State v. Veale
| Decision Date | 01 May 2009 |
| Docket Number | No. 2008-442.,No. 2006-043.,2006-043.,2008-442. |
| Parties | The STATE of New Hampshire v. Scott W. VEALE. |
| Court | New Hampshire Supreme Court |
The defendant, Scott W. Veale, appeals orders of the Superior Court relating to its finding that he is incompetent to stand trial. We affirm.
The relevant facts are as follows. The defendant is a real estate broker who has been involved in various land and logging disputes for many years. He was indicted in June 2003 for one count of timber trespass, see RSA 227-J:8-a (2000), and one count of theft by unauthorized taking, see RSA 637:3 (2007), after a property owner alleged that he cut and removed oak timber from the owner's property. The court appointed a public defender to represent the defendant. A second public defender entered an appearance to assist in the defense because of his familiarity with real estate issues.
The attorney-client relationship deteriorated over the following months. The defendant believed that he owned the timber and the property. He also believed that local and State authorities prosecuted him as part of an ongoing conspiracy to deprive him of property rights. The public defender conferred with two real estate attorneys to determine whether the defendant's claim had merit. Both concluded that it did not. The defendant, however, continued to insist that the public defenders seek funds for a property survey. Eventually, the defendant accused the public defenders of being part of the conspiracy against him and his family. This severely impaired communication and the public defenders concluded that he was unable to assist in his defense.
In July 2004, defense counsel filed a motion to determine competency. Dr. James Adams, a psychiatrist, examined the defendant in November 2004 and ultimately determined that, although the defendant suffered from a paranoid disorder, he was competent to stand trial. Defense counsel moved for, and were granted funds for, a second opinion. Dr. Philip Kinsler, a clinical and forensic psychologist, examined the defendant in March 2005 and concluded that he suffered from a delusional disorder and was incompetent.
The defendant filed a pro se motion in July 2005 summarizing the breakdown of communication with his appointed counsel, outlining their disagreement over "the need for a mental evaluation," requesting a finding that such evaluation was unnecessary, and requesting new counsel. The clerk refused these pleadings "under Superior Court Rule 5 for non-compliance with Rule 15." He noted that "[o]nly pleadings submitted by attorneys of record or parties who have filed a pro se appearance ... may be accepted." The clerk instructed the defendant to contact either of his appointed counsel "for advice on the procedure for presenting ... concerns to the Court."
The Superior Court (Barry, J.) held a competency hearing in September 2005, receiving testimony from each doctor. The State conducted the direct examination of Dr. Adams and cross-examination of Dr. Kinsler. The public defender conducted the direct examination of Dr. Kinsler and cross-examination of Dr. Adams. The court also made limited inquiry. The defendant was present at the hearing but did not testify. At a later hearing, the public defenders could not recall whether the defendant ever requested to testify at the competency hearing; the defendant's current counsel represented to the court at that hearing that the defendant made no "specific demand to [the public defender] to take the stand and testify."
The court ultimately found the defendant incompetent to stand trial and ruled that he could not be restored to competency. The court later held a hearing on dangerousness, ruled that the defendant was not dangerous and granted the defendant's motion to dismiss the criminal charges.
The defendant filed a pro se notice of appeal raising several issues. See State v. Veale, 154 N.H. 730, 731, 919 A.2d 794 (2007). We appointed the appellate defender to represent him on appeal. Id. The appellate defender moved to withdraw, citing a conflict of interest due to an ineffective assistance of counsel claim alleged against the public defenders. Id. We stayed the appeal and remanded the ineffective assistance claim in order to allow the trial court to rule on it in the first instance. See id. at 737, 919 A.2d 794.
On remand, the trial court appointed the defendant's current counsel. Counsel filed an amended ineffective assistance claim and a motion to vacate the competency finding. The motion alleged a denial of procedural due process. After a hearing, the Trial Court (McGuire, J.) ruled against the defendant on the ineffective assistance of counsel claim and denied his motion to vacate the finding of incompetence. The court noted that defense counsel was ethically bound to raise the competency issue and that such action did not deprive the defendant of procedural due process.
