State v. Ives
Annotate this Case
STATE_V_IVES.91-571; 162 Vt. 131; 648 A.2d 129
[Opinion Filed May 27, 1994]
NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 91-571
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windsor Circuit
Bruce Ives November Term, 1992
David T. Suntag, J. (suppression hearing & competency hearing)
Paul F. Hudson, J. (trial)
M. Patricia Zimmerman, Windsor County State's Attorney, White River
Junction, for plaintiff-appellee
Charles Martin and Edward Wayland, Law Clerk, of Martin & Paolini, Barre,
for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
ALLEN, C.J. Defendant appeals his conviction for sexual assault, 13
V.S.A. { 3252(a)(1), alleging three errors. First, defendant contends that
the trial court erred in holding that he was capable, notwithstanding his
low IQ, of a knowing and intelligent waiver of his Miranda rights. Second,
defendant argues that the trial court erred by denying his motions for an
additional competency hearing, a psychological evaluation and a continuance.
Finally, defendant alleges that the trial court improperly admitted hearsay
evidence as excited utterances. We affirm.
On January 12, 1990, the victim was sexually assaulted and identified
defendant, a person known to her, as her assailant. The victim identified
defendant to her father over the telephone, to the examining physician at
the hospital, to the trooper who met her at the hospital, and, finally, to
the detective who also came to the emergency room. The victim later
identified defendant in a photographic lineup. Defendant was arrested and
taken into custody. After explaining the Miranda rights to defendant and
obtaining a waiver, a detective interviewed him. During this interview,
defendant did not confess to the assault but admitted being in the victim's
store on the day of the assault.
Defendant moved to suppress his statements, arguing that he could not
have knowingly and intelligently waived his Miranda rights because he
exhibited difficulty understanding the Miranda warnings. This motion was
denied. Subsequently, it was discovered that defendant had a full scale IQ
of 72, indicating he is borderline to being retarded. Defendant renewed his
motion to suppress, and the trial court again denied the motion.
The trial court did, however, order a psychiatric evaluation and
competency hearing, after which the court determined that defendant was
competent to stand trial. Nearly five months later, on July 17, 1991,
defense counsel moved for a continuance and an psychological evaluation of
defendant's competence to stand trial. The court held a hearing on the
motions the following day. Regarding the motion for a second competency
evaluation, the court noted that Dr. Theodore Robbins, who performed the
first competency evaluation, had examined defendant three days before on
July 15. Dr. Robbins had communicated to the court that he still believed
defendant was competent to stand trial, and the court agreed. The court
denied both motions without taking evidence. Defendant was subsequently
tried and convicted.
I.
Defendant moved twice, unsuccessfully, to suppress his statements to
police, alleging that he had not knowingly and intelligently waived his
rights to remain silent and to the assistance of counsel. Because he was
given the required Miranda warnings before interrogation ensued, a valid
waiver depends on two findings.
First, the relinquishment of the right must have been
voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coer-
cion, or deception. Second, the waiver must have been
made with a full awareness of both the nature of the
right being abandoned and the consequences of the
decision to abandon it. Only if the "totality of the
circumstances surrounding the interrogation" reveals
both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the
Miranda rights have been waived.
Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). Defendant does not claim that police coerced him, "a
necessary predicate to the finding that a confession is not 'voluntary.'"
Colorado v. Connelly, 479 U.S. 157, 167, 169-70 (1986). Thus, our inquiry
concerns only whether defendant's waiver was knowing and intelligent, which
the State must prove by a preponderance of the evidence. State v. Badger,
141 Vt. 430, 439, 450 A.2d 336, 341 (1982).
In both motions, defendant contended that he did not understand his
rights or the consequences of waiving them. To be constitutional, a waiver
must be made with a "requisite level of comprehension," such that an
individual has "a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it." Moran, 475 U.S. at 421. The trial court must consider the "totality of the
circumstances" in determining whether the defendant understood the Miranda
warnings. Fare v. Michael C., 442 U.S. 707, 725 (1979). The factors
relevant to this inquiry include defendant's "experience, education,
background, intelligence or capacity to understand the warnings and the
meaning of a waiver." State v. Malinowski, 148 Vt. 517, 522, 536 A.2d 921,
924 (1987).
This Court accords great deference to the trial court's findings under
the totality of the circumstances approach. Id. at 520, 536 A.2d at 923.
In making these findings, the trial court determines the weight and
sufficiency of the evidence, including the credibility of the witnesses and
the persuasive effect of their testimony. State v. Wall, 137 Vt. 482, 486,
408 A.2d 632, 635 (1979), cert. denied, 444 U.S. 1060 (1980). That
determination stands "if supported by credible evidence, although there may
be inconsistencies or even substantial evidence to the contrary." Id. The
findings must stand unless they are clearly erroneous. Malinowski, 148 Vt.
at 520, 536 A.2d at 923.
A.
We turn first to the denial of defendant's initial motion to suppress.
When that motion was heard, the evidence consisted of testimony by the
interrogating officer, a signed copy of the Miranda warnings issued to
defendant, and a transcript of the interrogation. Defendant did not testify
at the hearing, or raise the issue of his level of intelligence. Defense
counsel did cross-examine the interrogating officer, Detective Jeffrey
Cable. Neither the interrogating police officer nor the court knew that
defendant's IQ was borderline to retarded.
The interrogating officer testified that defendant acted as if he
understood what was being said, that he did not appear to be under the
influence of drugs, and that he understood English. Moreover, the
transcript of the interrogation reveals that defendant was an adult and had
graduated from high school. Based on this evidence, the court found that:
defendant understood English; had no physical or mental
disability affecting his ability to hear and understand
Detective Cable; exhibited no signs of being under the
influence of alcohol or drugs; responded to questions
coherently, logically and appropriately; detailed his
activities the day prior to the interrogation to a
degree where he described the clothing he was wearing at
that time. He exhibited sufficient coherence of thought
to adequately demonstrate a mental capacity to
understand and intelligently waive his Miranda rights to
remain silent and to the assistance of counsel.
In short, the court took evidence on factors deemed important to evaluating
a waiver of Miranda rights. See Malinowski, 148 Vt. at 522, 536 A.2d at
924.
Defendant argues that the court never considered the totality of the
circumstances, because it did not discover that defendant cannot read and
write, and that he apparently had no previous experience with the police.
In this vein, the dissent believes that the colloquy between the police
officers and defendant should have raised sufficient doubt about his
intelligence to compel the State to delve further into defendant's
background prior to questioning. Having so concluded, the dissent goes on
to fault the trial court for not undertaking the "cursory check" that would
have revealed defendant's limitations. The trial court, however, expressly
noted that
[a]lthough the State did not introduce any evidence
as to the defendant's age, education or prior experience
with law enforcement authorities, it did introduce by
way of [the interrogating officer's] observations of the
defendant and the verbatim transcript of the entire
interrogation in question sufficient evidence going to
the defendant's background, intelligence and general
capacity to understand the waiver, to permit the Court
to adequately evaluate this issue, especially in light
of the fact that no issue has been raised casting doubt
on the defendant's mental capacity or physical ability
to understand the nature of the asserted waiver.
In ruling that the evidentiary record was sufficient to support a
finding of waiver, the court did not relieve the State of its burden to
prove that defendant's waiver was knowing and voluntary. How defendant had
performed in the context of the interrogation was more important than his
specific age, education, or IQ. The trial court weighed evidence provided
by the State on each relevant factor in determining that defendant
intelligently waived his Miranda rights.
In effect, defendant and the dissent would put the burden on
interrogating police officers and the court to discover or diagnose mental
deficiencies not reasonably evident. Defendant answered "yes" to every
question about understanding his rights, questions that were repeated when
defendant hesitated in his initial responses. Police officers are not
trained psychologists; as a general rule, it would not be desirable to have
them interpret "yes" to mean "no."
With the benefit of perfect hindsight, the dissent argues that
defendant answered ambivalently, and that this should have prompted an in-
depth inquiry. But in the context of circumstances then known, the officers
responded reasonably by repeating the questions to defendant to ensure he
understood them. After defendant responded "yes" to each question
concerning his rights, the officer again asked if he understood each right.
