State of Delaware v. Reed.
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IN THE SUPERIOR COURT OF THE STATE OF DELAW ARE IN AND FOR KENT COUNTY STATE OF DELAWARE, v. TRACY A. REED, (ID. No. 0209004399) Defen dant. ) ) ) ) ) ) ) ) Submitted: January 16, 2004 Decided: April 21, 2004 Maria O. Graham, Esq., Department of Justice, Dover, Delaware. Attorney for State. Sandra Dean, Esq., Public Defender s Office, Dover, Delaware. Defen dant. Attorney for Upon Consideration of the Defendant's Motion To Determine Competency DEFENDANT DETERMINED TO BE COMPETENT VAUGH N, Resident Judge State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 OPINION The defendant, Tracy A. Reed, is charged with Robbery in the First Degree, Attempted Robbery in the First Degree, Burglary in the Second Degree, Resisting Arrest and Cr iminal M ischief. It is a lleged tha t on or ab out Sep tember 6 , 2002, the defendant entered a dwellin g at 24 N. Queen Street, D over, D elaware , and, w hile therein, robbed one person and attempted to rob another. During the course of these offense s, he allege dly dam aged the dwellin g. A sh ort time late r he allege dly resisted arrest while being apprehended by the police. At the request of the defense, a hearing was held to determine whether the defendant is competent to stand trial. In this order, I limit myself to a consideration of that issue. I The test of competency to stand trial is set forth at 11 Del. C. ' 404(a) as follows: Whenever the cour t is satisfied, after hearing, that an accused person , because of men tal illness or mental defect, is unable to understand the nature of the proceedings against the accused, or to give ev idence in the accused=s own behalf o r to instru ct couns el on his behalf, the court may order the accused person to be confined and treate d in the D elaware Psychia tric Cente r until the ac cused p erson is c apable o f standin g trial. This standard, in addition to its plain language, has been construed to require that a defendant be able (1) to consult with defense co unsel rationally, (2) to assist 2 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 in preparing his defense , and (3) to have both a rational and factual understanding of the proceedings against him.1 In determining competency, a court must consider all of the circumstances, and base the decision upon the facts of the particular case.2 Competency does not necessarily turn upon the absence or presence of any particular factor. The burden is upon the State to establish the defendant=s competency by a preponderance of the evidence.3 II At the hearing, testimony was received from two experts, Dr. Kathryn M. Sheneman and D r. Abraham J. Mensch, both of whom are psychologists. Dr. Sheneman examin ed the de fendan t at the De laware P sychiatric Center. In reaching her conclusions, she relied both on her examination and previous examinations performed by Dr. C rista Mc Daniel, also of the Delaware Psychiatric Center. Dr. McDaniel is no longer with the Center and has moved outside the jurisdiction. Dr. Mensch examined the defendant at the request of defense counsel. He was provid ed with the record of Various Dr. McDaniel's earlier examinations. documents were also submitted to the Court after the hearing. All three of the psychologists agree that the defendant's condition is one of mild mental re tardation . Intelligence testing by Dr. McDaniel found that the 1 State v. Reyes, Del. Super., Cr.A. Nos IN98-08-1664, 1665, Alford, J. (Apr. 28, 2000); State v. Shields, 593 A.2d 986, 1010 (Del. Super. 1990). 2 Shields, 593 A.2d at 1005. 3 Diaz v. State, 508 A.2d 861, 863 (Del. 1986). 3 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 defendant function s in the inte llectually deficient range with a Full Scale IQ of 64, Verbal IQ of 62, and Performance IQ of 74. In her initial report, Dr. McDaniel concluded that "due to Mr. Reed's limited intellect and particularly, his lim ited verb al comp rehensio n, that his a bility to proceed in this matter is marginal at best." A little over a month and a half later, however, Dr. McDaniel saw the defendant again for the purpose of administering a test know n as the C ompete ncy As sessmen t for Stan ding T rial for D efendan ts with Mental Retardation (CAST-MR). This test is one which was developed specifically to assist in assessing a mentally retarded person's competency to stand trial. She concluded that the defendant's results on this test "placed Mr. Reed well within the competent range." Her opinion was that the results indicated that the defend ant's unders tanding of the pr oceedin gs again st him was greater th an his ability to verba lize that un derstand ing. As a result of this second in terview with Mr. Reed, she revised her