State v. Coley

171 Wash.App. 177

286 P.3d 712

STATE of Washington, Respondent,

v.Blayne Jeffrey COLEY, Appellant.

No. 30003–0–III.

Court of Appeals of Washington, Division 3.

Oct. 9, 2012.

David L. Donnan, Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant.

D. Angus Lee, Carole Louise Highland, Grant County Prosecuting Attorney, Ephrata, WA, for Respondent.

SWEENEY, J.

[171 Wash.App. 179]¶ 1 There is a general presumption in this state that a defendant is competent to stand trial and assist in his own defense. Based on this presumption of competency, the defendant bears the burden of proof to show that he is incompetent to stand trial. Here, the court had concluded that the defendant was incompetent and sent him for evaluation and treatment. In the follow-up competency hearing, the court imposed the burden to prove incompetency on the defendant after erroneously concluding that the most recent order declared the defendant competent. We conclude that this was structural error and therefore reverse and remand for further proceedings.

FACTS

¶ 2 Grant County sheriff's deputies responded following an incident between Blayne Coley and his girl friend on June 17, 2008. Deputies arrived at the home and Mr. Coley told them that his girl friend's 13-year-old son, S.U., had molested him. The sheriff's office later learned of two prior incidents between Mr. Coley and S.U. The State charged Mr. Coley with two counts of second degree rape of a child.

¶ 3 Mr. Coley's competency became an issue during preliminary proceedings. His attorney, John Perry, moved on July 15, 2008, for an order that Mr. Coley's mental status be evaluated. The court granted the motion and ordered Mr. Coley transported to Eastern State Hospital. The hospital concluded that Mr. Coley was not competent to stand trial. The court stayed proceedings for 90 days on September 30, 2008. The court held a competency hearing on December 8, [171 Wash.App. 180]2008, and, following the hearing, concluded that Mr. Coley had regained his competency to stand trial.

¶ 4 Mr. Coley asked the court if he could proceed pro se during the preliminary proceedings. In February 2009, the court instructed Mr. Coley on proceeding pro se with standby counsel, and Mr. Coley elected to represent himself. At a March 5, 2009 hearing, Mr. Coley took the witness stand and proceeded with direct examination by questioning himself in the third person. On March 9, 2009, Mr. Coley elected not to proceed pro se and the court again appointed Mr. Perry to represent him.

¶ 5 The court again questioned Mr. Coley's competency in April 2009. On April 10, 2009, Mr. Coley waived his right to a jury trial and again moved to proceed pro se. The court held a hearing. Mr. Coley made several incomprehensible arguments. And the judge expressed concern over whether he was competent to proceed. The court ordered that Mr. Coley undergo another competency evaluation. On July 16, 2009, the court entered an order for a 90–day stay of the proceedings because Mr. Coley was not competent to proceed.

¶ 6 In October 2009, the case came before the court for entry of an order of competency. Apparently, the reports of competency conflicted. The State and Mr. Perry did not agree on whether Mr. Coley was competent or not. Mr. Perry did not have his expert's report at that time. However, Mr. Perry indicated that he would schedule a competency hearing. The court responded:

THE COURT: I don't mean for a hearing. As I understand the statutory process once a competency evaluation has been done the question before the Court is is there some reason based on the information now available to doubt competency. There is not a reason given Eastern State's report. If Dr. [E. Clay] Jorgensen's report suggests that there is a reason then we would need to schedule a hearing otherwise I'll enter an order of competency. So I think we need to do that rather promptly in maybe a week if you think you'll have Dr. Jorgensen's report.

Report of Proceedings (RP) (Oct. 27, 2009) at 2–3. The court continued the hearing for defense counsel to secure and present the report.

¶ 7 On November 3, 2009, there was a follow-up hearing before a different judge. Mr. Perry indicated that the defense expert disagreed with the recent assessment received from Eastern State Hospital. Also Mr. Coley believed he was competent. But his lawyer, Mr. Perry, thought it was his responsibility to request an evidentiary hearing on competency. The court was not sure how to proceed and asked counsel to research what kind of competency hearing would be required.

¶ 8 On November 9, 2009, the judge concluded that the court initially determines necessity (low-threshold), and then a jury decides the issue of competency. Mr. Perry cited to volume 12, section 907 of Washington Practice. RP (Nov. 9, 2009) at 3. It states:

When the issue of the defendant's competency to stand trial is raised, the issue is determined by the court, and if neither the prosecutor nor defense counsel contests the findings contained in the report, the judge may make his determination on the basis of the report. However, if the report of the court-appointed experts is contested, the court must hold a hearing.

