Grattan v. Com.

PRESENT: Keenan, Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.

JONATHAN P. GRATTAN, II
OPINION BY
v. Record No. 082547 JUSTICE CYNTHIA D. KINSER
November 5, 2009
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

This appeal involves two questions: whether the trial

court's finding that the defendant was competent to stand

trial was plainly wrong or without evidence to support it and

whether its decision barring the defendant's introduction of

expert testimony on the issue of his sanity at the time of the

offenses was an abuse of discretion. We answer both questions

in the negative and will therefore affirm the judgment of the

Court of Appeals of Virginia upholding the defendant's

convictions.

I. RELEVANT FACTS AND PROCEEDINGS

On the morning of April 30, 2006, Jonathan P. Grattan,

II, using an AK-47-style, semi-automatic rifle loaded with

steel core ammunition, fired approximately forty rounds into a

vehicle occupied by his neighbors, Dr. William Gardner and his

wife, Carol Gardner, as the vehicle passed by his house.

Carol Gardner died at the scene from her wounds. Dr. Gardner

suffered life-threatening injuries but survived the attack.
 When the police arrived at Grattan's residence, he

refused to come out of the house and engaged in a 20-hour

standoff with the police, repeatedly exchanging gunfire. He

ultimately surrendered when the police deployed an armed robot

into the house. During part of the standoff, Grattan's

grandmother was in the residence, and the police repeatedly

fired canisters of tear gas into the house in an attempt to

get Grattan and his grandmother to come outside. When the

police were finally able to enter the house and remove

Grattan's grandmother, she told them of her suspicion that

Grattan had been using illegal drugs.

Several times during the standoff, Grattan spoke on a

telephone with a police negotiator. In those conversations,

Grattan accused the Gardners of taking "gamma pictures" of him

and trying to murder him. He told the police negotiator that

the situation could by resolved by "blow[ing] up" the

Gardners' home and "tak[ing] the . . . refrigerator out of the

ground." After his surrender and arrest, Grattan stated that

he attacked the Gardners "for justice" because they harassed

him and shot him with "gamma rays." He also admitted the

Gardners were unarmed when he shot them and there had been no

confrontation with them that morning before he started

shooting into their vehicle.

2
 Approximately five months prior to the shooting, Grattan

called "911," stating that he had been shot "500 times with

[a] f---ing gamma" and that "they" had a microwave pointed at

him. Grattan told the 911 operator that his neighbors had

been firing at him for four days and that he was dying from

radiation poisoning. As a result of that incident, Grattan

was hospitalized for mental health treatment with a diagnosis

of "[a]cute paranoid psychosis probably secondary to

methamphetamine abuse rule out underlying psychosis" as well

as methamphetamine abuse. After four days of treatment,

Grattan was discharged and referred to further psychiatric

treatment as an outpatient.

Due to the attack on the Gardners, a grand jury returned

16 indictments against Grattan, charging him with the first

degree murder of Carol Gardner, in violation of Code § 18.2-

32; aggravated malicious wounding of Dr. Gardner, in violation

of Code § 18.2-51.2; six counts of attempted capital murder of

a law enforcement officer, in violation of Code §§ 18.2-25 and

–31(6); and eight counts of using a firearm in the commission

of a felony, in violation of Code § 18.2-53.1. Prior to his

trial, Grattan filed a notice pursuant to Code § 19.2-168,

stating his intention to put in issue his sanity at the time

of the charged offenses and to present expert testimony in

support of that defense. At a hearing on January 18, 2007,

3
Grattan's counsel also expressed concern about Grattan's

competency to stand trial. At the request of the Commonwealth

and in accordance with Code §§ 19.2-168.1(A) and –169.1(A),

the circuit court appointed two mental health experts to

evaluate both Grattan's sanity at the time of the offenses and

his competency to stand trial. At the same hearing, the court

advised Grattan to cooperate with the Commonwealth's mental

health experts and that under Code § 19.2-168.1(B), his

failure to do so could lead to the exclusion of his own expert

evidence supporting his claim of insanity. When asked by the

court, Grattan indicated that he understood the court's

instructions.

At a hearing on January 30, the Commonwealth asked the

circuit court to instruct Grattan once more that he must

cooperate with the Commonwealth's mental health expert who was

appointed to evaluate Grattan's competency to stand trial.

The Commonwealth stated that Grattan had twice refused to meet

with its expert, Dr. Leigh D. Hagan. Consequently, the court

admonished Grattan:

I will caution you again that you are required by
law to cooperate with the mental health evaluator
appointed by the [c]ourt to evaluate your competency
to stand trial. . . . [I]f the [c]ourt believes as
it now stands that you are malingering and putting
on a charade . . . the [c]ourt on the evidence now
before it would be strongly inclined to find you
competent to stand trial. You give every appearance
of being competent. You have appeared competent on

4
 all your prior appearances here. And therefore this
could have dire and severe consequences because when
we commence the trial the [c]ourt will preclude any
mental health expert opinion on your sanity at the
time of the offense.

