SUPREME COURT OF WISCONSIN
Case No.: 94-1817-CR
Complete Title
of Case: State of Wisconsin,
Plaintiff-Appellant,
v.
Dean
Garfoot,
Defendant-Respondent-Petitioner.
_____________________________________
ON
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported
at: 199 Wis. 2d 522, 546 N.W.2d
578
(Ct.
App. 1995)
UNPUBLISHED
Opinion Filed: February 4, 1997
Submitted on Briefs:
Oral Argument: October 30, 1996
Source of APPEAL
COURT: Circuit
COUNTY: Dane
JUDGE: STUART
A. SCHWARTZ
JUSTICES:
Concurred: ABRAHAMSON, C.J., concurs (opinion filed)
GESKE
and BRADLEY, JJ, join
BABLITCH,
J., concurs (Opinion filed)
Dissented:
Not
Participating:
ATTORNEYS: For
the defendant-respondent-petitioner there were briefs by T. Christopher
Kelly and Reynolds, Thomas, Kelly & Habermehl, S.C., Madison and
oral argument by T. Christopher Kelly.
For the
plaintiff-appellant the cause was argued by Diane M. Nicks, assistant
attorney general with whom on the brief was James E. Doyle, attorney
general.
|
NOTICE This opinion is
subject to further editing and modification.
The final version will appear in the bound volume of the official
reports. |
No. 94-1817-CR STATE OF WISCONSIN :
|
IN SUPREME
COURT |
State of Wisconsin, Plaintiff-Appellant, v. Dean Garfoot, Defendant-Respondent-Petitioner. |
FILED FEB
4, 1997 Marilyn
L. Graves Clerk
of Supreme Court Madison,
WI |
REVIEW of a decision of the Court of
Appeals. Reversed.
¶1 DONALD
W. STEINMETZ, J. The issues in this case are: (1) what standard
should properly govern review of a trial court's determination of a defendant's
competency to stand trial; and (2) whether a defendant shall be subjected to a
criminal trial when the state does not present sufficient evidence to convince
the trial court that the defendant is capable of understanding the fundamental
nature of the trial process and of assisting his or her counsel. Because we find that the trial court is in
the best position to weigh all the evidence necessary to make a competency
determination, we hold that a court reviewing such a determination should apply
a "clearly erroneous" standard of review. We further hold that because the state bears the burden of
proving a defendant's competency when it is put at issue by the defendant, a
defendant shall not be subjected to a criminal trial when the state fails to
prove by the greater weight of the credible evidence that the defendant is
capable of understanding the fundamental nature of the trial process and of
meaningfully assisting his or her counsel.
¶2 On
May 13, 1993, Dean Garfoot ("Garfoot") was charged with attempted
first-degree sexual assault in violation of Wis. Stat. §§ 940.225(1)(b)
and 939.31(1). At the request of
Garfoot's attorney, the circuit court for Dane County, Judge Stuart A.
Schwartz, ordered a competency examination of Garfoot after his initial
appearance pursuant to Wis. Stat. § 971.14(1) and (2). The court appointed Dr. Patricia Jens to
conduct the competency examination of Garfoot in accordance with Wis. Stat.
§ 971.14.
¶3 Dr.
Jens is a board certified psychiatrist who is frequently appointed by courts to
conduct competency evaluations. After
meeting with Garfoot, Dr. Jens issued a report containing her
observations. She noted that when
Garfoot is questioned, he smiles and agrees with everybody and will act as if
he understands things even if he does not.
She also noted that Garfoot was able to "parrot back" information
that she fed to him at the beginning of the interview, but was unable to retain
it at the end of the interview about an hour and a half later.
¶4 As
far as his ability to understand and to participate in the proceedings against him,
Dr. Jens explained that Garfoot was unable to understand the range of possible
penalties for his offense, was unable to understand the different kinds of
pleas even though he could repeat them by name, and was unable to understand
concepts such as the burden of proof or the difference between a bench trial
and a jury trial.
¶5 Dr.
Jens opined that Garfoot would not ever be able to participate meaningfully in
a criminal trial because of his developmental disability. She concluded that Garfoot can recall facts,
but cannot relate them to a legal proceeding so as to aid his attorney. She also stated that Garfoot would be unable
to make informed decisions, could not grasp the implications of a decision
whether or not to testify, and would not be able to communicate with his
attorney about testimony that may be inaccurate. Dr. Jens' ultimate conclusion was that Garfoot was not competent
to stand trial.
