State v. Heger

• Decision Date: 01 December 1982
• Docket Number: Cr. N
• Citation: 326 N.W.2d 855
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Michael HEGER, Defendant and Appellant. os. 807, 817.
• Court: North Dakota Supreme Court

Page 855

326 N.W.2d 855

STATE of North Dakota, Plaintiff and Appellee, v. Michael HEGER, Defendant and Appellant.

Cr. Nos. 807, 817.

Supreme Court of North Dakota.

Dec. 1, 1982.

James N. Purdy, State's Atty., Ellendale, for plaintiff and appellee State of N.D.

Robin Huseby, of Sproul, Lenaburg, Fitzner & Walker, Valley City, for defendant and appellant.

VANDE WALLE, Justice.

Michael Heger appealed from judgments of conviction entered by the district court, Barnes County, for the crimes of murder, gross sexual imposition, and burglary. We affirm.

The sole issue presented to us on appeal is whether or not the trial court erred in ultimately finding the defendant, Michael Heger, competent to stand trial.

Heger's competency to stand trial was questioned almost immediately after criminal proceedings were instituted against him. As a result, three evidentiary hearings were held to determine his fitness to proceed to trial.

On April 19, 1979, four days after he was arrested, the county court at defense counsel's request ordered Heger to undergo a mental examination at the State Hospital. Dr. Carbone, superintendent of the North Dakota State Hospital, in a letter to the court dated May 1, 1979, gave the results of the examination and expressed the opinion that Michael Heger was incompetent to stand trial. The State challenged Dr. Carbone's opinion, and consequently a competency hearing was scheduled for June 12, 1979. At the hearing several doctors from the State Hospital, in addition to Dr. Carbone, testified that Heger was incompetent to stand trial. The State presented no expert testimony of Heger's competency, and the county judge found Heger unfit for trial and remanded him to the custody of the State Hospital.

Heger remained at the State Hospital until October 14, 1980, when he was discharged to the Barnes County sheriff following the court's receipt of a letter from Dr. Rashid, clinical director at the State Hospital, informing the court that in the opinion of the State Hospital staff, Michael Heger was then competent to stand trial. This time defense counsel challenged the opinion, and a second competency hearing was scheduled for December 3, 1980. Once again several doctors from the State Hospital testified, but their testimony was that Heger was competent to stand trial; ¹ defense counsel presented no expert medical testimony of Heger's incompetency. On the basis of evidence presented at the hearing and from his own personal examination of Heger, the county judge found Heger competent to stand trial.

In February 1981, defense counsel made a motion to the district court to overrule the county court's latest decision that Heger was competent, and in the alternative to order a psychiatric evaluation of Heger to be conducted by someone other than a member of the State Hospital staff. The court initially denied both motions but upon reconsideration granted the motion for an independent psychiatric evaluation.

Dr. Sharbo, a private practitioner and chief of psychiatry at the Neuropsychiatric Institute in Fargo, conducted the court-ordered independent mental examination of Heger. On the basis of his examination and the results of neuropsychological testing performed by Dr. Fischer, a neuropsychologist associated with Dr. Sharbo, Dr. Sharbo formed the opinion that Heger was incompetent to stand trial.

Upon receiving Dr. Sharbo's report on his evaluation of Heger, defense counsel moved the district court for another competency hearing. The court granted the motion, and on October 6, 1981, the third, and final, competency hearing was held. Expert medical testimony was presented by both sides, with the trial judge conducting an informal examination of Heger at the conclusion of the hearing. Michael Heger was found competent by the trial judge and proceeded to trial the following day.

This is the first time a trial court's decision following a hearing on the issue of a defendant's fitness to proceed to trial has been questioned in this court. Among the jurisdictions which have considered the issue, there is no uniformity of opinion regarding such matters as the allocation of the burden of proof in a competency hearing, the standard of proof in a competency hearing, and the standard for reviewing a trial court's decision on competency. Consequently, we approach what is a difficult problem with more than the usual caution and thoughtfulness.