Defendant answered, "Trying to, but yes." The officer acknowledged that
defendant's uncertain answer indicated that defendant was having some
trouble understanding. Under the circumstances, however, defendant's
response did not necessarily evidence the lack of sufficient intelligence to
understand the rights he waived. The officer then repeated the litany of
rights and paraphrased the critical right to silence: "In other words, you
don't have to talk to me now if you don't want to." He then asked if
defendant understood and defendant said, "Yeah." This answer sufficed to
dispel any doubts the officer may have had regarding defendant's capacity
to understand his rights and the significance of their waiver. Finally,
when the officer informed defendant that if he opted to answer questions he
could stop at any time, defendant answered, "Yeah. I know I got a right to,
I guess."
When the officer asked defendant if he wanted to talk, defendant
volunteered that "I ain't got nothing to hide, so I can't see why not."
This statement indicated that defendant understood that he was involved in
an adversarial process and that if he had something to hide, he could
protect himself by not speaking. Although the record does not show the full
extent of defendant's capacity to fathom the intricacies of the legal
system, it does show that defendant had the kind of concrete understanding
of his rights necessary for an intelligent and voluntary waiver. See State
v. Cleary, No. 91-569, slip op. at 10, 11 (Vt. Feb. 28, 1994) (person
waiving right need not have thorough understanding of all potential legal
consequences; nothing more required than a concrete understanding of meaning
of right and effect of waiver).
The evidence before the court showed nothing in this colloquy that
triggered suspicion that defendant had a borderline IQ. Rather, defendant
functioned adequately in the situation, answering questions appropriately.
He did not simply answer "yes" to everything; he was able to express his
need for help with some parts of the process. The dissent's general remarks
about coerciveness of police interrogation and its effect on mentally
retarded defendants are irrelevant in this case, because there was no
evidence that defendant was coerced, and defendant makes no such claim on
appeal. The trial court made a common-sense ruling based on a
preponderance of credible evidence that defendant knowingly and
intelligently waived his rights to remain silent and to the assistance of
counsel. The law does not require more.
B.
In July 1991, defendant renewed his motion to suppress his statements
before a different judge, who presided at trial. This time, the court had
before it evidence that defendant had a borderline IQ of 72.(FN1) The trial
judge may have had the additional knowledge that defendant's intelligence
was borderline retarded, but evidence of a low IQ, in itself, does not
compel a finding that defendant was unable understand his Miranda rights.
See Cleary, slip op. at 4. Rather, suppression of evidence is warranted
only if a defendant's impairment is shown to have interfered with the
ability to exercise rights in the particular circumstances of the
interrogation. Id.; cf. In re Robinson, slip op. at 6-7 (Vt. Apr. 15, 1994)
(in assessing voluntariness of incriminating statement under Vermont
Constitution, there must be proof of link between mental illness and making
of statement). In making this assessment, the trial judge had the benefit
of knowing not only defendant's IQ, but also the entirety of the expert's
report. The focus of that report was defendant's mental competence to stand
trial as well as his sanity at the time of committing the crime. It
provided the court with additional context to evaluate defendant's ability
to waive his rights.
In his report, the expert noted that defendant had borderline
intelligence and a history of alcohol abuse. He added:
Mr. Ives' school history is consistent with this level
of intelligence. He says he went to school to the 12th
grade but never learned to read. In spite of his
limited intellect and alcohol abuse problem he has
subsisted through odd jobs and at times has worked in a
local wood working mill.
As to defendant's understanding of the legal system, the expert noted:
When asked about the charges against him he was clear
as to his innocence and the consequences of being found
guilty. He understood who the various members of the
court were and was clear as to how he should behave in
court. He felt he could work with his attorney and was
aware about his change of attorney caused by his
attorney's conflict of interest. He was clear about the
events of the day in which his alleged crime occurred
and seemed able to work with his attorney.
The expert concluded:
Mr. Ives is an individual with limited intellect who
has a history of chronic alcohol abuse. He lives on
his own with assistance in his financial transactions.
He works part time doing chores for local farmers and
has no history of violent or aggressive behavior. He is
basically responsible for himself and understands legal
and illegal behavior. He is clear about the court
process and understands the charges against him. He is
not sophisticated but knows the facts and understands
the role of his defense attorney. He has shown no form
of psychiatric orientational behavior other than alcohol
abuse. Therefore, I conclude that Mr. Ives is competent
to stand trial.
The expert's conclusions were uncontradicted except for defense
counsel's repeated assertions that he had difficulty communicating with his
client. On the second motion to suppress, the trial judge had more
complete information about defendant's education, background, and
intelligence. Nothing in the expert's report calls into question what the
court had previously found -- that defendant had the kind of concrete
understanding of his rights sufficient to waive them. In summary, the trial
court correctly determined that defendant knowingly and intelligently waived
his rights to the assistance of counsel and to silence before police
questioning ensued.
II.
In November 1990, one month after the court decided the first motion to
suppress, defendant was assigned a new attorney. Counsel raised the issue
of defendant's intelligence level for the first time, in a motion for a
psychiatric evaluation to determine whether he was competent to stand
trial. The motion asserted that serious questions had arisen "with respect
to defendant's ability to understand the nature of the cause against him and
his ability to assist in the preparation of his defense." An examination
was ordered and a competency hearing held on February 20, 1991. In the
hearing, the examining psychiatrist testified that despite a borderline IQ,
defendant clearly understood right from wrong and the events that surrounded
the alleged offense. The psychiatrist concluded that defendant was
competent to stand trial. Defendant offered no evidence at the hearing and
waived written findings. The court found defendant competent to stand
trial.
After this hearing, the prosecution reported that it was ready for
trial; the defense indicated that it would be ready in sixty days. The
case was set for trial for the week of June 24, 1991, but was rescheduled
for the week of July 22, 1991 at the request of defendant's counsel because
of a trial conflict. At a status conference held on July 12, defense
counsel indicated that he had had difficulties communicating with his
client. The court ordered the psychiatrist who had earlier examined
defendant to reevaluate him and advise the court immediately of the results
of the examination. Again, the psychiatrist opined that defendant was
competent to stand trial. On July 17, the defense moved for a continuance
and a psychological evaluation. Defense counsel persisted in maintaining
that defendant was incompetent, and alleged that additional time was needed
to permit the psychological testing and to accommodate defense counsel's
extremely busy trial schedule, which had prevented him from preparing for
trial. The court denied defendant's motion for psychological testing at a
hearing on July 18.
Defendant first argues that the court erred in denying his motion for a
second evaluation without a proper evidentiary hearing. The statute
governing the determination of competency provides:
If a person . . . at any time before final judgment,
raises before the court . . . the issue of whether such
person is incompetent to stand trial . . . a hearing
shall be held before such court at which evidence shall
be received and a finding made regarding his competency
to stand trial. However, in cases where the court has
reason to believe that such person may be incompetent to
stand trial due to a mental disease or mental defect,
such hearing shall not be held until an examination has
been made and a report submitted by an examining
psychiatrist . . . .
13 V.S.A. { 4817(b). The court considered defendant's motion for a second
competency determination at a hearing the following day. At that hearing,
defendant's attorney only reiterated his belief that questions remained
about his client's ability to deal with matters at trial. No new evidence
was presented on the issue of competence, but the court did have information
that Dr. Robbins had affirmed his opinion that defendant was competent,
having examined him three days before. Based on this updated evaluation
and the results of the first competency hearing, the court again found that
defendant was competent to stand trial, and denied the motion for an
additional evaluation and competency hearing.
Defendant requested psychological testing, but the statute requires
only that psychiatric testing be provided in certain circumstances. See id.
{ 4817(b). Convinced that defendant was competent to stand trial, the court
was not obligated to order further evaluation. See State v. Welch, 159 Vt.
272, 276-77, 617 A.2d 427, 430-31 (1992) (trial court may use its discretion
on basis of evidence before it in determining whether defendant is
incompetent and thus entitled to a psychiatric evaluation). In light of the
psychiatrist's continued finding of competence, and defense counsel's
failure to offer any contradictory evidence, the trial court reasonably
could have denied the motion for the psychological evaluation. The court
did not abuse its discretion, and hence there was no error.
