Jones v. District Court In and For Twenty-first Judicial Dist.

• Decision Date: 29 September 1980
• Docket Number: No. 80SA315,TWENTY-FIRST,80SA315
• Citation: 617 P.2d 803
• Parties: Nicholas James JONES, Petitioner, v. The DISTRICT COURT IN AND FOR theJUDICIAL DISTRICT and theHonorable James J. Carter, one of the Judges thereof, Respondent.
• Court: Colorado Supreme Court

Page 803

617 P.2d 803

Nicholas James JONES, Petitioner, v. The DISTRICT COURT IN AND FOR the TWENTY-FIRST JUDICIAL DISTRICT and theHonorable James J. Carter, one of the Judges thereof, Respondent.

No. 80SA315.

Supreme Court of Colorado, En Banc.

Sept. 29, 1980.

J. Gregory Walta, State Public Defender, Craig L. Truman, Chief Deputy Public Defender, Ilene P. Buchalter, Nick R. Massaro, Deputy State Public Defenders, Denver, for petitioner.

Terrance Farina, Dist. Atty., James R. Alvillar, Chief Deputy Dist. Atty., Elizabeth K. Jordan, Deputy Dist. Atty., Grand Junction, for respondents.

Lawrence J. Schoenwald, Denver, for amicus curiae Colorado Criminal Defense Bar, Inc.

QUINN, Justice.

The petitioner-defendant, Nicholas James Jones (petitioner), filed this original proceeding seeking prohibitory relief under C.A.R. 21. He protests the rulings of the respondent court in requiring his attorney to argue pending motions on capital punishment-issues in the face of the petitioner's claimed incompetency and in refusing to order a competency examination or make further inquiry into his mental state under section 16-8-111(1), C.R.S. 1973 (now in 1978 Repl. Vol. 8). We issued a rule to show cause and now make the rule absolute.

The petitioner is charged in the district court with felony-murder, section 18-3-102(1)(b), C.R.S. 1973 (1978 Repl. Vol. 8), and aggravated robbery, section 18-4-302, C.R.S. 1973 (1978 Repl. Vol. 8). He pled not guilty and the case was set for a jury trial commencing on July 28, 1980. The petitioner filed motions to strike the death penalty from the jury's consideration because of its alleged unconstitutionality, and to preclude the prosecution from qualifying the jury for capital punishment. These motions were set for hearing on July 3, 1980. Immediately prior to the commencement of the hearing, the petitioner's attorney filed a motion to suspend the hearing pending a competency examination of petitioner at the Colorado State Hospital. Petitioner's attorney stated to the court that petitioner was unable to assist in his defense and had manifested a deteriorating mental condition which, in the attorney's opinion, required a temporary suspension of proceedings until a psychiatric examination could be conducted. ¹ The court denied the motion to suspend proceedings, refused to order a psychiatric examination, and made a preliminary finding that the petitioner was competent. The preliminary finding was not supported by any psychiatric report or other facts appearing of record. The court did not designate a period within which petitioner could request a statutory hearing on a final determination of competency as provided in section 16-8-111(2), C.R.S. 1973 (now in 1978 Repl. Vol. 8). Upon the summary denial of the request for a psychiatric examination, petitioner's attorney offered to be sworn to testify about the petitioner's mental condition. The court rejected the offer and ordered the attorney to "proceed to a determination of the motions or suffer the adverse consequences." ² Thereupon, the petitioner successfully petitioned this court for a rule to show cause and a stay of pending proceedings.

The respondent argues that since the petitioner's attorney requested a determination of his client's incompetency, the petitioner had the burden of establishing incompetency in the first instance and, in the absence of evidence of incompetency, the respondent court properly made a determination of competency. ³ This argument, however, misconstrues the nature of petitioner's initial request on July 3, 1980, when the issue of competency was first raised. The petitioner's attorney on that occasion requested the respondent to suspend the proceedings pending a determination of competency and to order a competency examination by a psychiatrist. ⁴ Petitioner's attorney was not requesting a determination of the competency issue instanter. Rather, he relied on section 16-8-111(1), C.R.S. 1973, which authorizes a competency examination if the court "feels that the information available to it is inadequate for making such (a preliminary) finding." The proper inquiry in this original proceeding, therefore, is whether, under the circumstances of this case, the respondent court exceeded its jurisdiction or abused its discretion when it entered forthwith a preliminary finding of competency without setting a time within which petitioner could request a statutory hearing on a final determination of competency, ordered petitioner's attorney to argue the motions on capital punishment or suffer their denial, and denied his request for a competency examination. See generally McDonald v. District Court, 195 Colo. 159, 576 P.2d 169 (1978); Hunter v. District Court, 190 Colo. 48, 543 P.2d 1265 (1975); Maestas v. District Court, 189 Colo. 443, 541 P.2d 889 (1975); People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974); People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). We conclude that the actions of the respondent court were in excess of its jurisdiction and constituted an abuse of its discretion. Accordingly, prohibitory relief is necessary to prevent any future miscarriage of justice implicit in requiring an arguably incompetent defendant to proceed to trial on a capital offense.

