State v. Berry

Decision Date03 December 1997
Docket NumberNo. 93-2592,93-2592
Citation686 N.E.2d 1097,80 Ohio St.3d 371
PartiesThe STATE of Ohio v. BERRY.
CourtOhio Supreme Court

Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor, Simon B. Karas, Deputy Chief Counsel, Sharon McClellan and Karl Wetzel, Assistant Attorneys General; Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and George J. Sadd, Assistant Prosecuting Attorney, urging allowance of the motion.

David H. Bodiker, Ohio Public Defender, Joseph E. Wilhelm, Appellate Supervisor, Death Penalty Division, and J. Joseph Bodine, Jr., Assistant Public Defender, urging denial of the motion.

PER CURIAM.

We have reviewed the record and considered the arguments of the state and the Public Defender. Based on our review, we find that Berry is competent to forgo all further reviews of his conviction and sentence.

I. Jurisdiction

The Public Defender argues that the Ohio Constitution gives us no jurisdiction to determine Berry's competence. Section 2(B)(1)(f), Article IV, Ohio Constitution, grants this court original jurisdiction "[i]n any cause on review as may be necessary to its complete determination." However, the Public Defender argues that, because this court has decided Berry's direct appeal, Berry's case is not presently a "cause on review" before this court.

State v. Steffen (1994), 70 Ohio St.3d 399, 639 N.E.2d 67, demonstrates that the term "cause on review" is not limited to cases currently pending on direct appeal. In Steffen, we issued an order prohibiting other Ohio courts from granting further stays of execution to ten condemned prisoners. Each of the ten had completed his direct appeal to this court and at least one motion for delayed reconsideration and/or reinstatement of his appeal. Nine had also completed one round of postconviction relief under R.C. 2953.21. Not one had any litigation then pending before this court. See 70 Ohio St.3d at 399-405, 639 N.E.2d at 69-72. In Steffen, we specifically cited Section 2(B)(1)(f) to support our exercise of jurisdiction, even though the capital cases were not then before us on appeal. Id. at 407-408, 639 N.E.2d at 74.

Similarly, we have regularly set execution dates and granted stays of execution well after issuing our mandate in capital appeals. 2 Were the Public Defender correct, we could do neither.

II. The Test of Competence: Rees v. Peyton

In Rees v. Peyton (1966), 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583, one Rees (a condemned prisoner) filed a petition for certiorari in the United States Supreme Court seeking review of a federal court judgment denying habeas corpus relief. Subsequently, Rees directed his counsel to withdraw the petition and forgo any further attacks on his conviction and sentence. Counsel had Rees examined by a psychiatrist, who concluded that Rees was incompetent.

The Supreme Court, while retaining jurisdiction over the cause, directed the federal district court to determine Rees's mental competence, framing the question as follows: "[W]hether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." 384 U.S. at 314, 86 S.Ct. at 1506, 16 L.Ed.2d at 584-585.

The Public Defender contends that under Rees, if there exists even a possibility that Berry's mental disorder has affected his decisionmaking capacity in any way and to any degree, this court must find him incompetent. See Rumbaugh v. Procunier (C.A.5, 1985), 753 F.2d 395, 405 (Goldberg, J., dissenting). We disagree.

If a mere possibility were enough to render a defendant incompetent, there would have been no need in Rees for a competency determination by the federal district court. Rees had been "examined by a psychiatrist who filed a detailed report concluding that Rees was mentally incompetent." 384 U.S. at 313, 86 S.Ct. at 1506, 16 L.Ed.2d at 584. Thus, before the decision in Rees, there was already a strong possibility that Rees's decision was substantially affected by his mental condition.

In Smith v. Armontrout (C.A.8, 1987), 812 F.2d 1050, the court expressly considered this issue. 3 The "next-friend petitioners" in that case, like the Public Defender here, focused on the word "may" in the second half of the Rees test. "Rees, they maintain, indicates through its use of the word 'may' that an inmate must be found incompetent where the evidence establishes even a mere possibility that a mental disorder substantially affected the decision." (Emphasis sic.) Id. at 1057.