Similarly, we see no reason to disturb the denial of a continuance.
This is a matter within the trial court's discretion, "[s]o long as such a
decision is not based on improper or illegal considerations." State v.
Perry, 131 Vt. 337, 341-42, 306 A.2d 110, 113 (1973). The trial court could
have denied the motion for a continuance on the ground that it was not
supported by an affidavit. V.R.Cr.P. 50(c); cf. State v. Carter, 154 Vt.
646, 646-47, 577 A.2d 280, 281 (1990) (mem.) (defendant's failure to submit
accompanying affidavit with motion to disqualify assistant judge was
grounds for denial under V.R.Cr.P. 50(d)). Instead, the court heard defense
counsel's reasons for the requested continuance and concluded that they did
not warrant granting the motion.
The attorney had been assigned to represent defendant early in November
of 1990. At the time of his assignment, all discovery and investigation had
been completed by prior counsel. Defense counsel had indicated to the court
in February of 1991 that he would be ready for trial in sixty days. The
earlier continuance was granted to accommodate a trial conflict, not a lack
of preparedness. No indication of such a problem surfaced at the status
conferences held prior to trial. By the time of the hearing on the motion
to continue, counsel had abandoned any notion of raising a diminished
capacity or insanity defense in favor of a theory of mistaken identity.
Counsel for the defense, however, based his request for a continuance partly
on the grounds of needing time to conduct psychological testing, and it was
unclear to the trial court as to how this testing would assist in a
mistaken-identity defense. In any event, counsel had ample time to conduct
such testing even without a continuance. Defendant received a vigorous and
competent defense, and does not suggest on appeal how he was prejudiced by
the denial of the motion to continue. We find no abuse of discretion in
denial of the motion to continue.
III.
Defendant's final claim of error concerns the admission of statements
that the victim made to her father. These statements, which identified
defendant as her assailant and described the assault, were treated as
excited utterances, an exception to the rule excluding hearsay. See V.R.E.
802. Defendant believes that the State failed to establish that the
victim's statements to her father were spontaneous or instinctive, or that
they were uttered sufficiently close in time to the startling event.
Rulings regarding the admissibility of evidence are subject to review
only for an abuse of discretion. See V.R.E. 104(a); State v. Ayers, 148 Vt.
421, 424, 535 A.2d 330, 332 (1987). Thus, we will uphold the trial court's
determination that the statements in question qualify as excited utterances
if the decision has a reasonable basis. See State v. Goodrich, 151 Vt. 367,
375, 564 A.2d 1346, 1351 (1989). Rule 803(2) defines excited utterances as
statements "relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
condition." V.R.E. 803(2). The statement need not be contemporaneous with
the exciting event; "the key consideration is the condition of the
declarant." State v. Shaw, 149 Vt. 275, 281, 542 A.2d 1106, 1109 (1988)
(statement made two to three hours after sexual assault held admissible as
excited utterance where it was clear from testimony that declarant was under
the stress of the sexual assault).
In this case, the State offered evidence that the father thought the
victim was speaking of something that had happened quite recently, that he
could tell from the his daughter's voice that she was upset, and that she
had called her father soon after the assault. Based on this and other
credible evidence, the trial court found that the victim was under the
stress of a startling event, that the event had occurred very recently, that
her voice was excited, and that her statements were not a product of
reflection. These findings are supported by the testimony, and provided a
reasonable basis to admit the victim's statements as excited utterances.
The trial court did not abuse its discretion in admitting the hearsay
evidence.
Affirmed.
FOR THE COURT:
Chief Justice
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Footnotes
FN1. Defendant's second motion to suppress never requested an evaluation
of the earlier ruling in light of new evidence. Instead, defendant
identified the motion as one required to preserve the waiver issue on
appeal, because the trial judge was not the same judge who denied the first
motion to suppress. See State v. Senecal, 145 Vt. 554, 558, 497 A.2d 349,
351 (1985). The trial judge denied the motion, stating he had "fully
reviewed" the prior opinion.
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Concurring and Dissenting
NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 91-571
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windsor Circuit
Bruce Ives November Term, 1992
David T. Suntag, J. (suppression hearing & competency hearing)
Paul F. Hudson, J. (trial)
M. Patricia Zimmerman, Windsor County State's Attorney, White River
Junction, for plaintiff-appellee
Charles Martin and Edward Wayland, Law Clerk, of Martin & Paolini, Barre,
for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J. Concurring and dissenting. I agree with Parts II and III
of the majority opinion and concur in the holdings therein. I agree with
Justice Johnson, however, that the second, and controlling, decision on the
motion to suppress was inadequate, because the court failed to consider the
new evidence about defendant's mental capacity and his ability to read. See
State v. Bruno, 157 Vt. 6, 10, 595 A.2d 272, 274-75 (1991) (when defendant
makes pretrial motion to suppress and renews motion before second judge,
ruling on renewed motion is controlling for purpose of appeal).
I would not, however, go as far as to hold that no waiver of Miranda
rights occurred as a matter of law. Thus, the remedy initially must be a
"context-specific inquiry into the nature of defendant's cognitive
limitations and their effect on his understanding of his rights, the
language used by the interrogating officer, and the concept of waiver."
State v. Ives, slip op. at 9 (Johnson, J., dissenting). Whether the
defendant should receive a new trial should depend on the outcome of this
inquiry. See State v. Shaw, 149 Vt. 275, 284, 542 A.2d 1106, 1111 (1987)
(remanding sexual assault and felony trespass to trial court with direction
to order new trial if court concluded that complainant's prior statements
improperly suppressed at trial "probably would have changed the outcome of
the case," but if not, or if suppression error was harmless beyond
reasonable doubt, to reinstate defendant's convictions).
Associate Justice
------------------------------------------------------------------------------
Dissenting
NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 91-571
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 1, Windsor Circuit
Bruce Ives November Term, 1992
David T. Suntag, J., suppression hearing & competency hearing
Paul F. Hudson, J., trial
M. Patricia Zimmerman, Windsor County State's Attorney, White River
Junction, for plaintiff-appellee
Charles Martin and Edward Wayland, Law Clerk, of Martin & Paolini, Barre,
for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J., dissenting. I respectfully dissent. I cannot join in
upholding the district court's conclusion that a mentally retarded
individual with a developmental age of seven and one-half years knowingly
and intelligently waived his rights to silence and to counsel, solely on the
basis of the fact that he listened to a repetitive four-minute recitation of
his rights by a police interrogator. Nor can I join in upholding the
court's limited inquiry into defendant's competence to stand trial.
I dissent because, as in State v. Lockwood, the majority fails to
consider the unique needs of persons with mental retardation in the context
of a criminal investigation and prosecution.(FN1) Specifically, the majority
upholds a conviction in which inculpatory statements taken from a mentally
retarded defendant were admitted into evidence with virtually no inquiry
into defendant's mental history or cognitive abilities, and with no attempt
to determine whether his limited mental abilities prevented him from making
a knowing waiver of his constitutional rights. Further, the focus of the
competence decision in this case was on defendant's sanity at the time of
the offense, rather than on whether defendant's mental disability prevented
him from participating effectively in his defense at trial, and the court
failed to hold a renewed competence hearing, despite being informed by
defense counsel that he had difficulty communicating with defendant and that
defendant appeared to be unable to make decisions concerning his defense.
I.
The majority provides few facts regarding defendant's background,
education, experience, or cognitive abilities, which are critical to an
understanding of this case. Defendant, who was thirty-two years old at the
time of the assault, was diagnosed as having "speech" problems in his first
year of school. He attended special education classes throughout
elementary and high school. Although he graduated from Randolph Vocational
Center, he never learned to read or write. After his graduation, he worked
at numerous jobs involving simple physical tasks such as loading trucks and
piling lumber. He was unable to keep any of these jobs, and since 1987 he
has earned income by doing basic chores for neighbors and, later, by
collecting disability payments, to which he is entitled because of his
limited intellect. His siblings have always handled his financial affairs.
