State v. Robertson

• Decision Date: 18 February 1997
• Docket Number: No. 940374,940374
• Citation: 932 P.2d 1219
• Parties: 311 Utah Adv. Rep. 3 STATE of Utah, Plaintiff and Appellee, v. Jerry Lee ROBERTSON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1219

932 P.2d 1219

311 Utah Adv. Rep. 3

STATE of Utah, Plaintiff and Appellee, v. Jerry Lee ROBERTSON, Defendant and Appellant.

No. 940374.

Supreme Court of Utah.

Feb. 18, 1997.

Jan Graham, Att'y Gen., Marian Decker, Asst. Att'y Gen., Howard Lemke, Salt Lake City, for plaintiff.

Mary C. Corporon, Kellie F. Williams, Salt Lake City, for defendant.

ZIMMERMAN, Chief Justice:

Jerry Lee Robertson appeals his 1994 jury conviction for murder and theft and the trial court's subsequent imposition of restitution costs totaling approximately $60,000. Robertson claims that the trial court made numerous errors during his trial, including (i) finding him competent to proceed to trial without making adequate findings of fact; (ii) failing to hold a hearing on the issue of competency; (iii) failing to stay all proceedings against him subsequent to the filing of a petition for inquiry into competency; (iv) admitting his former wife's testimony against him; (v) failing to grant a mistrial following allegedly prejudicial statements made in the jury's presence; (vi) failing to give the jury his proposed reasonable doubt instruction and failing to instruct the jury on the theory of reasonable alternative hypothesis; and (vii) abusing its discretion in ordering restitution costs. We have jurisdiction to hear Robertson's claims because this case is an appeal from a "district court involving a conviction of a first degree ... felony." Utah Code Ann. § 78-2-2(3)(i). We affirm the conviction but remand for further proceedings regarding restitution of extradition costs.

In late October of 1991, Robertson and his wife, Cassie, were living on the streets in Salt Lake City, Utah, when they met Gerald Thomas at the Salvation Army. Thomas offered to let Robertson and Cassie stay with him in his apartment for a few days. They stayed with Thomas for approximately five days. On the last day, Robertson and Thomas began to argue. While Thomas was in the bathroom, Robertson told Cassie that he was going to "take him out." After Thomas went to bed, Robertson told Cassie to knock Thomas out by hitting him in the head with a hammer. Cassie located a claw hammer in Thomas's apartment while Robertson went through Thomas's wallet. While Thomas slept, Cassie struck Thomas once in the left side of his head with the hammer. Thomas immediately sat up and exclaimed, "Oh God!" Robertson took the hammer from Cassie and struck Thomas in the head approximately eleven times. Thomas died as a result of the hammer blows to his head.

Both Robertson and Cassie were apprehended in Fresno, California, for Thomas's murder. They were subsequently extradited to Utah. Cassie, who pleaded guilty to murder, was serving a five-to-life prison term at the time of Robertson's trial. Robertson and Cassie were divorced on September 14, 1992.

On June 8, 1992, Robertson filed a competency petition claiming that he was not competent to stand trial. The trial court appointed Drs. Linda Gummow and Vickie Gregory to examine Robertson. Both examiners concluded that Robertson was incompetent to stand trial. The State stipulated to the examiners' findings, and the trial court committed Robertson to the Utah State Hospital on June 26, 1992. The court ordered the State Hospital to provide documentation regarding Robertson's progress toward competency.

On April 23, 1993, a State Hospital administrator sent a letter to the trial court indicating that Robertson was competent to stand trial. The court had also received reports from State Hospital doctors indicating that Robertson was malingering. Pursuant to this information, the State moved to have Robertson transported from the State Hospital to the county jail to await further proceedings.

The trial court held several evidentiary hearings on the issue of Robertson's malingering. After considering the evidence, the court determined that Robertson was "feigning" his symptoms. The commitment order was vacated. Having vacated the commitment order, the court determined that a "state of equipoise" then existed regarding Robertson's competence to proceed. The court then proceeded "as if" the commitment order "had never been forthcoming." Robertson had the right and opportunity to raise the issue of competency again, but the court noted that he had the burden of proof.