¶6 The
State requested, and was granted, the appointment of a second examiner of its
own choosing. The State chose Dr.
Michael Spierer, a psychologist, to conduct the second competency examination
of Garfoot. He determined that Garfoot
has an IQ of 64 which places him in the lowest 2.2 percent of the
population. Dr. Spierer concluded that
Garfoot functions on about a third-grade level. However, he did not know whether Garfoot was capable of learning
at a third-grade level.
¶7 Dr.
Spierer used a standardized test known as the competency screening test to help
evaluate an individual's competence to stand trial. The highest possible total is 44; the lowest is zero. A score of less than 20 raises questions
about an individual's competence.
Garfoot's score was 18. In
response to Dr. Spierer's questions, Garfoot gave inadequate and inappropriate
answers.
¶8 Dr.
Spierer conceded that Garfoot would have problems comprehending complicated
questions and that he may not follow certain lines of testimony. He opined, however, that Garfoot's low IQ
would not preclude him from understanding the proceedings or from significantly
assisting in his defense. Nonetheless,
he acknowledged that Garfoot would have a very hard time keeping up with
questions on cross-examination and could become frustrated and upset in
attempting to do so. Dr. Spierer
described Garfoot's ability to understand the legal defenses available to him
as "marginal" or "minimal."
¶9 Dr.
Spierer ultimately testified, in response to the court's questioning, that if
he were to characterize the level of Garfoot's competency, "it would be at
the margin." Therefore, Dr.
Spierer concluded that Garfoot was only "marginally competent" to
proceed to trial.
¶10 On
February 4 and 10, 1994, the court held a competency hearing at which the two
experts testified. On March 18, 1994,
the court issued a written decision in which it determined that the State
failed to meet its burden of proving by the greater weight of the evidence that
Garfoot was competent to stand trial.
The trial court relied on the Wisconsin test for competency—a two-part
test enunciated by the United States Supreme Court in Dusky v. United States,
362 U.S. 402 (1960) (per curiam). Under
Dusky, the test to determine a defendant's competency to stand trial is
"whether he has sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding—and whether he has a rational as
well as factual understanding of the proceedings against him." Id.
¶11 The
court later held a hearing in May of 1994 to determine whether Garfoot would
likely gain competence within the time frame established by Wis. Stat. § 971.14(5)(a). In remarks to counsel at this hearing, the
court explained that although the State may have met its burden in proving that
Garfoot understands the proceedings, it failed to meet its burden in the
initial competency hearing of demonstrating that Garfoot can assist counsel in
any meaningful way. For this same
reason, the State's failure to meet its burden of proof, the court determined
that Garfoot would not likely regain his competence within the statutory time
frame. The court entered an order of
dismissal.
¶12 The
State appealed the dismissal to the court of appeals, arguing that the circuit
court applied a heightened standard of competence in this case. The State claimed that the circuit court had
"rubber-stamped" Dr. Jens' medical determination rather than making a
proper legal determination as to Garfoot's competence. Applying a de novo standard of review, the
court of appeals reversed and remanded for further proceedings. The court concluded that the trial court did
not apply the appropriate standard to the testimony by the expert witnesses,
did not consider Garfoot's abilities with reference to the trial likely to take
place, and did not consider fully its power to modify the proceedings. Garfoot appealed to this court, and we now
reverse the court of appeals.
¶13 In
Wisconsin, "[n]o person who lacks substantial mental capacity to
understand the proceedings or assist in his or her own defense may be tried,
convicted or sentenced for the commission of an offense so long as the
incapacity endures." Wis. Stat.
§ 971.13(1). There are several
theoretical reasons supporting the legal principle that an incompetent or unfit
defendant may not be required to stand trial:
(1) were he tried it would violate the
long-standing common-law view that persons should not be tried in absentia;
(2) he cannot defend himself, and as a consequence he cannot exercise his
constitutional right to be informed of the accusation, he cannot confront his
accusers; and (3) the court lacks jurisdiction over him.
Donald Paull, Fitness
to Stand Trial 8 (Charles C. Thomas 1993).
Because a person's constitutional and procedural rights are at issue,
then, fundamental fairness precludes the prosecution of a mentally incompetent
individual. State ex rel. Matalik v.
Schubert, 57 Wis. 2d 315, 322, 204 N.W.2d 13 (1973).
¶14 Whenever
there is a reason to doubt the competency of a defendant to proceed, the trial
court must order an examination of the defendant under Wis. Stat.