Defendant is a chronic alcoholic, and his IQ scores indicate that he is
a person with borderline or mild mental retardation.(FN2) In response to his
application for social security disability benefits, he was found to have a
full-scale IQ of 72 and a verbal score of 69. He was also tested as part of
the preparation of the pre-sentence investigation. Based on a nonverbal
intelligence test that measured "language-free" intellectual functioning, he
was found to have an IQ of 70, placing him in the bottom 2% of the popula-
tion. Based on selected subtests of the Wechsler Intelligence Scale, which
measures vocabulary, comprehension, and ability to process information, he
scored a 65, which placed him in the bottom 1% of the population. His
developmental age score was measured at seven years, six months. The PSI
assessment concluded, in part, that defendant's limited intellectual
functioning made him a risk to reoffend because he has "a diminished ability
to accurately predict the consequences of his behavior or to utilize
practical judgment or common sense."
II.
A.
The uncontradicted facts found by the district court in denying the
initial motion to suppress filed in May 1990 are as follows. The morning
after the assault, January 13, 1990, Detective Jeffrey Cable of the Vermont
State Police, accompanied by four other police officers, arrived at
defendant's apartment and informed him that he was under arrest and that
they had a warrant to search his apartment. Defendant was dressed in a
shirt, long johns, and socks. When he moved toward his bedroom to put on
some clothes, the officers subdued and handcuffed him after a brief
struggle. Although Detective Cable conceded at the suppression hearing that
he could have allowed defendant to put on some additional clothing, he did
not feel that it was "appropriate" at the time. Still clad only in his long
underwear, defendant was transported to the Bethel State Police Barracks,
where he was placed in a small, windowless interrogation room for
approximately an hour and ten minutes until Detective Cable returned to
interrogate him.
During a colloquy that lasted less than four minutes, detective Cable
obtained defendant's waiver of his Miranda rights. The officer read each
right individually and then asked defendant if he understood. Defendant
responded with a single word -- yes -- when asked whether he understood his
right to remain silent and to speak to a lawyer, and whether he understood
that anything he said could be used against him in a court of law. The
officer then stated: "If you cannot afford to hire a lawyer, one will be
appointed to represent you at public expense before any questioning, if you
wish. In Vermont, that is called a Public Defender. Do you understand?"
Defendant replied, "I can't afford a lawyer." The officer then repeated the
statement verbatim, and defendant replied, "Yes."
When asked if he understood each of the rights explained to him,
defendant replied, "Trying to, but yes." The officer then repeated the
rights using similar language and concluded by saying, "In other words, you
don't have to talk to me now if you don't want to. Do you understand that?"
Defendant answered, "Yeah." Detective Cable then asked again if defendant
understood his rights, but when defendant attempted to answer beyond a
simple yes, the officer interrupted him and asked him whether he understood
that if he decided to answer questions at that time he could stop at any
later time. Defendant's response to that question was, "Yeah, I know I
gotta right to, I guess." When asked if he wanted to talk, having all those
rights in mind, defendant responded, "I ain't got nothing to hide, so I
can't see why not. I ain't got nothing to hide because [inaudible] would
have told me. I dunno anythin' about it." At this point, the officer gave
a brief explanation of the written waiver form before asking defendant if he
understood it. Defendant's answer was inaudible. Defendant then answered
questions. The answers revealed he was at the scene of the crime with the
victim on the day in question, although he maintained his innocence of the
crime.
B.
Defendant's qualified and limited responses did not provide sufficient
evidence to support the district court's conclusion that the State met its
"heavy burden" of showing a knowing and intelligent waiver. See North
Carolina v. Butler, 441 U.S. 369, 373 (1979) ("courts must presume that a
defendant did not waive his rights"; even express statement of waiver is not
necessarily sufficient to establish waiver of constitutional rights);
Miranda v. Arizona, 384 U.S. 436, 475 (1966) ("If the interrogation
continues without the presence of an attorney and a statement is taken, a
heavy burden rests on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel."); State v. Austin, 155 Vt.
531, 534, 586 A.2d 545, 546 (1990) ("The State bears a heavy burden in
demonstrating a knowing and intelligent waiver of Miranda rights."). Of the
dozen responses given by defendant when his rights were read to him, all but
four were a simple "yes." Three of the other four responses indicated that
defendant did not know what the officer was telling him, and part of the
fourth response was inaudible.
Surely, this colloquy between defendant and the interrogating officer
raised sufficient doubt, even assuming the court was unaware of defendant's
limited intelligence, to require the court to make a further inquiry into
defendant's background and intelligence. We require the district court to
consider relevant factors such as a defendant's age, experience, education,
background, intelligence, and capacity to understand the waiver, unless the
evidence leaves no doubt that the defendant understood the nature of the
waived constitutional rights and the consequences of waiving those rights.
State v. Malinowski, 148 Vt. 517, 519-20, 536 A.2d 921, 923 (1987) (quoting
Fare v. Michael C., 442 U.S. 707, 725 (1979), for proposition that totality-
of-circumstances approach "mandates" inquiry into factors such as
experience, background, intelligence, and capacity to understand); see State
v. Olson, 153 Vt. 226, 232, 571 A.2d 619, 623 (1989) (no specific showing
into Fare factors was required where defendant's understanding of waiver was
neither vague nor questionable and trial court made "very specific findings"
on defendant's physical and mental condition at time she received warnings).
Indeed, when doubt is raised about the defendant's capacity to understand
the waiver, it is "especially important" to inquire into all the relevant
circumstances, including defendant's background and intelligence. State v.
Austin, 155 Vt. at 534, 586 A.2d at 546.
With the following statement, the district court explained its primary
rationale for finding a knowing and intelligent waiver (FN3):
Although the State did not introduce any evidence
as to the defendant's age, education or prior experience
with law enforcement authorities, it did introduce by
way of Detective Cable's observations of the defendant
and the verbatim transcript of the entire interrogation
in question sufficient evidence going to the defendant's
background, intelligence and general capacity to
understand the waiver, to permit the Court to adequately
evaluate this issue, especially in light of the fact
that no issue has been raised casting doubt on the
defendant's mental capacity or physical ability to
understand the nature of the asserted waiver.
The essence of this statement is that the transcript of the interrogation
demonstrated a knowing waiver so clearly that the State did not need to
present further evidence regarding defendant's background, education,
intelligence, experience, or capacity to understand the waiver. I strongly
disagree with the court's conclusion. Defendant's responses were equivocal
and uninformative. Given the State's heavy burden, the court should have
considered more than defendant's limited responses and the officer's
testimony that defendant "appeared to" understand his rights. See Cooper v.
Griffin, 455 F.2d 1142, 1145 (5th Cir. 1972) (instead of rebutting expert
testimony regarding defendants' mental capabilities, state merely offered
testimony of interrogating officer that defendants "'appeared to'"
understand Miranda warnings). Rather, the court should have made a further
inquiry into defendant's background and intelligence. Even a cursory check
into his past would have revealed that he had attended only special
education classes, was illiterate, had a subnormal intellect, and had
virtually no prior experience with the law.
Absent a further showing by the State indicating that defendant made a
knowing and intelligent waiver, I believe the court should have suppressed
defendant's statements. The majority disagrees, stating that (1) how
defendant performed during the interrogation was more important than his
educational background or his IQ, and (2) my position would place the burden
on police to diagnose mental deficiencies, which they are not trained to do.
I do not understand the relevance of either point. First, I see little
significance in debating the relative importance of the various factors to
be considered by the district court. My position is that the evidence did
not demonstrate a knowing and intelligent waiver so clearly that the court
could forego consideration of additional relevant factors, such as
defendant's background and intelligence, that were not apparent from merely
reading the transcript of the interrogation or hearing testimony from the
interrogating officers. As I stated above, I believe further inquiry was
required here. As for the majority's second point, an incriminating
statement that results from an unknowing waiver is not admissible merely
because the police were unaware that the defendant was incapable of making a
knowing waiver. The courts must determine whether particular defendants
knowingly and intelligently waived their constitutional rights, not whether
the police were able to tell if the defendants had the capacity to waive
those rights.
