State v. Wilkerson
| Decision Date | 01 February 2011 |
| Docket Number | No. WD 71314.,WD 71314. |
| Citation | 330 S.W.3d 851 |
| Parties | STATE of Missouri, Respondent,v.Bill E. WILKERSON, Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Margaret M. Johnston, Assistant Public Defender, Columbia, MO, for Appellant.Chris Koster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for Respondent.Before Division I: MARK D. PFEIFFER, Presiding Judge, and THOMAS H. NEWTON and ALOK AHUJA, Judges.MARK D. PFEIFFER, Presiding Judge.
Bill E. Wilkerson (“Wilkerson”) appeals from the judgment of the Circuit Court of Moniteau County (“trial court”) in which a jury found him guilty of the class D felony of endangering a corrections officer and for which he was sentenced to a term of four years. On appeal, Wilkerson argues that the trial court impermissibly proceeded to trial without first obtaining and giving due consideration to a report of mental examination both as ordered by the trial court and as contemplated by section 552.020.1 We agree. Wilkerson's conviction and sentence below are vacated, and this case is remanded for proceedings consistent with this opinion.
On June 9, 2007, while an inmate at the Tipton Correctional Center, Wilkerson spit on Officer Libhart as she was returning him to his cell. Wilkerson was charged with violation of section 565.085, RSMo Cum.Supp.2006. After Wilkerson appeared pro se and pleaded not guilty, trial was set for November 10, 2008. Prior to trial, Wilkerson made a written application for services of the Public Defender Commission and was referred to John Tomlin (“Tomlin”), Public Defender. However, though he requested court-appointed counsel, Wilkerson returned all correspondence from Tomlin unopened and refused to meet with him. At the pretrial conference and in the initial proceedings before the venire panel, Wilkerson again refused to talk to Tomlin, was nonresponsive to Judge Donald Barnes, engaged in a string of nonsense talk and profanity, and spit in Tomlin's face.
Because some of these actions took place before the venire panel, Tomlin moved for a mistrial and for a mental examination of Wilkerson. Judge Barnes granted both motions and issued a written order directing the Department of Mental Health to cause Wilkerson to be examined and to report the results of that examination. The order specifically stated that “ [t]he court finds that there is reasonable cause to believe that [Wilkerson] has a mental disease or defect excluding fitness to proceed ” and further specified that the mental health report comply with the itemized reporting requirements of section 552.020.3.
On April 2, 2009, the trial court received a letter from the mental health examiner, Dr. Byron English, stating that he had visited Wilkerson at the correctional center where Wilkerson was housed. Dr. English further explained that Wilkerson refused to meet with him and, consequently, English was unable to complete the examination necessary for him to be able to render a section 552.020 report. Thus, Dr. English stated that he would not submit a “Pretrial Certificate” to the trial court. The trial court took no further action regarding a mental examination of Wilkerson or obtaining a corresponding mental health report. Instead, the case proceeded to trial on June 18, 2009.
In pretrial conference on June 18, 2009, with Wilkerson present, the trial court recounted the events of the first attempted trial and noted that, at that time, the trial court had “determined that because of the display that the defendant put on, that it was necessary that the Court abort that trial and ordered that the defendant submit to a mental competency examination with respect to his ability to stand trial.” The trial court further detailed that Dr. English had visited Wilkerson at the correctional facility but “the defendant refused to come out of his cell to meet with the psychiatrist and an examination could not be performed.” Without further discussion of Wilkerson's mental health, or any objection from Tomlin, the case proceeded to trial before a jury.
During the entirety of the pretrial conference, Wilkerson continued the pattern of behavior he had engaged in at the first trial. He was non-responsive; engaged in nonsense talk; sang; and when he did address the trial court or his attorney, he did so with direct threats and abusive and crude language. At Wilkerson's request, the trial court ordered Wilkerson to be located outside of the courtroom during the trial. Wilkerson was convicted by the jury, and the trial court sentenced him to four years in prison. Wilkerson timely appeals.
