State v. White
| Decision Date | 03 November 2022 |
| Docket Number | Appeal No. 2020AP275-CR |
| Citation | 984 N.W.2d 741 (Table),2023 WI App 1 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Donald L. WHITE , Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Donald White appeals a judgment of conviction resulting from a jury verdict of guilty on one count of assault by a prisoner in violation of WIS. STAT. § 946.43(2m)(a) (2019-20).1 White contends that his conviction violated his constitutional right to due process and his statutory rights because he was not competent to stand trial.2 Before trial, the circuit court appointed an examiner to evaluate White's competency to stand trial under WIS. STAT. § 971.14(2)(a), and that examiner was the only expert to offer testimony on White's competency. The examiner provided "clinical findings" and "facts and reasoning," along with her opinion that White was competent. See § 971.14(3)(b), (c), (e). At the same time, she took the position that she could not reach the ultimate conclusion that he was competent "to a reasonable degree of professional certainty." The court concluded that the examiner's ultimate conclusion of competency was inadmissible because it was not offered at the required level of certainty, but the court nonetheless determined based on all of the information before it—including the examiner's "clinical findings" and "facts and reasoning"—that White was competent to stand trial.
¶2 White argues that the circuit court did not follow a requirement of WIS. STAT. § 971.14 in reaching its competency determination. Specifically, White contends that under § 971.14 the court was required to order additional examinations of White's competency because the only examiner to evaluate White in this case could not testify to the ultimate conclusion to a reasonable degree of professional certainty.
¶3 We conclude that, in these circumstances, WIS. STAT. § 971.14 does not preclude a circuit court from ruling on a defendant's competency in the absence of an expert's ultimate conclusion, offered to reasonable degree of professional certainty, that the subject is competent. We further conclude that the court here did not erroneously exercise its discretion or clearly err in failing to order additional examinations. Accordingly, we affirm.
¶4 In January 2018, the State charged White with one count of assault by a prisoner in violation of WIS. STAT. § 946.43(2m)(a), based on the allegation that while he was confined in a state prison he expelled saliva at a corrections officer.
¶5 We now summarize background that includes references to whether White would be represented by counsel in the circuit court and if so who would represent him. Although White does not challenge the court's decisions on these topics, these references provide context to understanding the only issue on appeal: White's challenge to the court's ruling that he was competent to stand trial.
¶6 White appeared at his initial appearance by video, without counsel. When questioned about representation by the circuit court, White said that he had not contacted the public defender's office. The court told White that the court would ask the public defender's office to "reach out to [White] given that [he was] incarcerated." The court adjourned the hearing to give White time to obtain counsel.
¶7 The public defender's office informed the circuit court that White was "adamant" that "he [did] not want a public defender" and "want[ed] the court to appoint an attorney or he will represent himself."
¶8 At the next hearing in the case, White (still incarcerated) again appeared by video and without counsel. White asked the circuit court if the court was "the president of the United States, Abraham Lincoln." The court told White it was not, and that it understood White did not want a public defender. White agreed, and requested that Eleanor Roosevelt be appointed as his attorney. The court indicated that it would not appoint an attorney, and told White that he was eligible for a public defender. When White repeated the request that the court appoint Eleanor Roosevelt, the court responded that she was deceased, and White replied, "Well, bring her back." When the court explained that it could not help White with impossible requests, White hung up the phone he had been using to verbally communicate, but remained visible via video to those in the courtroom. The court said on the record that White's "body language" suggested that he had "disengage[d] from [the] conversation." The court encouraged White to obtain a public defender, and indicated that if he did not do so he would waive the right to counsel for purposes of the preliminary hearing.
¶9 White appeared in person at the preliminary hearing after he was transported to the courtroom from his place of incarceration. The court attempted to engage with White in a colloquy about the advantages of being represented by counsel and the disadvantages of proceeding without counsel.3 White largely declined to participate in this colloquy or verbally respond in general, except to say that Eleanor Roosevelt was his "payee" and that if the court had "something to say to [White], [it should] tell her."
¶10 Before the circuit court ordered the matter bound over, the court noted that, in order to allow White to proceed without counsel, the court had to determine that he was competent to represent himself. The court noted White's references to deceased famous people as if they were alive. It expressed concern as to whether White was "oriented to time and place"; the court said it had "reason to doubt ... White's competency" to stand trial. As a result, the court ordered the appointment of an examiner to "examine and report upon [White's] condition," that is, White's status as being competent or incompetent.4 See WIS. STAT. § 971.14(2)(a).
¶11 The examiner filed a written report indicating that she had gone to the institution where White was incarcerated and attempted to engage with him for one hour. The report stated that their conversation was "very unproductive," that White's responses to the examiner's questions were "outlandish," and that he behaved in a "theatrical" manner. According to the examiner, White refused to cooperate with her attempts to administer a standardized tests designed to assess competency, and for that reason she ended the interview.
¶12 Turning to sources of information other than voluntary disclosures or test-taking by White, the report summarized White's history of prior mental health and criminal defendant competency evaluations. Each prior examination of White's competency to stand trial ultimately resulted in an examiner's opinion to a reasonable degree of professional certainty that White was competent, and there were previous findings of White feigning mental illness. White had been diagnosed with antisocial personality disorder
and had a history of behavioral issues, but "ha[d] no known history mental illness, and ha[d] never been prescribed psychotropic medications."
¶13 The report concluded with what might be called the examiner's informal opinion, which was that White "does not presently lack substantial mental capacity to understand the pending proceedings or be of assistance in his defense." This informal opinion was based on the following inferences, "[g]iven [White's] noncooperation": (1) in all five prior evaluations of White's competency, an examiner determined that he was competent, with three of these determinations following inpatient examinations; (2) there was "no indication ... that Mr. White suffers from a major mental illness"—his "[b]ehavioral issues ... do not appear out of his control"; (3) White demonstrated an "ability to self-advocate" "through coherent communication" to staff through request forms; and (4) White had "prior experience ... in the role of defendant" in criminal cases. The examiner also stated, however, that due to White's lack of "cooperation" she could not offer the ultimate conclusion that he was competent "to a reasonable degree of professional certainty." The report also noted that it is possible for "malingering" to coexist with incompetency and that ten years had passed since White's most recent competency evaluation.5
¶14 The circuit court held a status conference following the filing of the report. White took the position at the status conference that he was not competent. This position placed the burden on the State to prove White's competency "by the greater weight of the credible evidence." See WIS. STAT. § 971.14(4)(b). The prosecutor took the position that "there[ was] a problem ... proceeding directly to a hearing" because the current examiner's report did not reach a conclusion to a reasonable degree of professional certainty. The court ruled that if the examiner could not offer an ultimate conclusion about competency "to a reasonable degree of professional certainty" then the conclusion would not be admissible. The court further reasoned, however, that it could consider "previous evaluations" "detailed" in the current report, in addition to "the details" of the examiner's "observations."
¶15 At the competency hearing, the examiner testified consistently with the contents of her report. She repeated her informal opinion that White was competent to proceed to trial, but that she could not offer that as an ultimate conclusion to a reasonable degree of professional certainty. White, representing himself, did not question the examiner but made arguments disputing the examiner's opinion and her qualifications. White further alleged that he had qualified to receive Social Security insurance benefits due to mental illness at some point after his release from prison in 2013, which he said undermined the examiner's testimony that he did not have a prior mental illness diagnosis. The court asked White again if he wanted an attorney, in order to assist in retrieving and submitting to the court records of a mental health diagnosis related to insurance benefits,...
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