State v. Durham

• Decision Date: 15 July 2008
• Docket Number: No. 34082.,34082.
• Citation: 146 Idaho 364,195 P.3d 723
• Parties: STATE of Idaho, Plaintiff-Respondent, v. James Joseph Everett DURHAM, Defendant-Appellant.
• Court: Idaho Court of Appeals

195 P.3d 723

146 Idaho 364

STATE of Idaho, Plaintiff-Respondent, v. James Joseph Everett DURHAM, Defendant-Appellant.

No. 34082.

Court of Appeals of Idaho.

July 15, 2008.

Review Denied November 5, 2008.

Molly J. Huskey, State Appellate Public Defender; Sarah E. Tompkins, Deputy Appellate Public Defender, Boise, for appellant. Sarah E. Tompkins argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

PERRY, Judge.

James Joseph Everett Durham appeals from his judgment of conviction and sentence for robbery. For the reasons set forth below, we affirm in part, vacate in part, and remand.

I. FACTS AND PROCEDURE

In December 2006, Durham entered a bank wearing a hooded sweatshirt, gloves, and sunglasses. When he approached the counter, a teller asked him to remove his hood and sunglasses and he complied. He then handed the teller a note that read, "I have a gun need money $ please." The teller handed Durham several thousand dollars and he left the bank. Durham discarded his gloves in the street and his sweatshirt in a dumpster. Durham then entered a flower store and purchased flowers. Approximately twenty minutes after the robbery, an officer stopped Durham's car because it matched a description of the vehicle the suspect had used to flee the scene of the robbery. The bank teller identified Durham, and a subsequent search of his car revealed the stolen money.

Less than three weeks prior to the robbery, Durham had checked himself in to Intermountain Hospital, a psychiatric facility, because he thought he was about to lose control. At the hospital, Durham received two days of inpatient care before being released. The Intermountain doctor recommended follow-up care, but Durham did not pursue treatment.

Durham was charged with robbery. I.C. §§ 18-6501, 18-6502. The magistrate ordered a competency evaluation of Durham to be performed pursuant to I.C. § 18-211. Durham was determined to be competent and pled guilty to robbery. The district court ordered a presentence investigation (PSI) report, but no psychological evaluation for sentencing purposes was requested or ordered. The district court sentenced Durham to a unified term of fifteen years, with a minimum period of confinement of five years. Durham appeals.

II. ANALYSIS

Durham asserts that the district court abused its discretion by failing to sua sponte order a psychological evaluation pursuant to I.C. § 19-2522(1) prior to sentencing, and thereby manifestly disregarded Idaho Criminal Rule 32. The determination whether to obtain a psychological evaluation lies within the sentencing court's discretion. I.C. § 19-2522(1); I.C.R. 32(d); State v. Jones, 132 Idaho 439, 442, 974 P.2d 85, 88 (Ct.App.1999). The legal standards governing the court's decision whether to order a psychological evaluation are contained in I.C. § 19-2522. Pursuant to I.C. § 19-2522(1), if there is reason to believe that the mental condition of the defendant will be a significant factor at sentencing and for good cause shown, the sentencing court must appoint a psychiatrist or licensed psychologist to examine and report upon the defendant's mental condition. The mental condition of a defendant can be a significant factor at sentencing when it may be an underlying factor in the crime at issue; for example, when the actions of the defendant are contrary to his or her history and character. See State v. French, 95 Idaho 853, 855, 522 P.2d 61, 63 (1974); State v. McFarland, 125 Idaho 876, 880, 876 P.2d 158, 162 (Ct.App.1994). A court-ordered psychological evaluation can assist the sentencing court in assessing the defendant's capacity to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law at the time of the offense charged. See I.C. § 19-2523(1)(f). The evaluation can also aid the sentencing court in determining whether to authorize psychological treatment during a defendant's confinement or probation. See I.C. § 19-2523(2).

We will uphold the district court's failure to order a psychological evaluation if the record supports a finding that there was no reason to believe a defendant's mental condition would be a significant factor at sentencing or if the information already before the court adequately meets the requirements of I.C. § 19-2522(3). McFarland, 125 Idaho at 879, 876 P.2d at 161. Where a defendant fails to request a psychological evaluation or object to the PSI on the ground that an evaluation has not been performed, the defendant must demonstrate that by failing to order a psychological evaluation the sentencing court manifestly disregarded the provisions of I.C.R. 32. Jones, 132 Idaho at 442, 974 P.2d at 88.