opinion, finding that "Mr. Reed has demonstrated at least a minim ally adequ ate ability to p roceed in this matter ." During Dr. McDaniel's initial examination of the defendant, she recorded his explanation of the circumstances wh ich led to his arrest as follows: I robbed someb ody. I too k forty d ollars. I didn't know it was happen ing. I didn't realize I had done it until it wore off. I was on crack. I didn't realize what I w as doing until the police . The person I robbed called the police. They arrested me in Dover on Queen's Street. I was so scared I ran and they caug ht me. I w as just frig htened. I realized I had did something wrong when they came and took me. I know I had done it, but I couldn't realize I 4 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 was going to go that far. I got bit by a K-9 on my leg and went to the hosp ital. I stayed in the hosp ital. I wen t to the police station and was fingerprinted. They kept me B asked questions. They took me to Smyrna until my court date and they kept me for eight weeks. I got bailed out. When I went to court I seen him (his lawyer) when I went down to the court building. I saw him last week B Lloyd Schmidt about three weeks after I had an evaluation. When Dr. Sheneman examined the defendant, she re-administered the CAST-MR test. The defendant's score was almost the same as his first score. She observed that while Mr. Reed's expressive lang uage is impoverished, and suggestive of concrete concept formation, he ca n read re asonab ly well, alb eit with uncertain comprehension. Sh e also observed that he has very controlled speech. These features, she sta ted, are atyp ical of per sons co mmon ly diagno sed with mental retardation. She indicated that they do not contradict the diagnosis, but merely make u nclear the etiology of the condition. She also observed that Mr. Reed has a desire to please which may cau se him to say he understands someth ing when he does not. Defense counsel, she indicated, should speak to Mr. Reed using concrete and simple sentences, and should, where appropriate, have Mr. Reed confirm his und erstandin g throu gh resp onses to counse l's questions or state ments. Dr. Sheneman reviewed the 20 factors sometimes referred to as the Shields factors.4 In her opinion, the defendant has sufficien t mental ca pacity to ap preciate his presence in relation to time, place, and things; understands that he will be in a 4 Shields, 593 A.2d at 1010-1111. 5 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 court of law charged with a criminal offense; realizes there will be a judge on the bench; understands there will be a prosecutor and a defense attorney and the roles of each; kn ows h e will be e xpected to tell his lawyer all he knows or remembers about the events involved in the alleged offenses; understands there will be a jury present which will pass upon evidence in determining his guilt or innocense (although his ability to assist in jury selectio n beyon d an elem entary lev el is impaired by his condition); has sufficient memory to relate answers to questions posed to him; has rapport with his attorney; has the ability to meet stresses without his rationality or judgment breaking down; has contact with reality; has the minimum intelligence necessary to grasp the events taking p lace; can d ivulge fa cts without paranoid distress; can testify, if neces sary (and , in fact, has prelimin arily decided not to testify); can make simple decisions; and has a desire for justice rather tha n unde served p unishm ent. With respect to the rema ining Shields factors, she expressed the following caveats. In her o pinion th e defend ant's intellectual limitatio ns will im pair his ability to follow testimon y. She ex plained th ere will b e times tha t he will be able to follow testimony and times that he will not. She further explained that the defendant reasons at a simple and con crete level, and that for the d efendan t to understand and follow the testimony it should be prese nted in co ncrete an d simple terms. She further explained, however, that the defendant does have the presence of mind to know to ask his attorney to explain something when he is having difficulty unders tanding it, and told her that h e wou ld do so . It was h er opinion that this issue is not an insurmountable problem and that it is characteristic of 6 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 persons with mild mental retardation and, even to some extent, people of average intellect. Dr. Sheneman was also of the opinion that the defendant can confer coheren tly with and assist his attorney, but lacks the soph istication o f intellect to provide any real help in the development of legal strategy, although he can participate in developing legal