State v. Marku

State v. Marku (2002-188); 176 Vt. 607; 850 A.2d 993

2004 VT 31

[Filed 30-Mar-2004]


                                 ENTRY ORDER

                                 2004 VT 31

                      SUPREME COURT DOCKET NO. 2002-188

                             NOVEMBER TERM, 2003

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 2, Chittenden Circuit
                                       }	
  Nikoll Marku	                       }
                                       }	DOCKET NO. 1660-4-98

                                                Trial Judge: Brian L. Burgess

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant  Nikoll Marku appeals the trial court's admission
  of his guilty plea to attempted second degree murder.  Defendant argues
  that the court erred in finding appellant competent to enter a plea and
  accepting defendant's plea without sufficient compliance with the
  requirements established by Rule 11 of the Vermont Rules of Criminal
  Procedure.   We affirm.

       ¶  2.  Defendant is an Albanian refugee who entered the United
  States in 1992.  In April 1, 1998, defendant  went to the gas station where
  the victim worked, made small talk with him, and told the victim to "get
  ready, I'm going to kill you."  Defendant then stabbed the victim in the
  head and neck, kicked him when he was down, and left.  The two men were
  acquaintances, and had some minor friction over payment for a vehicle that
  the victim had apparently sold to defendant.  The cause of the attack,
  however, is not entirely clear.  At the time of his arrest, defendant
  denied any involvement in the incident.

       ¶  3.  Defendant is not fluent but understands English.  The trial
  court found that his use of English was "not precise, but generally
  accurate." Although an interpreter was available at all proceedings, the
  court observed that defendant never sought clarification from the
  interpreter and  that defendant "virtually refuse[d] to speak through the
  interpreter," preferring to respond directly in English.
   
       ¶  4.  In September 1999, the court ordered the first of three
  psychiatric evaluations, after defense counsel questioned defendant's
  competency and reported that defendant refused to submit  to the defense's
  psychological testing.   Relying on the correctional mental health records,
  this first report relates that defendant had been placed in segregation on
  several occasions because of a variety of aggressive and bizarre behaviors,
  including fighting, yelling and chanting, bathing in the toilet, and
  flooding his cell with urine and feces.  Defendant repeatedly refused
  mental health assessments or services.  Defendant was diagnosed with
  adjustment disorder, a possible personality disorder, and a "possible
  history of regressive deterioration while in corrections."  Nevertheless,
  the evaluating psychiatrist - Dr. Linder -  observed that during the
  interview defendant was "alert and oriented to person, place and time." 
  According to the report, defendant was focused, spoke coherently, and no
  hallucinations or delusions were noted.

       ¶  5.  Based on his interview with defendant, Dr. Linder gave
  "reserved support" to the opinion that defendant was competent to stand
  trial.    Dr. Linder reported that defendant understood the charges but was
  not well versed in the particulars of the pending legal proceedings.  
  Defendant did not entirely understand the public defender's role, and he
  was not familiar with plea-bargaining.  He did know, however, that he could
  testify on his own behalf and call witnesses in his defense.  Defendant
  also understood that it was the state's burden to prove the case against
  him, and that a jury would decide the case.   Dr. Linder observed that
  defendant was attentive and was able to retain the explanation of trial
  mechanics.  Dr. Linder cautioned, however, that the determination of
  competence was hindered by defendant's limited cooperation, and language
  and cultural barriers. During the interview, defendant denied the charges
  and was not interested in discussing plea-bargaining or the possibility of
  an insanity defense.  According to Dr. Linder, defendant "seemed overly
  optimistic about being released and showed little interest in the interview
  because of that."
   
       ¶  6.  In May, 2000, defendant appeared for a competency hearing. 
  Defense counsel stipulated to the admission of Dr. Linder's report and told
  the court that he had no countervailing medical testimony.   The court
  examined defendant on a variety of subjects, including his family, his
  behavior in jail, and his understanding of trial proceedings.  Defendant
  responded "I don't know" to some simple questions such as what do the
  police do, or what would happen if a person went outside the courtroom and
  hurt somebody.  The court observed that any suggestion of defendant's
  culpability, or the possibility of conviction was "quickly curtailed by
  defendant's repetitive and single theme responses of: 'I didn't do it,' 'I
  don't know,' or 'I don't approve [because I didn't do anything].' "
   
       ¶  7.  At the end of the hearing, the court stated that Dr. Linder's
  report did not provide a basis to conclude that defendant was incompetent. 
  Although the court concurred with defense counsel that appellant seemed
  fixated on the idea that he should not be in court, knew nothing, and
  should go free, it was unable to conclude that the fixation was necessarily
  irrational or the product of mental illness.  The court stated that the
  competency issue would be taken under advisement and its "perception is,
  today he just doesn't want to cooperate as opposed to being mentally
  incompetent."
   
