A Rehearing En Banc was granted in this case on October 11, 1996.
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
KEVIN JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 2281-95-2 JUDGE JERE M. H. WILLIS, JR.
AUGUST 20, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
William L. Wellons, Judge
Craig S. Cooley (Betty Layne DesPortes;
Steven D. Benjamin and Associates, on
briefs), for appellant.
Thomas D. Bagwell, Senior Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from his conviction of injuring an employee of a
correctional facility while a prisoner, Kevin Johnson contends
that the trial court erred in finding him competent to stand
trial. Specifically, Johnson contends that he was incapable of
assisting his attorney in his own defense.
The indictment charged that on March 13, 1994, while a
prisoner in Mecklenburg Correctional Center, Johnson stabbed a
corrections officer with a shank that he had secreted in his
cell. On October 7, 1994, Johnson was scheduled for trial but
refused to plead to the indictment. On motion of defense
counsel, the trial court ordered a psychiatric evaluation and
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appointed Dr. Evan Nelson, a licensed clinical psychologist, to
evaluate Johnson's sanity at the time of the offense and his
competency to stand trial.
Because Johnson refused to cooperate, Dr. Nelson based his
findings on an extensive review of Johnson's prison, medical, and
court records. At the competency hearing on July 31, 1995, Dr.
Nelson testified that before Johnson reached age nineteen, he had
been admitted twelve times to psychiatric facilities. Dr. Nelson
gave two possible diagnoses for Johnson's behavior: either
Johnson suffers from an anti-social personality disorder or he
suffers prodromal symptoms as a precursor to schizophrenia. Dr.
Nelson testified, "it is my opinion that there is a strong
likelihood that Mr. Johnson has a mental illness, and that mental
illness would impair his capacity to assist his counsel in the
pursuit of his defense at this point in time." However, Dr.
Nelson testified that other psychologists in the Department of
Corrections, who were familiar with Johnson had reported to him
that behavior such as Johnson's was frequently exhibited by
inmates acting not under impulse of mental illness, but rather
out of "meanness." Dr. Nelson testified that these other
psychologists had concluded that Johnson was not mentally ill,
but was manipulative.
During the competency hearing, Johnson told the court that
he wanted to represent himself. The trial court advised him of
the dangers of proceeding pro se and allowed him to move to waive
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the competency hearing. Because Johnson was articulate and
responsive, the trial court found him competent to stand trial.
At the trial, Johnson was nonresponsive and uncooperative
with both the court and his counsel. Defense counsel renewed his
motion that Johnson be found to be incompetent. The motion was
denied.
The trial court's determination of the competency of a
defendant to stand trial is a question of fact. Delp v.
Commonwealth, 172 Va. 564, 570-71, 200 S.E. 594, 596 (1939). "A
factual finding made by the trial court is binding on appeal
unless plainly wrong." Naulty v. Commonwealth, 2 Va. App. 523,
527, 346 S.E.2d 540, 542 (1986).
At a hearing to determine competency, "the party alleging
that the defendant is incompetent shall bear the burden of
proving by a preponderance of the evidence the defendant's
incompetency." Code § 19.2-169.1(E). "[T]he standard for
competence to stand trial 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, 113 S. Ct. 2680, 2685 (1993) (quoting
Dusky v. United States, 362 U.S. 402, 402 (1960)).
Although Dr. Nelson opined that Johnson suffered a mental
illness which would impair his capacity to assist his counsel,
the trial court also had before it, through Dr. Nelson's
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testimony, the opinions of the Department of Corrections'
psychologists who had concluded that Johnson was not insane, but
acted out of hostility and in an attempt to manipulate the
Corrections system. The trial court observed Johnson's demeanor
and, through dialogue, had occasion to assess his mental
capability. This conflicting evidence supports the trial court's
determination that Johnson was competent.
The judgment of the trial court is affirmed.
Affirmed.
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Benton, J., dissenting.
"[T]he conviction of an accused person while he is legally
incompetent [to stand trial] violates due process." Pate v.
Robinson, 383 U.S. 375, 378 (1966). The trial judge's
determination of this due process question of competency to stand
trial, as mandated by Code § 19.2-169.1, is a mixed question of
law and fact. See Drope v. Missouri, 420 U.S. 162, 175 (1975).
See also Leckie v. Lynchburg Trust & Sav. Bank, 191 Va. 360, 366,
60 S.E.2d 923, 926 (1950). I believe that the evidence clearly
proved by a preponderance of the evidence that Kevin Johnson was
not competent to stand trial. See Code § 19.2-169.1(E).
The evidence proved that Johnson is psychotic and "has a
long mental health history." He has been "admitted to Central
State Hospital eight times, Westbrook Hospital two times, and
Richmond Memorial Hospital two times." In addition, he has been
given inpatient psychiatric treatment in prison. In the year
immediately preceding the competency hearing his behavior had
greatly deteriorated.
Dr. Evan Nelson, a licensed clinical psychologist, was the
only expert who testified concerning Johnson's illness. He
testified that Johnson was so mentally ill that he was not
competent to stand trial. Although Dr. Nelson candidly informed
the trial judge that two psychologists in the Department of
Corrections had expressed views that Johnson was manipulative and
had the capacity to cooperate, neither of those psychologists
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testified or filed reports in the trial court.