C.
Eight months after the first motion was denied, defendant filed a
renewed motion to suppress. Despite the fact that new evidence regarding
defendant's limited mental capacity had come to light, a different judge
denied the motion without a hearing, stating only that he agreed with the
soundness of the first judge's decision. This, too, was error, for the
second judge relied solely on the soundness of an opinion that was based, to
a large extent, on the absence of evidence showing that defendant did not
have the mental capacity to understand the rights he was waiving, precisely
the subject of the new evidence. The end result is that there was no
hearing in which the court made a context-specific inquiry into the nature
of defendant's cognitive limitations and their effect on his understanding
of his rights, the language used by the interrogating officer, and the
concept of waiver.(FN4)
The majority's principal reason for approving the second judge's
refusal to hold a hearing on defendant's renewed motion to suppress is that
evidence of a low IQ, by itself, does not compel a finding that defendant
was unable to understand his rights. According to the majority, the
suppression of defendant's statements would be warranted only if his mental
impairment is shown to have interfered with his ability to exercise his
rights in the particular circumstances of the interrogation.(FN5) Before
addressing the majority's general proposition that a low IQ does not compel
a finding that a defendant is unable to make a knowing and intelligent
waiver of rights, I emphasize that neither the first nor the second judge
in this case ever addressed whether defendant's retardation interfered with
his ability to understand his rights or to make a knowing and intelligent
waiver of those rights. Indeed, the court's failure to make this inquiry
goes to the very heart of my dissent.
The majority attempts to gloss over this fact by pointing out that the
second judge had the benefit of a psychiatrist's report. The availability
of the report cannot make up for the judge's failure to consider whether
defendant's retardation prevented him from knowingly and intelligently
waiving his rights. First, there is no indication that the second judge
considered the report in denying defendant's renewed motion to suppress.
Indeed, without holding a hearing or making findings, the second judge's
explicitly stated that he was denying the motion because he agreed with the
soundness of the first judge's decision; yet, the first judge was unaware of
defendant's mental limitations and thus never considered them.
Second, even assuming the court examined the report, the majority
acknowledges that the report attempted to address only defendant's
competence to stand trial and his sanity at the time of the offense; it made
no context-specific inquiry into whether, or how, defendant's limited
intellect affected his ability to make particular judgments regarding the
waiver of his constitutional rights. Cf. Godinez v. Moran, 113 S. Ct. 2680,
2687 (1993) (finding of competence to stand trial does not necessarily
permit defendant to plead guilty or waive counsel; because trial court must
satisfy itself that waiver of constitutional rights is knowing and
intelligent, there is "heightened" standard for waiving those rights).
As I stated in my Lockwood dissent, I believe that the interests of
mentally retarded defendants can be protected only by conducting an
individualized and contextualized inquiry into a defendant's ability to make
particular decisions or types of decisions. ___ Vt. at ___, 632 A.2d at
669 (Johnson, J., dissenting). The district court could not have determined
whether defendant was able to comprehend the significance of waiving his
rights to silence and counsel based solely on an assessment of whether
defendant could be held accountable for a crime or whether he could
communicate effectively with an attorney at trial. Not only was defendant's
waiver separated in time from the commission of the crime and from his
trial, but it involved a different context-specific inquiry. Surely, the
mere availability of a report that fails to address the relevant questions
directly cannot serve as an adequate substitute for a hearing that would
have allowed the court to explore those questions in making a context-
specific determination.
I now return to the majority's point that a low IQ does not require a
finding of an unknowing waiver. Although most jurisdictions have held that
a person's subnormal intelligence does not, by itself, establish that the
person is automatically incapable of making a knowing waiver of
constitutional rights, courts do consider limited mental ability to be an
important factor that warrants a close examination of whether mentally
retarded suspects fully understood the significance of the waiver. See
American Bar Association, Standards for Criminal Justice, Mental Health
Standard 7-2.5, at 43 n.13 (2d ed. 1986) [hereinafter ABA Mental Health
Standard] (citing cases standing for proposition that mental disability "is
a significant element in determining the validity of a waiver of rights
under Miranda"); see also Smith v. Kemp, 664 F. Supp. 500, 504-05 (M.D. Ga.
1987) (confession improperly admitted where evidence failed to show that
defendant with IQ of 65 knowingly and intelligently waived his rights; state
court merely noted defendant's retardation without addressing the impact of
that fact on issue of whether waiver was valid), aff'd, Smith v. Zant, 887 F.2d 1407 (11th Cir. 1989); Commonwealth v. Daniels, 321 N.E.2d 822, 826-28
(Mass. 1975) (in cases involving adults with subnormal mental capacity,
special care must be taken to scrutinize record because circumstances and
techniques of custodial interrogation that pass constitutional muster with
persons of normal intelligence may not be constitutionally tolerable when
applied to persons of limited intelligence); State v. Cumber, 387 N.W.2d 291, 294 (Wis. Ct. App. 1986) (subnormal intelligence of nineteen-year-old
defendant was important factor in affirming suppression of inculpatory
statement).
Accordingly, once the district court became aware of defendant's
limited mental capacity, further inquiry was required into whether his
waiver was knowing and intelligent. See State v. Bushey, 453 A.2d 1265,
1266-68 (N.H. 1982) (trial court's admission of inculpatory statement
reversed where interrogating officer failed to explain concept of waiver to
ensure that defendant with performance IQ of 66 and verbal IQ of 70
understood consequences of waiver). Absent additional indications of a
valid waiver, the court should not have admitted defendant's incriminating
statements based only on the fact that his rights were repeatedly read or
that he briefly affirmed his understanding of those rights. See People v.
Higgins, 607 N.E.2d 337, 344 (Ill. App. Ct. 1993) (fact that rights were
read repeatedly does not assure an intelligent understanding of those rights
absent showing that defendant possessed intelligence to understand them);
Commonwealth v. Daniels, 321 N.E.2d at 827 (simple assertions of "yes" by
mentally retarded adult did not establish that he comprehended waiver of
Miranda rights); see generally Annotation, Mental Subnormality of Accused
as Affecting Voluntariness or Admissibility of Confession, 8 A.L.R.4th 16,
33-35, 40-52 (1981) (citing federal and state cases involving waiver of
Miranda rights by mentally retarded persons).
Such careful scrutiny of waivers made by mentally retarded defendants
enhances the truth-seeking function of the judiciary. As I discussed in
some detail in my Lockwood dissent, persons with mental retardation tend to
possess certain characteristics that make them particularly vulnerable to
police interrogation tactics and that create doubt about the reliability of
statements or confessions extracted during interrogations.(FN6) See Lockwood,
___ Vt. at ___, 632 A.2d at 668-69 (Johnson, J., dissenting). Generally,
mentally retarded individuals have difficulty expressing thoughts and
analyzing information received from others. Ellis & Luckasson, supra, at
428-29. This difficulty results, at least in part, from limitations in
their attention span and memory, and from their inability to understand
abstract concepts or to be selective in analyzing information they receive.
Id. Further, their self-awareness of these limitations in a society in
which they are frequently shunned, coupled with their immature or incomplete
concept of causation and blameworthiness, causes them to mask their handicap
by indicating understanding of events or concepts when they have none or to
seek approval by answering "yes" or even by confessing to a crime they did
not commit. See id. at 428-31.
These tendencies make mentally retarded suspects extremely vulnerable
to interrogation tactics aimed at obtaining a confession. On the other
hand, for their part, the police are trained to use tactics during
interrogation that will break down a suspect's defenses by working on
individual weaknesses. See Miranda, 384 U.S. at 448-55. Interrogators are
instructed to posit guilt as a fact, to minimize the moral seriousness of
the offense, to cast blame on society in general, and to alternate between
befriending and cajoling the suspect, in order to obtain a confession. Id.