       ¶  8.  In July 2000 the trial court requested the translation of a
  lengthy statement that defendant had filed with the court.  In his letter,
  defendant affirms his innocence and recounts his relationship with the
  victim and other mutual friends and acquaintances.  According to defendant, 
  the victim insisted that defendant had bought the victim's van.  This
  disagreement then evolved into disputes over money, vandalism, and social
  confrontations by the victim against defendant.   Defendant affirms that
  despite these disputes he never hurt the victim. 
         
       ¶  9.  In October 2000, the court ordered an updated competency
  evaluation, after defendant filed a one page document with the court in
  "phonetic" English.  Defendant's letter was interpreted, in pertinent part,
  as follows:
   
    I done my crime or attempted murder whatever I been charged.  I am
    making my proof now.  I just want to go for another court.  To
    explain what our situation was with Elia Dinis . . . .  Please
    somebody help me with this just to know how many year I am gonna
    get . . . . I apologize for being strong head please somebody
    answer to me thank you.  I am ready to do my time for whatever I
    done.
   
       ¶  10.  Anticipating this second evaluation, defense counsel supplied
  a letter to the examining physician written by defendant in English.  This
  document is a disjointed account of bizarre events that defendant claimed
  occurred during his childhood, including an electric shock, a tree branch
  penetrating his head, and being shot with a gun twenty times.  The letter
  closes with the following statement: "I did stab Elia Dinis . . . . Just I
  want to know how many years I am going to get.  If I been lying I am
  telling now.  Also I want sentencing??."

       ¶  11.  Dr. Linder examined defendant and stated that "[a]n opinion
  that Nikoll Marku is mentally competent to stand trial . . . would find
  support." (emphasis in original).  Dr. Linder noted that defendant was more
  cooperative and that his understanding and use of English had improved.  In
  significant contrast with the first evaluation and with defendant's
  previous denials, defendant now declared that he stabbed the victim.  
  Defendant understood that the judge would decide his case.  He indicated
  that he was aware of his trial rights, but that he would not need a jury
  because he would admit to committing the crime.  Defendant was aware that
  he could be exposed to a lengthy sentence, and expressed an interest in
  plea bargaining.  
   
       ¶  12.  On March 16, 2001, after considering the second report, the
  court found that appellant was competent to stand trial. The trial court
  issued a meticulous memorandum of decision detailing the information in the
  psychiatric reports and the court's own perceptions of defendant at the
  hearings.  The court concluded that it was "clearly convinced that
  defendant's perception of the process is not distorted by mental illness or
  disability, that he recalls and can relate facts concerning the alleged
  offense, that he is reasonably intelligent, and that he can consult with a
  lawyer if he so chooses."  The court suggested that defendant's bizarre
  behavior in jail and his superstitious beliefs could be a basis for an
  insanity defense, but they did not interfere with his ability to stand
  trial. 
   
       ¶  13.  The plea hearing took place on August 21, 2001.  Because
  defense counsel still expressed concerns about his client's competence, the
  court had ordered yet another psychiatric evaluation of defendant.  The
  examination occurred on August 20, and Dr. Linder's report of the results
  was admitted by stipulation.  The report concluded that defendant was
  competent, his adjustment disorder was resolving, and his history of
  regressive deterioration while incarcerated had improved.  During the
  hearing, defense counsel declined to call Dr. Linder to the stand.  The
  court, however, conducted an in-depth inquiry of Dr. Linder.  Under the
  court's questioning, Dr. Linder testified about defendant's improvements in
  comprehension and cooperation during the last interview.  Dr. Linder opined
  that defendant's acceptance of criminal responsibility and his desire to
  plead guilty were reasonable and not the product of delusional or
  irrational thought.  He further indicated that it was difficult to assess
  whether some of the bizarre thoughts and events expressed in defendant's
  letters were psychotic, but they did not seem to have an impact on
  defendant's behavior or decision-making process.
   
