People v. Stephenson, 04CA1288.

• Citation: 165 P.3d 860
• Decision Date: 08 February 2007
• Docket Number: No. 04CA1288.,04CA1288.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dudley STEPHENSON, Defendant-Appellant.
• Court: Court of Appeals of Colorado

165 P.3d 860

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dudley STEPHENSON, Defendant-Appellant.

No. 04CA1288.

Colorado Court of Appeals, Div. V.

February 8, 2007.

As Modified on Denial of Rehearing June 14, 2007.

John W. Suthers, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Jonathan D. Reppucci, LLC, Jonathan D. Reppucci, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge FURMAN.

Defendant, Dudley Stephenson, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of second degree murder, felony murder, aggravated robbery, and related crimes of violence. We affirm.

I. Background

In January 1999, Stephenson was convicted of felony murder, aggravated robbery, and tampering with physical evidence. A division of this court reversed that judgment of conviction and remanded for a new trial. People v. Stephenson, 56 P.3d 1112 (Colo. App.2001).

On remand, he was retried and convicted of felony murder, second degree murder and an associated crime of violence, and aggravated robbery and an associated crime of violence. The evidence tampering charge was dismissed during trial. The trial court sentenced Stephenson to life in prison for felony murder, to twenty-four years for second degree murder, and to sixteen years for aggravated robbery, to be served concurrently.

According to the prosecution's evidence presented at the second trial, Stephenson and his wife decided to steal a car to move to California. They bought a gun through a classified advertisement and then located the victim, who was selling his truck through another classified ad. They contacted the victim and went to his house, feigning interest in purchasing the truck. As the victim handed Stephenson's wife some information, Stephenson fatally shot the victim in the chest.

Stephenson and his wife stole the victim's truck, drove to a nearby restaurant, and called Stephenson's mother to pick them up. Stephenson and his mother dropped his wife off at her mother's house, and then drove to his mother's house, where he washed his clothes and showered.

In the meantime, Stephenson's wife told her mother that someone had been shot, prompting her mother to call the police. When the police arrived, Stephenson's wife described the events, and the police located Stephenson at his mother's house. Stephenson told the police he knew why they were there and agreed to follow them to the police station, where he was interviewed and later arrested. While at the station, he gave a videotaped statement initially denying responsibility for shooting the victim, but later admitting it. He also admitted he cut his hand when the gun was fired.

In August 2003, Stephenson requested and was granted a competency evaluation, which was conducted at the Colorado Mental Health Institute at Pueblo. The doctor who completed the evaluation determined that Stephenson had "an excellent grasp of his current legal situation," was "aware of the consequences of his actions," and was competent to proceed.

At trial, Stephenson attempted to mitigate the crime from felony murder to second degree murder by arguing that he used force against the victim to eliminate him as a witness, not because he intended to steal the victim's truck.

II. Competency Proceedings

Stephenson first contends the "totality of the circumstances" raised doubts as to his competency, and the trial court erred in proceeding to trial without ordering a second competency examination and hearing. He further contends the trial court violated his right to due process of law by failing to consider his inability to participate in his defense and failing, sua sponte, to declare a mistrial. We disagree.

Putting a defendant on trial while he is incompetent violates his or her right to due process. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Jones v. Dist. Court, 617 P.2d 803 (Colo. 1980). A defendant is incompetent to stand trial if he or she is not capable of understanding the nature and course of the proceedings, cannot assist in the defense, or is incapable of cooperating with defense counsel. People v. Kilgore, 992 P.2d 661 (Colo. App.1999).

Here, on the second day of voir dire, Stephenson informed the court that he felt ill and was experiencing dizziness and blurred vision. He requested the court to waive his presence for the remainder of that day's proceedings. As the parties conferred with the trial court about this request, the prosecutor stated:

I feel duty-bound as an officer of the Court to inform the Court that I had a conversation with [the doctor], who did the competency evaluation in September of last year, who told me in so many words . . . that [Stephenson] is taking so many different medications that he's bound to be in an altered state of mind.