At a subsequent hearing to determine Grattan's competency

to stand trial, Grattan introduced testimony and a written

report from Dr. Thomas V. Ryan, a licensed clinical

psychologist, and a written competency evaluation by Dr. Bruce

J. Cohen, a psychiatrist. 1 Although Dr. Ryan met with Grattan

once for five hours, Grattan refused to see him on three other

occasions. Dr. Cohen interviewed Grattan three times and

reviewed, among other information, Dr. Ryan's psychological

assessment.

Dr. Ryan, after being qualified as an expert in

neuropsychology, opined that Grattan was "clearly not

competent" to stand trial. Dr. Ryan tested Grattan's

competency in three categories: understanding of the legal

system, reasoning and the ability to assist counsel, and

appreciation of the specific legal situation and circumstances

at hand. According to Dr. Ryan, Grattan scored "within the

clinically significant impairment range" in all three

categories.

1
Dr. Jeff Raynor also participated in this evaluation but
only Dr. Cohen signed the written report. Therefore, we will
refer to this evaluation as being that of Dr. Cohen.

5
 Dr. Ryan also opined that Grattan suffered from

schizophrenia but acknowledged that a mentally ill individual

can nevertheless be competent to stand trial. He further

testified that just because an individual can function in a

structured environment such as a prison does not mean the

person is not psychotic or mentally ill. In his written

report, Dr. Ryan stated that Grattan was likely "responding to

internal stimulation and psychotic thought processes as

evidenced by his inappropriate laughter, rapid changes in his

demeanor, very poor eye contact, and severe restlessness." He

also reported that Grattan "demonstrated throughout [the]

entire assessment tangential thinking and delusional ideation

regarding the criminal offense." Finally, Dr. Ryan opined

that Grattan was not malingering, or attempting to exaggerate

or fabricate his psychotic symptoms.

Dr. Cohen reported, among other things, that Grattan was

not able to engage in any meaningful discussion about the

offenses or his case, did not understand the reason for his

trial, had continued delusional beliefs about the victims

shooting rays into his house, provided inconsistent and often

delusional recollections about the offenses, did not

understand the concept of plea bargains, and did not

comprehend the advantages and disadvantages of pleading

insanity. He concluded that Grattan suffered from

6
schizophrenia and had "significant deficits . . . that

specifically appeared to impair his ability to understand the

proceedings against him, to appreciate his current life

situation and to make decisions that would assist his

attorneys in adequately defending him." Based on Grattan's

knowledge of his case and the offenses, Dr. Cohen stated that

it was "highly unlikely that [Grattan] would be able to

adequately assist his attorneys or participate in his

defense." 2

Dr. Lou Gene Bartram, who qualified as an expert in

psychiatry, testified on behalf of the Commonwealth. Dr.

Bartram examined Grattan in the local jail eleven days after

his arrest. Grattan told Dr. Bartram that he did not need a

psychiatrist and that "it was either him or them and he was

not sorry that he had killed them." Dr. Bartram stated that

she saw no psychotic symptoms nor any methamphetamine induced

psychosis or schizophrenia, but that post acute withdrawal was

consistent with her observations of Grattan. Dr. Bartram

diagnosed Grattan as having a personality disorder with

narcissistic traits, and methamphetamine and cannabis

dependence.

2
At the close of the Commonwealth's evidence at the
competency hearing, Grattan's counsel proffered to the circuit
court that their client was frequently non-responsive and
would not return their telephone calls.

7
 After being qualified as an expert in forensic and

clinical psychology, Dr. Hagan testified on behalf of the

Commonwealth about the court-ordered competency evaluation of

Grattan he conducted on January 30 after the circuit court

ordered Grattan to meet with him. Dr. Hagan conducted his

evaluation in the courtroom because, in part,

it would be far more illuminating to the issue of
competence to know how [Grattan] would respond in
this particular setting where a trial would take
place. . . . [Y]ou're much more likely to get true
accurate data if you assess that person under the
conditions that they are supposed to actually
demonstrate that capacity.

Based on his interview with Grattan and his review of

other information, including the reports from Drs. Ryan and

Cohen, Dr. Hagan rendered the following specific opinions:

Grattan possessed the capacity to comprehend and appreciate

the charges against him and the significant liberty interest

at stake (Grattan recited the numerical sentencing ranges for

the various charges); he possessed the capacity to communicate

and provide relevant information to his attorneys and to

participate in trial preparation, but it would be Grattan's

election whether to do so; he understood the adversarial

nature of the proceedings; he possessed sufficient knowledge

of the legal strategies and options available to him; he knew

how to behave appropriately in court; and he understood the

roles of the primary participants in the proceedings. Dr.