We appointed the defendant's trial counsel to represent him on appeal and granted the appellate defender's motion to withdraw. The defendant appeals only the denial of his motion to vacate, arguing that he was denied due process in the competency determination. He cites the Due Process Clauses of the Fourteenth Amendment to the Federal Constitution and Part I, Article 15 of the State Constitution. We first address this argument under the State Constitution and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983). "Because this issue poses a question of constitutional law, we review it de novo." State v. Hall, 154 N.H. 180, 182, 908 A.2d 766 (2006).
Part I, Article 15 of the State Constitution provides, in relevant part: "No subject shall be ... deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land...." N.H. CONST. pt. I, art. 15. "Law of the land in this article means due process of law." Petition of Harvey, 108 N.H. 196, 198, 230 A.2d 757 (1967) ().
"The ultimate standard for judging a due process claim is the notion of fundamental fairness." Saviano v. Director, N.H. Div. of Motor Vehicles, 151 N.H. 315, 320, 855 A.2d 1278 (2004). "Fundamental fairness requires that government conduct conform to the community's sense of justice, decency and fair play." Id. Our threshold determination in a procedural due process claim is "whether the challenged procedures concern a legally protected interest." State v. McLellan, 146 N.H. 108, 113, 767 A.2d 953 (2001) (quotation omitted); Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005).
Undoubtedly, the state constitutional right to due process protects defendants from standing trial if they are legally incompetent. See State v. Zorzy, 136 N.H. 710, 714, 622 A.2d 1217 (1993); State v. Champagne, 127 N.H. 266, 270, 497 A.2d 1242 (1985). The defendant's due process challenge, however, does not implicate this right. Indeed, the competency proceedings below resulted in a dismissal of the two indictments, and resulted in no confinement because the defendant was found not to be dangerous. See RSA 135:17-a, I, V (2005) (amended 2006). The defendant grounds his due process challenge on the stigma attached to his reputation by virtue of the incompetency finding. He argues that, while the competency proceedings may have protected his right not to be tried if incompetent, they erroneously imposed upon him an "indelible stigma" affecting the exercise of various civil rights. It is through this lens that we consider his procedural due process challenge.
The State contends that the defendant's asserted reputational interest fails to trigger a due process analysis because he simply "speculates about a number of potential consequences that `may' or `can' flow from a finding of incompetence," rendering each "too speculative and remote to constitute the kind of liberty or property interest contemplated by the constitution."
The State would have a stronger argument if we had adopted the analysis in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), under our State Constitution. In Paul, the Supreme Court coined what would later be known as the "stigma plus" test. See, e.g., Hawkins v. Rhode Island Lottery Com'n, 238 F.3d 112, 115 (1st Cir.2001). The Court noted that "[t]he words `liberty' and `property' as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection...." Paul, 424 U.S. at 701, 96 S.Ct. 1155. It narrowed its prior holding in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), by concluding that defamation alone could not constitute an interest triggering due process protection. Id. at 708, 96 S.Ct. 1155. Instead, the Court read Wisconsin as recognizing a cognizable right warranting due process protection where reputational stigma exists in addition to state action altering or extinguishing "a right or status previously recognized by state law." Id. at 711, 96 S.Ct. 1155. In Siegert v. Gilley, 500 U.S. 226, 234, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), the Court extended the doctrine by requiring, in addition to the stigma, a contemporaneous tangible loss.
We, however, have never adopted the stigma-plus test as the touchstone for procedural due process under the State Constitution. In Richardson v. Chevrefils, 131 N.H. 227, 234, 552 A.2d 89 (1988), we cited Paul and recognized, in the context of qualified immunity, that "it is settled law that personal reputation is neither a liberty nor a property interest cognizable under the ...
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