§ 971.14(1)(a) and (2). The
examiner must submit a report "regarding the defendant's present mental
capacity to understand the proceedings and assist in his or her defense." Wis. Stat. § 971.14(3)(c). If the question of the defendant's competency
is contested, the court shall hold an evidentiary hearing. Wis. Stat. § 971.14(4)(b). If the defendant claims to be incompetent,
the state bears the burden of proving by the greater weight of the credible
evidence that the defendant is competent.
Id. If the defendant
claims to be competent, the state must prove by clear and convincing evidence
that the defendant is incompetent. Id.
¶15 The
basic test for determining competency was established by the United States
Supreme Court in Dusky v. United States, 362 U.S. 402 (1960) (per
curiam). A person is competent to
proceed if: 1) he or she possesses sufficient present ability to consult with
his or her lawyer with a reasonable degree of rational understanding, and 2) he
or she possesses a rational as well as factual understanding of a proceeding
against him or her. Dusky, 362
U.S. at 402. The Court later expanded
on this test, noting 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 (1975).
¶16 Wisconsin
Statutes § 971.13(1) is the codification of the Dusky test. In
Wisconsin, if a defendant claims to be incompetent, the court shall find him
incompetent to proceed unless the state can prove by the greater weight of the
credible evidence that the defendant is competent under the two-part Dusky
standard as explained by the court in Drope.
¶17 To
determine whether the state has met its burden of proving a defendant
competent, the trial court must weigh evidence that the defendant is competent
against evidence that he or she is not.
The trial court is in the best position to decide whether the evidence
of competence outweighs the evidence of incompetence. Although the court could make precise findings of fact about the
skills and abilities the defendant does and does not possess, the court must
ultimately determine whether evidence that the defendant is competent is more
convincing than evidence that he or she is not. The trial court is in the best position to make decisions that require
conflicting evidence to be weighed.[1] Although the court must ultimately apply a
legal test, its determination is functionally a factual one: either the state has convinced the court
that the defendant has the skills and abilities to be considered
"competent," or it has not.
¶18 The
trial court's superior ability to observe the defendant and the other evidence
presented requires deference to the trial court's decision that a defendant is
or is not competent to stand trial.
Only the trial court has the opportunity to view the defendant. Only the trial court can judge the
credibility of witnesses who testify at the competency hearing. Thus, only the trial court can accurately
determine whether the state presented evidence that was sufficiently convincing
to meet its burden of proving that the defendant is competent to stand trial.[2]
¶19 The
trial court's determination of whether there is reason to doubt the defendant's
competence and order an examination is disturbed on appeal only if the trial
court exhibited an erroneous exercise of discretion or if the trial court
decision was clearly erroneous. See
State v. Weber, 146 Wis. 2d 817, 823, 433 N.W.2d 583 (Ct. App.
1988). See also State v.
Haskins, 139 Wis. 2d 257, 264-65, 407 N.W.2d 309 (Ct. App. 1987)
("reason to doubt" competency is a factual finding reviewable under
the "clearly erroneous" standard);
State v. McKnight, 65 Wis. 2d 582, 595-96, 223 N.W.2d 550 (1974)
(trial court ruling that there was no "reason to doubt" competency
affirmed on finding that trial court had not abused its discretion).[3] It only makes sense to apply the same
standard of review to a trial court's determinations of competency.
¶20 We
stated in Pickens v. State, 96 Wis. 2d 549, 569, 292 N.W.2d 601 (1980),
that the trial judge is in the best position to observe the defendant's conduct
and demeanor and to evaluate the defendant's ability to present a defense. "We realize, of course, that the
determination which the trial court is required to make must necessarily rest
to a large extent upon the judgment and experience of the trial judge and his
own observation of the defendant. For
this reason, the trial court must be given sufficient latitude to exercise its
discretion in such a way as to insure that substantial justice will
result." Id. The court held that the trial judge's
determination that a defendant "is or is not competent to represent
himself will be upheld unless totally unsupported by the facts apparent in the
record." Id. at 570. This is essentially a "clearly
erroneous" standard of review.
¶21 We
conclude that the same deference should be given to the trial court regarding
determinations of competence to stand trial as is given for determinations of
competence to represent oneself.
Because the trial court is in the best position to observe the witnesses
and the defendant and to weigh the credible evidence on both sides, appellate
courts should only reverse such determinations when they are clearly
erroneous. See Wis. Stat.
