State v. Powell
| Decision Date | 29 October 2010 |
| Docket Number | 2 CA-CR 2009-0350 |
| Parties | THE STATE OF ARIZONA, Appellee, v. VINCENT ALPHONSO POWELL, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISIONNot for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
AFFIRMED
Terry Goddard, Arizona Attorney General
By Kent E. Cattani and Laura P. Chiasson
Tucson
Isabel G. Garcia, Pima County Legal Defender By Alex Heveri
Attorneys for Appellant
¶1 Vincent Alphonso Powell appeals from his convictions and sentences for two counts of armed robbery, one count of aggravated assault, and one count each of firstand third-degree burglary. He asserts the trial court erred by finding him competent to stand trial and by finding he voluntarily had absented himself from trial. He further argues that, because he was tried in absentia, there was insufficient evidence identifying him as the man arrested for the charged crimes. Finally, he contends the court erred by sentencing him to life imprisonment and ordering him to pay restitution to the Pima County Victim Compensation Fund. Finding no error, we affirm.
¶2 On appeal, we view the facts in the light most favorable to sustaining the verdict. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). On April 14, 2007, Powell entered a convenience store and ordered the clerk to give him money. Powell insinuated he had a gun and, although the clerk never saw a gun, he gave Powell money from the cash register. Two weeks later, Powell entered another convenience store. He carried a carton of beer to the counter, placed his hand under his shirt, pointed his fingers at the clerk as if he had a gun, and told the clerk to give him all her money. The clerk testified she did not feel threatened and therefore began to pick up the beer and place it behind the counter. Powell then pulled a knife out of his pocket and "thrust[] it towards" the clerk. The two struggled and Powell came behind the counter and cut the clerk on her thumb, chin, and ear. He also choked her and pulled her hair. She escaped and called police, who found Powell nearby. An officer took the clerk to Powell and she identified him as the man who had assaulted her. The clerk's blood subsequently was found on Powell's clothing.
¶3 Powell was charged with aggravated assault with a deadly weapon or dangerous instrument, first-degree burglary, third-degree burglary, and two counts of armed robbery. On February 8, 2008, the trial court ordered Powell examined to determine whether he was competent to stand trial. Pursuant to Rule 11.5, Ariz. R. Crim. P., the parties stipulated that the court could rely on a psychological evaluation finding Powell incompetent and on April 11, the court determined Powell was not competent to stand trial, ordering him to participate in a restoration program and take all prescribed medications.
¶4 The trial court held a competency hearing on November 3, 2008. The parties stipulated the court could determine Powell's competency based "on the final competency report from the [restoration program]." That report was prepared by Dr. Debra Joseph on October 31, 2008; she concluded Powell was both malingering and "capable of assisting his attorney in a rational and factual manner if he chooses to do so." The court determined Powell was competent to proceed with trial.
¶5 On the first day of trial, Powell was disruptive and the trial court ordered him removed from the courtroom. The court determined Powell had absented himself voluntarily, and trial proceeded in his absence. After four days, the jury found Powell guilty of all counts and found the first-degree burglary, aggravated assault, and one of the armed robbery counts were dangerous offenses. The court sentenced Powell to three concurrent terms of life imprisonment without the possibility of parole for twenty-five years for the aggravated assault and armed robbery convictions. It also sentenced him topresumptive, concurrent prison terms of ten and 11.25 years for the third-and first-degree burglary convictions, respectively. This appeal followed.
¶ Powell first asserts the trial court erred in finding him competent to stand trial. See Pate v. Robinson, 383 U.S. 375, 378 (1966) (); see also Ariz. R. Crim. P. 11.1 (). We review a trial court's competency determination for an abuse of discretion. State v. Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d 1193, 1204 (2005); see also Bishop v. Superior Court, 150 Ariz. 404, 409, 724 P.2d 23, 28 (1986) (), and will affirm such a competency determination if supported by reasonable evidence, considering that evidence in the light most favorable to sustaining the court's finding. Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d at 1204.
¶ A defendant is competent to stand trial if he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and... has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). The presence of a mental illness alone "is not grounds for finding a defendant incompetent to stand trial." Ariz. R. Crim. P. 11.1; see State v. Moody, 208 Ariz. 424, ¶ 56, 94 P.3d 1119, 1139 (2004). Rather, the test forcompetency is whether a mental illness renders a criminal defendant "unable to understand the proceedings against him or her or to assist in his or her own defense." Ariz. R. Crim. P. 11.1; see Glassel, 211 Ariz. 33, ¶ 30, 116 P.3d at 1204; Moody, 208 Ariz. 424, ¶ 56, 94 P.3d at 1139.
¶ The essential thrust of Powell's argument is that the trial court erred in finding him competent to stand trial after initially finding him incompetent and no evaluator's report determined he had been restored to competency by treatment or medication. He reasons that Joseph's report, upon which the court had relied, merely concluded he had been "exhibiting the same signs and symptoms, but found them to be signs of malingering." But Powell cites no authority, and we find none, supporting the proposition that a defendant found incompetent may later be found competent only if the court has been provided evidence that the defendant has been restored to competency by treatment, and that evidence the defendant had been exaggerating or falsifying symptoms of a mental illness alone is insufficient.1
¶ Of the two competency evaluations generated before April 11, the date the trial court initially had found Powell incompetent, one concluded Powell was incompetent and the other found he was malingering. But the evaluation finding himincompetent also found malingering as a provisional diagnosis and noted further observation was required "to help determine the extent to which [Powell] may be malingering to escape criminal prosecution." None of the intervening status reports ruled out malingering as a diagnosis.
¶ In her most recent competency evaluation of Powell on October 31, 2008, Joseph concluded he was malingering "to avoid criminal responsibility and/or incarceration" and was able to understand the proceedings against him and assist in his defense. That report is consistent with the previous evaluation reports, in which the evaluator either determined Powell was malingering or declined to reject that diagnosis. And, as the state correctly notes, Powell stipulated the trial court could rely on Joseph's report in making its competency determination. Thus, we find no error in the court's conclusion on November 3, 2008, that Powell was competent to stand trial.
¶ Powell also asserts the trial court erred in rejecting his subsequent requests for a new competency determination. A trial court is required to order a psychological examination of a defendant only if reasonable grounds exist to question whether the defendant is competent. See State v. Kuhs, 223 Ariz. 376, ¶ 13, 224 P.3d 192, 196 (2010). And when the court has presided over an initial Rule 11 proceeding, it does not abuse its discretion by considering evidence presented at that hearing when it denies a subsequent Rule 11 motion. See Kuhs, 223 Ariz. 376, ¶16, 224 P.3d at 196; Moody, 208 Ariz. 424, ¶ 48, 94 P.3d at 1138 ().
¶ In January 2009, the trial court received two additional psychological evaluations addressing Powell's mental capacity at the time of his crimes. Neither report contradicted Joseph's finding that Powell had been exaggerating his symptoms to avoid prosecution. Indeed, both reports acknowledged Powell had a history of malingering and might have been exaggerating his symptoms. These reports therefore support the court's refusal to order a new competency evaluation.
¶ Moreover, "[i]n determining whether reasonable grounds exist [for further competency evaluations or proceedings], a judge may rely, among other factors, on his own observations of the defendant's demeanor and ability to answer questions." Moody, 208 Ariz. 424, ¶ 48, 94 P.3d at 1138. After November 3, Powell appeared before the trial court at least eight times, and on six of those occasions he made statements to the court. Nothing in the court's minute entries for those appearances...
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