Almond v. State

• Decision Date: 17 September 1986
• Docket Number: No. 72795,72795
• Citation: 349 S.E.2d 482,180 Ga.App. 475
• Parties: ALMOND v. The STATE.
• Court: Georgia Court of Appeals

Page 482

349 S.E.2d 482

180 Ga.App. 475

ALMOND v. The STATE.

No. 72795.

Court of Appeals of Georgia.

Sept. 17, 1986.

Rehearing Denied Oct. 8, 1986.

Certiorari Denied Nov. 26, 1986.

Cliff L. Jolliff, Gainesville, for appellant.

Bruce L. Udolf, Dist. Atty., William M. Brownell, Jr., Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

The defendant, Rowena Almond, a/k/a Rhonda Mann and Rowena Johnson, was charged with three counts of aggravated assault upon three police officers--two by the use of a knife, and one by the use of a pistol. She was acquitted of the assault with the pistol and found "guilty but mentally ill" of the remaining two assaults. After the trial started, it became apparent to the trial judge that an issue of competency of the defendant was raised by her conduct and her statements. She insisted upon acting as her attorney after advising the court she had been elected President of the United States (but refused to serve), was the present Commander-in-Chief of the CIA and the Treasury Department, was the head of Interpol, a judge in the secret service (and in that capacity had ordered the assassination of John Kennedy, Robert Kennedy, Jimmy Hoffa and President Reagan).

The court directed an immediate competency hearing, using the trial jury already impaneled, and ordered the State to assume the burden of proof. The district attorney called defendant's appointed attorney for "cross-examination." Ms. Almond objected, first on the ground that "[h]e is unqualified," and secondly that "[h]e would be the last person I would want to say anything about me." Defendant's counsel testified that he was an attorney, a member of the State Bar of Georgia, and was familiar with the incompetency standards. He said he had "consulted with [Almond] with regard to her case ... she understands what she is charged with and she understands the circumstances surrounding the arrest ... what happened that day, and I think she knows where we are and what is going on here." The State then called Almond's ex-husband who testified that Ms. Almond had been first hospitalized for mental illness in 1963 and had been seeing a psychiatrist for two years prior to that time. She has been hospitalized 30-40 times for mental problems. She has been delusional since the early 1960's. She is a chronic schizophrenic and has many delusions, e.g., head of the CIA, President of the U.S., that someone is trying to take her "body parts," and "these delusions seem to have more possession of her, dominate her activities and thinking, more gradually through the years."

Almond testified that she does have amnesia and there are gaps in her memory, but she has a better than average memory of the night of October 17th, the night of this incident. She called her husband to have the police pick her up. The police came out--38 of them, and they faked an assault. She disarmed 30 of them because she had heard people disguise themselves as police and kill other people, and she knew the Gainesville SWAT team was "going to get me" to prevent her from talking about the Reagan assassination attempt.

During the pre-charge conference on the competency hearing, Ms. Almond requested a sanity hearing but the court advised her "[t]his is a different question...." The court explained to the defendant that if she was found incompetent he was required to send her "to the Department of Human Resources.... ALMOND: They always kick me out in a few days. You have to have a legal charge.... I have to get a legal charge on me or they won't keep me." Almond's position was: "I don't claim that I'm not insane, I'm claiming that I'm not incompetent. I'm claiming that I'm the craziest person in the world, but I'm not incompetent." The jury found Almond competent and the trial proceeded. Almond was found guilty but mentally ill on two counts of aggravated assault and she brings this appeal. Held:

1. The purpose of a competency hearing is to determine the mental ability of the defendant, at the time of trial, to intelligently participate in his or her trial. Echols v. State, 149 Ga.App. 620, 621, 255 S.E.2d 92; OCGA § 17-7-130. A special problem is posed when the defendant insists upon acting as his or her counsel during a competency hearing. By definition, if the defendant is actually incompetent, he is not competent to defend himself. See Echols, supra. Here, there was sufficient indicia of incompetency to cause the trial court, sua sponte, to doubt the competency of the defendant. Under such circumstances, it is essential that the possibly incompetent defendant be represented, or fully assisted by competent counsel. However, in this instance, the State called the appointed counsel as the first witness against the defendant, on cross-examination, and proceeded to qualify defendant's counsel as to his expertise as a lawyer and his familiarity with the competency question. Following this base, the State extracted evidence from, and the opinion of, the defendant's appointed counsel, which had been gained during his representation of the defendant, that he had consulted with the defendant about this incident, and "she understands what she is charged with and she understands the circumstances surrounding the arrest ... what happened that day, and I think she knows where we are and what is going on here."

The issues posited by this procedure are twofold: (1) whether it is legally permissible for the State to call defendant's counsel as a witness for the purpose of extracting facts and counsel's opinion as to his client's competency, which is gained from his participation in the attorney-client relationship with the defendant, and (2) when the competency of a defendant is placed in issue, is it permissible to let a possibly incompetent defendant represent herself without the concurrent assistance of counsel?

Our Code, OCGA § 24-9-25, provides in pertinent part: "No attorney shall be competent or compellable to testify for or against his client to any matter or thing, the knowledge of which he may have acquired from his client by virtue of his employment as attorney...."

The American Bar Association, in its Standards Relating to the Administration of Criminal Justice, was concerned with the "lawyer's fiduciary position. He holds his client's information and interests in trust, and it is his obligation to act for the protection of those interests even at the expense of his own." Id. at 113. Our State Bar Rules & Regulations require preservation of the confidences and secrets of the client. " 'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be detrimental to the client." DR 4-101(A). A lawyer may reveal a confidence or secret of his client only with the consent of the client or when permitted by court order or the disciplinary rules. DR 4-101(B), (C). Hence, information gained through representation of a client is to be held in confidence and should not be used to the detriment of the client. "Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer." EC 7-12. In the same vein, where it is possible the defendant is incapable of making considered judgments, as in the instant case, additional responsibilities are cast upon the trial judge, particularly when such a defendant insists upon acting as his own counsel.

The evidence in the case at bar shows the defendant has been under psychiatric care for more than 20 years and hospitalized for the psychosis of schizophrenia on more than 30 occasions. The testimony of the ex-husband also established that defendant's current schizophrenia was of the paranoid type and chronic. The total absence of expert testimony as to the competency of this defendant, in view of the extensive history of incompetence and psychotic episodes, and under the bizarre circumstances of this incident which caused the trial judge, sua sponte, to call for an immediate competency hearing, also called for counsel to assist the accused at all times. However, the State called the defendant's only counsel as a witness against her, and left the possibly incompetent defendant to fend for herself. Although this issue has not been enumerated as error, we find it sufficiently similar to the type of egregious error proscribed in OCGA § 5-5-24(c) which permits the appellate court to consider substantial error which is harmful as a matter of law, regardless of whether objection was made. In essence, we view as fundamentally unfair and a denial of due process, any procedure which would deprive a possibly incompetent defendant of the full assistance of counsel, particularly during the hearing on defendant's incompetency, where the evidence was so compelling as to the issue of defendant's incompetency that the trial court sua sponte called the hearing. The U.S. Supreme Court, in Gideon v. Wainwright, 372 U.S. 335, 340, 83 S.Ct. 792, 794, 9 L.Ed.2d 799, held the Sixth Amendment right to counsel was "so fundamental and essential to a fair trial, and so, to due process of law, that it is made...