§ 805.17(2).[4]
¶22 The
"clearly erroneous" standard is most suited to review of a competency
determination. The standard is
time-tested, well understood, and appropriate for a determination that is
primarily factual.
¶23 In
the case at bar, the trial judge determined that the State's evidence that
Garfoot was competent was no more convincing than Garfoot's contrary evidence,
and that the State thus failed to meet its burden of proof. We review that decision under a
"clearly erroneous" standard.
¶24 Wisconsin
Statutes § 971.13(1) codifies the Dusky standard of
competency. It states: "No person who lacks substantial mental
capacity to understand the proceedings or assist in his or her own defense may
be tried, convicted or sentenced for the commission of an offense so long as
the incapacity endures." Id.
The two-part Dusky standard has been explained by the Court in Drope
to mean that a person may not stand trial unless he or she has the capacity to
understand the nature and object of the proceedings against him or her, to
consult with counsel, and to assist in preparing his or her own defense. See Drope, 420 U.S. at 171.
¶25 The
State argues that the standard for competence is minimal, not optimal, and
cites to an ALR annotation that suggests that some courts have failed to find
that mental retardation alone warrants a finding of incompetence in the absence
of mental illness. [5] The State is correct in that mental retardation
in and of itself is generally insufficient to give rise to a finding of
incompetence to stand trial.[6] However, a defendant may be incompetent
based on retardation alone if the condition is so severe as to render him
incapable of functioning in critical areas.
See State v. Rogers, 419 So.2d 840 (La. 1982); State v.
Barton, 759 S.W.2d 427 (Tenn. Crim. App. 1988). Thus, the determination of competence is an individualized,
fact-specific decision. It is for this
reason that expert testimony regarding a particular defendant's mental
capabilities is necessary.
¶26 In
Garfoot's case, there was expert testimony from two sources. Both experts applied the same criteria to
Garfoot subject to their individual interpretations.[7] Dr. Jens, the court-appointed psychiatrist,
testified that Garfoot was not competent to stand trial and that he would not
likely gain competence within the statutory time limits. Dr. Spierer testified that Garfoot was
"marginally competent" and that he may become "more
competent" with the proper education.
Bearing in mind the State's burden of proving by the greater weight of
the credible evidence that Garfoot was competent to proceed, it was the job of
the trial court to weigh the evidence and to determine if the State's case was
more convincing than Garfoot's case.
¶27 The
trial court determined that the evidence of competence did not outweigh the
evidence of incompetence. The trial
court accepted the defendant's assertion that the State may have met its burden
of demonstrating Garfoot's ability to understand the proceedings, but it failed
to prove that Garfoot has the ability to meaningfully assist counsel. Because the State failed to meet its burden
of proof on the second prong of the test, the trial court necessarily found the
defendant incompetent to stand trial pursuant to Wis. Stat.
§ 971.14(4)(b).
¶28 The
trial court's determination was not clearly erroneous. The court was faced with
testimony from one expert that Garfoot was not competent and testimony from
another expert that Garfoot was only marginally competent. The trial court was in the best position to
determine if the State's evidence was more convincing than the evidence
presented by Garfoot. Applying the
proper standard from Dusky, Drope, and Wis. Stat. § 971.13
to the evidence presented, the court determined that the State failed to
overcome Garfoot's assertion of incompetence.
Its decision that the State failed to meet its burden of proof was not
clearly erroneous.
¶29 Garfoot
is entitled to a fair trial; one that he can understand, and in which he can
rationally participate while consulting rationally with counsel. Based on all the evidence, the court was
entitled to conclude that Garfoot was not competent to be placed on trial. The trial court had before it opinions that
were not directly in conflict because the findings of both Dr. Jens and Dr.
Spierer supported a conclusion that Garfoot was not competent to stand trial.
¶30 For
the foregoing reasons, we reverse the court of appeals' decision. Because we
find that the trial court is in the best position to weigh all the evidence
necessary to make a competency determination, we hold that a court reviewing
such a determination should apply a "clearly erroneous" standard of
review. We further hold that because
the state bears the burden of proving a defendant's competency when it is put
at issue by the defendant, a defendant shall not be subjected to a criminal
trial when the state fails to prove by the greater weight of the credible
evidence that the defendant is capable of understanding the fundamental nature
of the trial process and of meaningfully assisting his or her counsel as
required by Wis. Stat. § 971.13(1), the codification of the Dusky
test as further explained in Drope.
By the Court.¾The decision
of the court of appeals is reversed.
