State v. Johnson
| Decision Date | 25 June 1996 |
| Docket Number | No. A-95-444,A-95-444 |
| Citation | 551 N.W.2d 742,4 Neb.App. 776 |
| Parties | STATE of Nebraska, Appellee, v. Darrell JOHNSON, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Postconviction: Proof: Appeal and Error. One seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the postconviction court will not be disturbed unless they are clearly wrong.
2. Postconviction: Effectiveness of Counsel: Proof. In a postconviction action seeking relief on the basis of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that such deficient performance prejudiced the defendant.
3. Criminal Law: Mental Competency. Under the M'Naghten rule, a defendant is sane if he has (1) the capacity to understand the nature of the act alleged to be criminal and (2) the ability to distinguish between right and wrong with respect to such act.
4. Insanity: Proof: Time. For an insanity defense, the showing regarding the mental state of the accused must relate to the time of the acts charged.
5. Mental Competency: Trial: Effectiveness of Counsel. Attorneys have a duty, when a question of a client's competency arises, to ensure that the client is capable of making a rational choice among rationally understood probabilities. However, the duty is fulfilled if the defendant's attorney has the defendant evaluated for competency and the results reveal that the defendant is competent to stand trial.
6. Mental Competency: Trial: Effectiveness of Counsel. If a mental examination reveals that the defendant is incompetent to stand trial, or that there is a question of competency, and the defendant's attorney does not bring the issue to the attention of the court, the defendant has not been afforded effective counsel.
7. Mental Competency: Attorney and Client: Presumptions. A presumptively incompetent defendant cannot be entrusted with the responsibility of dictating counsel's tactics at a competency hearing.
8. Convictions: Mental Competency: Due Process. The conviction of an accused person while he or she is legally incompetent violates the constitutional guarantee of substantive due process.
9. Mental Competency: Trial: Waiver. A defendant does not waive the defense of his competency to stand trial by failing to demand a competency hearing.
10. Mental Competency: Pleas: Trial. A defendant is competent to plead or stand trial if he has the present capacity to understand the nature and object of the proceedings against him, to comprehend his own condition in reference to such proceedings, and to make a rational defense.
11. Mental Competency: Pleas: Trial. The test of mental capacity to plead is the same as that required to stand trial.
12. Mental Competency: Pleas: Trial. If facts are brought to the attention of the court which raise doubts as to the sanity of the defendant, the question of competency should be determined at that time.
13. Mental Competency: Trial. Competency to stand trial is a factual determination, and the means to be employed to determine competency are discretionary with the district court.
14. Mental Competency: Appeal and Error. If there is sufficient evidence in the record to support the finding of competency, it will not be disturbed on appeal.
15. Mental Competency: Trial: Due Process. Due process requires that a hearing be held whenever there is evidence that raises a sufficient doubt about the mental competency of an accused to stand trial.
16. Mental Competency: Expert Witnesses. A medical opinion on the mental competency of an accused is usually persuasive evidence on the question of whether a sufficient doubt exists.
17. Due Process: Notice. Due process requires that notice not only must be given to inform a party of the pendency of an action, but also must be sufficient to provide a person with a meaningful opportunity to be heard, and at the least, must inform a party regarding the nature of the upcoming proceeding.
18. Trial: Appeal and Error. Plain error is when the trial court's ruling, action, or inaction is clearly untenable and unfairly deprives the defendant of a substantial right and a just result.
Thomas R. Lamb and Amie C. Martinez, of Anderson, Creager & Wittstruck, P.C., Lincoln, for appellant.
Don Stenberg, Attorney General, and Barry Waid, Lincoln, for appellee.
Darrell Johnson appeals from the district court's denial of postconviction relief after holding an evidentiary hearing on Johnson's motion for relief. Johnson was charged with two counts of committing incest with his daughter, in violation of Neb.Rev.Stat. § 28-703 (Reissue 1995). As part of a plea bargain, Johnson pled guilty to one count. During the plea hearing, Johnson's attorney put into evidence a copy of a psychiatrist's report which said that Johnson was incompetent to stand trial; however, Johnson's attorney did not file a motion for or otherwise request a hearing on competency, and the district court did not hold a separate hearing sua sponte. Johnson alleges his trial counsel was ineffective because he did not raise the issue of competency or insanity with the court.