The Smith court rejected that analysis:

"[T]he petitioner's literal interpretation of the half of the Rees test which asks whether the prisoner suffers from 'a mental disease, disorder, or defect which may substantially affect his capacity,' would conflict with a similarly literal interpretation of the other half of the test, which asks whether the prisoner has, rather than absolutely, certainly, or undoubtedly has, the capacity to appreciate his position and make a rational choice. Though Rees recites these two portions of the standard as disjunctive alternatives, there is necessarily an area of overlap between the category of cases in which at the threshold we see a possibility that a decision is substantially affected by a mental disorder, disease, or defect, and that of cases in which, after proceeding further, we conclude that the decision is in fact the product of a rational thought process.

"Furthermore, we think it very probable * * * that in every case where a death-row inmate elects to abandon further legal proceedings, there will be a possibility that the decision is the product of a mental disease, disorder, or defect. Yet, Rees clearly contemplates that competent waivers are possible * * * and there is little point in conducting a competency inquiry if a finding of incompetency is virtually a foregone conclusion." 812 F.2d at 1057.

We agree with the Smith court's analysis and therefore reject the notion that the bare possibility of a mental disorder's substantially affecting the condemned's decisionmaking capacity is enough to require a finding of incompetence. Ultimately, the question is not whether a defendant "may" lack the capacity to make a rational choice, but whether he in fact has that capacity.

As for the standard we enunciated earlier in this case, it is wholly consistent with Rees, and in fact reflects a more specific definition of the general terms used in Rees. Thus, in our view, a defendant "has capacity to appreciate his position," Rees, supra, if he understands the choice between life and death, see Franz v. State (1988), 296 Ark. 181, 189, 754 S.W.2d 839, 843; State v. Dodd (1992), 120 Wash.2d 1, 23, 838 P.2d 86, 97, and he fully comprehends the ramifications of his decision to waive further legal proceedings, see Cole v. State (1985), 101 Nev. 585, 588, 707 P.2d 545, 547. And a defendant has the capacity to "make a rational choice with respect to continuing or abandoning further litigation," Rees, supra, if he can make a voluntary, knowing, and intelligent decision, Franz, supra, at 189-190, 754 S.W.2d at 844; Dodd, supra, at 23, 838 P.2d at 97; and he has the "ability to reason logically," i.e., to choose "means which relate logically to his ends," see State v. Bailey (Del.Super.1986), 519 A.2d 132, 137-138.

In Whitmore v. Arkansas (1990), 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135, when a condemned prisoner refused to pursue an appeal to the state supreme court, the issue was whether a "next friend" could seek a writ of certiorari on his behalf from the United States Supreme Court. Whitmore held that the would-be "next friend" could not establish standing unless he could at least show that the prisoner "is unable to litigate his own cause due to mental incapacity * * * or other similar disability." Id. at 165, 110 S.Ct. at 1728, 109 L.Ed.2d at 151. Whitmore further held that a "next friend" may not proceed on a prisoner's behalf "where an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed, and his access to court is otherwise unimpeded." Id.

In Whitmore, the Arkansas trial court had held an evidentiary hearing and found the defendant to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence. See Simmons v. State (1989), 298 Ark. 193, 194, 766 S.W.2d 422, 423. That being so, the would-be "next friend" could not make the required showing of incapacity, and thus could not establish standing to litigate the prisoner's case against his will.

It appears, then, that the standard used to determine competence in Arkansas--capacity to understand the choice and to make a knowing and intelligent waiver--has been accepted by the United States Supreme Court. See Dodd, 120 Wash.2d at 22-23, 838 P.2d at 97, citing Whitmore, 495 U.S. at 165, 110 S.Ct. at 1728, 109 L.Ed.2d at 151-152; Grasso v. State (Okla.Crim.App.1993), 857 P.2d 802, 806. Cf. Gilmore v. Utah (1976), 429 U.S. 1012, 1013, 97 S.Ct. 436, 437, 50 L.Ed.2d 632, 633. 4

III. Berry's Mental Evaluations

Dr. Sharon L. Pearson conducted the most extensive interviews. She saw Berry three times during July and August 1995, not long after this court affirmed his convictions and sentence. Dr. Pearson spent 4.5 hours administering psychological tests, including the Minnesota Multiphasic Personality Inventory. She also interviewed Berry for a total of 7.5 additional hours. Finally, Dr. Pearson reviewed an impressive amount of background material on Berry's mental health history.

Dr. Pearson found in Berry symptoms of a "schizotypal personality disorder," a "rigid thought process," a tendency toward "extreme isolation and withdrawal," and a tendency to have...

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