¶31 SHIRLEY
S. ABRAHAMSON, C.J. (concurring). I conclude, as does
the majority, that the circuit court properly held that the State failed to
prove that Garfoot was competent to stand trial. I write separately because I
disagree with the majority's statement of the standard of appellate review.
¶32 The
majority fails to recognize the proper standard of review because it fails to
recognize the constitutional basis of the competency inquiry. A conviction of
an incompetent person violates the right to a fair trial guaranteed by the due
process clause of the Fourteenth Amendment. Pate v. Robinson, 383 U.S.
375, 378, 385 (1966). The constitutional standard for competency to stand trial
is enunciated in Dusky v. United States, 362 U.S. 402 (1960) (per
curiam), Drope v. Missouri, 420 U.S. 162 (1975), and Wis. Stat.
§ 971.13(1). The formulae set forth in Dusky and Drope are
“open-textured”[8] and have
been the subject of a great deal of scholarly and decisional analysis.[9]
Many questions remain unanswered: What decision-making abilities are
encompassed by the Dusky formulation? To what extent do the Dusky
tests include an accused’s appreciation of the trial’s significance and his or
her own situation as a defendant in a criminal prosecution? What is the
relation between the Dusky tests and legal rules relating to
decision-making by criminal defendants?[10]
¶33 I
turn now to the standard of appellate review, an issue to which the parties
devoted considerable effort in their briefing.[11]
Because the proper standard is a prerequisite to our consideration of the
substantive issues presented and because the parties fully briefed the issue,
both the majority opinion and this concurrence devote substantial discussion to
this issue.
¶34 I
conclude that a determination of competency, a determination of constitutional
fact, should be decided by this court independently of the decisions of a
circuit court or court of appeals, yet benefiting from the analyses of those
courts and the observational advantage of the circuit court. The court of
appeals has concluded that the finding of competence is an intertwined finding
of fact and law which an appellate court decides independently, giving weight
to the circuit court’s decision.[12]
¶35 The
majority opinion concludes that the applicable standard of review is that
applied to a finding of fact, namely whether the finding of competency is
clearly erroneous. Wis. Stat. § 805.17(2). The majority opinion focuses on
the circuit court’s observational advantage, concluding that the circuit court
"is in the best position to weigh all the evidence necessary to make a
competency determination."[13]
Majority op. at 1, 13. The cases cited by the majority opinion to support its
conclusion are not directly on point; none of them deals with appellate review
of a circuit court's determination of competency to stand trial.[14]
Furthermore, other Wisconsin cases have described competency determinations as
essentially legal matters to be decided independently by an appellate court.[15]
¶36 I
conclude that the competency determination is not a matter of historical fact
only and should not be treated as an historical fact. The ultimate finding of
competency, like a finding of voluntariness of a confession, is a finding of
constitutional fact, and I therefore turn to our jurisprudence on appellate
review of determinations of constitutional fact for the appropriate standard of
review in this case. This jurisprudence focuses on the correct interpretation
of controlling constitutional principles and thus requires an appellate court
to make an independent determination of the constitutional fact, that is the
application of the constitutional principle to the historical facts.
¶37 There
are sound reasons for different standards of appellate review. The standard for
appellate review of historical facts should give great deference to the circuit
court. The circuit court sees and hears the witnesses and is in a better
position than an appellate court to gauge credibility. Appellate courts thus
review circuit courts' findings of historical fact merely to determine whether
they are clearly erroneous.
¶38 Similarly,
appellate courts review circuit courts' discretionary decisions merely for
erroneous exercise of discretion because the law commits a range of decisions
to the discretionary judgment of the circuit court. Independent review, when
inappropriate, can undermine confidence in the circuit courts and encourage
meritless appeals.[16]
¶39 Nevertheless
independent decision-making by an appellate court is required in some
circumstances. As Judge Mary Schroeder has pointed out, increasingly
deferential review inappropriately permits an appellate court to tolerate a
large margin of trial court error without ever making a close examination of
the trial court's ruling. Mary M. Schroeder, Appellate Justice Today:
Fairness or Formulas, The Fairchild Lecture, 1994 Wis. L. Rev. 9,
10, 20.
¶40 The
standard for appellate review of an issue thus depends on a determination of
whether an appellate court or a trial court is the more appropriate and
competent forum to make the particular decision.[17]
¶41 The
court has distinguished matters of historical and constitutional fact for
purposes of determining the appropriate standard of appellate review and has
frequently decided matters of constitutional fact independently.[18]
Sound reasons underlie our traditional commitment to independent determination
of findings of constitutional fact.
