Tate v. State, 4D01-1306.

Decision Date10 December 2003
Docket NumberNo. 4D01-1306.,4D01-1306.
Citation864 So.2d 44,28 Fla. L. Weekly D 2853
PartiesLionel TATE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard L. Rosenbaum and Cheryl Zickler of Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Debra Rescigno, Assistant Attorney General, West Palm Beach, for appellee.

Steven Drizin of Bluhm Legal Clinic, Chicago, Michael J. Dale, Fort Lauderdale, and Robert G. Schwartz, Marsha L. Levick, and Lourdes M. Rosado of Juvenile Law Center, Philadelphia, for amicus curiae.

Barbara Bennett Woodhouse, Christopher Slobogin, Claudia Wright, and Sherrie Russell-Brown of Center on Children & the Law, Gainesville, and Steven Drizin of Bluhm Legal Clinic, Chicago, for amicus curiae.

STONE, J.

Lionel Tate appeals his conviction of first-degree murder and the resulting mandatory sentence to life in prison. Of the more than ten significant issues raised on appeal, one mandates reversal.

The denial of defense counsel's post-trial request to have Tate evaluated, based on sworn testimony from a neuropsychologist and two attorneys raising bona fide doubts as to Tate's competency, and the trial court's failure to order, sua sponte, a pretrial competency evaluation, constitute a violation of Tate's due process rights.

Tate, age twelve at the time of the crime, was indicted by a grand jury and convicted of the first-degree murder of six-year-old Tiffany Eunick in 1999. The general verdict included charges of both felony murder, based on committing aggravated child abuse, and premeditated murder. The trial and sentence, in light of Tate's age, has been the focus of considerable public interest reflected in the multiple amicus briefs filed in this appeal.

The evidence was clear that the victim was brutally slain, suffering as many as thirty-five injuries, including a fractured skull, brain contusions, twenty plus bruises, a rib fracture, injuries to her kidneys and pancreas, and a portion of her liver was detached. It was undisputed that it would take tremendous force to inflict these injuries. None of the experts, not even those for the defense, believed that the injuries were consistent with "play fighting," or that they were accidentally inflicted.

Post-trial, in addition to a motion for new trial, the defense requested an evidentiary hearing, pursuant to Cottle v. State, 733 So.2d 963 (Fla.1999), challenging whether pre-trial plea negotiations and an alleged proposal to jointly lobby the governor for clemency in the event of a conviction, were adequately explained to Tate. Tate's appellate counsel, who was representing him on the motion for new trial, for the first time, also sought a competency evaluation and hearing, asserting that Tate did not know or understand the consequences of proceeding to trial and that he was unable to assist counsel before and during trial. Such a post-trial evaluation and hearing would be the only remaining opportunity to establish Tate's mental condition at that point in time.

On the second day of the post-trial hearing held on March 2, 2001, Tate's counsel proffered to the court that Tate was not presently competent to understand the implications of the need to waive his attorney-client privilege. At that time, the trial judge asked Tate if he understood, and he replied, "no." During the post-trial hearing, Tate's counsel made an oral motion for competency evaluation and hearing for the limited purpose of determining whether to order the same.1

At the conclusion of the hearing, the trial court orally determined that, at a minimum, Tate should be evaluated by mental health experts pursuant to Florida Rule of Criminal Procedure 3.210, stating,

I'm also convinced that if I denied your hearing at this particular point, that I would get ordered by the Fourth District Court of Appeals [sic] to have such a hearing. And I'd rather do that while testimony is fresh, rather than trying to recall what happened three or four or five or six months down the road.

In response, however, the state argued that the motion should be denied because it was required to be in a written motion. Defense counsel inserted that he would submit a written motion. Nevertheless, the court reversed itself, and denied the requested relief. Tate subsequently filed a written motion for competency evaluation attaching affidavits indicating that Tate was not presently competent and that, pre-trial, he was not competent to assist counsel or to decide whether to take the state's plea offer. In rejecting a post-trial evaluation and hearing, the trial court explained that until that time, no one had "voiced a question about the defendant's competency to proceed." The court noted that two days before trial, Tate said he wanted to proceed to trial. Further, at no time, before or during trial, did Tate's lawyers advise the court that Tate could not proceed due to incompetency.