Noting that Johnson "has been repeatedly assaultive while in
prison and has earned a reputation with the . . . staff to the
point where it may be difficult for them to be objective about
his current functioning," Dr. Nelson reported the following
description of Johnson's decline and current condition:
[T]here is some evidence that Mr. Johnson's
behavior has declined during the past 12
months. He has maintained distance from
others through use of flinging his feces and
urine against the door, refusing to
communicate on numerous occasions, and even
stopped writing letters to prison
administrators. Mr. Johnson has begun hiding
himself from view by hanging a sheet on his
bars or putting a mattress up. An undated
letter from [Johnson] to his counsel
contained bizarre ideas about black and white
men, the CIA, and the end of the world. The
content of the letter strongly suggested
psychosis. . . . [H]is previous Public
Defender, was contacted to learn about his
behavior with her. She described
inappropriate behavior and also provided a
copy of a writing sample from June, 1994.
The letter was bizarre and filled with
hyperreligious statements which might be
indicative of psychosis.
* * * * * * *
Psychotic Disorders typically develop in the
early twenties and it is possible that, in
retrospect, what the staff observed in 1990
as peculiar thinking may have been the
precursors of true psychosis. It is a
reasonable hypothesis that the change in
[Johnson's] behavior indicates that he is now
experiencing psychotic thinking in addition
to a primitive and regressed personality.
Based upon the data available, in the
opinion of the undersigned [, Johnson] would
have substantial difficulties assisting his
counsel in his own defense. . . . Johnson has
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had no social contact with any DOC member in
a period of six months, he refuses to talk to
his own defense counsel, refused to talk to
the undersigned and is so regressed that he
even behaves in a manner causing him to have
no food for periods of four to five days
consecutively. It is questionable whether he
has the capacity at this point in time to
engage in a rational discussion with [his
defense counsel] regarding his charges and
the consequences. While some portion of his
refusal to cooperate is volitional, the
undersigned respectfully opines that
[Johnson] is mentally ill and cannot
rationally assess his options at this point
in time.
At trial, Dr. Nelson also indicated that Dr. Fisher, one of
the Department's psychologists, "only had passing contact with
[Johnson] . . . [and] made me aware that there are instances of
inmates who behave this way and it might not be mental illness."
Dr. George, the other psychologist, was apparently aware of
Johnson's behavior because she supervised the staff at the
facility where Johnson was held. In further explaining that
persons may mistakenly view Johnson's condition, Dr. Nelson
testified as follows:
Q If an individual is of the condition
that you described Mr. Johnson, and that is
unable to appreciate his surroundings, unable
to assist counsel in preparing for his
defense, is it usual for those kind of mental
illness cases for that person to be on
medication?
A Not always, it depends on whether or not
people identify the behavior as an indication
of mental illness. If they don't and they
see it as aggressive or manipulative
behavior, then they will discount any
symptoms of mental illness that might be
there.
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Q Your conclusion is that Mr. Johnson
appreciated what he was doing on the offense
date, but as we sit here, that Mr. Johnson
may be in such a mental condition that he
cannot fully assist in his defense?
A Correct.
Q And further that you would say that
given appropriate treatment, that there may
be some point in time in the future that he
could be declared competent?
A May I say that somewhat differently?
Q All right.
A What I'm saying here is that one cannot
give a clear, unequivocal opinion to the
Court that this is mental illness or this is
manipulative behavior. I'm saying that
there's a high probability in my opinion that
this is mental illness. And if that is the
case, then a period of treatment would have a
high probability of making him -- or excuse
me, restoring him to competen[cy] at sometime
in the future.
Q Did you see anything in this man's
record as well as with your interviews which
would indicate that his condition today is
any different than what it would have been
during the time he's been incarcerated?
A Yes. There was a distinct pattern of
decline in his functioning over the past 12,
18 months. The letters that he wrote in his
first few years in the department of
corrections were logical; they were coherent;
they had a goal direction; they had a
purpose. And although he was in trouble for
assaultive behavior, it seemed to accelerate
at the end of 1993, the beginning of 1994.
Since then, he's been in segregation
almost continuously; he has incurred most of
the problems that he's had with corrections
staff of assault and disobeying orders. And
that's also in his pattern of his throwing
feces and urine again. So my opinion is that
he has declined over the past 12, 18 months.
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(Emphasis added).
At the hearing, Johnson made various statements on his own
behalf. In part, his statement was consistent with Dr. Nelson's
observation that Johnson was "of at least average intelligence
and has an excellent vocabulary and ability to communicate." The
trial judge's perception that Johnson was "articulate" and
"responsive" does not indicate that Johnson was not psychotic,
primitive and regressive, and not competent to stand trial.
Johnson's opening remark that "I would like to represent myself
on the same accounts of my sister" was a precursor to his
unintelligible, unresponsive rambling at the trial and the
physical assault upon his trial counsel.
I dissent from the holding that the evidence did not
preponderate in proving Johnson was not competent to be tried.
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Kevin Johnson v. Commonwealth
Combined Opinion