State v. Edwards

SABERS, Justice

(dissenting).

[¶ 20.] Based upon Edwards’ statements, Dr. Kennelly’s observations, and defense counsel’s concerns, Edwards’ competence to properly assist in his defense was clearly in question. Once the trial court was presented with a reasonable basis upon which to conclude Edwards may be incompetent, it should have ordered a competency hearing.

At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the prosecuting attorney may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or developmental disability, or other conditions set forth in § 23A-10A-1, rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceeding against him or to assist properly in his defense ....

SDCL 23A-10A-3 (emphasis added). When “shall” is the operative verb in a statute, it is given “obligatory or mandatory” meaning. See In re Groseth Int'l, Inc., 442 N.W.2d 229, 231-32 (S.D.1989) (citing Person v. Peterson, 296 N.W.2d 537 (S.D.1980); Tubbs v. Linn, 75 S.D. 566, 70 N.W.2d 372 (1955); 2A Sutherland Stat. Const. § 57.03, at 643-44 (4th ed.1984); Sutton, Use of “Shall” in Statutes, 4 J. Marshall LQ 204 (1938), reprinted in 1A Sutherland Stat. Const. 691 (4th ed.1985));1 see also SDCL 23A-10A-2: “A person cannot be tried, sentenced, or punished for any public offense while he is mentally incompetent to proceed.”

[¶21.] “Since the competency of the accused to stand trial controls whether there is even going to be a trial, it necessarily follows that a competency hearing is a basic stage of the proceeding.” State v. Jones, 406 N.W.2d 366, 370 (S.D.1987) (emphasis added).

"When the competency of the accused is put in question he may or may not have the mentality to fairly defend himself. If in fact the defendant is less than competent, however, a handicap exists which renders a fair trial impossible. An incompetent person cannot be fairly tried.... Accordingly, our system of law must shroud such an accused with whatever mantle of protection is necessary to insure his due process rights are fully protected.

Id.

[¶22.] Counsel for Edwards stated that Dr. Kennelly thought the “optimum solution” would be further observation at the Human Services Center in Yankton. The trial court should not have ignored this advice. Whether Edwards’ “ideas are the products of mental illness” is not a question the trial court is qualified to answer. The court should have sent Edwards to Yankton for observation and then held a competency hearing.

[¶ 23.] When defense counsel made the motion for a hearing to determine his competency, the trial court asked Edwards several questions that prompted responses which the majority opinion characterizes as “relevant”, supra ¶ 6.

THE COURT: What do you think a witness is?
*119THE DEFENDANT: A person that is coming to say that they seen something or heard something I guess. I guess a witness — but, I guess, it has to be some credibility. People say, hey, you know, we got a witness here but, you know, it’s, you know, it’s the type of the people you get. I guess that has got a lot to do with it. People are always going to eater, you know, to their own kind. That’s human nature to a certain degree. Pm not trying to put nobody down because I’m that way. But I’m a very fair person. Still to me a human being is the thing that come first or they are going to cater to the opposite sex or something of that nature. I feel that, you know, that’s how come one of my friends told me to contact the UCLA [sic] because of the switch, you know, and I did — I tried to. I wasn’t successful, you know. I really feel I come into this courtroom, hey, you know, this is left up to the Man upstairs. Whatever is for me it’s going to be for me, you know. That’s life. But, hey, I got to go down trying, you know. That’s the onlyous [sic] thing I’ve got to say, basically.
You know, it’s, hey, like this here. You know, it would be a different thing if there was six people up there on the jury — I don’t care about a mixed jury. I don’t want to come in here — I wrote my family, I said look here, you get down here. I don’t want to be sitting up in the courtroom the only person with dark skin up there. That’s a frightening thing regardless. It’s just like, you know, blood is thicker than water 365 days of the year. It comes down to a family and that’s family who — I draw a line between me and my father and that’s the closest thing on the face of the earth. There are certain things you have to draw a line then you have to start facing realty and look at things like it’s reality.

I submit the above answer is anything but “relevant” and is more fairly characterized as rambling and irrational. Edwards was often paranoid in his statements to the court. He insisted that two detectives forced their way into his home. He also seemed to think they switched identities in court to fool him. At one hearing, he was restrained by law enforcement after he interrupted the trial court and repeatedly swore at the judge. Following this outburst, the trial court ordered a psychiatric examination at defense counsel’s request. Defense counsel stated, “This is about the third time that this kind of behavior has happened. It happened over to the jail the other day ... Some of the letters I received kind of indicated some bizarre thought patterns.”