¶42 The
principal reason for independent appellate review of matters of constitutional
fact is to provide uniformity in constitutional decision-making.[19]
In applying the skeletal constitutional rule, appellate courts flesh out the
rule and provide guidance to litigants, lawyers and trial and appellate courts
and achieve uniformity of application. The court clearly stated this goal when
deciding that it would independently determine whether a confession met the
constitutional standard of voluntariness.
Whether the defendant voluntarily made the
confession is a matter of fact. However, it is a question of “constitutional”
fact which must be independently determined by this court. . . . The scope of
constitutional protections, representing the basic value commitments of our
society, cannot vary from trial court to trial court . . . .
Whatever the ultimate substantive dimension of these rights might be, they must
be uniform throughout the jurisdiction. This can be accomplished only if one
decision maker has the final power of independent determination.
State v. Hoyt, 21 Wis. 2d 284, 305-06, 128 N.W.2d 645
(1964) (Wilkie, J., concurring).[20]
¶43 A
circuit court's finding that the historical facts meet the constitutional
standard of competency to stand trial should, I believe, be determined
independently by an appellate court. In making this determination an appellate
court may draw upon the circuit court’s reasoning and observational advantage,
but the appellate court independently measures the facts against a uniform
constitutional standard.
¶44 Professors
Liebman and Hertz have urged appellate courts to use greater precision in their
analyses of trial courts' competency determinations. James S. Liebman &
Randy Hertz, 1 Federal Habeas Corpus Practice and Procedure 578-81 n.55
(2d ed. 1994). Although directed to the distinct issue of which state court
determinations are entitled to a presumption of correctness for purposes of
federal habeas corpus review,[21]
their comments address our present concern.
Precision in thinking about the process of
assessing "competency" (whether it is competency to stand trial or to
waive available legal remedies) also is helpful. That assessment can be viewed
as essentially a two-part inquiry. The reviewing court first must evaluate the
factual evidence regarding "competence," including the credibility of
the psychiatric and lay assessments of the individual's mental state.
Thereafter, the reviewing court must determine whether the basic facts proven
by the evidence satisfy the applicable legal standard of competence. Once these
two aspects of the competency assessment are distinguished, it becomes more
clear that, although state court findings on the threshold factual issues
generally are subject to a presumption of correctness, the subsequent
determination (based on those facts) "[w]hether one is competent to stand
trial under the Fourteenth Amendment [or competent to waive legal remedies] is
a mixed question of law and fact" that is not subject to a presumption of
correctness.
Id. at 580 (citations omitted).
¶45 For
the reasons set forth I write separately.
¶46 I
am authorized to state that Justices Janine P. Geske and Ann Walsh Bradley join
this opinion.
¶47 WILLIAM
A. BABLITCH, J. (Concurring).
Although the concurrence presents a fairly persuasive case that the
appellate standard of review should be independent of the decisions of a
circuit court or court of appeals yet benefiting from the analyses of those
courts, I do not join it. The issue has
not been adequately briefed. In fact,
both parties argue that the standard should be as stated in the majority
opinion. At oral argument, the
defendant discussed the standard of review for five minutes, arguing for a
clearly erroneous standard, and stated that the State agreed with that
position. In response, the State said
nothing more than that it also advocated a clearly erroneous standard of
review. Inasmuch as neither party
supports the conclusion of the concurring opinion, this is not the appropriate
case to depart from our precedent. Far
better to wait until the issue is squarely joined and argued by two parties in
adversarial position. Accordingly, I
join the majority.
[1] Hofer, Standards of Review—Looking
Beyond the Labels, 74 Marq. L. Rev. 231 (1991).
[2] The court of appeals' opinion notes
that only two published cases appear to exist throughout the United States in
which an appellate court has reversed a trial court's determination that a
defendant is incompetent to stand trial.
State v. Guatney, 299 N.W.2d 538 (Neb. 1980); State v. Hebert, 174 So.
369 (La. 1937). This is likely
attributable to the notion that the trial court is in the best position to make
such a determination.
[3] Older cases may still define the
standard, but the term "abuse of discretion" has been abandoned in
favor of the term "erroneous use of discretion." City of Brookfield v. Milwaukee Metro Sewage
Dist., 171 Wis. 2d 400, 491 N.W.2d 484 (1992).
[4] Wis. Stat. § 805.17(2), states
in part that "[f]indings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court
to judge the credibility of the witnesses."