strategy to a limited extent. She further explained that the defendant's decision al limitation s will imp air his ability to evalua te potential legal defens es or w itnesses w ho may be called, a nd relian ce upon his attorney will be necessary, but he can assist in those areas. Similarly, she was of the opinion that he can give and receive advice from his attorney, but the attorney will have to converse with him in concrete and simple terms. She was also of the opinion that he will need the assistance of his attorney in evaluating any plea offer. As to this latter is sue, dur ing his fir st interview with D r. McD aniel the defendant stated that he was hoping to get probation and, when asked about other possible outcom es associa ted with his charg es, replied "Two years (in ja il)." Based upon h er review of Dr. M cDanie l's work , the score s on the te sts administered, and her own interviews of the defendant and the d efendan t's aunt, Dr. Sheneman concluded that "Mr. Reed has the capacity to proceed in the legal matters re lative to the se particu lar crimin al charge s." Dr. Mens ch also p erform ed intellige nce testing upon th e defend ant with the following results: Verbal IQ was 55; Performance IQ was 72; and Full Scale IQ was 62. He found that the defendant's understanding of word meanings and verbal expressive ability is that of a child six years, ten months of age; his word recognition skills those of a 2nd grader; his nonverbal, spatial reasoning that of a 7 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 child ten years, ten months of age; and his ability in terms of fluid reasoning or abstract reasoning that of a child six years, two months of age. Dr. Mensch found the defendant to have poor working memory, which refers to his ability to hold an idea long enough to complete a task. In laymen=s terms, poor working memory might be characterized as an inability to remember twenty minutes later information that one absorbed twenty minutes ago. He also found that the defendant is poor at being able to handle more than one idea at a time and has poor problem solving ability. Dr. Mensch als o stated th at, accord ing to ps ycholog ical literature , the CAST-MR is subject to certain caveats, including that the study upon which the test was developed included subjects having mental retardation who had not been charged with any criminal offenses, which would make it questionable as to how they would answer certain parts of the test; that a high score on the CAST-MR by a person with mental retardation is not necessarily an indicator that the person has competence-related abilities comparable to those of non-retarded defendants; and, since the test is 80 percent multip le choice, a defend ant can b e expecte d to get a substantial number of points by sheer guessing. When asked by Dr. Mensch what he was charged with, the defendant responded that he was charged with robbery. He realized the charges were serious. He explained the circumstances as fo llows: It was a mistake, but it won't happen no more. Some thing I should not done. I went and robbed someone in a house on Q ueen S treet last year in September. I took a w allet out of a man's p ocket. I didn't 8 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 know him, but I didn't hurt anybody. I did it because I was on crack cocaine B it makes y ou do w hat you d on't mean to do." Dr. Mens ch adm inistered th e Com petency A ssessme nt Interv iew (CAI), also known as the McGarry factors. 5 These factors tes t the defen dant's ability to consider realistically possible legal defenses, manage his behavior to avoid trial disruptions, relate to his attorney, participate with his attorney in planning legal strategy, understand the roles of various participants in the trial, understand court procedure, appreciate the charges, apprec iate the ran ge and n ature of p ossible penalties, perceive realistically th e likely ou tcome o f the trial, pr ovide h is attorney with available pertinent facts concerning the offenses, challenge prosecution witnesses, testify relevantly, and be motivated toward self-defense. Dr. Mens ch testified that he be lieves the defen dant has an adeq uate ability to control his behavior and relate to his attorney, and an adequate understanding of the roles of the various participants in the trial and court procedure. He has an adequa te appreciation of the char ges. As to the ran ge and n ature of p ossible penalties, the defendant believed that if found guilty of the charges he will receive two to five years. The defendant has a realistic perception of the outcome of the trial. Dr. Mensch found that the defendant does not desire undeserve d punis hment. Dr. Mensch's report seems to indicate that the de fendan t has an ad equate ab ility to challenge prosecution witnesses. 