8
Hagan also opined that Grattan was able to modify his behavior

because he followed the instructions of a deputy to stop

rocking his chair during the evaluation. In sum, Dr. Hagan

concluded that Grattan was competent to stand trial, stating

that he "currently possesses an understanding of the charges

against him, of the risk attendant to those, of the options

available, and that he is able, he has the capacity to assist

not only in trial preparation but to have a presence in

court." 3

Dr. Hagan acknowledged that, for purposes of the

competency evaluation, he did not form an opinion about

whether Grattan was suffering from a mental illness, or was

psychotic, delusional, or hallucinating. He stated, however,

that he observed for such and did not "see it [or] hear it."

He explained that a "diagnosis of schizophrenic is in and of

itself not determinative of the issue [of competency to stand

trial]. Some people who have a diagnosis of schizophrenic can

be competent whereas others may not." According to Dr. Hagan,

competency to stand trial does not "hinge on a diagnosis" but

is "a functional capacity." He also stated that, after

3
Dr. Hagan's evaluation of Grattan was audio and video
recorded, and approximately twenty-four minutes of the
seventy-four minute videotape was played during Dr. Hagan's
testimony. Both the audio and video recordings of the
evaluation were admitted as exhibits for the Commonwealth.

9
preparing his report, he returned to the jail to see Grattan

again, but Grattan for the third time refused to cooperate.

The Commonwealth also presented testimony from Frederick

T. Wolfrey, an inmate with Grattan at the local jail. Wolfrey

stated that Grattan told him and another inmate that he was

doing such things as not bathing for weeks and talking about

frogs coming out of the toilet because it was his only chance

at getting less than twenty years. Wolfrey also testified

that Grattan would act strangely one minute and the next

minute would not. When asked if he regretted what he did,

Grattan told Wolfrey he would do it again.

Several deputies who interacted with Grattan while he was

incarcerated in the local jail likewise testified on behalf of

the Commonwealth. Their testimony established that when a

deputy smelled smoke coming from Grattan's cell, Grattan

disposed of cigarette butts in the toilet before the deputy

could retrieve them. The deputies also testified about

Grattan's checking out legal books from the library, watching

television and playing cards with other inmates, and following

the guards' orders. Several deputies explained that Grattan

ordered canteen items, followed up regarding their delivery,

and complained when he did not receive all the ordered items.

They further related that when Grattan was moved to a

different cell, he reminded them to move his canteen items and

10
library books to his new cell. One deputy also testified that

Grattan, upon being disciplined for involvement in a fight,

appealed his penalty and requested that a witness testify as

to Grattan's claim of self-defense.

After hearing argument, the circuit court made the

following ruling:

Based upon the evidence that has been introduced at
this hearing and the [c]ourt's observation of the
defendant in the courtroom, and today we've been
here for six, seven hours I guess, somewhere in that
range, the [c]ourt finds that the defendant has not
carried his burden of proof by a preponderance of
the evidence to show that he is not fit to go to
trial. The [c]ourt believes he is competent and has
the capacity to understand the charges against him,
to understand the possible penalties that he faces
and the capacity to cooperate and work with his
lawyers and his defense team if he cares to do so.
Therefore, the [c]ourt will find based on the record
and the evidence introduced today that Mr. Grattan
is competent to stand trial.

At the conclusion of the competency hearing, the

Commonwealth informed the circuit court that Grattan continued

to refuse to meet with Dr. Hagan to be evaluated as to his

sanity at the time of the offenses. In Grattan's presence,

the court directed the Commonwealth to have both Dr. Hagan and

Dr. Bruce Harry, the Commonwealth's other mental health

evaluator, attempt again to meet with Grattan. The court

further stated it would consider at trial "whether . . . under

the statute [Grattan's non-cooperative actions were]

tantamount to a functional refusal . . . and then the [c]ourt

11
will have to determine which sanctions, if any, it will

impose."

On the first day of trial, the Commonwealth moved,

pursuant to Code § 19.2-168.1, to bar Grattan from introducing

expert testimony on the issue of his sanity at the time of the

offenses. The Commonwealth pointed out that Grattan only met

with Dr. Hagan once and only for the purpose of evaluating

Grattan's competency to stand trial. According to the

Commonwealth, Grattan refused on several occasions to meet

with Dr. Hagan and also failed to cooperate with Dr. Harry for

the purpose of their evaluating Grattan's sanity at the time

of the offenses. As the Commonwealth noted, Grattan did so

despite repeated warnings from the circuit court about the

consequences of his refusal to cooperate with the

Commonwealth's mental health evaluators.

The Commonwealth argued that Grattan's refusal, in light

of his meeting with his own mental health experts, prejudiced

its case and that the only appropriate remedy was the

exclusion of all expert testimony on the subject of Grattan's

sanity at the time of the offenses. Grattan's knowing and

voluntary choices while in jail and his competency to stand

trial, the Commonwealth asserted, proved that whatever mental

illness he might have did not prevent him from making his own

decisions. Grattan, however, argued that his mental illness

12
was the cause of his refusal to cooperate and that the circuit

court should craft an alternative, less drastic, remedy.

