State v. Fox
| Decision Date | 30 December 2011 |
| Docket Number | No. S–11–045.,S–11–045. |
| Citation | 806 N.W.2d 883,282 Neb. 957 |
| Parties | STATE of Nebraska, appellee, v. Matthew A. FOX, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Courts: Trial: Mental Competency: Appeal and Error. The question of competency to stand trial is one of fact to be determined by the court, and the means employed in resolving the question are discretionary with the court. The trial court's determination of competency will not be disturbed unless there is insufficient evidence to support the finding.
2. Trial: Waiver. Whether a defendant could and, in fact, did waive his or her right to attend all stages of his or her trial presents a question of law.
3. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.
4. Constitutional Law: Trial: Mental Competency. A person has a constitutional right not to be put to trial when lacking mental capacity.
5. Trial: Mental Competency. A person is competent to stand trial if he or she has the capacity to understand the nature and object of the proceedings against him or her, to comprehend his or her condition in reference to such proceedings, and to make a rational defense.
6. Trial: Mental Competency. The competency to stand trial standard includes both (1) whether the defendant has a rational as well as factual understanding of the proceedings against him or her and (2) whether the defendant has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding.
7. Constitutional Law: Criminal Law: Trial: Witnesses. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her. The 14th Amendment makes the guarantees of this clause obligatory upon the states.
8. Constitutional Law: Trial: Witnesses. The Confrontation Clause guarantees the accused's right to be present in the courtroom at every stage of his or her trial.
9. Trial: Waiver. If a defendant is to effectively waive his or her presence at trial, that waiver must be knowing and voluntary.
James R. Mowbray and Jerry L. Soucie, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.
Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.
Matthew A. Fox appeals his convictions for first degree murder and use of a weapon to commit a felony. Fox asserts that the district court for Lancaster County erred when it found him competent to stand trial and when it allowed him to absent himself from major portions of the trial. Because we find that the district court did not err when it found that Fox was competent to stand trial or when it allowed Fox to absent himself from trial, we affirm.
On October 25, 2008, Fox, then 19 years old, killed his mother, Sherry Fox, by striking her repeatedly in the head with an ax in the basement of their home in Lincoln, Nebraska. Fox was arrested that day, and on November 25, the State filed an information charging Fox with murder in the first degree and use of a weapon to commit a felony. Fox pled not guilty.
On February 26, 2009, Fox's attorney filed a motion for a competency examination alleging that he had reason to believe Fox was not currently competent to stand trial. After a hearing, the district court on March 11 entered an order appointing a doctor to examine Fox to determine his competency to stand trial.
After the competency evaluation had been completed, Fox's attorney moved the court to declare Fox incompetent to stand trial. On April 28, 2009, the court entered an order finding that Fox was currently incompetent to stand trial. The court's finding was based in part on the report of psychologists who concluded that Fox was not competent to stand trial because, although he had a factual understanding of his legal situation, he was “experiencing severe depressive symptoms which impede[d] his ability to meaningfully assist his attorney and participate in his defense.” The court ordered Fox to be transferred to the Lincoln Regional Center (LRC) for treatment. The court further ordered LRC staff to report to the court when Fox's disability had improved to the extent he was competent to stand trial or, in the alternative, LRC was to submit a progress report within 6 months of commencement of treatment if Fox's disability had not so improved. After a review hearing on November 13, the court ruled that Fox remained incompetent to stand trial.
The court held another review hearing on April 27, 2010, at which the State offered a report by a psychiatrist and a psychologist which concluded that Fox was competent to stand trial because he had “demonstrated an adequate understanding of the legal system” and “appear[ed] to have the ability to assist his attorney in developing a rational defense.” The report noted that although Fox had the ability to assist in his defense, “thus far, [he] has not chosen to do so.” The report noted that Fox's “behavior and reluctance to discuss his legal circumstances appear[ed] volitional” and that “any symptoms that he may [have been] experiencing [did] not appear to be so severe as to prevent him from assisting in his defense, if he [chose] to cooperate with legal counsel.” The psychiatrist and the psychologist testified to similar effect at the hearing.
Fox offered into evidence a forensic psychologist's report, in which the forensic psychologist retained by Fox opined that Fox “appear[ed] to have the requisite capacities associated with marginal competence to proceed with adjudication” but that he had “some serious concerns about [Fox's] propensity to decompensate under stress.” The forensic psychologist testified that Fox
still has a tremendous amount of difficulty approaching the whole topic of what happened in and around the time period that his mom died, that his mom was killed. Seems to have a lot of angst around that issue, not understanding how it came to that, having some understanding that he's the cause of it, but of not knowing why or how.
The forensic psychologist called by Fox testified that in talking about what happened in connection with his mother's death, Fox was
At the hearing, the forensic psychologist further testified that he had concerns that Fox “might decompensate during the [criminal] proceedings or prior to the proceedings because of the stress” and that he had concerns about how Fox's “inability or desire not to talk about the circumstances leading to the death of his mother [will] affect his ability to proffer an affirmative defense of insanity or other defenses that might have elements of his mental state at the time entailed.”
On May 6, 2010, the district court filed an order in which it found that Fox was competent to stand trial. The court specifically found that Fox had “the mental capacity to understand the nature and object of the proceedings against him and can comprehend his own condition in reference to the proceedings and has the ability to make a rational defense and help with that defense.” The court stated that it had reviewed and considered factors set forth in Nebraska cases, including the concurrence in State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980) (Krivosha, C.J., concurring), and that after such review, the court was “compelled to conclude that [Fox] is competent to stand trial in this matter.” The court further ordered that pending trial, Fox should remain at LRC.
Fox thereafter filed a notice of intent to rely upon a defense that he was not responsible by reason of insanity. The district court granted the State's subsequent motion to require Fox to be examined by a psychiatrist to determine Fox's mental capacity at the time of his mother's killing.
On July 26, 2010, Fox filed a motion in which he sought to determine whether he could waive his attendance at various critical stages of the proceedings against him. Fox expressed a desire to “not be present at his trial, but most specifically during any portions of his trial involving discussions or presentation of evidence or testimony regarding the circumstances surrounding the death of Sherry Fox.” However, in the motion requesting such determination, Fox's attorney asserted that
given [Fox's] history and prior findings regarding his mental status, the current state of the record is insufficient to determine whether a) [Fox] may waive his right to attendance at the majority (if not all) of his trial, b) [Fox] is competent to make a “knowing and intelligent” waiver of his constitutional rights [to be present at trial and confront the witnesses against him], and c) [Fox's] desire not to attend his trial is a manifestation of his prior and current mental illness.
Fox's attorney also cited authority to the effect that a defendant may not waive his or her presence at trial, including Neb.Rev.Stat. § 29–2001 (Reissue 2008), which states in part, “[n]o person indicted for a felony shall be tried unless personally present during the trial.”
At a hearing on the motion, Fox stated that at trial he did not want to “see any of the forensic stuff.” He said that he would be willing to be present during voir dire, opening statements, and testimony that did not touch on forensic evidence, but that he did not want to be present during closing statements, which would include discussion of forensic evidence. Fox stated that he did not remember and did not want to remember what happened the...
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