State v. Flores

• Decision Date: 10 August 2005
• Docket Number: No. 23,507.,23,507.
• Citation: 2005 NMCA 135,124 P.3d 1175
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ruben FLORES, Defendant-Appellant.
• Court: New Mexico Supreme Court

124 P.3d 1175

2005 NMCA 135

STATE of New Mexico, Plaintiff-Appellee, v. Ruben FLORES, Defendant-Appellant.

No. 23,507.

Court of Appeals of New Mexico.

August 10, 2005.

Certiorari Denied, No. 29,425, November 28, 2005.

COPYRIGHT MATERIAL OMITTED

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellee.

John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Defendant Ruben Flores appeals from his conviction of battery upon a peace officer. Defendant contends that the district court erred in refusing to determine his present competency to stand trial, not allowing Defendant to present the issue of competency to the jury, and improperly instructing the jury. We affirm.

BACKGROUND

{2} In January 1999, Defendant was charged with murder. The State filed a notice to seek the death penalty if Defendant was convicted of capital murder. In May 1999, defense counsel had Defendant evaluated by a doctor who concluded that Defendant was mentally retarded and incompetent to stand trial. The district court stayed the proceedings pending a determination of Defendant's competency. An independent evaluation requested by the State concluded Defendant marginally met the test for competency but recommended that Defendant be assessed further. The State stipulated that Defendant was not at that time competent to stand trial and that he should be committed for treatment to attain competency. In November 1999, the district court entered an order committing Defendant for treatment pursuant to NMSA 1978, § 31-9-1.2(B) (1999). Section 31-9-1.2(B) provides that a defendant who is determined to be incompetent and found to be dangerous may be committed by the district court to an institution for treatment to attain competency.

{3} Pursuant to the commitment order, Defendant was transferred on December 20, 1999, from the Lea County Detention Center (LCDC) to the Las Vegas Medical Center (LVMC), for treatment to attain competency and treatment for dangerousness. Doctors who evaluated, tested, interviewed, interacted with, and observed Defendant over the approximate three months of Defendant's commitment at the LVMC determined that Defendant was competent to stand trial and was not mentally retarded. On March 31, 2000, Defendant was transferred back to the LCDC. The competency hearing was originally set for September 18, 2000, but was continued several times before the hearing finally began in May 2001.

{4} Well before the second competency hearing began in May 2001, while in the LCDC awaiting trial in the capital murder case, Defendant was involved in an incident in jail which resulted in a charge against him for the crime of aggravated battery upon a peace officer contrary to NMSA 1978, § 30-22-25 (1971). This charge was filed following a December 1, 2000, incident during an LCDC "shakedown" and a search in Defendant's LCDC cell. During the search of Defendant and his cell, a scuffle between Defendant and some officers occurred, during which Defendant struck an officer in the head with a cup, causing a laceration on the officer's ear. In December 2000, the magistrate court at Defendant's request transferred his aggravated battery case to district court for the purpose of determining his competency. The aggravated battery case was soon joined with the murder case for the sole purpose of making a competency determination.

{5} In April 2001, LVMC informed the court by letter that Defendant was competent to stand trial. Defendant was evaluated by doctors selected by the defense and these doctors concluded that Defendant was not competent to stand trial and was mentally retarded. The district court held the competency hearing in May, June, and October 2001. Two doctors from LVMC testified on behalf of the State that Defendant was competent to stand trial and not mentally retarded. However, the three defense doctors testified that Defendant was not competent to stand trial and was mentally retarded.

