May v. State

• Decision Date: 03 June 1981
• Docket Number: No. 52543,52543
• Citation: 398 So.2d 1331
• Parties: Robert Earl MAY, Jr., alias Bubba May, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1331

398 So.2d 1331

Robert Earl MAY, Jr., alias Bubba May, Jr. v. STATE of Mississippi.

No. 52543.

Supreme Court of Mississippi.

June 3, 1981.

Mary C. Henkel, Ronald Reid Welch, Jackson, for appellant.

Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

LEE, Justice, for the Court:

Robert Earl May, Jr. (Bubba May) was jointly indicted in the Circuit Court of Lincoln County with Ernest Earl Toliver, Lawrence E. Williams, and Bob Henry Terrell for armed robbery. Appellant's accomplices pled guilty and received twelve-year sentences. A jury found appellant guilty but did not fix sentence. The trial judge, Honorable Joe N. Pigott, sentenced May to twelve (12) years with the Mississippi Department of Corrections, and May has appealed, assigning fourteen (14) errors in the trial below. For purposes of appeal, they are consolidated into three (3) broad contentions, which will be discussed hereinafter.

On December 26, 1978, four (4) black males, one of whom was armed with a shotgun, robbed Mark Malone, proprietor of a fireworks stand in Lincoln County. Two (2) of the robbers wore stocking masks and two (2) were barefaced. One (1) of the unmasked males, later identified as appellant, took a money box containing thirty-seven dollars ($37.00) and a pistol from Malone, and the four fled. Malone and a bystander pursued them, but failed to catch up with the robbers. However, they were successful in recovering the money box and its contents along the roadside. Shortly thereafter, having received a reliable tip, police officers ascertained the identity of the four males and arrested them. One of the four was appellant, a fourteen-year-old sixth grade dropout. The others were aged seventeen (17), eighteen (18) and twenty-five (25) years.

All four of the robbers entered pleas of guilty on January 17, 1979, and each was sentenced by the circuit judge to twelve (12) years in the custody of the Mississippi Department of Corrections. A great deal of public criticism resulted from appellant's sentence, due to his age, and on February 23, 1979, the court granted his motion to withdraw the guilty plea, entered a plea of not guilty for him, and released him on bond. Appellant's motion to transfer the cause to the Youth Court was overruled. Voluminous pretrial matters were filed and appellant's attorneys sought, and the court granted, a separate trial on appellant's competency to stand trial on the charge of armed robbery.

I.

Was the verdict of the jury on competency to stand trial manifestly against the weight of credible evidence and the result of bias, prejudice and/or fraud?

Appellant contends that he was not competent to stand trial on the armed robbery charge. A jury was impaneled and a two-day competency hearing was held. At the conclusion of the hearing, the jury returned the following verdict:

"We, the jury, find that the defendant is now mentally competent to conduct a rational defense in this case."

"Competent to stand trial" has been defined in Mississippi as requiring the defendant to be able to make a rational defense in that he show ability to intelligently confer with counsel about facts of the crime. Hawie v. State, 125 Miss. 589, 88 So. 167 (1921).

In Jaquith v. Beckwith, 248 Miss. 491, 157 So.2d 403 (1963), the Court said:

"(T)he court is concerned with a defendant being physically and mentally able to confer with his counsel as to the merits of the case, and to testify as a witness in his own behalf. In short, he should be able to comprehend his position and to participate rationally in his defense." 248 Miss. at 499-500, 157 So.2d at 407.

See also Dushy v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), and Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

In applying the principle of law stated in the above cases, we examine the record to determine whether or not it reflects that appellant, at the time of the competency hearing, understood the charges against him and possessed the ability to rationally confer with his counsel and participate in the preparation of his defense. The appellant called seven (7) witnesses to prove his incompetency to stand trial.

Dr. Michael Whiddon, Ph.D., an independent criminal psychologist and director of clinical services for the Department of Corrections, testified that appellant had an IQ of 70 and that he was a borderline retardate. He felt that appellant was not competent to stand trial as an adult. However, Dr. Whiddon stated in a letter dated September 5, 1979, that "No comment will be made concerning May's understanding of right and wrong or his ability to contribute to his defense. This type of evaluation was not done...." He further testified:

"BY MR. KITCHENS:

Q. Doctor, you said he didn't know what the defenses were and I just wanted to see if you knew, so you would know whether he was telling you right or not?

