State v. Lewis, 8709

Decision Date04 September 1986
Docket NumberNo. 8709,8709
Citation104 N.M. 677,1986 NMCA 90,726 P.2d 354
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Scott Alan LEWIS, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

DONNELLY, Judge.

Defendant appeals his convictions of four counts of forgery and one count each of embezzlement and larceny. Seventeen issues are raised on appeal; fourteen of the issues are raised pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967). We discuss defendant's: (1) claim of ineffective assistance of counsel; (2) competency to stand trial; (3) right of pro se representation; and (4) claims of denial of due process and deprivation of a fair trial. We remand with instructions.

The criminal charges against defendant arose from allegations that he had forged a check belonging to his mother and stepfather in the sum of $35,000, and converted the proceeds, and that he had embezzled or stolen their Cadillac automobile. Defendant also was charged with forging the signature of his stepfather on a check drawn on the bank account of the American Podiatry Association in the amount of $22,000.

Following defendant's indictment and arrest, the court appointed the public defender to represent him. The public defender thereafter contracted with private counsel to represent defendant. At arraignment, defendant related that he had an extensive psychiatric and psychological history, and requested permission to be evaluated and treated at the Veterans Hospital in Albuquerque. The court agreed to release defendant, pending trial, to the Veterans Hospital provided that the hospital would promise to report any absence or the failure of defendant to submit to treatment. The hospital was unwilling to accept defendant under those terms.

Prior to trial, defendant's court-appointed attorney sought to negotiate a plea bargain on defendant's behalf. However, defendant rejected the proposal and demanded that his court-appointed attorney be discharged. Defense counsel met with defendant and attempted to discuss preparation for trial. However, defendant refused to communicate with his counsel. Thereafter, defendant's attorney filed a motion for clarification of his status, advising the court that defendant requested his discharge. At the hearing on the motion, defense counsel related and defendant conceded, that defendant would not communicate with him or assist him in the preparation of the defense. Defendant told the court that he wanted other counsel because his attorney had attempted to persuade him to accept a plea bargain. Defendant also filed a handwritten motion complaining that his attorney had not prepared for trial, that his counsel "has a limited defence [sic] for me or no defence [sic] at all", and that his attorney had not called psychiatrists or psychologists as witnesses on his behalf.

Shortly before trial, the prosecutor filed a motion to require defendant to submit to a psychological evaluation in order: (1) to determine his competency to stand trial; (2) for his ability to formulate a specific intent; and (3) for his competency to represent himself pro se. The motion recited in part that, "Defendant has a history of mental illness and treatment for mental illness, that Defendant has acted in a peculiar manner in this Cause (post-arraignment behavior of Defendant) and [requests] the Court to take notice of Defendant's behavior in Court, including his oral and written communications to this Court." Defendant's attorney did not object to the motion and approved the order granting the relief "as to form." The trial court signed and entered the order.

Thereafter, the trial court held a hearing to review the results of the evaluation. Dr. Sarah Feeney, a clinical psychologist and director of the court clinic, testified for the state. She stated that it was her opinion that although defendant exhibited some psychological problems, he had no severe psychopathy and was competent to stand trial. On cross-examination, she testified that she had not investigated the issues of defendant's ability to form the requisite intent to commit the charged offenses or whether defendant was competent to represent himself.

On the morning of trial, defendant filed a handwritten motion with the court again seeking appointment of new counsel, seeking a continuance, pointing out that the court order for a psychological examination was only partially fulfilled and requesting that he be given further psychological evaluation in order to determine his capacity to form the requisite intent. Defense counsel again requested the court to relieve him from representing defendant on the ground that defendant would not communicate with him. The court ruled that since defendant was indigent, and because the case was set for trial, his appointed counsel should continue to represent him. The court also stated that if defendant did not want to cooperate with his appointed counsel, it was defendant's own choice; however, defendant would not be allowed to sabotage the trial.

During trial, the state called defendant's mother, Helen Stone, to testify on behalf of the prosecution. Defendant's attorney advised the court outside the presence of the jury that defendant had instructed him not to cross-examine his mother, and that without cross-examination of this witness, counsel could not effectively represent defendant. The court ruled that strategy and tactics were matters for defense counsel to determine, thus, counsel could cross-examine the witness, if he felt it appropriate. Defendant stated that he did not wish to proceed pro se and would agree to the cross-examination of his mother, if defense counsel thought it necessary.