       ¶  14.  Following Dr. Linder's testimony, the court proceeded to the
  Rule 11 colloquy .  The court explained to defendant the content of the
  plea agreement:

    [The court:] Mr. Marku, I'm looking at a plea agreement, which is
    a deal between you and the State, that would have you plead guilty
    to attempting to murder, that is to kill, Mr. Dinis, and in return
    the State will try to persuade the court that you should go to
    jail from 35 years to life, and you and [defense counsel] can
    argue to the court that you should not go to jail for so long. 
    And the State will also dismiss an aggravated assault charge
    against you and two simple assault charges against you as part of
    this deal. Is that your understanding of the agreement today?

    [Defendant:] Yes sir . . . I agree with this, guilty.  I am
    guilty.  I stabbed him.

       ¶  15.     The court then informed defendant of the rights he
  would waive by pleading guilty.  Defendant indicated that he understood
  each of the rights and was willing to forfeit them.   At the end of the
  colloquy, defendant confirmed that he wanted to plead guilty to the
  attempted murder charge:
   
    [The court:] Mr. Marku, what is your plea to the charge that you
    attempted to murder Mr. Dinis?
    [Defendant:] Yes, sir.
    [The court:] And is your plea guilty or not guilty?
    [Defendant:] Guilty.
    [The court:] Guilty means you did it, you understand?
    [Defendant:] (Unclear). I did it. Yes sir.
    [The court:] The State must prove that . . . you are a person who
    attempted to willfully murder, that means, intended to kill, and
    tried to kill Ilia Dinis -
    [Defendant:] Yeah.
    [The court]: - by doing great bodily harm to him  by stabbing him,
    but because Mr. Dinis didn't die and you ran away, you were not
    able to complete killing him.
    [Defendant:] I did run away.
    [The court:] I'm sorry.
    [Defendant:] So he did - I did run away, sir. I am guilty so I
    plead guilty.     
    [The court:] Right; is that what happened?  And is it true that
    you wanted to kill him?
    [Defendant:] I run with the knife. The don't (unclear). I plead
    guilty. . . . I wanted to kill him.
    [The court:] You did want to kill him.
    [Defendant:] Yes.

       ¶  16.  After defense counsel stipulated to a prima facie case, the
  court accepted the plea.  At the sentencing hearing, defendant did not
  claim that he had misunderstood the plea, or that he wanted to withdraw it. 
  The court sentenced defendant to thirty-five years to life.  This appeal
  followed.

       ¶  17.  Defendant first claims that he was not competent to
  enter a guilty plea.  Defendant claims that defendant's statements, Dr.
  Linder's first report, and the court's findings after the first competency
  hearing provided an ample basis to doubt defendant's competency.

       ¶  18.  The competency standard to plead guilty is the same
  as the standard required to stand trial.  State v. Lockwood, 160 Vt. 547,
  554, 632 A.2d 655, 660 (1993).  The test is "whether [the defendant] has
  sufficient present ability to consult with his lawyer with a reasonable
  degree of rational understanding - and whether he has a rational as well as
  factual understanding of the proceedings against him."  Dusky v. United
  States, 362 U.S. 402, 402 (1960) (per curiam); accord State v. Bean, 171
  Vt. 290, 294, 762 A.2d 1259, 1262 (2000).  
   
       ¶  19.  We will not overturn the trial court's competency
  determination if it is supported by findings, and if the findings are
  supported by credible evidence and are not clearly erroneous.  State v.
  Thompson, 162 Vt. 532, 535, 650 A.2d 139, 141 (1994); Bean, 171 Vt. at 296,
  762 A.2d  at 1263.  Here, the court issued a lengthy memorandum of decision,
  containing numerous findings in support of its determination that defendant
  was competent.  The court relied on two uncontested psychiatric reports and
  its own interactions with defendant to state that it was "clearly convinced
  that defendant's perception of the process is not distorted by mental
  illness . . . , that he recalls and can relate the facts concerning the
  alleged offense, that he is reasonably intelligent, and that he can consult
  rationally with his lawyer if he so chooses."  Moreover, the third
  psychiatric report  - admitted by stipulation at the plea hearing -
  corroborated the court's earlier findings and further supported the court's
  determination that defendant was competent to enter a plea.   Therefore,
  the court's competency ruling was not error.
   
