concurring in part and dissenting in part.
I must disagree with the majority with respect to the medication issue. I concur on all other issues.
Michael Alley was found incompetent to stand trial on two separate occasions subsequent to court ordered evaluation at Kentucky Correctional Psychiatric Center (KCPC). Therefore, Alley’s indictment was dismissed and he was involuntarily hospitalized in Central State Hospital for treatment. After three months of treatment with medication, he was released from Central State — found to be competent to stand trial — and re-indicted. At trial, seven separate doctors testified to his diagnoses of impulse disorder, paranoia, psychotic disorder, drug induced psychosis, organic mental disorder related to the brain injury, delusions, dementia, hallucinations, etc; most of which evolved from a car accident more than 15 years previous from which he suffered brain damage and had lain in a coma for 11 days. His defense at trial was insanity. Obviously, it would have been beneficial for the jury to have insight — aside from the medical testimony — into Alley’s mental and physical state during the offenses.
Prior to trial, Alley moved the court to allow him to be taken off of his anti-psychotic drugs so that the jury could see him in the same mental and physical state as on the day of the offenses. The trial court denied the motion; ruling it did not have jurisdiction to address Alley’s request that he be taken off his medication, even though Alley had been involuntarily committed to Central State by order of the court, which led to his successful treatment with Risperdal.
In Tolley v. Commonwealth, 892 S.W.2d 580 (Ky.1995), we held the circuit courts had jurisdiction over matters such as this. See also, Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). Specifically, the circuit court had jurisdiction to involuntarily commit Alley to Central State and approve the use of Risperdal — thus the circuit court also had jurisdiction to order him taken off the medication. We should heed the comments of Section 11 of our Constitution’s Bill of Rights, which says: “In all criminal prosecutions the accused has the right to be heard by Himself and counsel, ..., and to have compulsory process for obtaining witnesses in his favor.”
The solution would simply be to un-medicate Alley and allow him to revert back to his un-medicated condition for a short period of time; then allow a video deposition to be taken of him by his counsel and the Commonwealth, then re-medicate him prior to trial. This would assure he would be in a competent state during trial; while allowing the jury to see the real, un-medicated Alley.
The Court, of course, should conduct a hearing to determine whether taking him off the medication would endanger (1) his health, or (2) his probability of requiring competency for trial and (3) to assure itself that Alley understands any risks of coming off the medication for this period of time and voluntarily and knowingly agrees thereto...
Thus, I respectfully dissent.
LAMBERT, C.J., joins this opinion.