No. 94-419
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
ALBERT D. BARTLETT,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presidi.ng
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender, Helena,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, and
Jennifer Anders, Assistant Attorney General,
Helena, Montana
Robert McCarthy, County Attorney, and Brad
Newman, Deputy County Attorney, Butte, Montana
Submitted on Briefs: May 19, 1995
Decided: June 20, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Albert D. Bartlett was charged with criminal possession of
dangerous drugs with intent to sell. Prior to trial, the District
Court for the Second Judicial District, Silver Bow County, denied
the motion of Bartlett's standby counsel that Bartlett undergo a
mental examination. Bartlett proceeded to trial and was convicted.
He appeals. We reverse.
The dispositive issue is whether the District Court erred when
it denied the motion for mental examination.
In November 1993 two men, Smith and Patterson, were detained
by Butte, Montana police officers minutes after they were seen
breaking into a 1971 Ford Maverick and taking two duffle bags from
it. Marijuana was found in the possession of the two men.
Patterson told the officers that the marijuana had been inside a
duffle bag taken from the Maverick.
The Maverick belonged to Albert D. Bartlett. When the police
officers interviewed him about the incident, they found his
response suspicious and uncooperative. Based upon Bartlett's
behavior and the recovery of the marijuana, they arrested him and
obtained a warrant to search the car. They found six bundles of
marijuana taped under the rear seat. The bundles contained a total
of 6.79 pounds of marijuana.
Prior to trial, Bartlett had several changes of counsel. His
initial court-appointed attorney withdrew by mutual agreement.
Bartlett's subsequent efforts to locate privately-retained counsel
were unsuccessful. A second court-appointed attorney moved to be
allowed to withdraw due to a conflict of interest.
On February 28, 1994, the District Court held a hearing to
determine Bartlett's competence to waive his right to counsel.
Following the hearing, the court ordered that Bartlett would be
allowed to proceed pro se. It later allowed Bartlett's second
attorney to withdraw and appointed a third attorney, Deirdre
Caughlan, as standby counsel for Bartlett.
At the next pretrial hearing, on March 28, 1994, Caughlan
submitted a written motion and orally moved for a mental examina-
tion of Bartlett. She stated her belief, pursuant to § 46-14-202,
MCA, "that a question exists that Defendant is fit to proceed in
that it is believed that he may suffer from a mental condition,
disease or defect which may affect his ability to assist in his own
defense" and that he may have been unable to form a particular
state of mind which is an essential element of the offense charged.
Caughlan represented that it was "vital to the defense of Defendant
that such an examination and accessment [sic] be conducted,
particularly to determine if the Defendant is capable in assisting
in his own defense."
Following Caughlan's oral motion at the hearing, Bartlett
immediately stated, "She's fired, period. Her word is without
merit, as far as I'm concerned. She works for the Court, for the
Police Department." He also declared that Caughlan had failed to
file motions he had asked her to file for him.
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The prosecutor opposed the motion for a mental examination.
He argued that while Bartlett was "difficult" to deal with, he was
competent and it was "time to move this case toward some kind of a
disposition."
The District Court denied the motion for a mental examination.
It reasoned:
The Court notes that Defendant and the State opposed such
motion. The Court finds that Defendant has appeared
competent, and aware of the charges and consequences of
this action, in all of his previous appearances before
the Court. Defendant has appeared capable of acting with
purpose or knowledge and has exhibited the ability to act
in his own defense.
The court did not relieve Caughlan of her duties as standby
counsel.
The case eventually proceeded to jury trial, with Bartlett
conducting his own defense and Caughlan assisting him. He was
convicted and sentenced to the maximum term of twenty years'
imprisonment.
Did the District Court err when it denied the motion for
mental examination?
The statutory procedures for determining one's competency to
stand trial include the right of an accused to be examined for
determination of his fitness to proceed.
