Doggett v. Warden, Nevada State Prison, 9305

• Decision Date: 01 December 1977
• Docket Number: No. 9305,9305
• Citation: 572 P.2d 207,93 Nev. 591
• Parties: De Orval DOGGETT, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.
• Court: Nevada Supreme Court

Page 207

572 P.2d 207

93 Nev. 591

De Orval DOGGETT, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.

No. 9305.

Supreme Court of Nevada.

Dec. 1, 1977.

Rodlin Goff, State Public Defender, and J. Thomas Susich, Jr., Chief Deputy Public Defender, Carson City, for appellant.

Robert List, Atty. Gen., Carson City, William Macdonald, Dist. Atty., Winnemucca, for respondent.

OPINION

PER CURIAM:

This is an appeal from an order denying post-conviction relief on the ground that appellant had failed to establish his mental incompetence to stand trial.

1. The Facts.

In 1958, appellant, De Orval Doggett, was found guilty of first-degree murder and sentenced to life in prison without possibility of parole. The trial court denied defense counsel's motion for a new trial on the basis of newly discovered evidence regarding defendant's sanity. Appellant had failed to reveal until the trial was underway that he had previously been committed to a mental institution.

No appeal was taken from that judgment, but in 1973 appellant sought a writ of habeas corpus on the ground, among others not at issue here, that he had improperly been denied a hearing as to his competency to stand trial. A hearing on this petition was held before District Judge Llewellyn A. Young in December 1973. Appellant's original attorney testified that he had had considerable difficulty communicating with the defendant about his mental history, and that appellant had adamantly refused to allow an appeal on the issue of insanity, despite the attorney's advice.

Appellant's petition for a writ of habeas corpus was denied. This decision was appealed, and in 1975 this court ruled that appellant was entitled to an evidentiary hearing to establish by clear and convincing evidence that he was in fact incompetent to stand trial in 1958. Doggett v. State, 91 Nev. 768, 542 P.2d 1066 (1975).

Pursuant to this court's decision, a hearing on appellant's petition for post-conviction relief was held, again before Judge Young, to determine appellant's competency as of 1958. Upon the basis of the testimony of a psychiatrist and a psychologist, as well as the records extant of the 1958 and 1973 proceedings, Judge Young found that appellant had not met the burden of proving that he had been incompetent to stand trial in 1958. Appellant's petition was therefore denied.

On appeal, appellant challenges the denial of his petition on the grounds (1) that appellant did show by clear and convincing evidence that he was incompetent to stand trial in 1958 and (2) that requiring appellant to assume the burden of proving his incompetence to stand trial violates due process of law.

2. The Issues.

A. The Evidence.

The constitutional standard for determining a defendant's competence to stand trial is set forth in Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960), quoting the Solicitor General for the United States: "(T)he 'test must be (1) whether he has sufficient present ability to consult with his lawyer with a reasonable degree of factual understanding and (2) whether he has a rational as well as factual understanding of the proceedings against him.' " The Supreme Court held in Dusky that the evidence was insufficient to support a finding of competency by the trier of fact, despite ambiguous and conflicting testimony, where the judge had merely found that the defendant was " 'oriented to time and place' " and had " 'some recollection of events,' " again quoting the Solicitor General.362 U.S. at 402, 80 S.Ct. at 789.

The only testimony received at the evidentiary hearing was that of the psychiatrist and that of the psychologist, called by the appellant. Their testimony was far from conclusive. Both witnesses testified that appellant was suffering from paranoid schizophrenia. Dr. Robert G. Whittemore, the psychologist, testified that he was unable to say with certainty whether appellant was capable of assisting counsel at the time of his trial. In his written report to the court, moreover, he had concluded that "the psychosis which was probably present in 1958, did not in and of itself decrease the possibility that he (appellant) could aid in the conduct of his defense." When questioned by the court, he was unable to state what effect appellant's mental condition had had in his relations with his attorney. ¹

Dr. Thomas R. Stapleton, the psychiatrist, testified that he was 80% certain that the decisions of appellant not to reveal his history of mental illness to counsel until the trial was underway and not to pursue an appeal on the ground of incompetence were the result of appellant's mental illness. On the other hand, he conceded that there could have been a rational basis for appellant's decisions. ²

Any conflicts and inconsistencies within the testimony of individual witnesses are to be resolved by the fact-finding authority. Polito v. State, 71 Nev. 135, 282 P.2d 801 (1955). The findings will be sustained on appeal when there is substantial evidence to support them. Hunt v. State,92 Nev. 536, 554 P.2d 255 (1976). This rule is equally applicable in sanity determinations. Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964).

We conclude, therefore, that appellant has failed to prove by clear and convincing evidence his allegations of incompetency.

B. The Denial of Due Process.

Appellant does not contend that placing the burden of proof on defendant regarding the issue of sanity in itself violates due process.

In the recent case of Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Supreme Court reaffirmed its holding in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), ruling that states may require defendants to prove the affirmative defense of insanity beyond a reasonable doubt.

Appellant does contend, however, that the holding in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), compels a contrary result in this case. In Pate, the Court held that evidence before the trial court (uncontradicted testimony of defendant's long history of disturbed and violent episodes, including the slaying of his infant son and an attempted suicide) raised sufficient doubt as to defendant's competence to stand trial so as to require that the trial court afford him a competency hearing on its own motion.

What appellant fails to note is that this court in Doggett v. State, 91 Nev. 768, 542 P.2d 1066 (1975), did not hold that defendant had been denied his rights under Pate, but cited instead the case of Nathaniel v. Estelle, 493 F.2d 794 (5th Cir. 1974), in which the court pointed out that there are two distinct due process rights related to competency to stand trial. The first is the traditional right not to be tried or convicted while legally incompetent. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). The second, established in Pate, is the right to be accorded a competency hearing when sufficient evidence of incompetency is adduced before the trial court. Nathaniel v. Estelle, 493 F.2d at 797-798. It is only when the trial court has failed to follow the procedural requirements of Pate that the State is required to forego its usual requirement that the defendant establish his incompetence as of the date of the original trial.

In Doggett, 91 Nev. at 771-772, 542 P.2d at 1068, this court held that, although the evidence before the trial court in 1958 had not raised sufficient doubt as to ap...