5 See Shields, 593 A.2d at 1000, f.23. 9 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 Dr. Mens ch foun d that the d efendan t does no t do very well, ho wever , in his ability, realistically, to conside r possib le legal def enses, pa rticipate w ith his attorney in planning legal strategy, provide his attorney with available pertinent facts concerning the alleged offenses, and testify relevantly. He attributes the defend ant's shortcomings in these areas to poor judgment, poor w orking memory, poor p roblem solving ability, and poor lan guage s kills. Dr. Mensch also considered the Shields factors. As to those, he concluded that the defendant has su fficient m ental capa city to app reciate his p resence in relation to time, place and things, has an elementary awareness that he will be in a court of law c harged with crim inal offen ses, realizes there will be a judge on the bench, understands there will be a prosecutor present who will be trying to convict him, understands tha t he will have a lawyer who will defend him against the charges, knows that he will be expected to tell his attorney all he knows or remembers about the events involved in the alleged offenses and has th e ability to do so, has a basic appreciation th at there w ill be a jury p resent at tria l which will pass upon evidence in determining his guilt or innocense, has established rapport with his attorney, has the ability to meet stresses without his rationality or judgment breaking down, can divulge facts without paranoid distress, can make simple d ecisions a nd has a desire fo r justice rath er than u ndeserv ed pun ishmen t. Dr. Mensch foun d that the defendant does not satisfy several of the Shields factors, however. As to whe ther the d efendan t has suff icient mem ory to rela te answers to questions posed of him, D r. Mensch found that Mr. Reed has significant limitations in mem ory and receptive/expressive language skills needed to recall or 10 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 adequa tely answe r questio ns pose d to him , except at a most basic level. As to the defend ant's ability to follow testimony reasonably well, Dr. Mensch found that Mr. Reed evidenc es signific ant intellectual limitations that impede his ability to follow testimony reasonably well, primarily due to his men tal retardatio n. With regard to the defendant's contact with reality, Dr. Mensch concluded that Mr. Reed's mental retardation limits his ability to fully app reciate "ad ult" reality, as oppos ed to "child" reality. As to minimum intelligence necessary to grasp events taking place, Dr. Mensch found that Mr. Reed has limitations in this regard, particularly without additional assistance to ex plain to h im even ts that hav e transpir ed, as w ell as to ensure that he has comprehended what he has hear d. Conce rning h is ability to confer coherently with some appreciation of the proceedings, Dr. Mensch found that Mr. Reed evidences significant intellectual and judgmental deficits that are likely to imped e his ability to confer w ith his attor ney. As to his ability both to give and receive advice from his attorney, Dr. Mensch found that Mr. Reed has intellectual handicaps that w ould lim it his ability to give or r eceive ad vice from his attorney independently and consistently. As to the defendant's ability to decide upon a plea, D r. Men sch con cluded th at Mr. Reed does not consistently possess the independent decision -makin g and in tellectual capabilities necessary to make an informed, rational decision upon a plea that would serv e his best interests, primarily due to the cognitive limitations placed on him by his mental retardation. And finally, with regard to the defendant's ability to testify, Dr. Mensch concluded that Mr. Reed evidences limitations in the receptive and expressive language capability to testify, as w ell as the jud gmenta l and intelle ctual capa city to 11 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 recognize the relevance, accuracy or possible self-injurious impact of some testimony. Dr. Mens ch obse rved tha t Dr.'s M cDanie l and Sheneman saw some of the same deficits in the defendant as he did, but he saw them as more gravely affecting the defendant's capacity in a trial proceeding. D r. Mensch's opinion is that "there are significant intellectual, language, working memory, and problem solving deficits that limit M r. Reed's ability to follow testimony and other court proceedings reasonably well, m ake decis ions and weigh alternative s presen ted to him, and otherw ise assist his attorney in his defen se." III The following part from Judge Barron=s analysis in State v. Shields provides context for the application of the standard of competency set forth above: The Court is mindful that du e proces s require s that a defendant be com petent to s tand trial, Pate v. Robinson, 383 U.S. 3 75, 86 S . Ct. 836, 15 L. Ed. 2d 815 (1966), and understands that the placement of an incompetent defendant before a jury on the issue of guilt or innocense does not reflec t Aa reasoned interaction between an individual and his comm unity@ but rather societal Ainvective against an insen sible obje ct.