State v. Gokey

• Decision Date: 08 October 2010
• Docket Number: No. 09–131.,09–131.
• Court: Vermont Supreme Court
• Parties: STATE of Vermontv.Randall Joseph GOKEY.

14 A.3d 243
2010 VT 89

STATE of Vermont
v.
Randall Joseph GOKEY.

No. 09–131.

Supreme Court of Vermont.

Oct. 8, 2010.

[14 A.3d 245]

David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro, for Plaintiff–Appellee.Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.SKOGLUND, J.

¶ 1. Defendant Randall Gokey appeals from his conviction by a jury for lewd or lascivious conduct with a child. He was found to have been convicted previously of three other felonies, was adjudged to be a habitual offender, and received a sentence of twenty years to life. He argues on appeal that the trial court made numerous, substantial errors when considering his competency to stand trial. Because the lower court stepped outside its role as impartial arbiter during the course of the trial, we reverse and remand for a new trial.

¶ 2. Defendant was charged by the State with alleged acts he perpetrated upon his step-granddaughter on August 3, 2007. On August 31, 2007, the State filed a habitual offender notice under 13 V.S.A. § 11, a probable cause affidavit, and an information regarding defendant's criminal record and the penalty sought in the present matter. A jury was chosen and trial began on August 25, 2008.

¶ 3. The events that provide the backdrop for the present appeal occurred on the second and third full days of trial. On the morning of the second day of trial, defense counsel raised concerns regarding defendant's health. Defendant had informed his attorney that he was not feeling well and could not concentrate; counsel relayed his statements to the court and noted defendant did not look well and appeared ready to collapse. The prosecutor explained to the court that he was aware that defendant had medical issues and that, during a previous trial, medical personnel were called to assist defendant. Defense counsel added that defendant had asked her that morning: “how [he] can have a jury trial when [he] can't concentrate” and did not feel well. The judge stated that the trial was “going to have to go forward,” but, with agreement from the State, granted a continuance until the early afternoon for medical personnel to examine defendant. During this recess an ambulance transported defendant to the emergency room of a nearby hospital.

¶ 4. The trial resumed that afternoon, and defense counsel reported that defendant was still at the hospital and “that [doctors] were going to give him medication to sleep. [She] checked with the family and they—apparently, when they think he's going to have a seizure, they try to put him to sleep .... [I]f it's true that they're going to give him sleep medication, there's certainly no way we can go forward.” ¹ The trial judge stated that she had similarly discovered that defendant was “on anti-seizure medicine and that that medicine had kind of kicked in and that if he wasn't on that medicine, he would have been having a seizure ... [and] that they were going to be giving

[14 A.3d 246]

him medication which was going to put him to sleep.” The judge continued, “I don't think we can go forward today,” and suspended trial until the next day, August 28.

¶ 5. When proceedings opened the next morning, defense counsel explained defendant's present health status, noting that he had been treated for vertigo at the hospital and that he had taken his “regular” medication the night before and again that morning. That morning, in addition to his regular medication, he also took the medication prescribed by the emergency room doctors the day before. Defense counsel stated that defendant had told her he was feeling sleepy but wanted to go forward with the trial; however, she noted her serious doubts as to whether defendant's health would improve markedly for that day or the following day.

¶ 6. After the judge questioned defense counsel about defendant's medical history, she offered her own opinion: “I'm a little concerned that he took that [anti-seizure] medication this morning, I mean, knowing that we were starting up this trial again, to take the medication that prevented him from coming back yesterday, again this morning, is kind of counter-productive to going forward with this.” The judge attempted to question defendant, but he was unresponsive. She, thereupon, called defense counsel, the prosecutor, and an officer who had transported defendant to court that morning to the bench for a conference.