During the testimony of defendant's mother, she related that her son was forty years of age and had been in "trouble" in Florida and Mexico where he had been living. She related that defendant had resided with her and her late husband Dr. Stone (his stepfather) for approximately five months, and that during this time Dr. Stone had been terminally ill with cancer. She stated that shortly after her husband's death, she discovered defendant had taken the funds belonging to Dr. Stone and the American Podiatry Association. She also stated that following defendant's arrest, she had confronted defendant about his actions and he had admitted taking the funds.

On cross-examination, defendant's mother stated that defendant had a history of psychological and emotional problems, and that he joined the Air Force, but had been honorably discharged because he could not withstand the pressures of the service. She testified that defendant had been examined by a psychiatrist in the service, and at the time of the incidents leading up to the crimes charged, defendant had seen two different psychologists. Defendant's mother also related that she believed defendant had delusions and misperceptions about reality and that he had once undergone shock therapy.

At trial, defendant's attorney called no defense witnesses and did not place defendant on the witness stand. Defense counsel did not tender an instruction placing defendant's mental condition in issue. Defendant's attorney did request an instruction concerning defendant's belief concerning his authority to use the automobile he was accused of taking. During closing argument, defense counsel suggested to the jury that the evidence of defendant's mental illness served to create a reasonable doubt as to whether defendant was guilty of the charged offenses.

Following deliberations, the jury convicted defendant on the charges of embezzlement and larceny and on each of the forgery counts. At the sentencing hearing, defense counsel again reiterated the problems he had encountered in representing defendant which stemmed from defendant's refusal to communicate with him, and stated that he thought defendant was delusional and "not quite in touch with reality." Defense counsel requested a diagnostic evaluation prior to sentencing. At sentencing, defendant again complained of the ineffectiveness of his counsel and reiterated that his attorney had failed to call a psychiatrist or psychologist on his behalf during the trial. The trial court denied the motion for a diagnostic evaluation before sentencing, and advised defendant that his claim of ineffective assistance of counsel could be raised on appeal.

1. CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL; COMPETENCY TO STAND TRIAL; PRO SE REPRESENTATION

We consider jointly defendant's claims of: ineffective assistance of counsel; his competency to stand trial; and denial of defendant's right to act as his own attorney. The common thread that runs through each of these contentions is defendant's argument that he had a history of mental problems, that his attorney failed to properly investigate and pursue the issue of his competency, failed to raise the defense of diminished capacity, and neglected to inquire into the issue of defendant's competency to assist in his own defense. Alternatively, defendant claims on appeal that the trial court erred in denying his motion to discharge his attorney and to act as his own trial attorney.

(A) CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that although his attorney referred to the issue of his mental competency during trial and referred to his inability to form the requisite intent to commit the crimes charged, no witnesses were presented to substantiate the defense, and no instruction was tendered on this theory of the case. See NMSA 1978, UJI Crim. 40.10 (Repl.Pamp.1982); see also State v. Talley, 103 N.M. 33, 702 P.2d 353 (Ct.App.1985).

The right of a defendant in a criminal trial to the effective assistance of counsel is of constitutional dimension. State v. Boyer, 103...

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    • United States
    • California Supreme Court
    • February 27, 1997
    ...611; United States v. Bennett (10th Cir.1976) 539 F.2d 45, 49-51; Olson v. State (Ind.1990) 563 N.E.2d 565, 570; State v. Lewis (Ct.App.1986) 104 N.M. 677, 726 P.2d 354, 359.) And another court has advised that the defendant's conduct, as well as words, must be taken into account, stating: ......
  • State v. Dietrich
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    ...the record as a whole when determining whether a defendant has received ineffective assistance of counsel. State v. Lewis, 104 N.M. 677, 680, 726 P.2d 354, 357 (Ct.App.1986). In considering a claim of ineffective assistance, the duties of counsel are considered. These duties include loyalty......
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    ...discretionary and will not be overturned except where there is shown an abuse of discretion." State v. Lewis , 1986-NMCA-090, ¶ 17, 104 N.M. 677, 726 P.2d 354. The issue of whether Defendant validly waived his constitutional right to counsel is an issue of law that we review de novo. See St......
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