Beach v. State

351 Ga.App. 237

830 S.E.2d 565

BEACH

v.The STATE.

A19A0459

Court of Appeals of Georgia.

June 28, 2019

Gerard Bradley Kleinrock, Decatur, for Appellant.

Sherry Boston, District Attorney, Mirna G. Andrews, Lenny I. Krick, Assistant District Attorneys, for appellee.

Doyle, Presiding Judge.

After a jury trial, Lance Beach, who represented himself at trial, was convicted of one count of child molestation.¹ After the trial court denied Beach’s amended motion for a new trial filed through counsel, Beach filed this appeal, also with the assistance of counsel. Beach argues that the trial court erred (1) by failing to reevaluate his competency to stand trial; and (2) by permitting the admission of evidence of a prior bad act after ruling that the evidence was inadmissible. For the reasons that follow, we affirm the judgment in part, reverse in part, and remand the case for a hearing on Beach’s competency at the time of trial pursuant to OCGA § 17-7-130 (d).

Viewed in favor of the verdict,² the record shows that Beach is the great-uncle of L. F., who was 12 years old at the time of the incident. L. F. lived with her mother and her grandfather in a two-bedroom apartment; her grandfather normally slept in L. F.’s bedroom, and she slept on a couch in the living room. Beach had been living in the apartment with them for a few months, and he slept on the other couch.

On the night of October 21, 2012, L. F. was watching television in the living room with Beach while her mother was asleep. At some point, Beach turned off the television, moved over to L. F.’s couch, and touched her breasts and buttocks with his hands over her clothes but underneath a blanket that covered her. Beach also attempted to force his hands between L. F.’s tightly closed legs to touch her vagina.

After Beach ceased touching her, L. F. got up and went to the bathroom and then to her bedroom to sleep. She also sent a text to her mother at 12:44 a.m., making an outcry of molestation, stating that "Uncle Lance touched me in inappropriate places last night. That’s why when [you] wake me up [I’m going to] be in my bed." The text message also included a frowning emoji face with a tear. L. F.’s mother read the text message when she awoke at approximately 4:00 a.m and immediately woke L. F., who told her mother about the incident. The mother testified that L. F. acted scared and cried; L. F.’s aunt also testified that L. F. made an identical outcry to her, acting upset and crying.

The mother confronted Beach, who neither admitted nor denied the molestation, and thereafter, the mother kicked him out of the apartment and called police. A sexual assault exam was performed on the victim, and the sexual assault nurse testified that the exam revealed no injuries, which was consistent with the type of molestation alleged to have occurred by L. F. At the conclusion of trial, the jury found Beach guilty, and after the trial court denied his amended motion for new trial (at which time Beach was represented by counsel), this appeal followed.

1. Although Beach does not argue on appeal that the evidence was insufficient to support the verdict, we note that the evidence as presented meets the sufficiency requirements set forth in Jackson v. Virginia .³ 2. Beach argues that the trial court erred by failing to properly assess his competence to stand trial.

(a) Factual background . On October 1, 2013, the trial court ordered a mental evaluation regarding Beach’s competency to stand trial, including whether he was capable of distinguishing right from wrong or whether he was suffering from a delusional compulsion. On June 24, 2014, the trial court held a status hearing on the case, at which time Beach stated that he wished to represent himself. While engaging in a Faretta⁴ hearing, the trial court again expressed its worry about some of the statements Beach was making and inquired whether he had been in any sort of mental health counseling.⁵ Beach stated that he did not need any counseling and was only taking blood pressure medication; Beach then complained that jailors were tampering with his food by adding medications. During the hearing, the public defender explained that Beach refused to meet with her, and it was revealed that Beach had had a mental health evaluation in March 2014. The hearing concluded with a notation from the court that "Beach also had an outburst in court that made no ... sense ...."

On October 23, 2014, the trial court again held a status conference with Beach, at which he made accusations against the public defender: "she has been forcing her representation on me. She also has been interfering and tampering with my mail. And as of June 24th, I’m sure that treason was established by her following my mail constantly." Thereafter, the trial court entered an order directing 90 days of observation of Beach by the Department of Behavioral Health and Developmental Disabilities ("DBHDD") and the Department of Human Resources ("DHR") to determine his competency.