Grattan also noted that he had refused to meet with his own

experts on several occasions and argued that the

Commonwealth's experts could evaluate Grattan's sanity at the

time of the offenses without a personal interview. 4

The circuit court granted the Commonwealth's motion,

stating that "[u]nder all of the circumstances of this case

. . . the only fair and reasonable alternative is to exclude

the expert testimony of the defendant on the issue of his

insanity at the time of the offense[s]." Following this

ruling, Grattan waived his right to a jury trial, and the

circuit court heard the evidence of both parties in the form

of proffers. Grattan stipulated that the evidence "would be

received as credible evidence by the trier of fact." The

circuit court found Grattan guilty on all sixteen charges.

Prior to sentencing, Grattan filed a motion requesting

the circuit court to order evaluations pursuant to Code

§§ 19.2-176 (determination of insanity after conviction but

before sentencing) and –169.1 (competency). Grattan argued

4
During the hearing on the Commonwealth's motion, Dr.
Harry testified on cross-examination that, although not ideal,
it would be feasible and proper for him to conduct an
evaluation of Grattan without a personal interview by using
the available medical records and the reports of Drs. Ryan and
Cohen.

13
that there was "reasonable ground" to question Grattan's

mental state and the court should thus order a sanity

evaluation prior to sentencing. Code § 19.2-176. Grattan

also argued that the court, pursuant to Code § 19.2-169.1,

should order a competency evaluation prior to sentencing.

At the sentencing hearing, the circuit court heard

evidence on Grattan's motion. Inmate Dennis D. Crider

testified to Grattan's bizarre behavior in jail. He stated

that Grattan would stand in the shower fully dressed and talk

to himself, run around as if someone were chasing him, beat

his mattress and call it names, talk to imaginary people, lick

the wall and stare at it while on his hands and knees, and

talk about how the telephone and the floor were dangerous.

Dr. Ryan also testified, repeating his findings on

Grattan's competency to stand trial and stating that Grattan

again refused to see him after the competency hearing. Dr.

Ryan was, however, able to speak with several jail deputies.

They related that Grattan had poor hygiene, exhibited bizarre

behavior, and refused to meet with his family. Dr. Ryan

stated that this information, in addition to Crider's

testimony, further supported his opinion that Grattan was

mentally ill, incompetent to stand trial, and in need of

medication.

14
 Dr. Cohen then testified and reiterated the opinions set

forth in his original report. Dr. Cohen also stated that the

accounts of the jail deputies and Crider affirmed his previous

conclusions regarding Grattan's mental illness. Dr. Cohen

criticized Dr. Hagan's competency evaluation, calling it "a

partial evaluation" because it did not include a "detailed

mental status examination" and "a review of [Grattan's] past

psychiatric symptoms and history." Like Dr. Ryan, Dr. Cohen

indicated that Grattan's ability to function in jail did not

affect his diagnosis of Grattan. He explained that a mentally

ill individual can be out of contact with reality in some

areas of life but not in others. Finally, Dr. Cohen stated

that Grattan's schizophrenia could be treated with medication

in a mental health facility.

The Commonwealth then presented evidence in opposition to

Grattan's motion. Several jail deputies testified,

establishing that Grattan was once directed to shower because

of his poor hygiene, he often slept and laid in bed, like many

other inmates, and he had a small "leadership" position in the

jail. Chadrick Cave, who had been incarcerated with Grattan

for two months, testified that Grattan exhibited bizarre

behavior and, when asked why he acted that way, told Cave that

he knew what he was doing and that he "need[ed] to get the

insanity plea to get less time." Grattan also told Cave that

15
he shot the Gardners because "the dentist shot his dog," it

was fun, and he would do it again.

Grattan's counsel argued that the additional testimony of

Drs. Ryan and Cohen, Grattan's persistent bizarre behavior,

and his refusal to meet or speak with counsel established that

Grattan was unable to assist his attorneys and was thus

incompetent to be sentenced. For these reasons, Grattan

requested additional competency and sanity evaluations. The

Commonwealth asked the circuit court to proceed to sentencing

because Grattan had not met his burden of proof regarding the

need for the requested evaluations. The Commonwealth

maintained that nothing regarding Grattan's mental state or

competency had changed since the court's previous rulings and

that the testimony proved Grattan was competent, sane, and

capable of making his own decisions.

The circuit court overruled Grattan's motion, finding him

competent to be sentenced. After hearing evidence at

sentencing from both parties, the circuit court sentenced

Grattan to life in prison plus seventy-four years.

In an unpublished opinion, the Court of Appeals of

Virginia affirmed the circuit court's judgment and upheld

Grattan's convictions. Grattan v. Commonwealth, Record No.