{6} On December 17, 2001, the court, Judge R.W. Gallini presiding (in the murder case and the joint competency hearing), determined that Defendant was competent to stand trial and was not mentally retarded. On December 21, 2001, the court entered an order setting Defendant's case for trial based on the court's findings that Defendant was competent to stand trial and did not have mental retardation. The court found that the LVMC doctors determined that Defendant understood the nature and gravity of the proceedings against him, that Defendant had a factual understanding of the criminal charges, and that Defendant was capable of assisting in his own defense. The court also found the LVMC doctors to be more credible than Defendant's experts. It concluded that the State met its burden of proof in proving competency. It further concluded that Defendant failed to prove by a preponderance of the evidence that he was mentally retarded. Defendant's aggravated battery case moved forward. (While it is not relevant to this appeal, Defendant's murder charge was subsequently resolved by a plea of guilty.) Judge Gary Clingman was assigned to the aggravated battery case on February 12, 2002. Trial was held on August 8, 2002.

{7} Just before trial, Defendant's third counsel, who entered her appearance on February 12, 2002, asked the court to "find [Defendant] today not competent to proceed to trial," and "to make a determination with regard to [Defendant's competency] this morning." Pointing out the long stretch between Defendant's last evaluations and even the hearing on competency before Judge Gallini, and the present proceeding, counsel told the court that she thought Defendant's deterioration stemmed from his isolated confinement in prison following the last competency hearing. Defendant asked the court to take judicial notice of the second competency proceeding before Judge Gallini in May, June, and October 2001 because evidence in that proceeding pertained to Defendant's request before the court. Specifically, Defendant's counsel asked the court "to make its own finding with regard [to competency], keeping in mind, I've asked the Court to take judicial notice of the entire proceedings with regard to competency."

{8} In further support of her request that the court make a competency determination, Defendant's counsel stated that she had fourteen years of experience "doing this kind of work," and that she had had contacts with Defendant as a go between for Defendant and his death penalty team before she represented Defendant on the battery charges. Based on her experience and time with Defendant, she stated her opinion to be that Defendant was not competent to stand trial and was mentally retarded. More specifically, defense counsel stated that since the second competency hearing Defendant had been "held primarily in isolation" at the LCDC and that "he deteriorates while he sits, and is held in isolation." Based on her view that Defendant's history showed him as functionally illiterate, counsel told the court that Defendant "doesn't even have the solace of being able to read, to occupy his mind while he's locked up, and I would have to say to the Court that at this time, it's my belief and my request that the Court find him today not competent to proceed to trial."

{9} At one point, unsure that there was a sufficient record under Rule 5-602 NMRA, counsel asked the court to consider "other issues" in making a determination on competency. Counsel handed the court a sealed envelope, as an offer of proof, for the court's eyes only, containing "confidences" revealed to her by Defendant. Although concerned about a violation of ethical rules by offering the confidences because, in her opinion, Defendant was not competent to waive his attorney/client privilege at the time, counsel explained that the confidences would "make a record for a self-defense instruction." Yet counsel could not permit Defendant to testify because the death penalty team had advised her not to allow Defendant to testify, for fear of incriminating himself relating to the murder trial. Counsel, then, felt she could not render effective assistance of counsel, in that Defendant needed to testify in order to establish self-defense as shown in the confidential information in the sealed envelope.

{10} At a later hearing the same day, counsel informed the court that she had met with Defendant between hearings and had discussed an earlier court order regarding cross-examination limitations if Defendant were to testify. She also stated that she had discussed with Defendant giving testimony in his own behalf and whether to waive his right against self-incrimination. Counsel further told the court that it was clear to her that Defendant did not believe he was able to understand or comply with the court's order. Counsel was "left with the abiding conclusion that [Defendant] is not competent today to make such a decision either to waive or to assert [his privilege against self-incrimination]." Counsel then, again, stated that, in attempting to explain to Defendant the benefits and detriments of waiver, Defendant "was not able to understand the parameters of the order." After a recess, counsel told the court that she did not think Defendant was capable of understanding the implications of presenting to the jury an instruction on the lesser included offense of battery on a peace officer.

{11} The court's ruling actually came early in these discussions. It was the court's only ruling and rationale underlying its ruling on the competency issue. The court stated the following:

I've known Judge Galini [sic] a long time, as I've known both counsel, and both counselors [are] very good advocates to their position. However, Judge Galini [sic] did hold a very long hearing in this regard, and did find the evidence presented in this matter, and did...