@ [Footn ote omitted.] At the same time Adue process requires that the defendant be afforded a fair, not a perfect trial, and that he be able to consult with his lawyer with a reasonable, not a perfect degree of rational understanding.@ State v. Wynn, Del. Super., 490 A.2d 605, 610 (1985). As one Court noted: 12 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 Competency is, to some extent, a relative matter arrived at by taking into account the average level of ability of criminal defendants. We can not, however, exclude from trial all persons who lack the intelligence or legal sophisticatio n to participate actively in their own defense. That is not the standard by which we measure competency. Should we do so, we would preclude the trial of a number of people w ho are, in deed, co mpeten t to stand trial as understood in the law. The accused need no t unders tand every legal nuance in order to be com petent. . . State v. Guatney, 207 Neb. 501, 299 N.W. 2d 538 (19 80). In this case, when the evidence is considered as a whole, it is clear that the defendant understands the nature of the proceedings against him. None of the psycho logists seemed to have any real doubt or reservation about this element of competency. Virtually all of the evidence from all three supports that conclusion. The issues are wheth er the def endant is compe tent to give ev idence o n his own behalf, instruct counsel on his own behalf, consult w ith defense counsel rationally, and assis t in prepa ring his defense. These elements of competency require that the defendant have the capacity, at leas t at an elem entary lev el, to understand that he may testify on his own behalf if he wishes to do so, but cannot be compelled to do so; that he have the capacity to testify ra tionally; tha t he be ab le to confer with and assist his lawyer by providing information and responding to counsel=s questions, and that he be able to agree, at least at an elementary lev el, on 13 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 the choice of a defense. It i s not necessary that the defendant be able to provide significant input in jury selection or engage in legal analysis or the development of legal strategy. That is what the attorney is for. In this case, it does not appear that there will be numerous witnesses. It appears there will only be a few in th e State=s case. Based upon the testimony of Dr. Shene man, I fin d that the lim itations on the defendant=s ability to follow testimony can be addressed through the taking of frequent recesses during which the defendant and his attorney can review the testimony. I also find that, if there are relevant defense witness es, the def endant h as the cap acity to so in form co unsel. I also find that the defendant can inform his counsel as to the facts and circumstances surrounding the alleged offenses. The acc ounts w hich he g ave to the psychologists, although brief, are reasonably lucid and were no t followed by a search for detail that would be typical of questions defense co unsel would ask his client. I also find that the defendant can confer with and assist his atto rney in preparing a defense. I accept the testimony of Dr. Sheneman that the defendant can testify on his own behalf, if he chooses to do so. After considering all of the evidence, I find that the defend ant is mentally competent to stand trial. I recognize that such things as the specific elements of the offenses charged, the range of penalties associated with each, the plea bargaining process and details of the proceedings will have to be explained to the defendant with patience and in concrete and simple terms. The fact that matters will h ave to be explained to the defendant thoroughly and in concrete and simple terms, howe ver, doe s not me an that he is not com petent. 14 State v. Tracy A. Reed ID. No. 0209004399 April 21, 2004 In order to better ensure that the defendant understands the proceedings, the presiding judge should conduct the trial at a deliberate pace and allow defense counsel frequent recesses, at counsel=s request, so that he may review the proceed ings w ith his clien t. IT IS SO ORDERED. _____________________________ Resident Judge oc: cc: Prothonotary Order Distribution File 15
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