1614-07-3, slip op. at 1 (Nov. 25, 2008). The Court of

Appeals held that the record contained credible expert and lay

16
testimony sufficient to support the circuit court's

determination that Grattan was competent to stand trial. Id.,

slip op. at 7. The Court of Appeals also held that the

circuit court did not abuse its discretion by barring the

introduction of expert witness testimony regarding Grattan's

sanity at the time of the offenses. Id., slip op. at 9.

Now on appeal to this Court, Grattan raises two issues.

He asserts that the Court of Appeals erred in holding that the

circuit court was not plainly wrong in finding Grattan

competent to stand trial. He further claims that the Court of

Appeals erred in holding that the circuit court did not abuse

its discretion by barring Grattan's introduction of expert

testimony on the question of his sanity at the time of the

offenses. We will address the issues seriatim.

II. ANALYSIS

A. Competency

Grattan argues that the circuit court was plainly wrong

in finding him competent to stand trial. He contends that the

competency evaluations of Drs. Ryan and Cohen, along with the

facts of the crime, his bizarre behavior, his inability to

communicate with his attorneys, and his refusal to meet with

mental health experts prove his incompetency. In addition,

Grattan asserts that Dr. Hagan's evaluation was inadequate

17
because he performed no testing and declined to give an

opinion as to whether Grattan suffers from a mental illness.

In contrast, the Commonwealth contends that the circuit

court heard the testimony of both expert and lay witnesses and

observed Grattan first-hand on several occasions. The

Commonwealth further argues that the circuit court, as the

fact finder, was entitled to accord more weight to testimony

of Dr. Hagan than to the testimony of Grattan's expert

witnesses. Thus, according to the Commonwealth, the circuit

court's finding that Grattan failed to prove by a

preponderance of the evidence that he was incompetent to stand

trial was not plainly wrong or without evidence to support it.

We agree with the Commonwealth.

As the party asserting incompetency to stand trial,

Grattan had the burden of proving such by a preponderance of

the evidence. Code § 19.2-169.1(E). A defendant is

considered competent to stand trial if he has the capacity to

understand the criminal proceedings against him and is able to

assist counsel in his defense. Id.; see also Godinez v.

Moran, 509 U.S. 389, 396 (1993) (stating that the standard 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' ") (quoting

18
Dusky v. United States, 362 U.S. 402, 402 (1960) (per

curiam)). Therefore, to prove incompetency, a defendant must

show by a preponderance of the evidence that he either lacks

the capacity to understand the criminal proceedings against

him or lacks the ability to assist counsel in his defense.

A trial court’s determination of a defendant's competency

to stand trial is a question of fact and will not be reversed

on appeal unless it is plainly wrong or without evidence to

support it. Orndorff v. Commonwealth, 271 Va. 486, 500, 628

S.E.2d 344, 351 (2006); see also Code § 8.01-680. We view the

evidence in the light most favorable to the Commonwealth as

the prevailing party on this issue in the circuit court.

Orndorff, 271 Va. at 500, 628 S.E.2d at 352.

At the hearing to determine Grattan's competency to stand

trial, the circuit court heard conflicting expert testimony.

As we have previously stated, " '[c]onflicting expert opinions

constitute a question of fact' " and it is "within the

province of the finder of fact . . . 'to assess the

credibility of the witnesses and the probative value to be

given their testimony.' " Riner v. Commonwealth, 268 Va. 296,

329-30, 601 S.E.2d 555, 574 (2004) (quoting Mercer v.

Commonwealth, 259 Va. 235, 242, 523 S.E.2d 213, 217 (2000)).

Like the competency determination itself, this question of

fact will not be disturbed on appeal unless it is plainly

19
wrong or without evidence to support it. Mercer, 259 Va. at

243, 523 S.E.2d at 217.

Based on the evidence in this case in light of these

established principles, we conclude that the circuit court's

determination that Grattan was competent to stand trial was

not plainly wrong or without evidence to support it. Dr.

Hagan, who qualified as an expert in forensic and clinical

psychology, concluded that Grattan "possess[ed] an

understanding of the charges against him" and "the capacity to

assist not only in trial preparation but to have a presence in

court." In reaching this conclusion, Dr. Hagan relied on jail

records, the evaluations of both Dr. Ryan and Dr. Cohen, his

personal observations of Grattan in court and in jail, and his

seventy-four minute interview with Grattan.

As Grattan points out, his expert witnesses reached

contrary conclusions. It is also true that Dr. Hagan

expressed no opinion as to whether Grattan suffers from a

mental illness. Dr. Hagan stated that whether Grattan was

mentally ill was "not determinative of the issue." Moreover,

Dr. Ryan acknowledged that an individual could be mentally ill

but yet competent to stand trial.

Additionally, both testifying experts, Dr. Hagan and Dr.

