State v. McCarthy

• Decision Date: 12 November 2004
• Docket Number: No. 03-434.,03-434.
• Citation: 324 Mont. 1,101 P.3d 288,2004 MT 312
• Parties: STATE of Montana, Plaintiff and Respondent, v. Roman Sonny McCARTHY, Defendant and Appellant.
• Court: Montana Supreme Court

101 P.3d 288

2004 MT 312

324 Mont. 1

STATE of Montana, Plaintiff and Respondent, v. Roman Sonny McCARTHY, Defendant and Appellant.

No. 03-434.

Supreme Court of Montana.

Submitted on Briefs May 4, 2004.

Decided November 12, 2004.

For Appellant: Brock Albin, Albin Law Office PC, Bozeman, Montana.

For Respondent: Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant Attorney General; Carlo Canty, Special Deputy Gallatin County Attorney, Helena, Montana, Marty Lambert, Gallatin County Attorney, Bozeman, Montana.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Roman McCarthy (McCarthy) was convicted of Intimidation, a felony, in violation of § 45-5-203, MCA, for threats made to probation and parole officers, a prosecutor and a district court judge. He appeals his conviction. We affirm the District Court.

¶ 2 There are five issues raised in this appeal:

¶ 3 1. Whether the District Court should have ordered a competency hearing sua sponte.

¶ 4 2. When McCarthy did not appear the second day of trial, did the District Court err when it accepted McCarthy's written waiver of appearance?

¶ 5 3. Did the District Court err in denying McCarthy's post-verdict motion challenging the voluntariness of his written waiver of appearance?

¶ 6 4. Whether there was sufficient evidence to support McCarthy's conviction of Intimidation.

¶ 7 5. Did the District Court abuse its discretion in denying McCarthy's motion in limine?

STANDARD OF REVIEW

¶ 8 The standard of review for each issue will be contained in the discussion of that issue.

BACKGROUND

¶ 9 In August 2001, McCarthy was serving a probationary sentence for harassing his previous stalking victim. Probation and Parole Officer Stephen Ette (Ette) was assigned to supervise him. McCarthy wanted to live in Arizona near his brother while on probation, so on August 6, 2001, Ette's supervisor, Bernie Driscoll (Driscoll) issued McCarthy a temporary travel permit to look for a job and a residence in Arizona. The temporary permit required McCarthy to return to Montana because, under the Interstate Compact Policy, he could not be physically residing in Arizona if Montana Probation and Parole decided to request that Arizona accept supervision over him.

¶ 10 On August 22, 2001, McCarthy telephoned Ette and they discussed McCarthy's job and residence search. Initially, McCarthy was calm and composed, but when Ette informed him that he was required to return to Montana, McCarthy's demeanor changed and he began to yell obscenities at Ette. McCarthy focused his aggression toward Deputy County Attorney Gary Balaz (Balaz), who had prosecuted him on the original charge of stalking. McCarthy stated that Balaz had ruined his life and "he should just come back and put a bullet in the motherfuckin' cocksucker's head." He also stated that if he did have to return to Montana, he was going to do something to ensure he was placed on death row, and he wanted to return to Montana and "do a Columbine on the whole motherfucking courtroom." When Ette was asked to explain McCarthy's statement, he testified:

I took it that Mr. McCarthy was going to come back to the State of Montana and come into the Law and Justice Center with either numerous weapons or weapons capable of firing semi-automatically and shoot as many people in the courtroom as possible to include Mr. Balaz and Judge Salvagni, myself, or anyone else that was here at that time.

¶ 11 On September 12, 2001, during another telephone conversation, Ette again informed McCarthy he would have to return to Montana. McCarthy became indignant, yelling there was a conspiracy between Ette and Balaz, and they were ordering his return just to ruin his life. McCarthy then declared "he was bigger and badder than any motherfucking Iranian terrorist." Since terrorists had flown airplanes into the World Trade Center the day before, Ette testified he felt McCarthy was going to return to Montana and cause some type of major event or catastrophe.

¶ 12 McCarthy also requested that Ette get Driscoll, Judge Salvagni and Balaz together in Driscoll's office and "he would take care of the situation there." Ette testified he believed McCarthy wanted to "get these people together because he focused all of his anger and aggression on them. And that [McCarthy] would do something that would end up placing him, ultimately, in Montana State Prison for the rest of his life. I figured that [McCarthy] would come back and kill them."