I.

A person is incompetent to proceed when he "is suffering from a mental disease or defect which renders him incapable of understanding the nature and course of the proceedings against him or of participating or assisting in his defense or cooperating with his defense counsel." Section 16-8-102(3), C.R.S. 1973 (now in 1978 Repl. Vol. 8). Putting an accused on trial while he is incompetent violates due process of law. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); United States v. Masthers, 539 F.2d 721 (D.C.Cir. 1976). Similarly, due process is violated when a trial court refuses to accord an accused an adequate hearing on his claimed incompetency to stand trial. Pate v. Robinson, supra ; Davis v. State of Alabama, 545 F.2d 460 (5th Cir. 1977); cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). These principles are so basic to the concept of fundamental fairness that a claim of incompetence to stand trial on the issue of guilt cannot be waived. Drope v. Missouri, supra; Pate v. Robinson, supra; Davis v. State of Alabama, supra. In short, an incompetent person cannot be tried until that condition has abated. Parks v. District Court, 180 Colo. 202, 503 P.2d 1029 (1972).

Our statutory procedures provide safeguards to insure against the prosecution of an incompetent defendant. Section 16-8-101 et seq., C.R.S. 1973 (1978 Repl. Vol. 8); Parks v. District Court, supra. Section 16-8-110(2), C.R.S. 1973 (1978 Repl. Vol. 8), provides that the issue of competency may be raised by defense counsel, the prosecutor, or the court. And when a doubt is entertained about the mental competence of an accused, both the court and counsel are duty bound to raise the issue and seek a reliable determination of it before further proceedings are held. Parks v. District Court, supra. The question of competency may be raised at any time and, if possible, it should be brought to the court's attention prior to the commencement of a particular proceeding. Section 16-8-110(2)(b), C.R.S. 1973 (1978 Repl. Vol. 8); see Schwader v. District Court, 172 Colo. 474, 474 P.2d 607 (1970). When the issue is raised, section 16-8-111(1), C.R.S. 1973, requires a two-phased procedure involving a preliminary finding and a final determination. If the court believes that the information is inadequate for a preliminary finding, it has two alternatives. It may either order a competency examination or such other investigation as it deems advisable; or it may make a preliminary finding without an examination or additional investigation. Section 16-8-111(1), C.R.S. 1973. In either instance, section 16-8-111(2), C.R.S. 1973, outlines the procedures after the preliminary finding is made:

"The court shall immediately notify the prosecuting attorney and defense counsel of the preliminary finding. If neither the prosecuting attorney nor defense counsel requests, in writing, a hearing within a time limit set by the court, the preliminary finding becomes a final determination. Upon the timely written request of either the prosecuting attorney or defense counsel, the court shall hold a hearing and may commit the defendant for a competency examination prior to the hearing if adequate psychiatric information is not already available. At the conclusion of the hearing, the court shall make a final determination. Upon the request of either party, the judge shall set the matter for hearing before another judge. At any hearing held pursuant to this subsection (2), the burden of submitting evidence and the burden of proof by a preponderance of the evidence are upon the party asserting the incompetency of the defendant."

II.

In this case the respondent court exceeded its jurisdiction when it made a preliminary finding of competency and simultaneously ordered the petitioner's attorney to present his motions on the capital punishment-issues without affording the petitioner the opportunity, within a time designated by the court, to request a statutory hearing on a final determination of competency in accordance with section 16-8-111(2), C.R.S. 1973. The respondent court's peremptory finding of competency and disregard of statutory procedures resulted from an erroneous view that the petitioner's competency was immaterial to the pre-trial stages of the case and could be raised "only at trial, sentencing or execution ...."

The prohibition against prosecuting an incompetent defendant is not restricted to the trial and post-trial stages of the case. E. g., Parks v. District Court, supra, (competency raised and determined before sanity trial); Gomez v. District Court, 179 Colo. 299, ...