Ryan, criticized the evaluation methods of the other. For

example, Dr. Hagan criticized the test used by Dr. Ryan to

20
measure Grattan's understanding, reasoning, and appreciation

because the test utilizes "fictitious scenarios unrelated to

his case." Dr. Ryan, however, considered the test appropriate

because it "separate[s] the individual from his or her crime

and make[s the evaluation] less anxiety provoking." Dr. Ryan

criticized Dr. Hagan for conducting his interview of Grattan

in a courtroom in the presence of deputies. Dr. Hagan

maintained there were no professional guidelines against

having others in the evaluation room and that the deputies did

not affect the evaluation in any way. In fact, Dr. Hagan

thought Grattan had the ability to learn and modify his

behavior because he followed the directions of a deputy who

told him not to rock his chair. Presented with conflicting

opinions, the circuit court elected to accord more weight to

Dr. Hagan's testimony. That credibility determination was not

plainly wrong or without evidence to support it. See Mercer,

259 Va. at 243, 523 S.E.2d at 217.

In addition, the circuit court heard lay testimony

concerning Grattan's behavior at various times. Several

deputies testified about Grattan's conduct while in jail,

including his appeal from a disciplinary action. Grattan

maintained he had acted in self-defense and requested a

witness to testify in support of his claim. His actions

demonstrated, in that instance, he understood the disciplinary

21
charge and how to defend against it. The testimony of

Grattan's fellow inmate, that Grattan stated he was behaving

strangely because it was his only way to get less than twenty

years, supported the conclusion that at a minimum, Grattan

understood the severity of the charges against him and the

role that an insanity defense could play in the sentence he

could receive.

Furthermore, in making its competency determination, the

circuit court relied on its own observations of Grattan during

both the competency hearing and prior court appearances. The

court noted during the January 30 hearing that Grattan

appeared competent then and during his prior appearances.

When the court made its competency determination, it

referenced the six-to-seven hour period it had observed

Grattan in open court. Finally, the court viewed a portion of

the video recording of Grattan's interview with Dr. Hagan,

from which the court could draw its own conclusions. In sum,

as the Court of Appeals concluded, the record contains

sufficient evidence to support the circuit court's

determination that Grattan was competent to stand trial. 5 See

Grattan, slip op. at 7.

5
We reach the same conclusion with regard to the circuit
court's finding that Grattan was competent to be sentenced.

22
 Nevertheless, Grattan maintains that his refusal to

cooperate with the Commonwealth's mental health experts proved

he was incompetent. However, nothing in the statutory

competency standard requires a defendant to actually assist

himself or counsel in his defense – it merely requires that a

defendant have the ability to do so. See Code § 19.2-

169.1(E); Godinez, 509 U.S. at 396. Thus, we find no reason

to disturb the circuit court's determination that Grattan was

competent to stand trial and to be sentenced.

B. Exclusion of Expert Testimony

Under Code § 19.2-168, when a defendant decides to put

his sanity at the time of the charged offense in issue and

present expert testimony in support thereof, he must notify

the Commonwealth. If the Commonwealth then seeks an

evaluation of the defendant's sanity at the time of the

offense, a trial court must appoint "one or more qualified

mental health experts to perform such an evaluation." Code

§ 19.2-168.1(A). In addition, the court "shall order the

defendant to submit to such an evaluation and advise the

defendant on the record in court that a refusal to cooperate

with the Commonwealth's expert could result in exclusion of

the defendant's expert evidence." Id. Subsequent to that

admonition to the defendant,

23
 [i]f the court finds, after hearing evidence
presented by the parties, that the defendant has
refused to cooperate with an evaluation requested by
the Commonwealth, it may admit evidence of such
refusal or, in the discretion of the court, bar the
defendant from presenting expert psychiatric or
psychological evidence at trial on the issue of his
sanity at the time of the offense.

Code § 19.2-168.1(B).

Grattan argues the circuit court abused the discretion

afforded to it under this statute by invoking the harshest

penalty for his refusal to cooperate with the evaluation

requested by the Commonwealth, i.e., excluding his expert

testimony on the issue of his sanity at the time of the

offenses. Grattan claims that his failure to meet with the

Commonwealth's mental health experts was a product of his

mental illness. He launches a four-prong attack on the

circuit court's exercise of its discretion. Grattan first

asserts that the court failed to consider what Grattan

describes as his "undisputed mental illness" in deciding what

remedy to invoke. He next argues that if the court had

allowed his mental health experts to testify, the Commonwealth

would nevertheless have been able to defend against his claim

of insanity because Dr. Harry acknowledged that it was

ethically permissible to evaluate a defendant's sanity without

the benefit of a personal interview. Third, Grattan contends

the court should have considered a less drastic remedy, such

24
as telling a jury about his refusal to cooperate, as provided

in Code § 19.2-168.1(B), or admonishing a jury to view

Grattan's evidence of insanity with skepticism. Finally,

Grattan argues that, before barring his expert testimony, the

court should have found that Grattan's refusal to cooperate

with the Commonwealth's mental health evaluators was motivated

by strategic reasons or a desire to obstruct justice.

