State v. Cunningham

• Decision Date: 05 January 2000
• Citation: 164 Or. App. 680,995 P.2d 561
• Parties: STATE of Oregon, Respondent, v. Taul CUNNINGHAM, Appellant.
• Court: Oregon Court of Appeals

995 P.2d 561

164 Or. App. 680

STATE of Oregon, Respondent, v. Taul CUNNINGHAM, Appellant.

(CF01075; CA A98831)

Court of Appeals of Oregon.

Argued and Submitted January 29, 1999.

Decided January 5, 2000.

Bob Pangburn argued the cause and filed the brief for appellant.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and DEITS, Chief Judge,¹ and ARMSTRONG, Judge.

EDMONDS, P.J.

Defendant appeals his convictions for sexual abuse in the first degree, ORS 163.427, attempted rape in the first degree, ORS 161.405; ORS 163.375, attempted sodomy in the first degree, ORS 161.405; menacing, ORS 163.190, and assault in the fourth degree, ORS 163.160. He makes two assignments of error: (1) The trial court erred by not conducting a hearing on the issue of defendant's mental fitness to stand trial; (2) The trial court erred when it excluded evidence under OEC 412 of the victim's sexually transmitted disease. We affirm.

Trial in this matter was scheduled for June 25, 1997. On June 23, defense counsel filed the following "motion to continue":

"The grounds for this motion are:

"1. It is the opinion of defense counsel that the defendant is mentally unable to assist in the preparation of the trial of his case and unable to comprehend facts necessary for him to make a knowledgeable decision regarding whether or not to accept an offered plea bargain in this case.

"2. Defense counsel has been denied reasonable and necessary access to his client in order to prepare for trial.

"3. To date, defense counsel has been unable to acquire evidence relating to the psychological and neurological condition of the defendant. This evidence is vital to the preparation of a defense in this case."

In support of his motion to continue the trial date of June 25, defense counsel submitted the following affidavit:

"1. I am the defense attorney in this case.

"2. I have attempted face-to-face visits with my client, the defendant in this case, in order to discuss plea offers and to prepare for trial in the event any plea offers are rejected. To date, I have not had the access to my client necessary to accomplish these objectives.

"3. The jail attorney visiting room telephones do not work. All communications, whether by telephone to my office or at the jail, have been overheard by other inmates and by jail personnel. I have had no private communications with my client since his being jailed. In the jail attorney visiting room, I have had to yell through the glass in order to talk with my client. These problems have prevented me from adequately preparing myself and my client for either plea or trial.

"4. Secondly, I have come to the conclusion that my client is not mentally competent to [ ] stand trial. This opinion is based upon my discussions with my client and upon statements, often meaningless, which he has made to me.

"5. My opinion regarding my client's lack of mental capacity to assist in his defense is also based upon information I have gained through consultation with a mental health counselor.

"6. My consulting counselor has indicated to me that to the extent my client is suffering from some mental incapacity, the deficient visiting facilities have exacerbated the problem by preventing me from carrying on the confidential communications necessary to alleviate the problems associated with my client's mental deficiency.

"7. My client's mental deficiency or condition has prevented the preparation for trial or plea in this case. Simply put, my client is not in the condition to assist in the preparation for trial in this case.

"8. Finally, I believe that a mental evaluation of my client is a necessary predicate to further action in this case."

The trial court denied the June 23 motion stating, "the trial has been scheduled since January 13, 1997 and defendant has been in custody since November 1, 1996."² The case went to trial, and defendant testified as to his versions of the events that led to the charges. On appeal, defendant argues:

"Where the trial court in a criminal case has a threshold reasonable ground or bona fide cause to believe that the accused has a mental disease or defect excluding fitness to proceed, it should upon its own motion order a psychiatric examination. * * *

"According to the record in this case, at the time of his trial, the [defendant] had been involved in a serious motorcycle accident about a year prior to trial. This fact, together with the difficulties faced by his attorney in his attempts to communicate with the Appellant, [defendant] indicated that, at a minimum, the trail [sic] court should have conducted a hearing prior to ordering that the trial continue without such a hearing."