[5] It seems that courts have a tendency
to treat mentally ill defendants and mentally retarded defendants differently
in making competency determinations.
Perhaps this is because mentally ill defendants stand a better chance of
becoming competent than do mentally retarded defendants. Law professor Richard
Bonnie explains as follows:
In
cases involving mentally ill defendants, it is likely that forensic and
judicial practice errs in the direction of finding incompetence in marginal
cases, at least in the early phases of the pretrial process. This is so for a variety of reasons,
including the perceived need for therapeutic restraint and the provisional
nature of the finding of 'incompetence' in most cases. If a defendant with mental retardation is
found incompetent to proceed, however, 'restoration' of competency is unlikely
in most cases, and the pretrial finding of incompetence is therefore likely to
be a definitive bar to adjudication. In
light of the dispositional consequences of a finding of incompetence, forensic
and judicial practice probably tilt toward findings of competence in marginal
cases.
Bonnie,
The Competence of Criminal Defendants with Mental Retardation to Participate in
Their Own Defense, 81 J. Crim. L. & Criminology 419, 422 (1990).
[6] See People v. McNeal, 419 N.E.2d
460 (Ill. App. 1981) (a Weschler Adult Intelligence Scale (WAIS) IQ of 61
reported in the context of expert testimony that defendant was competent did
not give rise to bona fide doubt of defendant's competence); People v. Jackson,
414 N.E.2d 1175 (Ill. App. 1980) (a WAIS IQ of 51 and the defendant's refusal
to talk to counsel or appear in court was insufficient to raise bona fide doubt
as to competence). See also May v.
State, 398 So.2d 1331 (Miss. 1981) (a 14-year old boy with an IQ of 70 was
sentenced to 12 years for armed robbery); Commonwealth v. Melton, 351 A.2d 221
(Pa. 1976) (IQ of 69 alone did not give rise to reason to doubt defendant's
competency); State v. Crenshaw, 205 N.W.2d 517 (Neb. 1973) (no doubt of
defendant's competency even when known that the defendant "lacked normal
mental ability and has some derangement of the mind.").
[7] To elicit information about a
defendant's competence, many courts and experts rely on a 13-point checklist
known as the "McGarry Scale" or "Competency to Stand Trial
Instrument." The test involves an
evaluation of the totality of the evidence.
Both Dr. Jens and Dr. Spierer applied the McGarry criteria in evaluating
Garfoot. See State v. Shields, 593 A.2d
986 (Del. Super. 1990), for a variety of factors upon which a court or an
expert may rely.
[8] Richard J. Bonnie, The
Competence of Criminal Defendants with Mental Retardation to Participate in
Their Own Defense, 81 J. Crim. L. & Criminology 419, 424 (1990); State v.
Debra A.E., 188 Wis. 2d 111, 124-26, 523 N.W.2d 727 (1994).
[9] ABA Criminal Justice Mental
Health Standards, Standard 7-4.1, Commentary, at 168-175 (1989).
[10] See generally Richard J.
Bonnie, The Competence of Criminal Defendants: Beyond Dusky and Drope,
47 U. Miami L. Rev. 539 (1993). Professor Bonnie also describes the dignity,
reliability and autonomy rationales which underlie the prohibition against
convicting an incompetent person. Id. at 551-54.
Garfoot’s
brief suggests a fourth rationale: convicting an incompetent person is
inconsistent with the proper purposes of criminal punishment. Brief for
Petitioner at 21.
[11] The standard of review was
raised by Garfoot in his petition for review as a primary issue justifying
review; he devoted 11 pages of his 27-page argument in his brief to this issue.
The State addressed the issue in 5 pages of its 29-page argument in its brief.
Garfoot and the State do not agree on the appropriate standard of review.
Garfoot
argues for a standard of review that benefits his position before this court,
namely that the circuit court’s determination that he was incompetent should
not be disturbed unless clearly erroneous.
The
State’s position on the standard of review is more nuanced and the State
asserts that its proposed standard of review is close to that set forth by the
court of appeals.
The
State distinguishes a circuit court's findings of historical fact which inform
the competency determination from the legal standard of competency.
"Appellate courts review the legal standard used by the trial court
independently. . . . In addition, the trial court's failure
to determine competency in the context of the case, consider modifications of
the trial proceeding [for the benefit of an accused] and exercise independent
legal judgment are legal errors and reviewed independently." Brief for
State at 24.
The
State proposes the following standard of review: "[W]here a trial court
has relied upon relevant evidence and used the correct legal standard to make
an independent determination, a competency determination should be upheld
unless clearly erroneous." Id. at 24-25.