An accused has the burden of showing that he or she is incompetent to stand trial by a preponderance of the evidence. This proof requirement is based upon the presumption of sanity.

At that hearing, the experts or professional persons who joined in the report may be called as witnesses. Both the prosecution and the defendant may summon any other qualified expert or professional persons to testify. The rules of evidence are applicable at the hearing.

12 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure § 907, at 177–78 (3d ed. 2004) (footnotes omitted). Mr. Perry thought the jury must determine competency. The court continued the hearing for another week in order to determine its role in any further competencyhearing. The court continued the case several times after November 2009. At a March 30, 2010 hearing before The Honorable Evan Sperline, Mr. Perry contested a proposal to have the judge decide competency solely on the reports:

MR. PERRY: Your Honor Dr. Jorgensen's report which it states that it is his opinion that Mr. Coley was not competent to proceed to trial or is not competent was done in October of 2009. There has been, there has been no competency restoration formally that I am aware of since that day. I would like Dr. Jorgensen to update that information. And so

THE COURT: I don't blame you at all that makes sense.

RP (Mar. 30, 2010) at 1. The parties later agreed that the judge would rule on whether Mr. Coley was competent. Id.

¶ 9 The competency hearing took place before the Honorable John Antosz on June 11, 2010. Mr. Perry told the court the State had the burden to prove competence because the most recent order declared Mr. Coley incompetent. The court asked for legal authority on the burden of proof, and the State pointed the court to volume 12, section 907 of Washington Practice. RP (Jun. 11, 2010) at 6–7. The court then discussed the matter with counsel:

THE COURT: Before I look at that, Mr. Perry, I think your position is based in part at least on a court order that found Mr. Coley to be incompetent; is that right?

MR. PERRY [Defense Counsel]: Yes, sir.

THE COURT: Okay. What's the date of that order?

MR. PERRY: Well, there is an order—there was an order on April 21st referring Mr. Coley at the basically sua sponte direction of the court after an order of competency to Eastern for evaluation. There was then a report from Dr. [William] Grant indicating that Mr. Coley was not competent. There's a report by Dr. Jorgensen indicating that he was not competent. And then there was a report—

THE COURT: Pardon me, but is the status of this that there was an order of competency and then Judge Sperline asked for another evaluation; is that the status?

MR. PERRY: That is the status.

THE COURT: Okay. What I understood you to be saying was that there was actually an order of incompetency. That's not the case. Instead there's an order of competency and then Judge Sperline had some questions about Mr. Coley's competency, and there were some more evaluations done.

MS. HIGHLAND [Deputy Prosecutor]: Yes.

THE COURT: Do you agree with that also, Counsel?

MR. PERRY: I do.

THE COURT: Okay.

MR. PERRY: And the most recent series of evaluations—

THE COURT: Well, what I need to know right now is the date of the order of competency. What date was that entered?

MS. HIGHLAND: December 9th, 2008, your Honor.

THE COURT: Thank you. I'll look for that and mark it in the file.

That's pleading number 41, which I'll tab in the file. It's an order of competency. And I do understand after that date Judge Sperline had questions, that's evident in the reports themselves. So okay.

And then, Mr. Perry, I will allow you to make an opening statement, but first I do need to address the burden of proof and what the law says on that. So I'll look to Ferguson, which is Volume 12 of Washington Practice, Section 907; is that correct?

MS. HIGHLAND: Yes, your Honor. And in mine it's page number 178.

THE COURT: Okay. Thank you. I'll read that.

MS. HIGHLAND: And it would be the first full paragraph.

THE COURT: Is your Section 908—did you say 908?

MS. HIGHLAND: I said 907, your Honor.

THE COURT: Oh, okay.

MS. HIGHLAND: On 178. Perhaps that's where I—and it would be the first full paragraph on page 178.

THE COURT: Section 907 is page 176 on the—

MS. HIGHLAND: Right. It goes through to the middle of 178.

THE COURT: Okay.

MS. HIGHLAND; It's quite a long section.

THE COURT: I see the second to the last paragraph of Section 907 states that “An accused has the burden of showing that he or she is incompetent to stand trial.” Is that the section?

MS. HIGHLAND: Yes, your Honor.

THE COURT: Okay. I'll tab that. And that's based on RCW 10.77.090(2). I'll look at the pocket part to see if there's...