Hart v. Warden, N.H. State Prison

2020 DNH 076

Kenneth Hart, Petitioner v. Warden, N.H. State Prison, Respondent

Case No. 18-cv-424-SM

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

May 5, 2020

ORDER

More than 20 years ago, in February of 2000, Kenneth Hart was convicted in state court of two counts of aggravated felonious sexual assault (rape), witness tampering, and resisting arrest. He was sentenced to serve 10 to 20 years in prison on the sexual assault convictions, with suspended sentences on the remaining convictions. In this federal habeas corpus petition, Hart asserts that he is entitled to "relief from his wrongful conviction" on grounds that: (1) he was not competent to stand trial; and (2) when he elected to represent himself at trial, he did not knowingly, voluntarily, and intelligently waive his right to be represented by legal counsel.

Pending before the court is respondent's motion for summary judgment. For the reasons discussed, that motion is granted and Hart's Amended Petition for Habeas Corpus Relief is denied.

Background

Since his incarceration, Hart's mental illness has been well-documented. Indeed, there were suggestions of that illness even before his trial.

When Hart dismissed his third court-appointed attorney and notified the trial court of his intention to represent himself, the court ordered a mental status evaluation to assess his "current competency to stand trial and particularly his ability to clearly and effectively waive his constitutional right to counsel." Superior Court Order dated March 17, 1999 (document no. 40-2) at 5. Hart was evaluated by Dr. Albert Drukteinis. On July 21, 1999, the trial court held a competency hearing, at which Dr. Drukteinis testified. See Transcript of Competency Hearing (document no. 40-3). Among other things, Dr. Drukteinis testified that:

1. He conducted a formal evaluation of Hart, which included a routine psychiatric interview, a mental status examination, a cognitive capacity examination, and a "competency-to-understand-trial" assessment. Id. at 7.

2. On the mental status exam, Hart was not agitated, nor did he show any unusual motor behavior; there was no sign he was hallucinating, nor that he had any delusions; he had some paranoid thinking, reflected by a "vague sort of mistrust about lots of people;" he was "oriented and he did not appear to be suffering from any brain diseases as such." Id at 9-10.

3. On the cognitive capacity screening, Hart was well oriented and displayed good memory; "His calculations were good, basic abstract thinking was good. He could become distractible at times, but again nothing to suggest that he was psychotically disorganized;" Id. at 11.

4. On the competency to stand trial assessment, Hart "was well aware of his charges and he could discuss a number of them in detail;" he understood the charges against him were serious; he understood that he could not be compelled to testify at trial; he had not decided whether he would testify because he still wanted to discuss that issue with stand-by counsel; he understood the role of various participants in the trial - witnesses, defense counsel, prosecutor, and judge; "he was quite detailed and accurate in all of that;" he spoke of dissatisfaction with two prior attorneys because they did not challenge probable cause sufficiently at earlier hearings; "in general, as criminal defendants go that I've evaluated, he answered ninety-nine percent of the questions very well." Id. at 12-15.

5. As for a clinical diagnosis of Mr. Hart, Dr. Drukteinis opined that: "Mr. Hart has no signs of an acute psychotic illness. He's not disoriented, he's not deranged, he's in contact with reality and there's nothing patently absurd about his thinking process. I do think that there is some evidence of paranoid personality traits and some grandiosity;" he likely suffers from a nonspecific kind of personality disorder that does "not rise to the level of a major mental illness that should prevent him from being competent to stand trial." Id. at 16-17.

6. Based upon his evaluation of Mr. Hart, Dr. Drukteinis opined that: Hart "is competent to stand trial;" and "could rationally work with his attorney and rationally follow the proceedings." Id. at 17-18.

Following that hearing, the trial court concluded that Hart was competent to stand trial. Id. at 42. See also Superior Court Order dated July 21, 1999 (document no. 40-4).

Nevertheless, the trial court recognized that additional inquiry was required before it could grant Hart's motion to waive his constitutionally protected right to counsel. See, e.g., Godinez v. Moran, 509 U.S. 389, 402 (1993) ("[W]hen a defendant seeks to waive his right to counsel, a determination that he is competent to stand trial is not enough; the waiver must also be intelligent and voluntary before it can be accepted."). Accordingly, the court held an additional hearing on Hart's motion to waive his right to counsel and to represent himself at trial. Because it is central to Hart's habeas claims, the colloquy probably bears recounting in some detail:

THE COURT: Mr. Hart, still wish to proceed pro se in this matter; is that correct?