46-14-202. Examinationof defendant. (1) If the defendant
o r the defendant's counsel files a written motion
requesting an examination or if the issue of the defen-
dant's fitness to proceed is raised by the district
court, prosecution, or defense counsel, the district
court shall appoint at least one qualified psychiatrist
4
or licensed clinical psychologist or shall request the
superintendent of the Montana state hospital to designate
at least one qualified psychiatrist or licensed clinical
psychologist, which designation may be or include the
superintendent, to examine and report upon the defen-
dant's mental condition.
As originally enacted, the statute provided that when "there is
reason to doubt [the defendant's] fitness to proceed . the
court shall appoint . . . " See § 95505, R.C.M. (1947). The
statute was amended in 1981 to provide that the defendant or his
counsel could raise the matter of the defendant's fitness to be
tried. In 1991, it was further amended to allow the court or the
prosecution, as well as the defense, to raise the issue.
Section 46-14-202, MCA, does not require that the defendant
must agree to a mental examination. If one of the listed persons
files a written motion, or if the issue of the defendant's fitness
to proceed is raised by one of the listed persons, the court
"shall" arrange for such an examination. The word "shall" is
compulsory. However, the statute does not directly answer the
question of whether standby counsel's motion for a mental examina-
tion of the defendant must be granted.
A criminal defendant may not be tried unless he is competent.
Godinez v. Moran (1993), _ U.S. -, 113 S.Ct. 2680, 125 L.Ed.2d
321. The State argues that Bartlett had been ruled competent to
represent himself and that therefore he had the right to refuse a
mental examination. However, courts have a continuing duty to
review the issue of competency in criminal proceedings.
5
Even when a defendant is competent at the commencement of
his trial, a trial court must always be alert to circum-
stances suggesting a change that would render the accused
unable to meet the standards of competence to stand
trial.
Drope v. Missouri (1975), 420 U.S. 162, 181, 95 S.Ct. 896, 908, 43
L.Ed.2d 103, 119.
The State further contends that allowing standby counsel to
force a mental examination would deprive Bartlett of his Sixth
Amendment right to self-representation, citing Faretta v. Califor-
nia (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.
The right to self-representation imposes some limitations on
standby counsel's unsolicited participation. McKaskle v. Wiggins
(1984), 465 U.S. 168, 104 s.ct. 944, 79 L.Ed.Zd 122. In proceed-
ings held in the presence of the jury, the pro se defendant must be
allowed to preserve actual control over the case he chooses to
present to the jury, and standby counsel must not make or substan-
tially interfere with any significant tactical decisions, control
the questioning of witnesses, or speak instead of the defendant on
any matter of importance. McKaskle, 465 U.S. at 178. For
proceedings outside the jury's presence:
Faretta rights are adequateiy vindicated . if the m
e defendant is allowed to address the court freely on
his own behalf and if disagreements between counsel and
the pro se defendant are resolved in the defendant's
favor whenever the matter is one that would normally be
left to the discretion of counsel.
McKaskle, 465 U.S. at 179.
As set forth above, under § 46-14-202, MCA, either the
prosecution or the defense in a criminal case, or the court itself,
6
may initiate a mental examination of the defendant. As further
noted above, the statute requires that if one of the entities
listed raises the issue, the court shall order an examination.
Therefore, we conclude that this is not a decision which would
normally be left to the discretion of defense counsel. We further
conclude that granting such a request does not infringe upon the
defendant's ability to present his case to the jury.
In this instance, we are faced with sometimes competing
constitutional rights of a criminal defendant to represent himself
if he competently so chooses, and not to be tried if he is
incompetent to stand trial. Standby counsel for a pro se criminal
defendant will commonly have greater exposure to and knowledge of
the mental state of the defendant than wil 1 either the prosecution
or the court. We conclude that the issue of defendant's compe-
tence to stand trial, when raised by standby counsel, must be
treated with as much deference as if the issue were raised by the
prosecution or the court itself. We therefore hold that a motion
by standby counsel for mental examination under 5 46-14-202, MCA,
must be granted as a matter of right.
Having thus concluded that the District Court violated § 46
14-202, MCA, we reverse Bartlett's conviction and remand for
further proceedings consistent with this Opinion.
We concur:
P.