[¶24.] The trial court indicated that Edwards understood the arson charge, knew who the witnesses were, and recalled testimony from an earlier hearing; however, his competency to realistically assist in his defense remained questionable and his paranoia was apparent in his rambling and irrational answers. Cf. Hurney v. Class, 1996 SD 86, ¶ 14, 551 N.W.2d 577, 582 (affirming finding of competence based in part on defendant’s testimony, which was “competent, lucid, responsive and relevant”); see also SDCL 23A-10A-1:

The term, “mentally incompetent to proceed,” as used in this chapter, means the condition of a person who is suffering from a mental disease, developmental disability, as defined in § 27B-1-3, or psychological, physiological or etiological condition rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.

(Emphasis added). The majority opinion concentrates on Edwards’ ability to understand the nature and consequences of the proceeding against him; however, that is only half the inquiry — he must also be able to “assist properly in his defense.” SDCL 23A-10A-1. His ability to assist in his defense remained questionable and his own attorney even doubted Edwards’ competency to proceed.

[¶25.] This court has listed three factors for the trial court to consider in deciding whether a competency hearing should be held:

(1) the existence of a history of irrational behavior;
(2) defendant’s demeanor at trial; and
*120(3) prior medical opinion.

Withorne v. Solem, 385 N.W.2d 506, 508 (S.D.1986) (relying on Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (other citations omitted)); but see Drope, 420 U.S. at 180, 95 S.Ct. at 908, 43 L.Ed.2d at 118 (“[E]ven one of these factors standing alone may, in some circumstances, be sufficient.”). Edwards’ history of irrational behavior is precisely what led the police to suspect him in this case, and the trial court was aware of that history.2 As already noted, Edwards’ demeanor in the courtroom made his competency questionable. Dr. Kennelly thought that an opinion as to Edwards’ competency could not be formed absent additional observation, a suggestion ignored by the trial court. Additionally, Edwards told Dr. Kennelly that he had psychiatric care on at least two prior occasions. The facts clearly support the necessity of a competency hearing under Withome.

[¶ 26.] Edwards’ counsel brought this matter to the court’s attention when he expressed doubts regarding his competency. As noted in Branscomb v. Norris, 47 F.3d 258, 261 (8th Cir.), cert. denied, 515 U.S. 1109, 115 S.Ct. 2260, 132 L.Ed.2d 266 (1995), “the trial court may consider an express doubt by the accused’s attorney.” While not necessarily enough standing alone, id., “an expressed doubt in that regard by one with the closest contact with the defendant ... is unquestionably a factor which should be considered.” Drope, 420 U.S. at 177 n. 13, 95 S.Ct. at 907 n. 13, 43 L.Ed.2d at 116 n. 13 (citation & internal quotation omitted).

[¶27.] Here, all three of the Withome factors indicating the need for a competency hearing were present. Based upon Dr. Ken-nelly’s initial conclusions, Edwards’ disjointed and rambling responses, and defense counsel’s concerns, there was clearly “foundation in the record” sufficient to warrant a hearing on Edwards’ competency. It is settled law that 1) an incompetent person cannot be fairly tried; 2) our system of law must shroud such an accused with whatever mantle of protection is necessary to insure his due process rights are fully protected;3 and 3) a competency hearing is a basic stage of the proceeding. Jones, 406 N.W.2d at 370. We should reverse and remand for such a hearing.

[¶ 28.] AMUNDSON, J., joins this dissent.

. See also SDCL 2-14-2.1, effective July 1, 1997, which provides: "As used in the South Dakota Codified Laws to direct any action, the term, shall, manifests a mandatory directive and does not confer any discretion in carrying out the action so directed.”

. Edwards was allegedly stalking his former girlfriend. He called her repeatedly and mentioned marriage to her 40-50 times in a short time span. She was sleeping in the apartment building at the time of the arson and alerted police to the possibility of Edwards' involvement.

. The burden is not on Edwards to prove that he is incompetent. The State must prove, by a preponderance of the evidence, that he is competent to stand trial. SDCL 23A-10A-6.1: “If the defendant, state, or court asserts that a defendant is mentally incompetent to proceed, the state has the burden of proving the mental competence of the defendant by a preponderance of the evidence.” Here, it seems the burden was placed on Edwards. In fact, the State did not even speak during the trial court’s discussion with Edwards. In Jones, 406 N.W.2d at 370, this court held that placing the burden on the defendant violates the due process guarantees of article VI, § 2 of the South Dakota Constitution.