MR. HART: Good morning, Judge.

THE COURT: Good morning.

MR. HART: Yes, I'm prepared to proceed pro se.

THE COURT: That's what you want to do?

MR. HART: That's what I want to do.

THE COURT: You understand you have the absolute right under the federal and state constitutions to be represented by counsel?

MR. HART: I do understand that right.

THE COURT: And even though you can't afford your own counsel the state appoints one for you; you understand that?

MR. HART: I understand that as well.

THE COURT: I just want to be clear, understanding all of this and understanding the absolute right you have to counsel, it is your desire not to have counsel, to waive your right to counsel and to proceed to represent yourself? I just want to be very clear about that.

MR. HART: Yes, that's correct, it is my right and it is my knowing and intelligent opinion to waive counsel and to proceed pro se.

THE COURT: Okay. Now, it is incumbent upon me under the law -- well, you understand, Mr. Hart, that now - we're dealing here with - what is the maximum penalty, ten to twenty on these, counsel?

MS. O'NEIL: That's right.

THE COURT: There's a maximum sentence on each one of these charges of not less than ten years nor more than -- not more than ten years to twenty years on each one of these charges. If you were found guilty you could be sentenced to that imprisonment term on each one of them consecutive; do you understand that?

MR. HART: I understand that there's a maximum penalty, yes.

THE COURT: And you understand that as representing yourself you are going to be required to follow the Rules of Evidence, follow the rules of court, many things which take lawyers years and years to understand, and quite frankly some of them still don't understand them? Do you understand that you are going to have to pick a jury?

MR. HART: Yes.

THE COURT: That you are going to have to examine witnesses on direct and cross-examination?

MR. HART: Yes.

THE COURT: You are going to have to make an opening statement to the jury, you are going to have to make a closing argument; do you understand all of these things that you are going to have to do?

MR. HART: I understand I'll have to do all the things that a licensed attorney would have to do.

THE COURT: Those aren't easy things, Mr. Hart.

MR. HART: I don't think they are easy at all.

THE COURT: Do you also understand that I can't treat you any differently than if you were represented by a lawyer; in other words, I can't kind of help you out or give you breaks, or anything like that; do you understand that?

MR. HART: Yes.

THE COURT: Okay. I can't cut you any slack, I guess is what I'm trying to tell you.

MR. HART: I will be allowed the advantages and the authority of being a licensed attorney?

THE COURT: Pardon?

MR. HART: I will be allowed . . .

THE COURT: I'm going to give you standby counsel; okay?

MR. HART: I'll ask the question again, then. I'll be allowed the advantages and the authority of a licensed attorney?

THE COURT: You will be allowed to do all the things in this courtroom that a licensed attorney could do, yeah, I mean if that's -- if I understand your question properly.

MR. HART: So then any type of legal research and defense tools I will also be allowed those?

THE COURT: Well, to the extent I would grant them to any client you will be allowed them. When we start getting into matters about use of the law library and everything while you are incarcerated that always creates problems and we will deal with those accordingly.

But one thing I guess that I think - I know you understand this because I know you have gone over this with Judge Barry as well before - but when you represent yourself, I mean this is you are emotionally involved in your case, obviously, because it deals with you.

MR. HART: That's right.

THE COURT: And one of the things about a lawyer is that a lawyer is always able to be, hopefully, objective and dispassionate and therefore could look at things clearly without making decisions that, you know, may be affected by his personal involvement in the case; whereas you representing yourself, you know, you've got to deal with your own emotional involvement in the case and to the extent it can cloud your complete objectivity. I mean you understand you at least have to deal with that problem if you are going to represent yourself, you understand that? MR. HART: I do understand. I have no clouded misunderstanding at this time.

Hearing on Motion to Proceed Pro Se (document no. 40-5) at 3-9 (emphasis suppled). After conducting that colloquy with Hart (and, having already concluded that he was competent to stand trial), the trial court determined that Hart understood his constitutional right to counsel and that he knowingly, intelligently, and voluntarily waived that right.

THE COURT: All right. Well, based on your sincere and apparently unwavering desire to waive your right to counsel and

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