Given the fact that police use such tactics, we should at least insist
that a knowing waiver cannot be presumed absent a showing that the accused
understood the concept of waiver and the principal legal implications of
confessing or providing statements to the police. I believe such a showing
would be very difficult to make unless counsel or another competent adult
acting in the suspect's interest was present at the time the suspect waived
Miranda rights and agreed to provide a statement.(FN7) See State v. Flower,
539 A.2d 1284, 1286-88 (N.J. Super. Ct. Law Div. 1987) (in suppressing
confession made by defendant with IQ under 70 and mental age between 7 and
12, court rejected testimony of State's expert that any person with a mental
age of 7-year-old child could understand Miranda warnings, and accepted
testimony of defendant's expert that retarded defendant did not have mental
capacity to understand abstract right contained in Miranda warnings), aff'd,
539 A.2d 1233 (N.J. Super. App. Div. 1988); cf. Henry v. Dees, 658 F.2d 406,
411 (5th Cir. 1981) (where defendants with limited mental ability are
interrogated, police must painstakingly determine that they understood any
waiver of rights, and counsel should be provided "absent an unmistakable,
knowing waiver of that assistance").
This Court has already held that the Vermont Constitution does not
permit juvenile suspects, in the context of a custodial interrogation, to
waive the privilege against self-incrimination or the right to counsel until
they have consulted with an adult interested in their welfare, such as a
parent, attorney or guardian. In re E.T.C., 141 Vt. 375, 379, 449 A.2d 937,
940 (1982). Our rationale for this holding was that minors hold a protected
status in our society, which has recognized that juveniles often lack the
capacity and responsibility to realize the full consequences of their
actions. Id. at 378-79, 449 A.2d at 939. Much the same can be said for
persons with mental retardation. See State v. Flower, 539 A.2d at 1287
(because persons with diminished mental capacity hold a protected status in
our society, court must determine that informing them of constitutional
rights is more than mere perfunctory procedure).
Accordingly, in cases where a suspect with subnormal intelligence has
provided police with a statement during custodial interrogation, I believe
the court must make a detailed context-specific inquiry into the suspect's
cognitive abilities and, particularly, the effect of any mental limitations
on the suspect's understanding of the rights involved, the language used to
explain the rights, the concept of waiver, and the immediate and ultimate
consequences of a waiver of those rights. State v. Cleary, No. 91-569, slip
op. at 1 (Vt. Feb. 28, 1994) (Johnson, J., dissenting). The absence of
counsel, or an interested adult acting in defendant's behalf, should be
considered a critical factor in the decision as to whether the waiver was,
indeed, knowing and intelligent. Because the district court did not make
such an inquiry, I would suppress defendant's statements and reverse the
conviction.
III.
I also disagree with the majority's conclusion that the court did not
abuse its discretion by refusing to hold a second competence hearing after
defense counsel reported difficulty in communicating with defendant. The
grounds for my dissent on this point are twofold. First, the initial
competence hearing was inadequate because both the court and the court-
appointed psychiatrist focused on sanity rather than competence. There was
no in-depth examination of whether defendant possessed the skills necessary
to allow him to communicate with counsel effectively and to aid counsel in
preparing a defense. Second, even if the first competence hearing had been
adequate, defense counsel's inability to communicate with a passive
defendant should have triggered a new competence hearing, not merely a
follow-up oral report from the same court-appointed psychiatrist.
A.
A fuller examination of the facts than that provided by the majority is
necessary to show the extent to which defendant was denied due process. As
the majority stated, a competence hearing was held in February 1991, at the
request of the newly-appointed defense counsel, who was aware of medical
records revealing defendant's limited mental abilities. Before the hearing,
the court-appointed psychiatrist, Dr. Theodore Robbins, examined defendant
on one occasion for approximately two hours and wrote a two-and-one-half-
page report concluding that defendant was sane at the time of the crime and
was competent to stand trial. No tests were administered; rather, Dr.
Robbins relied on IQ tests that had previously been given to defendant.
In the report, Dr. Robbins noted that (1) defendant was a "poor
historian as far as dates" but was clear regarding his actions the day of
the crime; (2) his borderline intellect did not prevent him from under-
standing the difference between right and wrong; (3) his thinking appeared
normal with no signs of delusions; (4) he showed "low intellect" but was
able to calculate change; (5) his memory "was poor but he showed reasonable
short and long term memory"; (6) he was clear regarding the charges against
him and the consequences of being found guilty; (7) he understood who the
various members of the court were and he felt he could work with his
attorney; and (8) though not sophisticated, he understood the role of the
defense attorney. Based on these observations, contained in three para-
graphs, Dr. Robbins concluded defendant was sane at the time of the crime
and was competent to stand trial.
The competence hearing was very short, and almost all of Dr. Robbins'
testimony concerned the effect of defendant's alcohol problem on his sanity
or competence. The following is the entire testimony concerning whether
defendant's limited mental ability affected his competence to stand trial:
PROSECUTOR: Okay. Was there anything during your
examination of Mr. Ives which led you to
question his sanity or his ability to
understand these proceedings and his part
in them?
A: Mr. Ives has a borderline level I.Q. which puts him
above mental retardation but is considered
borderline. But I felt that Mr. Ives could clearly
understand right from wrong and be able to understand
the events that surrounded . . . the alleged offense.
Q: Did he speak to you of the details of the offense?
A: Yes. (FN8)
Q: And, in doing so, did you have information from The
Court as to the details of the offense as well?
A: I had police reports.
Q: Based on what Mr. Ives told you about the offense and
your reading of the police reports, did you have any
cause to think that Mr. Ives did not understand at
least what was set forth in the police reports?
A: I had none.
Q: Did Mr. Ives have an appreciation for the role of his
defense attorney?
A: He did.
Q: And did he have an appreciation for the role of The
Court in the process?
A: He did.
Q: Did he understand the reason why his other attorney
conflicted out of the case?
A: He did.
Q: Did he understand who the Judge was and the Judge's
function in relation to this case?
A: Yes.
Q: Did you have any reason to believe that Mr. Ives did
not understand the legal process?
A: No.
Q: Did you have any reason to believe that he did not
understand the charges and the consequences of those
charges?
A: No.
Q: Were you able to form an opinion as to whether or not
Mr. Ives was competent?
A: I did.
Q: And what is that opinion?
A: I felt that Mr. Ives was competent to stand trial.
There was no cross-examination by defense counsel regarding defendant's
mental limitations and their effect on his competence to stand trial. Based
on Dr. Robbins' report and testimony, the court concluded that "it seems
clear that the defendant is competent to stand trial."
Over five months later, at a status conference on July 12, 1991,
defense counsel expressed renewed concerns that defendant was incompetent to
stand trial. As a result of the conference, the court ordered Dr. Robbins
to examine defendant again and report back to the court as soon as possible.
Dr. Robbins examined defendant on July 15. Apparently, he made no report
other than responding to a telephone call by a court employee on July 16, at
which time he stated that defendant was still competent to stand trial.
On July 17, defense counsel filed a motion for a continuance to allow
time to have a full range of psychological testing performed on defendant.
In the motion, defense counsel stated that defendant did not appear to
comprehend instructions and advice from counsel fully; that he deferred to
third parties to make decisions, including whether to testify; and that he
did not appear to have the intelligence or memory to follow testimony at
trial or to be cross-examined. Noting that prior tests indicated defendant
had particularly weak verbal and memory skills, the defense attorney
questioned Dr. Robbins' prior conclusion that defendant was competent to
stand trial, stating that he felt putting defendant through a trial would be
"leading a lamb to slaughter."
The following day, defense counsel reiterated his concerns at a
hearing on his motion to continue. The court acknowledged that its own
concern over defendant's competence had led to its request for another
psychiatric examination. Nevertheless, after stating that Dr. Robbins
generally does not hesitate to say so when he thinks there is incompetence,
the court informed counsel that the doctor had again determined that
defendant was competent. According to the court, Dr. Robbins had informed a
court employee by telephone that "there was a continuing competence to stand
trial, even though there [are] the deficits, the cognitive ones we have
already talked about, and there is some confusion." The court continued,
"As far as that intellectual debt, he is not going to get dealt any more
cards in his lifetime and I don't know what could be done to improve it."
While acknowledging that it would be difficult for defendant to assist
defense counsel, the court concluded that defendant "is as competent as he
is ever going to be."