A. I understand.

Q. What are the defenses?

A. The defenses that I am aware of, at that time, for example, would include an appeal. Does he have the opportunity for an appeal?

Q. Yes, sir?

A. And I think that was one of the options most widely used by people who come to the penitentiary, so in the context that we were working, that is the first thing I wanted him to know if he understood the appeal process.

Q. Doctor, I'm not implying that you didn't ask him the right questions for his situation at that time, but the truth is, isn't it, that you were not dealing with him to determine whether he could stand trial or whether he was mentally competent to stand trial because you were not expecting him to stand trial, were you?

A. That's correct. That is not the question I was trying to answer.

Q. I don't mean to suggest that you were not doing your job properly at the time, but the context in which you were asking him these questions was quite different from the context in which you have been questioned today concerning his competency to stand trial, am I not right?

A. Yes, sir."

Miss Julie Epps, May's attorney from February, 1979, to her withdrawal on the date of the competency hearing, testified that appellant could not rationally confer with her about choices which he had, that he was unable to concentrate for more than fifteen (15) or so minutes, that he would go to sleep during her discussions with him and at times would suck his thumb. It was her opinion that appellant could not make necessary decisions in order for her to defend him and that he was not competent to stand trial. She admitted that appellant signed a retainer form expressing his wish that she and Mr. Ron Welch, attorney, represent him, that she would not permit him to sign Rita Grace, speech pathologist and Director of the Communications Disorder Department at the Hudspeth State Mental Retardation Center at Whitfield, testified that, in January, 1980, she evaluated appellant, who had been referred to her by one Jackie Fleming of the Jump Street Program ¹ for evaluation in the school placement program. He scored at the fourth month-fourth grade level in mathematics, at the third month-third grade level in reading recognition, and at the eighth month-third grade level in reading comprehension, spelling and general information. She gave no opinion as to May's competency to stand trial.

something he did not understand, that appellant waived the privilege, that she represented appellant when he withdrew his guilty plea and she stated to the circuit judge at that time appellant knew and understood what he was doing.

Deborah Lovell, associate psychologist at Hudspeth, testified that on January 8, 1980, she administered psychological tests to appellant, and, according to the composite evaluation, appellant was "functioning in the borderline of measured intelligence with receptive vocabulary being in the mild retardation range." She expressed no opinion as to May's competency to stand trial.

Jacqueline Fleming, director of the Jump Street Program for Mentally Retarded Juvenile Offenders, located at the Hudspeth Retardation Center, testified that "Our basic requirements are that the kid be mentally retarded, which means that his action score is ranging between 50 and 75." A child who did not meet this score could not be admitted to the program. She said, "Now I think he is more able to communicate with his attorneys. He understands a little bit about what is happening, although I'm not sure he understands the total picture, because ... I don't." Mrs. Fleming expressed no opinion as to appellant's mental competency to stand trial.

Minnie Dallas, appellant's special education classroom teacher at Hudspeth since July, 1979, testified that May was presently functioning at the age level of an 8-year-old, and that he was doing very well in math and pretty good in both language and spelling, and was improving. She would give no opinion as to whether or not appellant "... fully understands the courtroom process ... to make decisions about such things as waiver of rights and legal rights ... because I don't know them myself."

Dr. Beth Wildman, Ph.D., a licensed psychologist, originator and former director of the Jump Street Program, and consulting psychologist to Hudspeth, testified that she had observed appellant in her capacity as consultant over a period of one (1) year. She was of the opinion that he is functioning as a ten or eleven-year-old, cannot understand the range of possible verdicts, cannot make a decision, cannot testify meaningfully in his own defense, and was not competent to stand trial because he could not understand the proceedings nor could he be involved in decisions. On cross-examination, Dr. Wildman testified that she did not do competency testing as a routine part of her work and that testing at Hudspeth was not designed to determine whether May was competent to stand trial, but to test him for educational placement and planning....