State v. Burden
| Decision Date | 17 July 2020 |
| Docket Number | No. 116,810,116,810 |
| Citation | 467 P.3d 495 |
| Parties | STATE of Kansas, Appellee, v. Amber E. BURDEN, Appellant. |
| Court | Kansas Supreme Court |
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Kerwin L. Spencer, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
Amber Burden contends the district court judge erred by allowing her to represent herself because mental illness prevented her from meeting the mental competency standard of Indiana v. Edwards , 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008). We hold the district court did not err in allowing Burden to exercise her constitutional right of self-representation when the record does not establish that Burden suffers from a severe mental illness. We thus affirm her convictions.
This case arises from Burden's arrest for possession of marijuana, cocaine, and drug paraphernalia. The charges arose after Burden's ex-husband visited their daughter at school and the daughter showed him a glass marijuana pipe that she found in Burden's bedroom. The ex-husband told the school principal, who called police.
A law enforcement officer investigating the principal's report went to Burden's home and knocked on her door. She answered, and the officer entered and searched without a warrant or clearly granted consent. The first officer and others who responded found drug paraphernalia and small amounts of marijuana and cocaine. The officers arrested Burden, and the State later charged her with possession of marijuana, cocaine, and drug paraphernalia.
At Burden's first appearance in court, she was disruptive. She interrupted the district court judge, was nonresponsive to questions, and declared she would not recognize the court's authority or jurisdiction. Burden asked to see the judge's oath of office and questioned if he was a member of the bar. Burden also expressed her intent to represent herself. After she refused to leave the courtroom, the judge found her in contempt of court and ordered a mental competency evaluation.
Burden underwent the evaluation at the Sumner Mental Health Center. Burden self-reported an anxiety disorder and expressed her opinion that she had posttraumatic stress disorder
related to a history of trauma, although there was no other evidence presented of any such diagnosis. The evaluator conducted a standardized competency test and found that Burden had the ability to consult with counsel and possessed a factual and rational understanding of courtroom proceedings. The evaluator also found that Burden had the ability to assist counsel in her defense but noted that Burden reported she wanted to represent herself. The competency evaluation concluded that Burden was competent to stand trial and, as particularly relevant to the issue in this appeal, had "no significant impairment that is psychiatric in nature."
At a later hearing, the judge considered Burden's mental competency to stand trial and her waiver of appointed counsel. The judge found, based on the competency evaluation, that Burden was competent to stand trial.
The judge then addressed Burden's request to waive her right to an attorney. The judge conducted a long colloquy with Burden about her constitutional right to an attorney, her right to have an attorney appointed, and the significant risks she took if she represented herself. He asked her several questions about trial procedures, her understanding of the charges against her, the State's burden of proof, and the potential penalties. The judge encouraged Burden to get an attorney. He also asked questions about the voluntariness of her waiver of counsel and ultimately determined her waiver was "expressed, explicit[ ], voluntary, willing, knowing, and intelligent." Burden also executed a written waiver of her right to an attorney. The judge allowed her to represent herself, although he appointed standby counsel.
Burden never moved to suppress the drugs and paraphernalia found in her home even though the judge granted three continuances to give her time to file a motion and repeatedly urged her to do so. Burden did file two motions challenging the court's jurisdiction and asking the judge to dismiss the case. The judge rejected these motions.
At trial, Burden's cross-examination of witnesses often strayed from the evidence and scope of direct examination. At one point she tried to play a video of a speech by President Barack Obama and, when not allowed to do so, began to read it. She belatedly tried to challenge the search of her home, and she repeatedly made statements about her belief in the medical benefits of marijuana and cocaine. The judge frequently cautioned her to not make speeches when asking questions. While cross-examining her ex-husband, Burden went into irrelevant details of their 17-year relationship and subsequent divorce and custody arrangements. And she asked both him and her daughter several questions apparently aimed at revealing her views about the medical use of marijuana. She admitted to possession of cocaine and marijuana but built a defense based on her belief both substances were natural products that should be legal.