B.
The preceding facts demonstrate that there was never any in-depth
inquiry into whether defendant was competent to stand trial. As I stated in
my dissent in Lockwood, it is not enough that a defendant is oriented to
time and place and has some recollection of events surrounding the crime.
___ Vt. at ___, 632 A.2d at 666 (Johnson, J., dissenting) (citing Dusky v.
United States, 362 U.S. 402, 402 (1960) (per curiam)). Rather, the critical
inquiry is whether the defendant has the capacity to understand the nature
of the proceedings, to consult with counsel, and to assist counsel in
preparing a defense. Drope v. Missouri, 420 U.S. 162, 171 (1975). The
competence test approved by the United States Supreme Court and accepted in
most jurisdictions is whether the defendant "'has sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding -- and whether he has a rational as well as a factual
understanding of the proceedings against him.'" Dusky v. United States, 362 U.S. 402, 403 (1960) (per curiam).
The revised ABA Mental Health Standards also adopted this test and
recognized that incompetence to stand trial may arise from mental
retardation as well as mental illness. See ABA Mental Health Standard 7-
4.1(b), (c). As the commentary to that section notes, a determination of
competence under the Dusky test should be "functional," requiring "an
evaluation of a particular defendant's skills rather than a general
determination of that defendant's mental condition." Id., commentary at
173; see also Ellis & Luckasson, supra, at 455 (while presence or absence of
mental retardation may be significant in evaluating competence, "the
ultimate question is the actual ability of the individual defendant to
perform tasks required at trial"). Thus, in the case of a mentally retarded
defendant, both expert witnesses and courts "must inquire into the manner in
which the defendant's retardation impairs his ability to perform the
functions required of a competent defendant." Mickenberg, Competency to
Stand Trial and the Mentally Retarded Defendant: The Need for a Multi-
Disciplinary Solution to a Multi-Disciplinary Problem, 17 Cal. W.L. Rev.
365, 391 (1981).
Accordingly, medical health evaluators should address their diagnoses
to the effects of a mental deficiency upon the ability of a defendant to
perform the specific skills that define competence to stand trial. Id. at
381. Similarly, courts should insist not only on an evaluation of the
extent of the defendant's retardation, but also on a detailed description of
its effects on the defendant's cognitive abilities, and an explanation of
how these effects might impair the defendant's ability to participate in a
trial. Ellis & Luckasson, supra, at 457. "Only this kind of detailed,
nonconclusory testimony will allow the court itself to retain the ultimate
decision on competence rather than merely deferring the decision to
evaluators whose expertise does not extend to the nature of the trial
process." Id.
Regrettably, the facts of this case illustrate every recognized mistake
made by health evaluators and courts in determining competence. First,
neither in his report nor at the competence hearing did Dr. Robbins provide
detailed information concerning defendant's mental limitations or what
effect those limitations might have on specific abilities needed to stand
trial. See State v. Bennett, 345 So. 2d 1129, 1138 (La. 1977) (conclusory
reports by evaluators that defendant was able to assist counsel were not
entitled to reliance by the court absent supporting information, which was
lacking at the hearing). Indeed, some of the comments in Dr. Robbins'
report -- that defendant is a poor historian regarding dates and has a poor
memory -- suggest defendant's mental limitations might affect his ability
to stand trial. See State v. Hamilton, 373 So. 2d 179, 183 (La. 1979)
(doctor's description of mentally retarded defendant as a "bad historian"
was significant because defendant would have to reconstruct past events and
aid defense counsel in finding witnesses); Mickenberg, supra, at 393
(mentally retarded persons often have difficulty recalling numbers,
addresses, dates and times, which could have significant impact on trial
competency skills).
Second, the court accepted the evaluator's conclusory report and
testimony without further inquiry based, for the most part, on its
confidence in the evaluator. In effect, the court improperly deferred the
competence decision to the evaluator. See State v. Weber, 364 So. 2d 952,
957 (La. 1978) (court appears to have based its competence ruling on
acceptance of experts' conclusions rather than examination of relevant
factors; only court, not doctor, is qualified to make competence ruling);
State v. Bennett, 345 So. 2d at 1137 ("trial court may not rely so
extensively upon medical testimony as to commit the ultimate decision of
competency to the physician"). Further, the court accepted Dr. Robbins'
subsequent evaluation based on an oral statement made to a court employee
rather than on court testimony or a written report admitted into evidence.
Cf. Jones v. State, 372 A.2d 1064, 1067 (Md. 1977) (court violated statute
by resting its determination of competence on matters outside record).
Third, the court's statement that defendant "is as competent as he is
ever going to be" suggests that it based its competence ruling, in part, on
the fact that, unlike a mentally ill person, defendant's ability to stand
trial could not improve over time and, therefore, defendant would be immune
to trial. Setting aside the issue of whether this assumption is true, it is
clearly the wrong standard to apply in determining competence. The primary
issue is not whether the defendant may be competent at some point in the
future, but rather whether the defendant possesses the cognitive skills
necessary to stand trial at that point in time. The court's statement is
another example of how courts in general tend to focus on mental illness and
sanity and ignore mental retardation. See Lockwood, ___ Vt. at ___, 632 A.2d at 673 (Johnson, J., dissenting).
Finally, the court erred by not holding another competency hearing. I
believe both our statutory law and due process required a renewed hearing.
See 13 V.S.A. { 4817. Section 4817 provides that an evidentiary hearing
"shall be held" if an accused or an attorney acting on behalf of the accused
raises at any time before trial the issue of whether the accused is
competent to stand trial. Certainly, a hearing was required here where
defense counsel stated that defendant's passivity and limited communication
skills and intellect prevented effective communication with defendant.
In affirming the trial court's denial of defendant's request for a
continuance and further psychological testing in order to reexamine his
competence to stand trial, the majority states that defendant failed to
provide new evidence of his incompetence at a hearing on his motion for
another competency hearing, that further psychological testing was
unnecessary considering that defense counsel had abandoned an insanity
defense, and that there was no prejudicial error because defendant received
"a vigorous and competent defense." The first response misses the point,
which is that defendant never got a second competency hearing. Rather, the
day after he filed his motion to continue, he got a hearing to determine if
he would get a continuance for further testing. The hearing did not include
any witnesses or evidence regarding competence, apart from the trial court's
statement that Dr. Robbins had informed a court employee that defendant was
still competent. See Blunt v. United States, 389 F.2d 545, 547 (D.C. Cir.
1967) (at minimum, competence hearing must give parties opportunity to
examine all witnesses who testify or report on accused's competence). Thus,
the court denied defendant the opportunity to obtain additional evidence
regarding his competence through further psychological testing, and now the
majority states he was not entitled to another hearing because he did not
present new evidence of his incompetence at a hearing in which he sought
further testing.
The majority's other two responses make no sense to me. The fact that
defense counsel would not be employing an insanity defense is irrelevant.
Defense counsel wanted psychological testing to determine whether defendant
was competent to stand trial, not to determine whether he was sane at the
time of the offense.(FN9) Finally, defendant did not receive a vigorous and
competent defense, at least with respect to the issues raised on appeal, as
exemplified by defense counsel's failure to explore, either by expert
testimony or cross-examination, defendant's cognitive limitations and their
effect on his ability to stand trial.
Apart from the statute, due process required a second hearing. When
there is evidence that raises a bona fide doubt as to competence, the court
is required to hold an evidentiary hearing. Pate v. Robinson, 383 U.S. 375, 385 (1966); see also Silverstein v. Henderson, 706 F.2d 361, 369 (2d
Cir.) ("trial court must order a hearing when there is 'reasonable ground'
for believing that the defendant may be incompetent"), cert. denied, 464 U.S. 864 (1983); Hill v. State, 473 So. 2d 1253, 1256 (Fla. 1985) (same).
The ABA Mental Health Standards recommend that courts conduct an evidentiary
hearing "[i]n every case in which a good faith doubt of the defendant's
competence to stand trial has been raised." ABA Mental Health Standard 7-
4.7. The commentary to Standard 7-4.7 recommends that a hearing be deemed
an "absolute right" when competence is at issue. Id., commentary at 203.
