State v. Senna

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
 
                                No. 88-128
 
 
State of Vermont                             Supreme Court
 
      v.                                     On Appeal from
                                             District Court of Vermont
Michael Senna                                Unit No. 2, Chittenden Circuit
 
                                             March Term, 1989
 
 
Edward J. Cashman, J.
 
Jeffrey L. Amestoy, Attorney General, Susan R. Harritt, Assistant Attorney
  General, and Craig Cwick and Margaret Cook, Law Clerks (On the Brief),
  Montpelier, for plaintiff-appellee
 
Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
  Defender, Montpelier, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Dooley and Morse, JJ.
 
 
     MORSE, J.  Defendant was charged with kidnapping three women in May of
1986.  The three women, employees at a store in Shelburne, testified that
defendant had taken them out of the store at knifepoint and forced them to
drive with him to an area off the public roadway.  Carrying camping gear,
they had then walked to a campsite in the woods, with their hands and feet
partially bound.  After several hours, according to their testimony,
defendant released them.  The women eventually made it to a police station.
The police found defendant at the campsite the following morning.
     After a trial by jury, defendant was convicted of three counts of
kidnapping and sentenced to three consecutive terms of fifteen to twenty-
five years imprisonment.  On appeal, he argues that the trial court erred in
finding him competent to stand trial at a pretrial competency hearing; that
his behavior at trial and at sentencing should have caused the trial judge
to inquire again into the question of competency; that at most the evidence
warranted only one conviction and sentence; that the trial judge erred by
failing to determine whether defendant had discussed the contents of the
presentence investigation report with his attorney; and, finally, that the
court erred when it failed to disclose to defense counsel an ex parte letter
from a Department of Corrections official.  We affirm.
     Following defendant's arrest and arraignment, the court ordered a
psychiatric evaluation to determine his competency.  At defense counsel's
request, a hearing was held on May 8, 1987 before the Honorable Ronald F.
Kilburn, who determined, in findings and conclusions issued on June 16,
1987, that defendant was competent to stand trial.
     Defense counsel moved for a second competency hearing on October 2,
1987 based on the "tentative" nature of Judge Kilburn's ruling and on the
five-month passage of time since the earlier hearing.  Another hearing was
then held on November 30, 1987 before the Honorable Edward J. Cashman.  The
same two defense psychiatrists who had testified at the first hearing also
testifed at the second.  The judge orally declared that defendant was
competent, based on the evidence, but neglected to make specific findings to
support his determination.
     Defendant argues that the competency ruling should be vacated on three
grounds:  the record fails to support the finding of competency; the judge
used the wrong legal standard to measure competency; and the judge omitted
necessary findings.  All of these complaints, however, pertain only to the
second competency hearing.  Defendant assigns no error to the first hearing
and does not claim or show that factors and circumstances relevant to
defendant's mental state had changed during the six-month period between the
two hearings.  While defendant's second competency motion stated "the trial
judge must be free to correct obvious errors made or able to consider
additional factors since the previous determination," nowhere on appeal does
defendant indicate what these may be.  Absent a showing of changed
circumstances, we will assume that the decision to try defendant was
properly based on the unchallenged competency ruling from the first
hearing.  See United States v. Percy, 765 F.2d 1199, 1201-02 (4th Cir. 1985)
(reliance on three-month old psychiatric report upheld).  Any errors in the
second hearing accordingly would be harmless.
     Defendant next argues that the trial court's failure to inquire further
into the question of his competency at several points during the trial and
sentencing hearing violated his right to due process.  See Drope v.
Missouri, 420 U.S. 162, 181 (1975) ("trial court must always be alert to
circumstances suggesting a change that would render the accused unable to
meet the standards of competence to stand trial").  This claim is made for
the first time on appeal, however.  If defense counsel wished to press the
competency issue throughout the proceedings, it was his duty to raise the
question before the trial judge.  Without that, the issue is not preserved
for review on appeal and we may consider it only if the error amounts to
"plain error."  V.R.Cr.P. 52(b).  Although the defendant's impromptu remarks
on three or four occasions during the two days of trial indicate
impulsiveness, distrust of the court, and some degree of incoherence, they
did not, in our view, compel the judge to conduct sua sponte inquiry into
defendant's competence to stand trial, especially in light of earlier
findings of competence.  See Flugence v. Butler, 848 F.2d 77, 80 (5th Cir.
1988) ("emotional outbursts and invocations of the Deity [not] so bizarre as
necessarily to be reflective of incompetence").  No plain error appears.
     Defendant's third argument, that the events here warranted only one
kidnapping conviction and sentence, has no merit.  Defendant was tried under
13 V.S.A. { 2401 which imposes penalties on a "person who, without legal
authority, forcibly or secretly confines or imprisons another person within
this state against his will."  (Emphasis added.)  By its plain language, the
statute defines an act of kidnapping by reference to the victim.  Although,
according to their testimony, defendant took his three victims to the same
place at the same time, he was properly charged with kidnapping three
persons and may be sentenced accordingly.  See 13 V.S.A. { 7032(b); United
States v. Phillips, 640 F.2d 87, 95-96 (7th Cir.), cert. denied, 451 U.S. 991 (1981).
     Defendant's fourth claim is that the trial judge failed to determine at
the sentencing hearing whether defendant had had the opportunity to discuss
the contents of the presentence investigation report (PSI) with his
counsel, as required by V.R.Cr.P. 32(a)(1)(A).  We disagree.  At the
beginning of the hearing, the judge asked, "Have the parties read the
presentence?"  No answer was given.  The judge's question was sufficient to
raise the issue and, based on the silence of both counsel and defendant, to
infer that they had had the opportunity to discuss the PSI.  At that point
it was defense counsel's duty to object if he believed that his client's
rights under Rule 32 were not being met.  Moreover, no claim is made that
the defendant had not discussed the PSI with his attorney, nor what
prejudice to him may have arisen even if he had been ignorant of its
contents, nor that the report contained any inaccuracies.  See State v.
Gabert, ___ Vt. ___, ___, 564 A.2d 1356, 1361 (1989) (failure to inquire of
defendant whether he read PSI not reversible error where "[n]othing in the
record suggests that defendant did not review and discuss the PSI with
counsel or that he objected to any portion of it").
     Finally, defendant claims error under V.R.Cr.P. 32(c)(3) in the court's
ex parte receipt of a letter from the Department of Corrections concerning a
policy of the Public Defender's Office to prevent the office's clients from
talking to corrections officials during preparation of PSI's.  Although
defense counsel was never mailed a copy of the letter, its contents were
referred to in the PSI.  Defense counsel therefore had an opportunity to
comment on the material in the letter, which he chose not to exercise.  Any
noncompliance with Rule 32(c)(3) in these circumstances was technical and
harmless.
     Affirmed.
 
 
                                        FOR THE COURT:
 
 
 
 
                                        ____________________________________
                                        Associate Justice