The jury returned a guilty verdict of possession of marijuana and cocaine but not guilty for possession of paraphernalia.
On appeal to the Court of Appeals, Burden argued the district court judge used the incorrect standard to determine whether she was competent to represent herself. The Court of Appeals affirmed. State v. Burden , No. 116,810, 2017 WL 5507728 (Kan. App. 2017) (unpublished opinion).
Burden timely petitioned for review. We granted review and have jurisdiction under K.S.A. 20-3018(b) ().
Burden's argument rests on the premise that the judge had to apply a higher standard to determine she was mentally competent to represent herself than the standard for evaluating competency to stand trial. Because the district court judge did not explicitly apply any standard other than the one for determining competence to stand trial and the Court of Appeals did not require a more exacting standard, Burden argues both courts erred.
To explain her argument, we examine three distinct but related concepts—mental competency to stand trial, the capacity to waive the right to counsel, and mental competency to self-represent.
Either a defendant, the State, or a judge can raise the question of whether a defendant lacks competency to stand trial. Once mental competency is at issue, courts apply the standard set out by the United States Supreme Court's decision in Dusky v. United States , 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). Under the Dusky standard, a defendant's competence to stand trial is determined by " ‘whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’ " 362 U.S. at 402, 80 S.Ct. 788.
K.S.A. 22-3301 also defines the phrase "incompetent to stand trial." Under it, a defendant charged with a crime is incompetent to stand trial if he or she "because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him [or her]; or (b) to make or assist in making his [or her] defense." K.S.A. 22-3301(1). This statutory definition "is in accord" with the Dusky standard. State v. Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015) ; see State v. Woods , 301 Kan. 852, 857-58, 348 P.3d 583 (2015).
The evaluator specifically noted she used the Dusky standard in evaluating Burden, and the district court judge relied on that evaluation in finding Burden competent to stand trial.
Burden does not take issue on appeal with that determination. Instead, she argues the district court judge erred by not making a separate determination that Burden was competent to represent herself. That argument rests on Burden's right to waive counsel, which we explain before discussing how mental competency impacts the exercise of that right.
Neither the United States nor Kansas Constitutions explicitly provide for a right of self-representation. Instead, the United States Supreme Court implied the right to waive counsel and act as one's own attorney from the right to counsel granted in the Sixth Amendment to the United States Constitution. Faretta v. California , 422 U.S. 806, 821, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) ; see State v. Bunyard , 307 Kan. 463, 470, 410 P.3d 902 (2018).
Because the right to represent oneself is "at odds with the right to be represented by counsel, the courts must indulge every reasonable presumption against waiver of the right to counsel[ ] and will not presume acquiescence in the loss of fundamental rights, i.e., the right to counsel." State v. Vann , 280 Kan. 782, 782, Syl. ¶ 4, 127 P.3d 307 (2006). The United States Supreme Court thus requires a criminal defendant to make a "knowing[ ] and intelligent[ ]" waiver of the right to counsel. Faretta , 422 U.S. at 835, 95 S.Ct. 2525.
This court has suggested a three-step framework for a district court judge to use in determining if a waiver is knowing and intelligent. First, a court should advise the defendant of the right to counsel and to appointed counsel if indigent. Second, the defendant must possess the intelligence and capacity to appreciate the consequences of his or her decision. And third, the defendant must comprehend the charges and proceedings, punishments, and the facts necessary for a broad understanding of the case. State v. Buckland , 245 Kan. 132, 138, 777 P.2d 745 (1989).
To assure the defendant appreciates the consequences of waiving representation by counsel, Buckland suggests the court explain that ...
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State v. Allen
...to be used in determining whether a defendant made a knowing and intelligent waiver of his right to counsel. State v. Burden , 311 Kan. 859, 863, 467 P.3d 495 (2020) :"First, a court should advise the defendant of the right to counsel and to appointed counsel if indigent. Second, the defend......
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