¶ 7. At conference, the judge expressed misgivings regarding defendant's apparent health—“[o]f course I have to wonder if this is, you know, real”—and then elicited information from the transporting officer. The officer reported that defendant appeared “fine” during the drive to court that morning, was able to walk unaided to the car, and had requested a cigarette. After the judge reiterated her “concerns about [defendant's symptoms] being real,” the officer volunteered that a second transport officer could corroborate his story. The court then ruled on defendant's request for a continuance, finding that:

from the transport officers and looking at Mr. Gokey at this point, who, I should put on the record, is sitting, acting as if he's sleeping at his table, is inconsistent with what the officer said his behavior was like the entire morning.... [H]e had taken his medication, asked for a cigarette,... didn't show any signs of being tired in the holding cell, and that this kind of behavior started as soon as his attorney went into the holding cell. So, I know that we're close to the end of the trial, and we're going to go forward based on the information that I have at this time.

Defense counsel objected on the record and explained “I don't think I can proceed. I don't think my client is in a position to be able to assist me at all.” The prosecutor, in answer to the judge's request for further information on his experience with defendant's previous medical issues, recounted that “rescue was called after-hours while the jury was out in one of the last two trials and [defendant] was transferred to [a nearby hospital] possibly with a seizure, an epileptic seizure was my understanding.” The judge granted a thirty-minute continuance after the prosecutor offered not to “object to a half-hour or an hour for [defense counsel] to consult with [defendant's doctor] to clear up the record.” Though allowing the defense thirty minutes, the judge reminded everyone that she was questioning “the veracity of all of this.”

¶ 8. During the thirty minute recess, defense counsel attempted to contact both the doctor who treated defendant at the emergency room and defendant's regular

[14 A.3d 247]

physician without success; she did reach a nurse at defendant's holding facility to confirm the medication defendant took that morning, but the nurse refused to provide any information until she could verify defendant's information release. After the recess and back on the record, defense counsel explained her inability to procure relevant information. The judge then offered a summary of her own actions during the break:

The first thing I did was call Walgreen's and talk to the pharmacy manager there, who I do not know. His name is Dave. I don't think I've ever met him and I don't go to that pharmacy and that's why I called that one. He told me that the dose of medication that Mr. Gokey is [on is] a high dose of medication. That certain people react to things in different ways, and it also depends on what other types of medication they're taking, and that drowsiness is a side effect of the medication, Meclizine. I described to him what [the transporting officer] had said at the bench about how quickly this came on today and he said that that is inconsistent with the effects of this medication.

The judge next recounted to the court a second conversation she held in chambers with the two transport officers “to get an indication from them as to Mr. Gokey's behavior yesterday after taking his medication.” She declared that “based on everything I've heard, I believe ... that Mr. Gokey is malingering at this point.” Neither defense counsel nor the State received any notice of or were present at either of the judge's conversations with the pharmacy manager or the two transport officers. Having introduced the substance of the discussions, the judge then called the officers to the stand and questioned them under oath about defendant's conduct during transport and while in the court's holding cell. After she finished questioning the deputies, both defense and prosecution were provided an opportunity to question the officers. The State did not ask any questions; defense counsel did not question the first officer, but inquired of the second the number of persons in defendant's holding cell at the time the officer observed his condition.

¶ 9. At the close of this testimony, defense counsel notified the court that the nurse at the jail was ready to transmit the list of medications defendant had taken during the morning, so long as the court faxed the nurse an order to release the information. Defense counsel also argued a doctor would be needed to interpret the medications and explain their side effects. Finally, she noted that the pharmacy manager the court had contacted was not present in court. The judge responded, “I know and that's why I put it on the record, because it's clearly not evidence.” The court refused to hear any more evidence or grant the order to release information and decided to proceed:

I think that, from what I've heard, clearly what the pharmacist told was just for some information and I related to the parties as just that. He's not here, but what I do rely on is the sworn testimony of the transport officers, and I'm fairly convinced at this point that this demeanor that Mr. Gokey has ... presented ... this morning is something that has been voluntary on his part .... So I—I have every...