The
State further asserts that its proposed standard has "the same
objective" as the standard applied by the court of appeals, namely that an
appellate court will “give weight to the trial court’s decision, even though
the decision is not controlling.” Id. at 26-27. For the court of appeals' statement
of the standard of review see note 5 below.
[12] The court of appeals set forth
the standard of review and its reasoning as follows:
Our
review of the trial court's ruling is therefore de novo. We nevertheless
decline to make the competency determination without giving the trial court the
opportunity to apply the proper standard to the facts. Competency determination
is not a pure question of law. It is intertwined with the facts. When a trial
court is required to make an intertwined finding of fact and law, we give
weight to the trial court's decision, even though the decision is not
controlling. See Wassenaar v. Panos, 111 Wis. 2d 518, 525, 331 N.W.2d
357, 361 (1983).
State
v. Garfoot, No. 94-1817-CR, unpublished slip op. at 9 (Wis. Ct. App. Nov. 9,
1995).
[13] The majority opinion also refers
to the circuit judge's "superior ability to observe the defendant" as
a basis for giving deference to the circuit court's competency determination.
Majority op. at 8.
The
circuit court’s analysis of the defendant’s conduct should be made part of the
record as findings of historical fact.
The
conclusion drawn, that the defendant is or is not competent, remains, however,
a matter of constitutional fact to be determined independently by an appellate
court regardless of the source of the underlying historical facts.
[14] Some cases cited by the
majority deal with appellate review of a circuit court’s determination of the
existence of a reason to doubt competency; State v. Pickens, 96 Wis. 2d 549,
292 N.W.2d 601 (1980), deals with appellate review of a circuit court's
determination of competency to represent oneself at trial.
[15] See, e.g., In the Matter of
Guardianship of Cheryl F., 170 Wis. 2d 420, 425, 489 N.W.2d 636 (Ct. App. 1992)
(whether facts fulfill legal standard of incompetency justifying appointment of
guardian is a question of law determined independently). Cf. State v. King, 187
Wis. 2d 548, 557, 523 N.W.2d 159 (Ct. App. 1994) (whether amnesiac defendant
received a fair trial is question of constitutional fact to be determined
independently by appellate court).
[16] Corroon & Black v. Hosch,
109 Wis. 2d 290, 318-19, 325 N.W.2d 883 (1982) (Abrahamson, J., dissenting).
[17] Corroon & Black, 109 Wis.
2d at 314-322; Nottelson v. ILHR Dept., 94 Wis. 2d 106, 113-18, 287 N.W.2d 763
(1980) (similar issue of standard of review in review of administrative agency
decisions).
[18] See, e.g., State v. Santiago,
No. 94-1200-CR, slip op. at 9-10 (S. Ct. Dec. 13, 1996) (sufficiency of Miranda
warnings); State v. Turner, 136 Wis. 2d 333, 344, 401 N.W.2d 827 (1987)
(voluntariness of consent to search, voluntariness of confession, whether right
to silence has been scrupulously honored); State v. Hoyt, 21 Wis. 2d 284,
305-06, 128 N.W.2d 645 (1964) (on motion for rehearing) (Wilkie, J.,
concurring) (voluntariness of confession) (citing Culombe v. Connecticut, 367
U.S. 568 (1961) (same)).
[19] See, for example, State v.
King, 187 Wis. 2d at 557, in which the court of appeals concluded that an independent
appellate review of a finding of constitutional fact that an amnesiac defendant
received a fair trial was necessary because “[t]he reviewing court has the duty
to apply constitutional principles to the facts found in order to ensure that
the scope of constitutional protections does not vary from case to case.”
[20] Although Justice Wilkie wrote
in concurrence, this Hoyt language has been adopted by the court. See, e.g., In
the Interest of Isiah B., 176 Wis. 2d 639, 645-46, 500 N.W.2d 637 (1993)
(reasonableness of search and seizure); State v. Fry, 131 Wis. 2d 153, 171, 388
N.W.2d 565 (1986) (search incident to arrest).
[21] The federal courts' concern in
this context is distinct from ours. The federal courts, trial and appellate,
give deference to a broad range of state court fact findings under principles
of federalism. The federal courts' determination of what fact findings are
entitled to the presumption of correctness is not intended to parallel, nor to
determine, the appellate standard of review of state trial court fact findings.
Nevertheless, the federal courts' analyses may be instructive.