Represented by new counsel, Robertson filed a second competency petition on March 3, 1994. The trial court denied the petition, finding that Robertson's promise of future cooperation with mental health experts was not credible. The court did, however, permit a further mental evaluation to be conducted, on condition that the evaluation not delay the trial and that the parties stipulate to the evaluator. The parties stipulated to the appointment of Dr. Louis Moench. Dr. Moench examined Robertson and concluded that he was feigning incompetency.

On another front, Robertson made a pretrial motion to exclude from the forthcoming trial all testimony of his former wife, Cassie. The court denied Robertson's motion. During trial, Cassie made a statement that could be construed as referring to Robertson's "acting" crazy. Robertson moved for a new trial, arguing that the statements had tainted the jury. The trial court concluded that the ambiguous remark did not taint the jury and denied the motion.

Following a four-day trial, Robertson was convicted of murder and theft. The court imposed a term of five years to life for murder and one to fifteen years for theft. Additionally, the court imposed approximately $60,000 in restitution costs on Robertson to cover the expenses incident to extradition and housing Robertson at the State Hospital during his period of malingering.

Robertson claims that the trial court erred by (i) finding him competent to proceed to trial without making adequate findings of fact; (ii) failing to hold a hearing on the issue of competency; (iii) failing to stay all proceedings against him subsequent to the filing of a petition for inquiry into competency; (iv) admitting his former wife's testimony against him; (v) failing to grant a mistrial following allegedly prejudicial statements made in the jury's presence; (vi) failing to give the jury his proposed reasonable doubt instruction and failing to instruct the jury on the theory of reasonable alternative hypothesis; and (vii) abusing its discretion in ordering restitution costs. We will address these claims seriatim.

Regarding the handling of his petition for inquiry into his competency, Robertson raises three claims of error. His three claims can be addressed under two headings: first, that the trial court erred substantively when it concluded that he was competent and, second, that the court failed to follow the correct procedures in that it did not hold a proper hearing on the issue of competency and it refused to stay all proceedings against him subsequent to the filing of his petition.

On the merits of the competency issue, under section 77-15-2 of the Code, ¹ the trial court must determine whether an accused has the ability to understand the nature of the proceedings and the potential punishment and has the ability to assist counsel in his or her defense. ² Robertson essentially argues that the court arbitrarily rejected the analyses and conclusions of the two court-appointed examiners who testified that he was incompetent in favor of the other witnesses who claimed he was feigning.

The determination of whether a defendant is competent to proceed to trial is a mixed question of fact and law. State v. Lafferty, 749 P.2d 1239, 1243 (Utah 1988). The trial court's factual findings in support of its determination of malingering and its accompanying credibility determinations are subject to a clearly erroneous standard of review. Utah R.Civ.P. 52(a); Lafferty, 749 P.2d at 1244. The proper interpretation of the statutory standard for competency is a question of law. Lafferty, 749 P.2d at 1243. Before this court, Robertson essentially challenges the trial court's findings of fact. Therefore, Robertson bears the burden of marshaling all the evidence in favor of the factual finding that he was malingering and then demonstrating that, even viewing the evidence in the light most favorable to the court below, that evidence is insufficient to support the court's finding. Saunders v. Sharp, 806 P.2d 198, 199 (Utah 1991) (per curiam).

The court-appointed doctors who performed the competency evaluations on Robertson acknowledged that patient cooperation was very important in diagnosing competency and that without cooperation any test result was questionable. Dr. Gummow stated that the tests she administered required Robertson's complete honesty and that she would not have picked up on a consistent lie from Robertson. In fact, Dr. Gummow conceded that Robertson's reluctance to talk about the murder could be attributed to choice rather than to inability. Dr. Gregory also acknowledged that the validity of all testing hinged on Robertson's honesty and that there was a possibility that he had not been entirely honest with her. Thus, by their own testimony, if Robertson had been consistently dishonest with Drs. Gummow and Gregory, their determination that Robertson was incompetent is unreliable.

The record reveals ample evidence supporting the trial court's determination of malingering. One of the primary symptoms of mental incompetency relied upon by Drs. Gregory and Gummow was Robertson's inability to express or understand verbal communications. The record is replete with evidence of faking on this point. The Salt Lake City Police Department detective who escorted Robertson from Fresno, California, to Salt Lake City testified that Robertson laughed and joked during the trip, exhibiting no signs of speaking difficulties. Likewise, a registered nurse at the State Hospital testified that Robertson showed markedly different speaking ability, depending upon whether he was being formally observed or merely dealing...