly, the discovery that Dang had misrepresented his family
history and relationships may have been clinically significant.
Courts commonly have no mental health training and
consequently are ill-prepared to reach competency conclusions
without the assistance of professional mental health clinicians.
Code § 19.2-169.1(A) requires a competency evaluation precisely
for the purpose of providing such assistance. In sum, we simply
do not know the clinical relevance of this new information.
However, the record establishes that Dang’s possible brain
injury and his failure to disclose both it and his true family
history and relationships were sufficient to give at least one
mental health practitioner pause.
Accordingly, in my view, these new facts amounted to a
substantial change in circumstances by calling into question the
accuracy of the conclusions in the competency evaluation report.
Therefore, the value of the report’s conclusions to satisfy the
third Drope factor was diminished.
Dang’s failure to disclose his possible brain injury and
his family history and relationships also may constitute
evidence of irrational behavior under the first Drope factor.
35
We again do not know whether the behavior was symptomatic of an
underlying disorder and, if so, whether that disorder may have
affected his competency to stand trial.
Perhaps most compelling, however, is Dang’s behavior during
the circuit court’s colloquy, which goes to the second Drope
factor. As the majority emphasizes, the competency inquiry
turns on the defendant’s “present ability to consult with his
lawyer with a reasonable degree of rational understanding.”
Godinez v. Moran, 509 U.S. 389, 396 (1993) (emphasis added)
(internal quotation marks omitted). Dang’s behavior during the
colloquy is possibly the best indicator of his “present
ability.” Yet, in addition to being generally nonresponsive
when his answers did not correspond to the court’s questions,
his answers revealed that he did not understand the charges
against him, did not understand the potential sentences that
would follow from conviction, did not understand what a
prosecutor was, and did not know the names of his attorneys.
Dang’s failure to understand this information during the
colloquy calls into question his competency at that time.
The circuit court and the majority dismiss this behavior as
being consistent with the evaluation report’s findings. But,
again, that report was predicated on incomplete and inaccurate
36
information. In the absence of professional guidance, neither
we nor the circuit court can ascertain whether the report’s
conclusions would have been the same if the evaluator had known
all the relevant facts. Similarly, we cannot know whether
Dang’s behavior during the colloquy was consistent with what the
report described as anxiety, or whether it was consistent with,
for example, an irrational panic or some other underlying mental
disturbance which may or may not have affected his legal
competence.
In short, the majority considers the first report in
isolation, without considering the information Dang failed, for
whatever reason, to disclose. It similarly considers Dang’s
behavior during the colloquy to be consistent with the flawed
report. But under Drope, neither the report nor Dang’s behavior
can be considered in isolation. Rather, the circuit court, and
this Court on review, is obligated to consider all the facts to
determine whether probable cause existed to justify a second
competency evaluation. In my view, the facts here are
sufficient to meet the probable cause standard fixed by Code §
19.2-169.1(A).
Finally, the circuit court was improperly influenced by the
fact that the deficiencies in the report were not known until
37
“the eve of trial.” Although the majority attempts to minimize
the effect of this influence, the court itself admitted that it
“focused considerably on the fact that this is occurring on the
eve of trial . . . and whether the information that was brought
to my attention yesterday could have been available months ago.”
Both Drope and Code § 19.2-169.1(A) make clear that information
calling the defendant’s competence into question is to be
considered without regard to when or how the information is made
known to the trial court. The question was not whether the
information could have been presented earlier, or even whether
it was withheld for tactical advantage (an assertion made by
neither the Commonwealth nor the circuit court). The
defendant’s constitutional right to due process and the
statutory procedure that safeguards it are preeminent. Rather,
the question is whether the information, whenever made known to
the trial court, calls into doubt the defendant’s competence at
that time.
I therefore must conclude that the circuit court abused its
discretion. It gave improper weight to the flawed competency
report, the third Drope factor. It failed to consider possible
evidence of Dang’s irrational behavior, namely his failure to
disclose possible brain injury and his family history and
38
relationships during the competency evaluation, the first Drope
factor. It failed to consider the possible deficiencies in the
competency report when it concluded that Dang’s behavior during
the colloquy was consistent with the report, the second Drope
factor. It improperly considered the timing of the information
raising new questions about Dang’s competence. Accordingly, I
must dissent from the majority’s opinion affirming its judgment.
39