STATE v. BENNETT

NOT DESIGNATED FOR PUBLICATION

LANIER, J.

Defendant, Todd Bennett, was charged by bill of indictment with two counts of aggravated rape,1 violations of La. R.S. 14:42 (counts one and two), and one count of aggravated incest of a victim under 13, a violation of La. R.S. 14:78.12 (count three). He pled not guilty. Defendant filed several pre-trial motions, including a challenge to defendant's competence to stand trial. Following eight examinations by three forensic clinical psychologists and two hearings, over defendant's objection, he was twice found competent to stand trial. After a trial by jury, the defendant was acquitted on count one, found guilty on count two of the lesser included offense of attempted molestation of a juvenile, a violation of La. R.S. 14:81.2 and La. R.S. 14:27, and found guilty as charged on count three. The trial court imposed concurrent sentences of five years imprisonment at hard labor and forty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant now appeals. For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

On Thanksgiving Day 2012, R.B.3 revealed to her grandmother that defendant, her brother, had been "molesting her for years," beginning around the age of 11 when she was in fourth grade. R.B. reported defendant touched her genitals under her clothes on a repeated basis, as well as forced her to put her mouth on his genitals. To prevent the abuse from becoming known, defendant threatened to burn down the house where R.B. was living while her grandfather was still inside. He also destroyed her personal property, and threw her pet puppy into the river. Eventually, R.B. "couldn't handle it anymore," and told defendant she would kill him if he attempted to molest her again. Afterwards, in fifth and sixth grade, R.B. dealt with her trauma by cutting herself with her grandmother's "X-Acto" blades. In November 2012, when she was a senior in high school, she first revealed the abuse to her then-boyfriend. Upon seeing defendant present at the Thanksgiving gathering, R.B.'s boyfriend convinced her to tell her grandmother. When confronted by his grandmother, defendant told her he was sorry and would not do it anymore. Defendant's grandmother then evicted him from the family property on which he lived. Defendant was initially charged with aggravated incest, a violation of La. R.S. 14:78.1, but was later indicted4 for the instant offenses under a separate trial court docket number.

ASSIGNMENT OF ERROR: COMPETENCE

In his sole assignment of error, defendant contends the district court committed reversible error when it found him competent to stand trial despite his expert forensic psychologist determining he was not. In defendant's view, he understood that "he could not be found guilty because he did not commit the crime" and that once he was found competent, he would be acquitted. Instead, counsel argues here that defendant did not "consider the fact that he could be wrongfully convicted of these crimes." In response, the State argues the trial court had sufficient evidence upon which to base its finding of competence, and that a difference of opinion between the court-appointed experts and defendant's expert did not preclude a finding of competence. Moreover, the State contends that though defendant was initially found incompetent, he was restored to competence through restorative treatment.

A criminal defendant has a constitutional right not to be tried while legally incompetent. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353 (1992). The State must observe procedures adequate to protect a defendant's right not to be tried while incompetent, and its failure to do so deprives the defendant of his due process right to a fair trial. Id.; State v. Campbell, 2006-0286 (La. 5/21/08), 983 So.2d 810, 848, cert. denied, 555 U.S. 1040, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008); State v. Carmouche, 2001-0405 (La. 5/14/02), 872 So.2d 1020, 1041, on reh'g (Sept. 25, 2003); State v. Jackson, 2016-1565 (La. App. 1 Cir. 10/12/17), 232 So.3d 628, 636, writ denied, 2017-1944 (La. 5/25/18), 243 So.3d 566. Pursuant to La. Code Crim. P. art. 641, mental incapacity to proceed exists when, as a result of a mental disease of defect, a defendant lacks the capacity to understand the proceedings against him or to assist in his defense. Carmouche, 872 So.2d at 1041. Louisiana law also imposes a legal presumption that a defendant is sane and responsible for his actions. See La. R.S. 15:432. Accordingly, the defendant has the burden of proving by a preponderance of the evidence his inability to stand trial. Carmouche, 872 So.2d at 1041.

In evaluating the legal capacity of the criminally accused, the Louisiana Supreme Court has stated that the considerations in determining whether a defendant is fully aware of the nature of the proceedings include: whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. State v. Bennett, 345 So.2d 1129, 1138 (La. 1977), on reh'g (May 16, 1977); State v. Bell, 2014-0737 (La. App. 1 Cir. 11/7/14), 2014 WL 5801517 at *4 (unpublished), writ denied, 2014-2577 (La. 9/18/15), 178 So.3d 145. The Louisiana Supreme Court has also stated that the facts to consider in determining a defendant's ability to assist in his defense include: whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. Campbell, 983 So.2d at 850; Bell, 2014 WL 5801517 *4.

