State v. Burgess

CONNOR, J.

I respectfully dissent. In my opinion, the trial judge abused his discretion by failing to order a psychological evaluation of Burgess where there was reason to believe Burgess could not assist her attorney.

Burgess was represented by counsel from the time of the incident. Although counsel discussed with the solicitor the possibility of Burgess having a competency evaluation, counsel never made a motion to have the evaluation performed. Burgess obtained new counsel in February 2000, three months before trial.

During the pre-trial conference the day before trial, the solicitor recounted the procedural history of the case and noted that Burgess had a long history of alcohol abuse and blackouts. Burgess’ new counsel requested a psychological evaluation. Counsel informed the judge that he requested an evaluation as soon as he was appointed to the case, but there was confusion over whether the State consented. Counsel argued Burgess had “mental health deficiencies,” could not intelligently converse with him, had a recent IQ test showing an IQ of 61, and was unable to assist in her defense. Counsel could not discuss the case with Burgess because she did not understand what he was talking about. According to counsel, Burgess’ only focus was when she was getting out of jail.

Counsel quoted from the December 2, 1998, affidavit by Dr. Keith. Dr. Keith opined that Burgess exhibited borderline mental retardation, behaved like a child, and posed no threat to others. Dr. Keith stated that Burgess needed medical procedures to evaluate her mental and physical problems, including an EEG, an MRI, consultation with a neurologist, and a PGI workup. It is not clear that the neurological examination was ever performed.

The only psychological evaluations ever performed on Burgess were in connection with her prior hospitalizations for *578alcohol abuse and in connection with her application for SSI.10 The tests did not address the issue of competency. One test indicated Burgess had a very low survival skills quotient of 45. Because no prior competency evaluations had been performed on Burgess, counsel did not have any further medical evidence to present to the trial judge.

As the majority opinion notes, Burgess appeared to respond appropriately to the questions posed by the trial judge during questioning. However, most of Burgess’ answers were a simple “yes, sir” to the judge’s questions. Although Burgess identified the charge of “murder,” the victim, the month of the crime, and her attorney’s role, she was unclear as to the role of the solicitor. Specifically, she appeared to be guessing when answering that the solicitor’s role was to “Talk against me?” Burgess also informed the judge that she had not really spoken with counsel “like we should.” When asked by the judge if she could tell her side of the story to her attorney, she responded, “I think.” Burgess’ counsel informed the trial judge that Burgess’ communication skills that day were better than they ever were when he attempted to discuss the case with her prior to that time and that he could not determine whether “guilty but mentally ill” was applicable to Burgess at that point. Citing only Burgess’ apparent understanding of the roles of the parties and the charges against her, the trial judge denied counsel’s motion for a competency evaluation.

Counsel requested reconsideration of his motion at the start of trial, arguing that, as appointed counsel, he did not have the funds to get a psychological evaluation of Burgess performed prior to trial. He informed the judge again about his difficulties in consulting with Burgess, and he argued the evaluation was necessary to determine what defenses could be pursued. Counsel stated as follows:

I don’t believe I can talk to her a little bit. She’s very hard to talk to and you almost need a third party like an Ann Kirven who is at the alcohol and drug abuse department to do that because she’s — over the years of dealing with [Bur*579gess], she’s earned [Burgess’] trust and she opens up a little bit more to her even though it’s a little bit incoherent.

Citing State v. Blair, 275 S.C. 529, 273 S.E.2d 536 (1981), the judge denied the request, finding Burgess did not exhibit irrational behavior, her demeanor was appropriate, and there was no medical evidence to support further inquiry into competence.

Trial judges have a duty to order a psychiatric examination for a defendant if there is reason to believe the defendant is not fit to stand trial because of an inability to understand the proceedings or an inability to assist in her own defense. State v. Locklair, 341 S.C. 352, 364, 535 S.E.2d 420, 426 (2000); S.C.Code Ann. § 44-23-410 (2002) (“Whenever a judge of the Circuit Court ... has reason to believe that a person on trial before him ... is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall ... order examination of the person by two examiners designated by the Department of Mental Health ....”) (emphasis added). “ ‘[E]vidence of a defendant’s irrational behavior, his demeanor at trial and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but ... even one of these factors, standing alone, may, in some circumstances, be sufficient.’ ” Blair, 275 S.C. at 533, 273 S.E.2d at 538 (quoting Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)). Whether to order a competency evaluation is within the trial judge’s discretion, and his decision will not be overturned on appeal absent a clear showing of an abuse of that discretion. Locklair, 341 S.C. at 364, 535 S.E.2d at 426.

