State v. Harris

• Decision Date: 29 March 1990
• Docket Number: No. 56205-9,56205-9
• Citation: 789 P.2d 60,114 Wn.2d 419
• Parties: The STATE of Washington, Respondent, v. Benjamin James HARRIS, III, Appellant.
• Court: Washington Supreme Court

Page 419

114 Wn.2d 419

789 P.2d 60

The STATE of Washington, Respondent, v. Benjamin James HARRIS, III, Appellant.

No. 56205-9.

Supreme Court of Washington,

En Banc.

March 29, 1990.

Browne & Ressler, Allen M. Ressler, Seattle, for petitioner.

John W. Ladenburg, Pierce County Prosecutor, Chris Quinn-Brintnall, Sr. Appellate Deputy, Tacoma, for respondent.

James E. Lobsenz, Seattle, amici curiae for petitioner On Behalf of Washington Ass'n of Criminal Defense Lawyers.

Perkins, Coie, David J. Burman, Kevin J. Hamilton, Seattle, Valerie L. Hughes, Bellevue, amici curiae for petitioner On Behalf of American Civil Liberties Union.

Kenneth O. Eikenberry, Atty. Gen., John M. Jones, Paul D. Weisser, Asst. Attys. Gen., Olympia, Norm Maleng, King County Prosecutor, Robert S. Lasnik, Deputy, Seattle, amici curiae for respondent On Behalf of Washington Ass'n of Pros. Attys.

DOLLIVER, Justice.

Following its June 29, 1989 en banc administrative conference, this court granted Benjamin Harris motion for discretionary review of the warrant setting his execution for July 11, 1989. In the order granting review, the court acknowledged that Harris' motion for stay of execution had become moot by a federal stay order. We observed, however, that his claim of incompetency to be executed may not be moot and presents "important questions which should be determined for the guidance of trial courts in this and other capital cases." We now answer those questions and deny Harris' request for additional inquiry into his mental state.

On August 10, 1984, the Pierce County Prosecutor charged Harris and Gregory Bonds with the aggravated first degree murder of Jimmy Lee Turner. The prosecutor alleged Harris had agreed to pay Bonds to commit the murder. In late September, Harris was committed to Western State Hospital for a determination of his competency to stand trial. On October 10, 1984, the hospital reported Harris was aware of the nature of the charges against him and able to assist in his defense. The trial court granted defense counsel's motions for a continuance and for an independent psychiatric examination. Counsel evidently did not obtain an independent evaluation, and no formal evidentiary hearing was held on Harris' mental state prior to trial.

Following Harris' conviction on the aggravated murder charge, defense counsel moved for arrest of judgment and for a new trial. Counsel claimed Dr. Kathleen Mayers, the clinical psychologist who had examined and tested Harris at Western State, had not completed scoring one of the tests. At the hearing on this motion, Dr. Mayers adhered to her opinion that Harris had been competent to stand trial. She also explained the one test had not been scored because Harris never finished taking it. Dr. Allen Traywick, who had also examined Harris at Western State, agreed with Dr. Mayers' assessment of Harris' mental state. The trial court denied the motion for new trial and entered judgment on the jury's verdict. Harris' conviction and death sentence were affirmed in October 1986. State v. Harris, 106 Wash.2d 784, 725 P.2d 975 (1986).

In his first personal restraint petition, Harris framed 36 separate issues, including a claim that he had been incompetent to stand trial. That petition was denied in November 1988. In re Harris, 111 Wash.2d 691, 763 P.2d 823 (1988). Defense counsel Allen Ressler subsequently filed a second personal restraint petition and requested this court to authorize an expenditure of public funds to enable Dr. Kenneth Muscatel to examine Harris and determine his competency to be executed and his ability to assist counsel in postconviction proceedings. Following our March 8, 1989 en banc administrative conference, we dismissed Harris' second personal restraint petition without prejudice and granted the motion for expenditure of public funds for the psychiatric examination.

On May 22, 1989, Deputy Prosecutor Chris Quinn-Brintnall informed Ressler by telephone that she had scheduled a May 30 hearing to present the death warrant. Ressler replied that Dr. Muscatel had completed the competency evaluation this court had authorized. The prosecutor suggested that the competency hearing also be held on the 30th. When Ressler asked if the State could be ready that fast, the prosecutor said she would make the necessary arrangements and get back to him. Ressler said he had no objection to having a State expert examine Harris, but he wanted to see the court order first so he would know when the examination was to occur. Following this telephone conversation, Quinn-Brintnall obtained an ex parte order transferring Harris to Western State Hospital for a competency evaluation. She then telephoned Ressler's office and left notice of the date of the scheduled examination (then 3 days hence). Ressler was not in the office the rest of the week, however, and did not learn until after the fact that Harris had been transferred to Western State and examined there.