The question we resolve, here, is whether, due to his extremely young age and lack of previous exposure to the judicial system, a competency evaluation was constitutionally mandated to determine whether Tate had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he had a rational, as well as factual, understanding of the proceedings against him. We conclude that it was. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)

; Hill v. State, 473 So.2d 1253 (Fla.1985); see also Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Kelly v. State, 797 So.2d 1278 (Fla. 4th DCA 2001).

Tate's appellate lawyer advised the court, "[a]nd as [sic] officer of the court I'm standing next to Lionel drawing pictures, hasn't listened to one work [sic] and had no idea what's going on." Counsel added that Tate was not "assist[ing] us in assisting him, and there's no interaction that's going on," and continued,

It's someone [Tate] sitting here playing with pencil, pen and drawing pictures in what's probably the most important proceeding of his life, and it is something that every [sic] needs to stop and step back.
There were—there was [sic] great people involved in this case, very experienced doctors but never a competency evaluation done. And one of the things that was in [sic] original motion for new trial, I think we're glossing over here is did Lionel Tate know the consequences of going forward.

Counsel also pointed out that "his eyes are moving around," which counsel interpreted as indicating that he did not understand. The court, however, pointed out that Tate's lack of interest in the proceeding did not equate with incompetency.

Counsel further related their concerns as to Tate's pre-trial rejection of an apparently favorable plea offer, arguing that Tate's trial counsel never told him that if he lost at trial, there was only one possible sentence, life in prison without parole, and that since he did not understand this, he could not have knowingly and voluntarily rejected the state's plea offer.

At trial, neuropsychologist, Dr. Mittenberg, testified that Tate had a mental delay of about three to four years, "which means that Lionel has an age equivalent of nine or ten years old." It is undisputed that Tate's IQ is approximately 90. Dr. Joel Klass, a child psychiatrist, testified for the defense at trial that Tate had the social maturity of a six-year-old and delays in inferential thinking. Dr. Sheri Bourg-Carter, called by the state as a rebuttal witness, likewise acknowledged Tate's immaturity.

Tate's trial counsel wanted to testify further in support of the request for a post-trial competency hearing, but was concerned about his ability to do so without a waiver of the attorney-client privilege. Accordingly, the question then arose whether Tate would waive his privilege and allow his trial attorney to testify concerning competency. Apparently, Tate, after conferring with his mother, did not agree to the proposed waiver. On the record, it appears that he simply followed his mother's instruction not to waive his attorney-client privilege, despite his lawyers' positions that waiving the privilege was in Tate's best interest. Significantly, defense counsel wanted to reveal what led him to believe that Tate was not competent during trial, but was apparently precluded from doing so.

At the March 2nd hearing, after Tate's first oral motion for competency hearing was made, the state's witness, Dr. Bourg-Carter, stated that, in her opinion, Tate was "legally" competent and that Tate's trial lawyer knew the results of a pre-trial evaluation she performed. Dr. Bourg-Carter, stated that there was a pre-trial agreement between Tate's lawyer and the defense's expert psychologist, Dr. Spencer, that she would conduct certain examinations on Tate so that he would not be tested multiple times. She then conferred with Dr. Spencer. She testified that under the circumstances of the case, Tate's competency would logically arise as an issue that a forensic psychologist would need to consider. Dr. Bourg-Carter further testified that during her evaluation of Tate, he understood that the possible consequences of a conviction was to spend a "[l]ong time in prison."2

The state also drew the court's attention to the plea colloquy that was conducted five days before trial at which Tate, accompanied by his lawyer and court appointed psychiatrist, acknowledged that the state offered a plea of three years in a juvenile detention facility, followed by ten years of probation. Tate's lawyer stated at that time that, after consulting with Tate and his mother, he wanted to reject the plea offer and proceed to trial.

At the plea hearing, Tate did advise the trial court that he understood what his counsel told the court, that he had enough time to talk with his mother, and that he wanted to proceed to trial. Further, Tate stated that no...

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