Here, defense counsel's statements regarding defendant's passivity and
limited communication skills, combined with information concerning prior
evaluations, created more than a reasonable doubt about defendant's
competence to stand trial. Indeed, the court itself recognized this fact,
which prompted the second evaluation. See Beans v. Black, 605 F. Supp. 342,
345 (D. Neb. 1984) (fact that judge ordered psychiatric evaluation may be
enough to establish sufficient doubt regarding competence to require hearing
under Robinson), aff'd, 757 F.2d 933 (8th Cir.), cert. denied, 474 U.S. 979
(1985). Although the trial court does have discretion whether to hold a
competence hearing, State v. Welch, 159 Vt. 272, 277, 617 A.2d 427, 430
(1992), compelling due process concerns require that we examine the record
carefully to determine if the court abused its discretion, State v. Weber,
364 So. 2d at 957. A careful review of the record here leaves little doubt
that the court abused its discretion in ruling, without a hearing and based
on a telephone call from the evaluator, that a mentally retarded defendant
was competent to stand trial.
IV.
As in Lockwood, my principal concern here is with fundamental
constitutional values, not mere technicalities. The task of the judiciary
is to assure that justice is done. In cases such as this, where the facts
are contested, an essential prerequisite to the dispensation of justice is
the accurate reconstruction of a past event -- in other words, ascertainment
of the truth. This, in turn, demands that we employ procedures that are
most likely to aid in the search for truth, and that we reject those that
are more likely to lead the search astray.
Confessions and other inculpatory statements in criminal trials have,
for very obvious reasons, a powerfully persuasive effect on the jury. It is
especially important, therefore, that the rules regarding the admissibility
of such statements be designed to screen out those that are the products of
mistake, misunderstanding, coercion, confusion, or self-delusion. The law
must, if it is to be sensitive to these matters, take careful account of the
cognitive and intellectual capabilities of persons whose inculpatory
statements are to be put in evidence against them. Otherwise, there is a
grave danger of convicting the innocent.
I fully recognize that it is neither easy nor expedient to implement
procedures that will effectively safeguard the rights and dignity of
defendants of limited mental abilities. But it is also the integrity and
dignity of the judicial system itself that is at stake here, for the system
will be judged more on its treatment of the least of us than on its
efficiency in dealing with everyone else. By this measure, today's decision
falls short of the ideals to which we should aspire.
I would suppress defendant's inculpatory statement and reverse the
conviction. I would remand the case for a new competence hearing and for a
new trial, if defendant is found competent.
______________________________________
Denise R. Johnson, Associate Justice
----------------------------------------------------------------------------
Footnotes
FN1. In State v. Lockwood, ___ Vt. ___, 632 A.2d 655 (1993) (Johnson, J.,
dissenting), I dissented from the majority's holding that a finding of
competence to stand trial made two years earlier was sufficient to show that
a mentally retarded defendant was competent to plead guilty, enter into a
probation warrant with restrictive conditions, and participate in a
probation revocation hearing resulting from alleged violations of conditions
of release.
FN2. Mental retardation is defined as a fundamental difficulty in learning
and performing certain daily life skills because of limitations in
conceptual capabilities and practical and social intelligence. American
Association on Mental Retardation, Mental Retardation: Definition,
Classification, and Systems of Support, 5 (9th ed. 1992). It is
characterized by "significantly subaverage intellectual functioning," which
is defined as an IQ standard score of "approximately 70 to 75 or below,"
with a 3-to-5-point deviation. Id. at 5, 37. The existence of intellectual
limitations of this degree is "a necessary but not sufficient" condition of
mental retardation. Id. at 14. Mental retardation occurs only when the
intellectual limitations have an impact on coping or adaptive skills. Id.
at 14-15. "Mildly" retarded persons generally have IQ scores ranging from
55 to 70, with a measurement error of approximately five points depending on
the test. Note, Constitutional Protection of Confessions Made by Mentally
Retarded Defendants, 14 Amer. J.L. & Med. 431, 440-41 & n.80 (1989); Ellis &
Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414,
422-23 (1985).
FN3. The district court concluded that because the State did not introduce
evidence that defendant was literate, and the transcript did not establish
that defendant was adequately advised orally as to what his signature on the
written waiver form meant, the written form could not be relied on to show a
knowing and intelligent waiver. Given this fact, and the fact that the
transcript indicates defendant did not understand that he had a right to
counsel at state expense, defendant did not waive his right to counsel under
the Public Defender Act, and his statements should have been suppressed on
that ground. See State v. Caron, 155 Vt. 492, 511-12, 586 A.2d 1127, 1138-
39 (1990) (13 V.S.A. { 5237 requires that waiver of right of needy person to
be represented by counsel at public expense must be made by defendant in
writing).
FN4. The court had already found defendant competent to stand trial, but
such a finding does not necessarily indicate that defendant had the ability
to knowingly and intelligently waive his constitutional rights. Cf. Godinez
v. Moran, 113 S. Ct. 2680, 2687 (1993) (finding that defendant is competent
to stand trial "is not all that is necessary before he may be permitted to
plead guilty or waive his right to counsel").
FN5. One of the cases cited by the majority in support of this
proposition is In re Robinson, No. 93-174, slip op. at 6-7 (Vt. Apr. 15,
1994), where we held that a schizophrenic defendant's unresponsive utterance
was admissible because there was no showing that the utterance was
involuntary as a result of his illness. Robinson is inapposite because it
involved a defendant who suffered from an episodic mental illness rather
than a limited intellect. See State v. Lockwood, ___ Vt. at ___, 632 A.2d
at 668 (Johnson, J., dissenting) (distinguishing between mental illness and
mental retardation). In Robinson it was unclear to what extent defendant
was affected by his illness at the time he uttered the statement, but here
we know that Bruce Ives' was mentally retarded at the time he was
interrogated.
FN6. I repeat the caveat I stated in Lockwood, ___ Vt. at ___ n.9, 632 A.2d at 668 n.9, that persons with mental retardation are susceptible to
being regarded in stereotypical terms. Nevertheless, "some characteristics
occur with such frequency as to warrant certain limited generalizations."
Id. (quoting Ellis & Luckasson, supra, at 427).
FN7. Ellis and Luckasson point out that most mentally retarded persons
will not understand one or more of the abstract concepts that underlie the
Miranda warnings. See Ellis & Luckasson, supra, at 448. According to the
authors,
The concepts of what "rights" are, what it means to give them up
voluntarily, the notion of the ability to refuse to answer
questions asked by a person of great authority, the concepts of
the subsequent use of incriminating statements, the right to
counsel and the right to have the state pay for that counsel, and
the idea that the suspect can delay answering questions until a
lawyer arrives are all of some abstraction and difficulty.
Id.
FN8. The questioning implies that defendant admitted the offense in
discussion with the psychiatrist. Defendant has not admitted the offense
and has continued to maintain his innocence after conviction.
FN9. The majority also points out that the statute refers to an evaluation
and report to be submitted by an examining psychiatrist, not a psychologist.
This is another indication of how the legal system fails to distinguish
between mentally ill and mentally retarded defendants. See Lockwood, ___
Vt. at ___, 632 A.2d at 668 (J. Johnson, dissenting). Given the historic
focus on mental illness rather than mental retardation, it is not surprising
that excessive reliance has been placed on psychiatrists to evaluate
mentally retarded defendants, even though psychiatrists themselves have
acknowledged the limitations of their expertise regarding mental
retardation. Ellis & Luckasson, supra, at 484-85. Indeed, psychiatrists
often have little understanding of the special needs and characteristics of
persons with mental retardation. Accordingly, the ABA Mental Health
Standards recognize that mental retardation professionals, including special
education teachers, speech and language pathologists, audiologists, physical
therapists, occupational therapists, and certain psychologists and clinical
social workers, may be quite helpful in evaluating a mentally retarded
defendant's ability to communicate, understand and learn. See ABA Mental
Health Standard 7-1.1, commentary at 7, and 7-3.12, commentary at 145; see
also Ellis & Luckasson, supra, at 485-86.
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