People v. Morino

• Decision Date: 07 May 1987
• Docket Number: No. 85CA1470,85CA1470
• Citation: 743 P.2d 49
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Deborah Jean MORINO, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 49

743 P.2d 49

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Deborah Jean MORINO, Defendant-Appellant.

No. 85CA1470.

Colorado Court of Appeals,

Div. III.

May 7, 1987.

Rehearing Denied June 4, 1987.

Certiorari Denied (Morino) Sept. 8, 1987.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David L. Saine, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Public Defender, Karen A. Chaney, Sp. Deputy Public Defender, Denver, for defendant-appellant.

CRISWELL, Judge.

Defendant appeals from the judgment of conviction of second degree forgery and conspiracy to commit the same. She claims that the trial court committed reversible error by failing to undertake a statutory competency determination and by refusing to impose certain discovery sanctions upon the prosecution. We affirm the judgment.

On the second morning of a two-day trial, defendant appeared late and explained her tardiness by stating that she had had problems obtaining medicine from the methadone clinic. Defense counsel then stated that he was not sure defendant was "competent to proceed" and moved for a continuance so that defendant could be examined by a physician. He explained that defendant was in a methadone treatment program and that her methadone dosage had been rapidly reduced within the previous two weeks. It was his "feeling," he said, that defendant was not in "any kind of physical ... or mental condition to proceed."

In response to the prosecution's objection that defense counsel had known about defendant's methadone treatment for several weeks but had raised no question respecting her competency prior to the commencement of trial, it was represented to the trial court that, while the problem had started the previous week, it had continued to develop during the trial. Counsel said that, as a "lay person," he had "some questions" and would like "some reassurance" upon the issue.

At this point, defendant herself interrupted the argument and, through counsel, specifically stated that she wanted to proceed with trial. Nevertheless, her counsel continued to object to proceeding further.

The trial court itself then questioned defendant, inquiring whether she understood what was happening and that she was on trial, and soliciting her wishes in the matter. After considering defendant's responses to its questions and her personal assurance that she understood the proceedings and wanted to continue the trial, the trial court continued with the trial without requiring further examination of defendant.

I.

Defendant's first claim is that the trial court's failure to follow the statutory procedures for determining competency set out at § 16-8-111, C.R.S. (1986 Repl.Vol. 8A), violated both that statute and constitutional due process requirements. We conclude, however, that no legitimate issue respecting defendant's competency was raised here; thus, it was not necessary for the trial court to initiate the statutory proceedings referred to.

The need to protect an accused from proceeding to trial while he is incompetent dictates that, once a "sufficient doubt" of competency has been raised, a court must observe procedures adequate to determine that question properly. Failure to do so violates due process requirements. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Jones v. District Court, 617 P.2d 803 (Colo.1980).

However, no definitive constitutional standard with respect to the "nature or quantum of evidence necessary to require resort to an adequate procedure" for determining competency has yet been promulgated. Drope v. Missouri, supra. Nevertheless, it is clear that constitutionally adequate standards are provided by statutes that require a competency hearing whenever evidence is presented which raises a "bona fide doubt" respecting the accused's competency. Drope v. Missouri, supra; Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

At the same time, it has been recognized that due process does not require courts to "accept without questioning a lawyer's representations concerning the competence of his client." Drope v. Missouri, supra. It is only when those representations, either alone or in conjunction with other evidence, raise a substantial issue of a defendant's competence that a court violates due process if it proceeds without determining the issue.

Section 16-8-110(2)(a), C.R.S. (1986 Repl.Vol. 8A), requires a judge to "suspend" any criminal proceeding whenever he "has reason to believe that the defendant is incompetent." The issue may be raised either by the prosecution or by the defense prior to the commencement of any proceeding, and may be raised after the commencement of such a proceeding, if it is demonstrated that the defendant's mental condition was not previously known or apparent. Section 16-8-110(2)(b), C.R.S. (1986 Repl.Vol. 8A).

If "the question of a defendant's incompetency to proceed is raised," the court must either make a preliminary finding and notify the parties of the time within which to request a hearing upon such preliminary finding, or order a competency examination. Section 16-8-111, C.R.S. (1986 Repl.Vol. 8A); See Jones v. District Court, supra; People v. Matthews, 662 P.2d 1108 (Colo.App.1983). Thus, if a defendant properly raises the question of his competency, the court must follow the appropriate statutory procedures, even if a particular proceeding has commenced. See People v. Arkadie, 692 P.2d 1145 (Colo.App.1984) (competency hearing requested on morning trial was scheduled to commence).

This case, however, raises the question, not hitherto directly passed upon, of the nature of the showing necessary to "raise the issue" of a defendant's competency after trial has commenced so that the pertinent statutory procedures become applicable.

Section 16-8-110(2)(a) requires a suspension of proceedings only in those instances in which the judge "has reason to believe" that the defendant is incompetent. From a constitutional standpoint, a studied hearing upon the issue is required whenever the trial court entertains a "bona fide doubt" of the defendant's competency. See Pate v. Robinson, supra; ABA, Standards for Criminal Justice, Standard 7-4.7 (1982). And, this latter standard has been applied under the Colorado statute. See Jones v. District Court, supra.

A defendant is competent to stand trial if he is capable of understanding the nature and course of the proceedings against him and of participating and assisting in his defense and cooperating with his defense counsel. Section 16-8-102(3), C.R.S. (1986 Repl.Vol. 8A). He must have a sufficient present ability to consult with his counsel with a reasonable degree of rational understanding, and a present rational and factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). See ABA, supra, Standard 7-4.1.

However, there is an initial presumption of competency and no defendant is entitled, as of right, to a competency examination or hearing merely by making a demand therefor, particularly if that demand is made only after the trial has commenced. The trial judge who, under such circumstances, has had the opportunity of observing defendant, his actions and general demeanor, has substantial discretion in determining whether an issue respecting his competency has been raised. See Maggio v. Fulford, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (trial judge's observations of defendant sufficient basis to reject statements from psychiatrist, in support of defendant's 11th hour request for competency examination); People v. Balfour, 148 Ill.App.3d 215, 101 Ill.Dec. 223, 498 N.E.2d 547 (1986) (matters which might raise bona fide doubt, in the absence of the trial court's observation of defendant at trial, may be insufficient to do so after the court has had opportunity to observe him); State v. Lloyd, 199 Conn. 359, 507 A.2d 992 (1986) (defendant, who failed to make specific factual allegations respecting his competency at the time of his sentencing hearing, failed to raise reasonable doubt upon issue); Brown v. State, 485 N.E.2d 108 (Ind.1985) (trial court, who observed defendant's demeanor on the witness stand, did not abuse its discretion...