While a thorough mental examination is necessary, the final determination of a defendant's competency to stand trial must rest in a judicial authority; it is a legal, rather than a medical, issue. State v. Qualls, 377 So.2d 293, 298 (La. 1979). The trial judge should not rely so heavily upon the medical testimony that he commits the ultimate decision of competency to the physician. State v. Brooks, 541 So.2d 801, 805 (La. 1989); State v. Lee, 2018-0541 (La. App. 1 Cir. 11/6/18), 2018 WL 5832212 *5 (unpublished); see also La. Code Crim. P. art. 647. A reviewing court owes the trial court's determinations as to a defendant's competency great weight, and the trial court's ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. Carmouche, 872 So.2d at 1041; State v. McCray, 2011-1913 (La. App. 1 Cir. 5/2/12), 2012 WL 1552257 *3 (unpublished).

Defendant initially fled the state after the revelation on Thanksgiving Day 2012. He was eventually caught and returned to St. Tammany Parish in July 2014. After the completion of the initial sanity commission evaluation, on April 30, 2015 the State and defendant stipulated he was not competent to stand trial, and defendant was ordered to receive jail-based competency restoration treatment. In making that incompetency determination, Dr. Rafael Salcedo, a forensic psychologist, interviewed defendant on November 24, 2014, and found he did not understand how the legal system worked and had some "concerns about possible intellectual impairment. Dr. Salcedo originally found defendant to be anxious and depressed, and believed that defendant's anxiety could interfere with his ability to work with defense counsel.

Dr. Michelle Garriga, a board-certified forensic psychiatrist, first examined defendant also on November 24, 2014. In her initial interview, Dr. Garriga found defendant to be "very anxious and easily rattled and confused." Dr. Garriga noted that defendant "was very nervous and had difficulty" answering questions. She concluded defendant was incompetent due to his intellectual deficits.

Defendant submitted to the court-ordered restorative treatment beginning in May 2015. After re-evaluation by the same two court-appointed experts and a psychiatrist, over defendant's objection, defendant was found competent by the trial court on November 16, 2015.

Specifically, following the rehabilitation, on July 16, 2015, psychiatrist J. Brad McConville determined that though defendant showed signs of mild intellectual disability, he demonstrated "an adequate factual and rational understanding of the proceedings against him and has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding." (Exhibit Folder 1, Doctor's Report at p. 61). Dr. McConville did note defendant had an ability to "parrot" answers back, notwithstanding some difficulty in explaining in detail what those answers meant.

After being ordered by the trial court on September 3, 2015, to conduct the first post-restoration follow-up examination of defendant on September 14, 2015, Dr. Salcedo found defendant failed to show any symptoms of a major psychiatric disorder, but instead was "mildly to moderately" anxious, as was befitting someone without experience in the criminal justice system. Dr. Salcedo concluded that defendant understood the nature of the charges and could help his attorney in preparing a defense. Additionally, Dr. Salcedo informed the trial court the restoration process accomplished its goal in that defendant understood the legal system much better than he had at his first interview, and that defendant met the Bennett criteria. Dr. Salcedo did not believe defendant's possible mild intellectual disability would prevent him from assisting counsel after he had become more familiar with the legal system. Dr. Salcedo believed that defendant could apply the information he had learned about the legal system and that defendant was not merely parroting back answers he had previously memorized.

In her contemporaneous first follow-up on September 14, 2015, Dr. Garriga found defendant had "dramatically improved" since the first visit. Though defendant wanted to proceed to trial, Dr. Garriga was still concerned about intellectual disabilities that could impair his ability to testify and be subject to cross-examination. Ultimately, however, Dr. Garriga found defendant had both the capacity to understand the proceedings against him, in addition to having the ability to assist in his defense. Dr. Garriga noted she was surprised by how much better defendant's understanding of the criminal justice system was following his restoration to competence, and how much less anxious he was. Dr. Garriga found defendant met the Bennett criteria.