It is well established that a defendant cannot be tried for the commission of an offense if he is incompetent. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). A defendant is incompetent when he neither has (1) "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding," nor (2) "a rational as well as factual understanding of the proceedings against him." ² Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

Once the issue of a defendant's competency to stand trial has been raised, a number of principles and procedures come into play to resolve the issue. At the outset, a defendant is presumed to be competent; ³ but if the trial judge has any reason to doubt a defendant's fitness to proceed, he may order him to have a psychiatric examination. Sec. 12.1-04-06, N.D.C.C. The results of the examination are to be reported to the court in writing and then distributed to the prosecutor and defense counsel. Sec. 12.1-04-07, N.D.C.C. Should there be a dispute concerning the findings of the report, the trial court must hold an evidentiary hearing to decide the defendant's competency. State v. Storbakken, 246 N.W.2d 78 (N.D.1976); Sec. 12.1-04-07, N.D.C.C. At the hearing, evidence regarding a defendant's fitness to stand trial may be presented in the form of lay observations and expert medical testimony. State v. Fischer, 231 N.W.2d 147 (N.D.1975). Furthermore, considering that the issue of a defendant's competency to stand trial is a legal question to be decided by the trier of fact [United States v. Voice, 627 F.2d 138 (8th Cir.1980); State v. Quarrels, 211 Neb. 204, 318 N.W.2d 76 (1982) ], it is entirely appropriate for the trial judge to personally conduct an informal examination of the defendant and then to "rely, in part, on his own impressions, observations and conclusions" in deciding whether or not the defendant is competent. See Fischer, supra, 231 N.W.2d at 155.

Focusing our attention on the nature of the evidentiary hearing provided for in Section 12.1-04-07, N.D.C.C., we see that no provision is made for the allocation of a burden of proof on the issue of a defendant's competency. Our research of the point in question shows that it is generally settled who has the burden of proof but not at all settled what the standard of proof is.

We agree with the majority of courts that the prosecution has the burden to establish a defendant's capacity to stand trial. See, e.g., United States v. DiGilio, 538 F.2d 972 (3d Cir.1976), cert. denied 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Placing the burden on the State seems to conform best to the North Dakota procedure for determining competency where the defendant is initially presumed competent until the trial court has reason to doubt the defendant's competency. At that point, where the trial judge has reason to doubt the defendant's competency, it is logical, and fair, in view of the great injustice which would result if an incompetent person were forced to stand trial, to require the State to alleviate the court's doubt, if it can.

What the standard of proof should be in a competency hearing is a more difficult question. A few courts hold that the prosecution has the burden to show beyond a reasonable doubt the defendant's fitness to stand trial. Jolley v. State, 282 Md. 353, 384 A.2d 91 (Md.Ct.App.1978). But it appears the majority of courts that have considered the issue put the burden upon the prosecution to demonstrate the defendant's competency by a preponderance of the evidence only. ⁴

In a criminal proceeding there is no question that the prosecution must prove each element of the criminal offense charged beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). But, as the Third Circuit correctly points out in DiGilio, supra, competency to stand trial is not an element of a criminal offense. For that reason we believe it is inappropriate to require the State to show defendant's competency beyond a reasonable doubt. We see no reason to require the State to establish a defendant's competency by more than a preponderance of the evidence. Accordingly, we hold that once a defendant has caused the trial court to doubt his fitness to proceed, the State must show by a preponderance of the evidence that he is competent to stand trial.

Next we decide what standard of review this court should use when considering whether or not a trial court has erred in making its finding on the issue of a defendant's fitness to stand trial.

Whether or not a defendant is competent to stand trial is a question of fact for the trial judge. Voice, supra; United States v. Winn, 577 F.2d 86 (9th Cir.1978); State v. Quarrels, supra. And the trial judge's finding on the issue of competency will not be set aside on review unless it is clearly erroneous. Voice, supra; United States v. Glover, 596 F.2d 857 (9th Cir.1979); United States v. Hayes, 589 F.2d 811 (5th Cir.), cert. denied 444 U.S. 847, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); United States v. Caldwell, 543 F.2d 1333 (D.C.Cir.1974), cert. denied 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); United States ex rel. Bornholdt v. Ternullo, 402 F.Supp. 374, fn. 4, at 377 (S.D.N.Y.1975). A large number of courts say that they will limit their review to an examination of whether or not the trial court abused its discretion in finding the defendant competent, e.g., State v. Crenshaw, 27 Wash.App. 326, 617 P.2d 1041 (1980). Others say that deference is...