Wilkerson's trial counsel did not object to the trial court proceeding with the trial without the court-ordered mental health examination and corresponding section 552.020 mental health report, nor did Wilkerson's trial counsel argue that issue in Wilkerson's motion for acquittal or for new trial. Consequently, this issue is not preserved for appeal, and the only available review is for plain error. State v. Kinder, 942 S.W.2d 313, 323 (Mo. banc 1996). In plain error review, we undertake a two-step process. Riddell v. Bell, 262 S.W.3d 301, 304 (Mo.App. W.D.2008). We first evaluate whether the trial court committed “evident, obvious and clear error that affected substantial rights.” Id. (quoting Cohen v. Express Fin. Servs., Inc., 145 S.W.3d 857, 864 (Mo.App. W.D.2004)). We then must determine whether such “evident, obvious and clear error” created a manifest injustice or a miscarriage of justice. Id.
“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). “[T]he failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.” Id. at 172, 95 S.Ct. 896.
In his sole point on appeal, Wilkerson argues that the trial court plainly erred in proceeding with the trial after Dr. English, the mental health examiner, failed to provide a mental health report as required by section 552.020. Because the reporting mandates of section 552.020.3 are mandatory and a failure to follow them affected Wilkerson's substantive due process rights, we agree.
Echoing the refrain of the United States Supreme Court in Drope, Missouri's statutory scheme on the competency to stand trial states: “No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.” § 552.020.1. This statute encapsulates the common law doctrine that “ ‘[d]ue process requires that a defendant may not be tried unless he is competent to stand trial.’ ” Bolden v. State, 171 S.W.3d 785, 790 (Mo.App. W.D.2005) (quoting State v. Tokar, 918 S.W.2d 753, 762 (Mo. banc 1996)). “ ‘The standard for competence to stand trial is whether the defendant 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.’ ” Zink v. State, 278 S.W.3d 170, 183 (Mo. banc 2009) (quoting Tokar, 918 S.W.2d at 762) (internal quotations omitted). “[O]nce the trial court is presented with sufficient facts to form reasonable cause to believe the accused lacks the mental fitness to proceed, whether by motion, by facts coming before it, or through its own observation, the court is mandated to order a § 552.020 mental exam.” State v. Tilden, 988 S.W.2d 568, 576 (Mo.App. W.D.1999) (emphasis added). Section 552.020.2 requires that such court-ordered mental examinations “shall” be accompanied by a report of the examination, and section 552.020.3 requires that:
A report of the examination made under this section shall include:
(1) Detailed findings;
(2) An opinion as to whether the accused has a mental disease or defect;
(3) An opinion based upon a reasonable degree of medical or psychological certainty as to whether the accused, as a result of a mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense;
(4) A recommendation as to whether the accused should be held in custody in a suitable hospital facility for treatment pending determination, by the court, of mental fitness to proceed; and
(5) A recommendation as to whether the accused, if found by the court to be mentally fit to proceed, should be detained in such hospital facility pending further proceedings.
(Emphasis added.)
In the instant case, it is undisputed that the trial court expressly concluded in its Order for Mental Examination that there existed “[r]easonable cause to believe that [Wilkerson] has a mental disease or defect excluding fitness to proceed.” More specifically, the trial court explained at the time of declaring a mistrial of Wilkerson's first trial:
Well, it appears to the Court that the defendant, by his conduct, is saying one of two things: Either that he is determined to frustrate the process and it's an intentional act by design; or he may, in fact, be suffering from some kind of a mental disease or defect here today. Accordingly, I reluctantly, because we've gotten this far, have to grant the motion for a mistrial and discharge the jury and enter an order that the defendant be committed to the Biggs unit at state hospital at Fulton for purposes of a mental examination to determine, one, whether or not at the present time he is capable of standing trial.
In Tilden, we not only concluded that a mental health examination was mandatory once the trial court concluded it had...
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