At the outset of the May 30 hearing, Ressler said he was "not sure what the purpose of this appearance before the Court is today" and that he "wasn't even aware of why I was coming to court today." He complained that the prosecutor had "never moved the court for an order setting a new execution date." Ressler conceded that he had been informed in a telephone conversation the previous Monday (May 22) that there would be a hearing on the 30th. He said he understood that "what counsel wants to do is to have an execution date." He also acknowledged he "ha[d] planned to put the issue of competency in question this morning" and that "I'm here with my witnesses."

The trial court asked Ressler what he was "trying to accomplish with this argument ..." Ressler replied that he wanted the court "to determine that my client is incompetent to proceed with any of these additional proceedings." The court asked if counsel wanted "to do that today?" Ressler said he wanted to present his evidence, but he objected to Harris' ex parte examination at Western State and moved to strike the State's expert testimony. After telling Ressler the State had the right to present evidence if he did so, the court again asked counsel if he wanted to "proceed today or not?" Ressler said he did not, and suggested a hearing at the end of the week.

The court indicated its willingness to grant a 1- or 2-day continuance and suggested the State could, in the interim, "redo" its expert's examination of Harris with proper notice to counsel. Later, however, the court suggested that they proceed that day with Dr. Muscatel's testimony and "see if it raises a question regarding Mr. Harris' competency." The court asked Ressler if this procedure would be satisfactory. Ressler said the court could make a determination of incompetency based solely on Dr. Muscatel's written report. The court proposed instead to "listen to Mr. Ressler's evidence" since Dr. Muscatel and Harris were both present.

Ressler then called Dr. Muscatel, who testified that he had interviewed Harris in the mental health unit of the penitentiary. In his written report to counsel, Muscatel had concluded that "Although [Harris] is able to appreciate his circumstances and his peril ... there is reason for substantial concern for this man's competence to assist his attorney in the current aspects of his appeals." When Muscatel began testifying regarding Harris' "competency with regards to his assisting his attorney ... [i]n the appeal process", the court informed Ressler that "we are only concerned here with competency ... for the purposes of execution, death warrant. I am not, in this court, concerned with his competency for the appeal process ..." Ressler asked to make a record on both issues and moved for admission of Muscatel's written report as exhibit A. The court sustained the prosecutor's objection to the exhibit as irrelevant but expressed willingness to "hear anything you wish to offer ... as to whether or not he is sufficiently competent for this Court to sign a death warrant."

Ressler then asked Muscatel if he was able to render an opinion regarding a person's competence to be put to death. Muscatel replied that it was difficult to do so because there is no clear legal standard defining this type of competency. The doctor said he had recently been to a national conference on the issue and had heard of several different standards. He could recall only the Kentucky test, under which a defendant is competent to be executed if he is not experiencing an acute psychotic episode. According to Muscatel, Harris was not having an acute psychotic episode; he understands "the nuts and bolts" of the legal proceedings; he knows he is facing execution for his murder conviction. Because of his "delusional system", however, Harris is "unconcerned about it because he believes that he will be exonerated and set free before anything happens".

When the court asked directly whether Harris is competent enough for the court to sign a death warrant, Muscatel replied, "I don't know if he's competent or not ..." Ressler asked whether there was anything he could do that would enable him to render an opinion on that issue. Muscatel first replied, "If he's always the way he is right now, today, I may never know." When Ressler repeated the question, however, the doctor said, "The only thing I could do is spend more time with him." On cross examination, Muscatel conceded that he might not be able to "make a clear judgment" even after seeing Harris two or three more times.

At the completion of Dr. Muscatel's testimony, Ressler moved "to strike these proceedings and for the Court to enter an order determining that [Harris] is incompetent to proceed and to stay all further proceedings pending his being rendered competent". Counsel suggested that Harris be evaluated under RCW 10.77 over the next 3 weeks, after which Dr. Muscatel could return to court and render an opinion regarding Harris' competence.

The trial court found no...