In evaluating whether a trial court abused its

discretion, as Grattan contends the circuit court did in this

case, "we do not substitute our judgment for that of the trial

court. Rather, we consider only whether the record fairly

supports the trial court's action." Beck v. Commonwealth, 253

Va. 373, 385, 484 S.E.2d 898, 906 (1997); see also Noll v.

Rahal, 219 Va. 795, 801-02, 250 S.E.2d 741, 745 (1979) (trial

court did not abuse its discretion in disqualifying an expert

witness even though "reasonable trial judges could properly

disagree" and "some members of this [C]ourt, had they presided

at the trial, may have admitted" the testimony); Thomas v.

Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005)

("Only when reasonable jurists could not differ can we say an

abuse of discretion has occurred."). " 'The abuse–of-

discretion standard [also] includes review to determine that

the discretion was not guided by erroneous legal

conclusions.' " Porter v. Commonwealth, 276 Va. 203, 260, 661

25
S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518

U.S. 81, 100 (1996)). Considering the record before us in

light of these principles, we cannot say the circuit court

abused its discretion by barring Grattan's introduction of

expert testimony in support of his claim of insanity at the

time of the offenses.

First, the circuit court's finding that Grattan was

competent to stand trial refutes his argument that the court

abused its discretion. As we have already stated, competency

to stand trial means that a defendant has the capacity to

understand the criminal proceedings against him and the

ability to assist counsel in his defense. See Code § 19.2-

169.1(E); Godinez, 509 U.S. at 396 (the standard of competency

is whether a 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' ") (quoting

Dusky, 362 U.S. at 402). Having found Grattan competent to

stand trial, a finding that we have decided was supported by

the evidence, it was reasonable for the circuit court to

conclude that Grattan understood the court's repeated

instructions that he was required to cooperate with the

Commonwealth's mental health evaluators and its constant

warnings about the potential ramifications of his refusal to

26
do so. 6 This is especially so when Grattan himself affirmed

his understanding of the court's instructions.

Grattan maintains that his refusal, however, was a

product of mental illness. The record does not support that

contention. Although Grattan refused to meet with Dr. Ryan

several times, he nevertheless met with his own mental health

evaluators on four separate occasions. He also met with Dr.

Hagan on January 30, although the evaluation was limited to

the question of competency to stand trial. Grattan cooperated

with Dr. Hagan on this one occasion after the circuit court

told him in open court to do so and warned him again as to the

consequences if he refused. In addition, while Dr. Ryan and

Dr. Cohen opined that Grattan suffers from schizophrenia, they

did not explain how that mental illness would account for

Grattan's refusal to cooperate with the Commonwealth's mental

health evaluators.

In addition to the competency determination, the record

contains other evidence that demonstrates the circuit court

did not abuse its discretion when it barred Grattan from

introducing expert testimony. For example, Grattan pursued an

6
We note that in McCall v. State, 408 N.E.2d 1218 (Ind.
1980), a case relied upon by Grattan, the trial court never
put the defendant on notice that his failure to cooperate
could result in the exclusion of expert testimony in support
of his insanity defense. Id. at 1221.

27
appeal and called for a witness to testify on his behalf when

he was charged with a jail infraction. A fellow inmate

testified that Grattan stated he was behaving strangely

because it was his only chance of receiving less than twenty

years of incarceration. Also, Dr. Hagan noted that, during

his competency interview, Grattan modified his behavior when a

deputy told him to stop rocking his chair. Finally, the

circuit court had the benefit of its own observations of

Grattan on several occasions and could glean from Grattan's

responses, demeanor, and behavior in open court that he, in

fact, understood the court's directions to cooperate with the

Commonwealth's mental health evaluators and the court's

warning that it could bar his own mental health experts from

testifying if he failed to do so.

We are not persuaded that the circuit court abused its

discretion merely because Dr. Harry indicated that it would be

ethically permissible to evaluate Grattan's sanity at the time

of the offenses without the benefit of a personal interview.

Since Grattan was armed with two sanity evaluations, each

based, in part, on lengthy personal interviews with him, the

Commonwealth was entitled to have its mental health experts

perform their own evaluations based on their first-hand

observations of Grattan. We agree with the Commonwealth's

assertion that it should not be "saddled with or limited by

28
what [Grattan's] experts did or did not do in their

evaluations, or their methodology." Indeed, the provisions of

Code § 19.2-168.1 evince the General Assembly's clear intent

to provide the Commonwealth with its own evaluation and to

allow a trial court to exclude a non-cooperating defendant's

expert testimony on the subject, regardless of whether the

Commonwealth's experts can formulate an opinion about the

defendant's sanity without the defendant's cooperation. As we

recognized in Muhammad v. Commonwealth, 269 Va. 451, 619

S.E.2d 16 (2005), the Commonwealth, like the defendant, is

entitled to a fair trial, which includes "the right to a fair

rebuttal of mental health evidence presented by the

defendant." Id. at 507, 619 S.E.2d at 85.