Defense counsel stated that this was the first time he had heard this information. The trial court suspended voir dire for two hours to allow counsel time to investigate this issue. Counsel agreed that two hours was "more than enough time."

Less than two hours later, defense counsel advised the trial court that Stephenson's psychiatrist was available to testify by phone. Outside the presence of the jury, the trial court took telephone testimony from the psychiatrist, Dr. McGrane, who stated that she had treated Stephenson for more than one year and that, based upon her observations, he was "cognitively very clear . . . and has been able, in [her] opinion, to make very clear judgments." Dr. McGrane expressed her opinion that any adjustments she made to Stephenson's medications would not affect his ability to think or make decisions.

The trial court took a recess to consider Dr. McGrane's testimony and the arguments of counsel, and upon reconvening, the court engaged in the following colloquy with Stephenson:

COURT: You also were present during the time that your psychiatrist, who is providing medical attention to you and treatment, testified by phone, correct?

STEPHENSON: Correct.

COURT: Did you understand all of the things that she was saying with regard to her observation of your treatment?

STEPHENSON: Yes. . . .

COURT: She indicated that you have been fully aware of and fully participating in that treatment. Do you believe that to be an accurate statement?

STEPHENSON: Yes, I do.

COURT: She also indicated that she believed . . . that even with all of the medications that you are taking, that you are fully competent and capable of making a knowing and intelligent decision with regard to whether to be present in court or not.

STEPHENSON: Yes.

COURT: Do you agree with that?

STEPHENSON: Yes, I do.

The trial court then made the following findings:

While questions have been raised relating back to the time of the competency evaluation concerning the number of medications that Mr. Stephenson is on, neither in that report nor in this subsequent inquiry by the Court has there been any evidence presented to the Court which would lead the Court to believe that he is not competent to understand the rights he has been advised of and to knowingly, voluntarily, and intelligently exercise his right to waive his presence.

In addition, Dr. McGrane conducted a mental status examination of Stephenson the following morning before trial started, and she then testified:

DR. McGRANE: I spoke with Mr. Stephenson this morning, and performed a brief mental status examination, and he appeared to be clear and coherent and made . . . I believe a well thought-out and considered decision not to be present in the courtroom, and appeared to have been able to consider the pros and cons of that decision.

COURT: Did you also evaluate his condition with regard to the medication and the . . . dizziness and blurred vision that he was experiencing?

DR. McGRANE: Yes. I did not think the medication was significantly affecting his cognition. In other words, I didn't think the medication was affecting the dizziness and blurred vision. It appeared as though that was a result of anxiety and was improving rather than causing the physical symptoms.

. . . .

PROSECUTOR: [D]o you have any concerns about Mr. Stephenson being competent, as you know it? I'm not asking you to be a forensic pathologist, but as you would understand competent, do you have any concerns about that?

DR. McGRANE: No, I don't.

. . . .

COURT: [Y]ou had previously indicated that you believed he was competent within the parameters of your expertise as a psychiatrist, although not forensic. And rather than asking do you have any concerns, I would ask what your opinion is with regard to Mr. Stephenson being competent to proceed, other than the impairment that you've just advised us of.

DR. McGRANE: Mr. Stephenson has expressed to me that he understands the nature of the proceedings, and we discussed this morning that he has discussed with his attorneys that he will be able to discuss on a daily basis what has gone on in court, and he will be able to be appraised of the nature of the progress of the case.

And my assessment is that he understands the charges against him and understands the case, and he appears cognitively intact. And I believe he is competent at this time.

COURT: Once again, understanding the limitation of not being forensic, but is this opinion based upon your history of treatment of him and as well as today's observation of him?

DR. McGRANE: Yes, Your Honor.

COURT: And so you've talked to him throughout the approximate one year that you've been treating him from time to time about his proceedings and how he's feeling as it related to the medications that you've determined to be appropriate?

DR. McGRANE: Yes, Your Honor. And the fact that he is capable of understanding what's going on, that our discussions indicate that he is logical, clear, and coherent during those discussions, and that he understands his treatment and is able to make logical discussions about...