The state first asserts that, by failing to request a psychological evaluation, Durham has not preserved this issue for appeal. Specifically, the state argues that, "because the manifest disregard rule adopted by the Court of Appeals to review claimed inadequacies in presentence reports for the first time on appeal applies only to Rule 32, there is no authority supporting Durham's assertion that this Court should review his assertion of error under I.C. § 19-2522."

A claim that the district court abused its discretion by failing to sua sponte order a psychological evaluation of a defendant before sentencing can be made on appeal without an objection to the lack of an evaluation or a request for an evaluation before the district court. See, e.g., State v. Collins, 144 Idaho 408, 409-10, 162 P.3d 787, 788-89 (Ct. App.2007); State v. Adams, 137 Idaho 275, 277, 47 P.3d 778, 780 (Ct.App.2002); State v. Craner, 137 Idaho 188, 189-90, 45 P.3d 844, 845-46 (Ct.App.2002). Therefore, the state's procedural argument is without merit.

The state next argues Durham has failed to establish that the record supports a finding that his mental condition would have been a significant factor at sentencing. Specifically, the state suggests that Durham did not exhibit uncharacteristic or irrational behavior in committing the robbery.

A defendant's mental condition can be a significant factor at sentencing when that condition is an underlying factor in the commission of the crime at issue, especially when the defendant's actions are radically contrary to his or her history and character. See, e.g., French, 95 Idaho at 855, 522 P.2d at 63 (family man and dependable worker with no prior criminal record inexplicably raped his estranged wife at knife point); Craner, 137 Idaho at 190, 45 P.3d at 846 (defendant, who had significant record but no crimes of violence, acted irrationally and uncharacteristically by shaving his head because he thought he was being poisoned through his hair, lashing out violently against his family, and continuing his irrational behavior with disturbances at the jail for three days after being arrested); McFarland, 125 Idaho at 880, 876 P.2d at 162 (young man with extremely low intelligence from a dysfunctional family who suffered from an unspecified mental condition brutally beat and stabbed his victim to death despite no prior violent offenses).

In this case, Durham's crime was uncharacteristic and factually irrational. Durham has a prior record containing several charges of domestic battery that were amended to either harassment or disturbing the peace. He also has two prior assaults. However, Durham has never been charged with a robbery or any kind of theft, and the instant offense was Durham's first felony. Furthermore, immediately after receiving money from the teller, instead of fleeing the scene, Durham exited the bank and entered a flower shop and bought flowers. Although this odd behavior, standing alone, is insufficient to conclude that the district court should have been on notice that Durham's mental condition would be a significant factor at sentencing, the record contains many other indicators regarding Durham's mental health.

Perhaps most significant in this case is that Durham checked himself in to Intermountain Hospital less than three weeks prior to committing the robbery. The report from Intermountain indicates that Durham has a "strong family history of psychiatric illness." It also concludes that Durham "has become a danger to himself." The discharge summary from Intermountain indicates that Durham checked himself in because:

Depression had increased. He couldn't take it any more. He had difficulty controlling himself. He stated he was feeling suicidal. He had been diagnosed with depression and PTSD for quite a while, following the death of two of his daughters within just a few years. He states he couldn't contract for safety in the community. He started having some flashbacks so he decided to come to the hospital to get medication and try to stop drinking.

At Intermountain, Durham was treated for two days and released with instructions for outpatient care. Durham did not follow up on the recommended outpatient care.

The PSI contains information gathered from Durham's father. Durham's father told the investigator that Durham was admitted to an inpatient mental facility for thirty days when he was fifteen years old after a violent episode in which he threatened suicide. Durham's father "stressed that he feels his son has had a mental condition for years and years." The PSI also includes comments from Durham's father comparing Durham to his sister:

He clarified that [if he is] sentenced to a jail term, he feels his [son] would be a suicide risk. He related that his eldest daughter `was just like him, the same thing, ran away from home' and later gave up her children to different grandparents. Mr. Durham advised that his daughter disappeared, she was hallucinating, and they had not heard from her in several years. He added that they learned of her death in 2006 due to liver failure through Hospice personnel. He stressed that he believed his son was `going through the same situation. It's...