¶ 13 McCarthy requested to speak to Driscoll, and during their conversation, McCarthy asked Driscoll to change his decision about the return to Montana. Driscoll denied his request. McCarthy responded, "If I have to come back there, I'm going to blow Balaz's fucking head off." The next day, a warrant was issued for McCarthy's arrest, he was arrested in Arizona and returned to Montana in July 2002.

¶ 14 On August 16, 2002, the State charged McCarthy by Information with Intimidation, a felony, in violation of § 45-5-203, MCA, for his threats. McCarthy pled not guilty on August 20, 2002, and the matter proceeded to trial. During the proceedings, McCarthy continually displayed disruptive behaviors. He repeatedly stated he had been set up, that Balaz, the probation officers and the court system were corrupt and he was innocent of the charge. McCarthy also threw salt packets while saying "[t]here's one assault. There's two assaults. There's three assaults. Give me another case on that. That is no different than what they've played with me so far." While in jail, McCarthy attempted to file several incoherent and confusing letters and documents with the court. On November 19, 2002, these documents were returned to McCarthy's counsel, William Bartlett (Bartlett), along with a letter explaining that Judge Guenther had not opened the letters as he was "barred by judicial ethics from reviewing ex parte letters or information during the pendency of or subsequent to a case unless it is presented in open court and notice is given to the other parties."

¶ 15 On December 6, 2002, McCarthy filed a motion in limine requesting the District Court exclude any testimony, evidence and argument mentioning the subjective fears, beliefs or opinions of Driscoll and Ette, and to also exclude his threat as it was not made under circumstances which reasonably tend to produce a fear that it will be carried out. The District Court denied the motion following argument on December 9, 2002, and allowed Driscoll and Ette to testify about their fears and apprehensions derived from their conversations with McCarthy.

¶ 16 On December 10, 2002, the second day of trial, McCarthy did not appear in court. Bartlett informed the court that McCarthy wished to waive his appearance at trial because the previous evening McCarthy had been in an altercation with the jail staff, which resulted in some injuries to his back and neck and he would not be able to comfortably sit in front of the jury. The prosecutor responded that he preferred McCarthy to be present, but agreed McCarthy had the right to make a knowing, intelligent, and voluntary decision not to appear at trial. McCarthy signed the waiver, which was witnessed by Bartlett, and the court permitted McCarthy to be absent. McCarthy also executed a second written waiver waiving his right to be present when the jury returned its verdict. On December 10, 2002, the jury unanimously found McCarthy guilty of Intimidation.

¶ 17 On February 27, 2003, McCarthy filed a pro se motion for a mistrial, arguing his written waiver of appearance was not freely nor voluntarily given. He testified he did not know he would lose his chance to go to trial and defend himself by signing the waiver. The next day, after a hearing, the District Court denied McCarthy's motion, found McCarthy to be a persistent felony offender and sentenced him to seventeen years in the Montana State Prison without parole. McCarthy appeals.

DISCUSSION

ISSUE ONE

¶ 18 Whether the District Court should have ordered a competency hearing sua sponte.

¶ 19 McCarthy argues he was not competent to stand trial and assist in his defense, thus, the District Court should have sua sponte ordered an evaluation of him before proceeding to or continuing the trial. The State asserts the District Court was not presented with substantial evidence that McCarthy was incompetent, and prior to and during trial, Bartlett never questioned nor presented any medical opinion on McCarthy's competency. We agree with the State.

¶ 20 When reviewing a district court's finding of competence, we inquire whether substantial evidence supports the district court's decision that the defendant was fit to proceed to trial. State v. Garner, 2001 MT 222, ¶ 22, 306 Mont. 462, ¶ 22, 36 P.3d 346, ¶ 22 (citation omitted). Although under certain circumstances a retrospective competency hearing may be held, such hearings are disfavored. Garner, ¶ 29 (citation omitted).

¶ 21 The standard for determining whether a criminal defendant is mentally competent to stand trial is set forth at § 46-14-103, MCA:

A person who, as a result of mental disease or defect or developmental disability, is unable to understand the proceedings against the person or to assist in the person's own defense may not be tried, convicted, or sentenced for the commission of an offense so long as the incapacity endures.

The district court must determine "whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him." State v. Bartlett (1997), 282 Mont. 114, 119, 935 P.2d 1114, 1117 (citations omitted). The doubt raised about competency need not come from the defendant or the defendant's attorney since a court has the duty to order a competency hearing sua sponte if it has reasonable grounds for concluding there is a good faith doubt as to a defendant's competency....