Subsequent to the trial court's first determination that defendant's competence had been restored, defendant filed a second motion for a competency evaluation on January 18, 2017, which was denied on January 23, 2017. Thereafter defendant retained an expert and submitted a report and testimony from Dr. Alicia Pellegrin, a forensic psychologist. In a letter to the court, Dr. Pellegrin reported that during her two interviews occurring within eleven days, defendant refused to take an IQ assessment test and expressed a desire to not "look stupid," which he thought the test would do. Dr. Pellegrin echoed Dr. Salcedo and Dr. Garriga's viewpoint that defendant had some "rote understanding" of the legal system, but in her opinion defendant could not "make reasoned and informed decisions." Further, Dr. Pellegrin noted defendant did not understand that "competence does not equate with innocence." In her view, defendant was unable to fully assist his attorney given his "cognitive limitations." At another competency hearing conducted June 14, 2017, Dr. Pellegrin testified that the notes taken by the court-appointed experts during the restoration process were not "terribly detailed" and did not properly list all of their steps taken to restore defendant to competency. Dr. Pellegrin observed defendant to be "masking," an adaptive mechanism to ensure his cognitive limitations "are not shared with others or are not apparent to others." She found defendant would tend to "fixate" or obsess about some topics and had difficulty with being able to "change his thinking" regarding a subject he already had developed an opinion on, or adapt to new information and incorporate it. She concluded that defendant's ability to memorize facts would present to an interviewer as if he were actually competent where he actually was not. She did concede that given time and additional treatment, it was possible defendant could become competent for trial. Again, as noted by Dr. Garriga, Dr. Pellegrin was unable to do a complete analysis due to defendant's refusal to cooperate fully. Dr. Salcedo observed Dr. Pellegrin was unable to ask defendant about the Bennett criteria due to his refusal to "play ball."

At the conclusion of the June 14, 2017 hearing, the trial court ordered Doctors Salcedo and Garriga to evaluate defendant for a third time; the first in two years. Each did, and their conclusions regarding defendant's competence did not change. Dr. Garriga noted she was surprised when defendant actively raised the notion of sex offender registration in their conversation, and that defendant had the same notion of his chances of success at trial as many others she had interviewed. Consequently, following more testimony from Doctors Garriga and Salcedo at the final competency hearing on August 18, 2017, the trial court found defendant remained competent.

Here, the trial court had the benefit of reviewing four separate forensic examiners' reports of defendant, generated respectively by eight separate interviews. Doctors Salcedo and Garriga each wrote and testified that while defendant did have signs of a mild intellectual disability, they ruled out the possibility that he was incompetent to understand the charges against him and/or assist in his defense. In Dr. Salcedo's opinion, once defendant had time to be instructed on the legal system at a pace he could tolerate, any barrier to his full participation in his own trial was removed. Dr. Salcedo noted progress in defendant's comprehension from their first interview, and "found no evidence that [defendant] was having any difficulty processing information." Regarding defendant's ability to mask and desire to be found competent, Dr. Garriga succinctly explained it by stating, "[i]f you can fake being competent, then you are competent." Dr. McConville's expert opinion was consistent with both reports of Dr. Salcedo and Dr. Garriga, who each had a better opportunity to evaluate a more cooperative defendant than defendant's expert Dr. Pellegrin. Dr. Pellegrin even conceded that defendant could be made competent, though she disagreed that he had achieved competence at the time she interviewed him twice over the course of eleven days.

Review of the trial record reveals defendant testified and demonstrated an ability to recall details of his childhood and the victim's initial outcry, demonstrated his competency by explaining his finding an alternate place to live after being kicked off the property by his grandmother, and getting himself to Texas when he could find no other place to stay. Notwithstanding his implication on appeal that it was a clear sign of incompetence that defendant "thought that it was perfectly permissible for him to leave Louisiana" after being arrested, defendant testified he was unaware he had a warrant for his arrest and was unaware that he should not have left the state. Defendant specifically noted he would not have left if he had known of a warrant. Additionally, that defendant categorically denied R.B.'s allegations when specifically asked about them. Defendant also testified to helping care for his grandfather who had Parkinson's Disease. From his interactions with the forensic examiners, defendant was eager to be found competent in order to take his case to trial to refute his sister's allegations. While he was initially too anxious and ignorant of the workings of the criminal justice system, Doctors Salcedo, Garriga, and McConville all determined he had been sufficiently treated during his restoration to assist counsel at trial.

Under our jurisprudence, the trial court's determination of mental capacity to assist at trial is entitled to great weight, especially where the evaluation of credibility or the resolution of conflicting well-founded medical testimony is concerned. Brooks, 541 So.2d at 807; Lee, 2018 WL 5832212 at *7. Here, the trial court evaluated the evidence and determined defendant was competent to proceed. As defendant failed to meet the burden of establishing incompetency to stand trial, we find that the trial court did not abuse its discretion, and the trial court's ruling will not be disturbed. See State v. Verrette, 2010-0102 (La. App. 1 Cir. 6/11/10), 2010 WL 2342823 *9 (unpublished). Therefore, this assignment of error lacks merit.

CONVICTIONS AND SENTENCES AFFIRMED.