I am guided by the analysis in State v. Singleton, 322 S.C. 480, 472 S.E.2d 640 (Ct.App.1996). This Court found the trial judge abused his discretion in failing to order a mental evaluation. At his probation revocation hearing, Singleton’s attorney informed the trial judge that Singleton suffered from audio and visual hallucinations and was being treated by the Mental Health Commission. Singleton’s mother told the judge that Singleton’s odd and violent behavior stemmed from a poisoning incident as a child. Counsel informed the judge that he was seeking a mental evaluation of Singleton and moved to *580hold the probation proceeding in abeyance. The trial judge denied the motion, but he later urged treatment for Singleton’s mental condition. After reviewing the entire record, the statements to the judge by Singleton’s counsel and mother, and the trial judge’s concern for Singleton’s later treatment, this Court reversed the judge’s failure to order an examination pursuant to section 44-23-410. Singleton, 322 S.C. at 483-84, 472 S.E.2d at 642.

Similarly, I believe Burgess’ counsel presented enough information to the trial judge to give him “reason to believe” that further evaluation of Burgess’ condition was warranted. The State did not dispute Burgess’ history of blackouts and her low IQ of 61. Counsel repeatedly informed the judge that he had immense difficulty conversing with Burgess and that she did not understand the full ramifications of the trial. The affidavit from Dr. Keith indicated that Burgess was borderline mentally retarded, had the mentality of a child, and was in need of further neurological evaluation. Counsel also indicated the defense of “guilty but mentally ill” could not be pursued absent an evaluation. Most of Burgess’ answers during the trial judge’s examination of her were one or two words. Further, it does not appear from the record that Burgess was confident she could assist her attorney when she informed the judge that she thought she could tell him her story.

As the majority points out in a footnote, Burgess testified during the Jackson v. Denno hearing and, later, in her own defense. During the Jackson v. Denno hearing, Burgess stated she did not understand her Miranda warnings and she was confused. Burgess’ testimony regarding her medicine was extremely confusing, and she stated she had problems remembering things. Prior to testifying in her own defense, the trial judge questioned Burgess regarding her decision to testify. Despite her guess at the pre-trial hearing that the solicitor’s role was to “Talk against me?,” Burgess did not understand that the solicitor had the burden to prove her guilty and that she did not have a burden to prove her innocence. Although Burgess was able to testify regarding the events on the day of the incident, she repeatedly testified that she passed out on her couch that evening and was not aware of what was happening until she awoke the next day to find her husband deceased. Ann Kirven, Burgess’ case worker from the Alco*581hol and Drug Abuse Commission, testified that Burgess exhibited difficulties with comprehension throughout her placement at Monis Village. There was also evidence in the record that Burgess had to defend herself against the victim with a knife on a prior occasion.

Although the majority points to Burgess’ testimony as evidence that Burgess was competent to stand trial, I believe the testimony in the record raises further questions regarding Burgess’ ability to comprehend the proceedings and assist in her defense. Burgess’ inability to comprehend or discuss the case intelligently with her attorney prohibited her attorney from raising possible defenses, including guilty but mentally ill or battered spouse syndrome. Burgess’ low IQ, inability to understand the exact role of the solicitor, history of blackouts, deficiencies with comprehension, difficulties remembering, and inability to intelligently discuss her case with her attorney certainly gave the trial judge a “reason to believe” that Burgess needed further evaluation of her competency. Because there was evidence in the record that Burgess could not comprehend or speak intelligently with her attorney, I would find that the trial judge abused his discretion by failing to order an examination of Burgess as required by statute.

Accordingly, I would reverse and remand for a psychological evaluation. I would further order the circuit court to hold a hearing to determine whether Burgess was competent to stand trial. If the circuit court finds that Burgess was incompetent to stand trial, the court should issue an order reversing her conviction and granting her a new trial when she is presently competent to stand trial. If the hearing reveals Burgess was competent, her conviction will stand. See Blair, 275 S.C. at 534, 273 S.E.2d at 538 (“[0]n remand, if the hearing reveals Blair was incompetent to stand trial, an order reversing his conviction should be entered and a new trial granted when he is presently competent to stand trial. However, if the hearing reveals Blair was competent to stand trial, the conviction -will stand.”).

. Both Burgess and her counsel testified that Burgess received Supplemental Security Income from the Social Security Administration due to her mental deficiencies. The victim's aunt was the payee responsible for handling Burgess’ finances.