On appeal, defendant says, "[defendant's] counsel raised his concerns with the trial court by way of a motion to continue the trial in which he asked for time to have [defendant] mentally evaluated." Defendant does not assign error in his brief to the denial of his motions for continuance even though in his notice of appeal, he indicated that he intended to raise those issues. Moreover, defendant does not point to any place in the record where he requested that the trial court order him evaluated or that a "fitness to proceed" hearing be held before trial. Thus, we understand defendant to argue that the content of his motions for continuance preserved for purposes of appeal his claim of error under ORS 161.360. The state counters by arguing that defendant's assignment of error is not preserved and, even if it is, that defendant points to no evidence other than the contents of the motions for continuance that raises a concern about his fitness to proceed at the time of trial.

ORAP 5.45(2) provides:

"No matter assigned as error will be considered on appeal unless it was preserved in the lower court and assigned as error in the party's opening brief; provided that the appellate court may consider errors of law apparent on the face of the record."

The entitlement to a fitness to proceed hearing is governed by ORS 161.360. It provides:

"(1) If, before or during the trial in any criminal case, the court has reason to doubt the defendant's fitness to proceed by reason of incapacity, the court may order an examination in the manner provided in ORS 161.365.

"(2) A defendant may be found incapacitated if, as a result of mental disease or defect, the defendant is unable:

"(a) To understand the nature of the proceedings against the defendant; or

"(b) To assist and cooperate with the counsel of the defendant; or

"(c) To participate in the defense of the defendant."

In addition, ORS 161.365 provides in relevant part:

"(1) Whenever the court has reason to doubt the defendant's fitness to proceed by reason of incapacity as defined in ORS 161.360, the court may call to its assistance in reaching its decision any witness and may appoint a psychiatrist or psychologist to examine the defendant and advise the court.

"(2) If the court determines the assistance of a psychiatrist or psychologist would be helpful, the court may order the defendant to be committed to a state mental hospital designated by the Mental Health and Developmental Disability Services Division for the purpose of an examination for a period not exceeding 30 days."

Also, ORS 161.370 provides, in part:

"(1) When the defendant's fitness to proceed is drawn in question, the issue shall be determined by the court. * * *

"(2) If the court determines that the defendant lacks fitness to proceed, the proceeding against the defendant shall be suspended * * * [until such time that he has the mental capacity to stand trial]."

The above facts raise the issue of whether defendant has preserved in the trial court for purposes of ORAP 5.45(2) his first assignment of error that the trial court erred in not conducting a "fitness to proceed" hearing. Defendant points to no place in the record where he made a formal request for a mental evaluation, although it is apparent that had the motion for a continuance been granted, he would have sought an evaluation. The procedural posture of defendant's assignment of error puts us in the unusual position of considering whether to reverse the trial court under ORS 161.360 when its rulings were in regard to the motions for continuance. Beyond that issue, the predicate to the exercise of the trial court's discretion under ORS 161.360 is whether the "court has reason to doubt the defendant's fitness to proceed." In the event that the court forms such a belief, the court "may" order an examination under ORS 161.365, "may" appoint a psychiatrist or psychologist to examine defendant, and "may" order the defendant to be committed to a state mental hospital for evaluation. To agree with defendant's position that he properly preserved his assignment of error by his motions for continuances and that the trial court erred, we must conclude that the content of his motions put the trial court on sufficient notice to implicate ORS 161.360 and that the record of defendant's mental status required it to doubt defendant's fitness to proceed and to exercise its discretion by ordering an evaluation.

We turn to the record before the trial court at the time it ruled. The first hint in the record of a claim about defendant's mental status appears in the June 11 motion, or 14 days before trial. Defendant's initial motion sought a continuance on three grounds: the inability to acquire evidence relating to defendant's psychological condition at the time of the crimes; a scheduling conflict involving defense counsel; and the anticipation that plea negotiations would resolve the case. Nothing is said in that motion about defendant's fitness to proceed to trial on June 25. The second motion, made seven days after the denial of the first motion and two days before trial, asserts two grounds for continuance: that cou...