Darrell Johnson was charged with having sexual intercourse with his daughter in the family home between July 1 and August 31, 1991. On March 12, 1993, Johnson was charged with two counts of incest. Trial counsel was retained for Johnson. Johnson was arraigned on March 16, 1993, and the court entered not guilty pleas on his behalf.
In his testimony during the postconviction relief hearing, Johnson's trial counsel stated that he discussed the issue of Johnson's competency several times with Johnson and his parents. Johnson's attorney stated that Johnson did not want to raise the issue. The attorney's testimony was that
[w]e kept proceeding, and we would go from one meeting to the next and Mr. Johnson, Darrell, would kind of indicate that maybe he didn't understand what I said the first time. So we would repeat it. Eventually, it came down to asking Dr. Gutnik, Bruce Gutnik, in Omaha to perform an evaluation which included a determination with regard to competency to stand trial.
Dr. Bruce Gutnik examined Johnson on August 16, 1993, approximately 15 days before Johnson's plea hearing, and authored a written report dated August 26, 1993. Dr. Gutnik diagnosed Johnson as suffering from post-traumatic stress disorder and dissociative disorder, with associated paranoia. Dr. Gutnik noted that Johnson stated that his actions in his past were Johnson, born in 1948, reported to Dr. Gutnik that he was supposed to be 23 years old and did not understand how he got to 1993. Johnson was under the belief that he had been in Vietnam and was hypnotized by the Army, and that as a result he " 'lost 20 some years.' " Dr. Gutnik stated that Johnson was not "feigning his symptoms and in my opinion, with reasonable medical certainty, his disorders are real." Moreover, Dr. Gutnik stated that
While Dr. Gutnik found that Johnson understood that he had been charged with a criminal offense, that a prosecutor would attempt to convict him, and that his attorney would serve to defend him, and found that Johnson would be able to give and receive advice and to decide upon a plea and testify, Dr. Gutnik stated that Johnson would "do so all based on what others have told him to do and would not be able to make such decisions on his own." Dr. Gutnik stated, "I question his ability to confer coherently with appreciation of the proceedings." Dr. Gutnik's report, which was offered and received in evidence at the plea hearing, concludes by stating that
Mr. Johnson's symptoms at this time have reached the level of psychosis, in which he has lost touch with reality. His paranoid thinking, and belief that he is still in the Army, make it difficult for me to understand how he can reasonably be expected to help defend himself against the charges that have been filed. Based on the above, in my opinion, with reasonable medical certainty, Mr. Johnson is not at this time competent to stand trial.
Johnson's trial attorney testified at the evidentiary hearing that he noticed that Johnson talked about himself as if he were During the plea hearing, the court noted that Johnson's attorney had raised the issue of competency. The court then asked Johnson how old he was, what grade he had completed, whether he could read and write, whether he could understand what the judge was saying, and whether he was on drugs. Johnson answered appropriately. The court then found that Johnson had freely, voluntarily, knowingly, and intelligently withdrawn his former plea of not guilty. A factual recitation of the charges was made, and the court advised Johnson of his Boykin rights, which Johnson stated he understood. The following colloquy then occurred on the record between Johnson and his attorney:
two persons and seemed to have dissociative problems regarding time. However, despite Dr. Gutnik's report and his own observations, Johnson's attorney stated that he believed Johnson was competent to stand trial because it was his belief that Johnson had an understanding of the procedure and the nature of the procedure. His attorney testified that while Johnson did not want to raise the issue of competency, the attorney nonetheless told Johnson that he thought he had an obligation to call the court's attention to the issue of competency.
[Attorney]: ... We discussed also your competency to stand trial?
[Johnson]: Right.
[Attorney]: And you believe that you were competent to stand trial and competent to enter this plea...
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