Nor was the circuit court required to consider

alternative, less drastic remedies not contemplated by the

provisions of Code § 19.2-168.1(B). That subsection provides

two possible sanctions when a defendant refuses to cooperate

with the Commonwealth's mental health evaluators: admit

evidence of the refusal or, in the trial court's discretion,

bar the defendant from presenting expert testimony on the

subject of sanity at the time of the offense. Code § 19.2-

168.1(B). Thus, the circuit court did not abuse its

discretion by choosing one of the remedies provided by the

statute instead of the non-statutory alternatives suggested by

29
Grattan. Cf. Taylor v. Illinois, 484 U.S. 400, 413 (1988)

("It may well be true that alternative sanctions are adequate

and appropriate in most cases, but it is equally clear that

they would be less effective than the preclusion sanction and

that there are instances in which they would perpetuate rather

than limit the prejudice to the State and the harm to the

adversary process.").

Finally, the circuit court was not required to find that

Grattan's failure to cooperate with the Commonwealth's mental

health experts was motivated by strategic reasons or a desire

to obstruct justice. Such findings are not required by the

provisions of § 19.2-168.1(B). It is a defendant's refusal to

cooperate, not his motivations, that is determinative.

Furthermore, as the Commonwealth points out, the circuit

court, having found Grattan competent to stand trial,

implicitly found that Grattan understood the court's

instructions to cooperate with the Commonwealth's mental

health evaluators and its warnings about the consequences of

failing to do so, thus making his refusal to cooperate

intentional. The fact that he cooperated with his own mental

health evaluators also demonstrates that his refusal to

cooperate with the Commonwealth's experts was knowing and

intentional.

30
 Grattan argues, however, that those defendants who are

the "sickest" are the ones most likely to refuse to cooperate

with a mental health evaluation. While we do not necessarily

disagree, we find Grattan's selective refusal to cooperate

telling. We also note that Grattan's expert, Dr. Ryan,

acknowledged that Grattan understood the parameters of Dr.

Ryan's evaluation and consented to proceed with the

evaluation.

We recognize that due process of law affords a defendant

the right to present witnesses to establish a defense. See

Washington v. Texas, 388 U.S. 14, 19 (1967). "[A] trial court

may not ignore the fundamental character of the defendant's

right to offer the testimony of witnesses in his favor. But

the mere invocation of that right cannot automatically and

invariably outweigh countervailing public interests." Taylor,

484 U.S. at 414. "[T]he accused, as is required of the

[prosecution], must comply with established rules of procedure

and evidence designed to assure both fairness and reliability

in the ascertainment of guilt and innocence." Chambers v.

Mississippi, 410 U.S. 284, 302 (1973). "The adversary process

could not function effectively without adherence to rules of

procedure that govern the orderly presentation of facts and

arguments to provide each party with a fair opportunity to

31
assemble and submit evidence to contradict or explain the

opponent's case." Taylor, 484 U.S. at 410-11.

While there is no constitutional right to assert an

insanity defense in a criminal proceeding, see Commonwealth v.

Chatman, 260 Va. 562, 567-68, 538 S.E.2d 304, 306-07 (2000),

"Virginia has long recognized the common law defense of

insanity." White v. Commonwealth, 272 Va. 619, 625, 636

S.E.2d 353, 356 (2006). The General Assembly, however, has

statutorily prescribed the procedure for asserting that

defense. See Code §§ 19.2-168 and –168.1. In this case,

Grattan did not follow the statutory procedure when he refused

to cooperate with the Commonwealth's mental health evaluators.

In accordance with the provisions of Code § 19.2-168.1, the

circuit court excluded only Grattan's expert testimony on the

subject. The court did not prevent Grattan from introducing

relevant lay testimony. In fact, Grattan proffered evidence

from his family, fellow inmates, and police interviews

addressing his behavior, demeanor, and mental state. In sum,

we find no abuse of discretion by the circuit court.

III. CONCLUSION

For these reasons, we conclude that the circuit court's

finding that Grattan was competent to stand trial was not

plainly wrong or without evidence to support it. We also

conclude the circuit court did not abuse its discretion by

32
barring Grattan's introduction of expert testimony on the

issue of his sanity at the time of the offenses. We will

therefore affirm the judgment of the Court of Appeals. 7

Affirmed.

7
In his only constitutional argument, Grattan asserts
that barring his introduction of expert testimony in support
of his defense of insanity at the time of the offenses
violated his right to call for evidence under the Sixth
Amendment and Article I, Section 8 of the Constitution of
Virginia. The Court of Appeals held that Grattan failed to
present this argument in the circuit court and therefore
defaulted it under Rule 5A:18. Grattan, slip op. at 9-10.
Grattan did not assign error in this Court to the Court of
Appeals' application of Rule 5A:18. Therefore, we will not
consider the argument. See Rule 5:25.

33