On January 9, 2015, the trial court entered an order directing the public defender’s office to represent Beach because a psychiatrist at Georgia Regional Hospital had opined that Beach was incompetent and could therefore not waive his right to counsel; the court, however, did not actually find that Beach was incompetent but rather that his "competency is in question."

On February 18, 2015, the court conducted a hearing to determine whether Beach was competent to stand trial and on whether to forcibly medicate Beach pursuant to Sell v. United States .⁶

At the hearing, psychiatrists testified that Beach was diagnosed with schizophrenia, and he was offered antipsychotic medication for the disorder. Beach "had some difficulties with his ability to assist his attorney, given that he [had] paranoid delusions, meaning that the thoughts that he had were not based in reality and [were] paranoid in nature. And [he] also had significant disorganized thought process, which limited his ability to effectively assist his attorney."

On February 20, 2015, nunc pro tunc to February 18, 2015, the trial court found Beach incompetent to stand trial and directed DHR to reevaluate him in 90 days. On February 20, 2015, the trial court also entered an order directing the DBHDD to forcibly administer the psychotropic medications necessary to restore Beach’s competency.

The record contains production orders for status conferences during 2015, but no hearing transcript appears in the record for those dates. The next hearing occurred on March 14, 2016, with a new judge presiding and conducting a second Faretta hearing. At the hearing, in response to the judge’s question as to whether Beach had "ever been under the care of a psychiatrist, psychologist, or other mental health professional," Beach responded "no." The defense attorney interjected at this point:

[DEFENSE COUNSEL]: Your honor, he is currently located at Georgia Regional[,] and so he needs to understand that you are also talking about what his current care is now.

[COURT]: Well[,] I just asked if he’s under the care of any psychiatrist, psychologist, or other mental health professional[,] and you said no. Do you want to change your answer?

[BEACH]: Yes.

[COURT]: Okay. Tell me about that.

[BEACH]: I’m at Georgia Regional right now under Dr. Fear.

[COURT]: What is Dr. Fear doing for you?

[BEACH]: She’s a psychiatrist.

[COURT]: Tell me a little bit more about that.

[BEACH]: Well[,] she’s treating me for anxiety, it’s going along pretty good .... She’s treating me [for] anxiety. I take Zyprexa [,] and I take Clonapam. ...

[COURT]: How do you feel about the state of your treatment?

[BEACH]: Everything’s fine. A lot calmer.

Thereafter, the trial court continued its inquiry into whether Beach was knowingly and voluntarily waiving his right to counsel, and the court granted his request to waive counsel.

On May 9, 2016, the trial court entered a nunc pro tunc order to June 19, 2015, finding that Beach was competent to stand trial based on a report from that date from Georgia Regional, presumably stating that Beach’s competency had been restored. That same day, the court began the trial against Beach, appointing the public defender to act as stand-by counsel and assist only with procedural advice. After a brief recess, the trial court inquired of the public defender, "Ma’am, after speaking with Mr. Beach this morning, any concerns about his competency?" to which counsel responded that she thought he was competent. The court conducted a third Faretta hearing, asking, among other questions, whether Beach had "been under the care of a psychiatrist, psychologist, or other mental health professional," to which Beach responded, "No. No other time than Georgia Regional." The court asked if Beach had taken medication or drugs in the preceding 24 hours, and he responded that he took his medicine; and then he raised the issue of food-tampering again — "the last three years that’s been quite overwhelming. There’s been medications and things put in my food."

The court concluded its Faretta hearing, again finding that Beach had knowingly and voluntarily waived counsel, and the State interjected that "Mr. Beach indicated that medication was being put in his food. I’m not sure that’s how they are administering his medications, so that may raise a concern. If we could have a recess to speak with the doctor briefly." The court had a recess, and the public defender reported that a doctor from Georgia Regional had spoken with Beach, and the doctor told the public defender Beach was "ready to proceed."

(b) Analysis . Beach argues on appeal that the trial court should have inquired into his competency immediately before trial, and the court’s action of entering a nunc pro tunc order finding Beach competent based on a one-year-old evaluation was insufficient. We agree that in this case, based on the February 20 finding of incompetency, the trial court failed to follow the requisite procedure set forth in OCGA § 17-7-130 to...