       ¶  20.  Defendant next claims that the trial court erred by accepting
  defendant's guilty plea because the record does not reveal that it engaged
  in the complete colloquy required by Rule 11 of the Vermont Rules of
  Criminal Procedure.  Defendant claims that, despite the presence of an
  interpreter, many of defendant's answers to the court's questions were
  repeatedly transcribed as "unclear," and the record of the hearing does not
  contain an actual entry of a plea.  According to defendant, the court also
  failed to obtain a factual basis for the plea, neglected to explain the
  nature of the charge, and thus had no assurance that defendant's plea was
  knowing, intelligent, and voluntary.
   
        
       ¶  21.  "Rule 11 is designed to 'assure compliance with the
  requirements set forth in Boykin v. Alabama, 395 U.S. 238, 242-43 (1969):
  that a defendant's plea of guilty must be knowing and intelligent.' " State
  v. Cleary, 2003 VT 9,  15, 824 A.2d. 509 (quoting State v. Yates, 169 Vt.
  20, 25, 726 A.2d 483, 486 (1999)).  The court must satisfy itself that the
  defendant is pleading voluntarily and understands the consequences of the
  plea.  In re Hall, 143 Vt. 590, 594, 469 A.2d 756, 757-58 (1983).  Rule
  11(c) requires the court to address the defendant, explaining to him and
  determining that he understands: the nature of the charge to which the plea
  is offered; the minimum and maximum penalty; that he has the right to plead
  not guilty; and that he is waiving his rights against self-incrimination
  and to a jury trial. V.R.Cr.P. 11(c); Cleary, 2003 VT 9, at  15.  Rule
  11(d) requires the court to address the defendant to determine that the
  plea is voluntary, and Rule 11(f) requires an inquiry into the factual
  basis or accuracy of the plea.  See V.R.Cr.P. 11(d), (f); Yates, 169 Vt. at
  25, 726 A.2d  at 487. 

       ¶  22.  A defendant who fails to object to an error during the plea
  colloquy may obtain reversal only upon a showing of plain error.  Cleary,
  2003 VT 9, at 16.  We require only substantial compliance with the
  requirements of Rule 11, and we will not reverse if the alleged violation
  is merely a technical violation.  See State v. Morrissette, 170 Vt. 569,
  571, 743 A.2d 1091, 1092-93 (1999) (mem.); In re Thompson, 166 Vt. 471,
  475, 697 A.2d 1111, 1113 (1997).  Appellant must establish that the
  non-compliance with Rule 11 affected his substantial rights.  See V.R.Cr.P.
  52(b).

       ¶  23.  We begin by observing that some of the alleged procedural
  defects were simply the consequence of an incomplete transcript of the plea
  hearing record.  The parties stipulated to a corrected record, which was
  subsequently certified by the trial court.  The corrected record - which we
  have cited above - contains defendant's entry of a guilty plea.  The record
  also reveals that the court explained to defendant the nature of the
  charge, and that, by pleading guilty, he would be giving up his right to
  call witnesses, testify in his own defense, and confront adverse witnesses. 
  The court inquired of defendant whether he understood, and defendant
  responded affirmatively.  Therefore, we discern no error in the court's
  compliance with those Rule 11 requirements.
   
       ¶  24.  The record also belies defendant's assertion that the court
  did not conduct an inquiry into the factual basis or accuracy of the plea. 
  The accuracy of the factual basis ensures the voluntariness of the plea,
  insofar as it serves to guarantee that defendant understands the
  relationship between the law and the facts.  See Yates, 169 Vt. at 26, 726 A.2d  at 487.  Therefore, the court must explain the law in relation to the
  facts.  In re Kaspar, 145 Vt. 117, 119, 483 A.2d 608, 609 (1984).  Here,
  the court plainly explained the elements of attempted murder, stating that
  "[t]he State must prove that . . . you are a person who attempted to
  willfully murder, that means intended to kill, and tried to kill Ilia Dinis
  . . . by doing great bodily harm by stabbing him, but because Mr. Dinis
  didn't die and you ran away, you were not able to complete killing him." 
  Defendant admitted that he wanted to kill the victim, that he stabbed him
  in the neck, and that he ran away.  Defendant, through his attorney,
  stipulated to a prima facie case.  The record thus shows that the court
  substantially complied with the Rule 11(f) requirements.  See State v.
  Blish, 172 Vt. 265, 275, 776 A.2d 380, 388 (2001) (Defendant's admissions
  during the plea colloquy that he had perpetrated the unlawful killing of
  victim, and that he had knowingly created a very high risk of bodily harm
  or death by pointing a gun at victim's face and pulling the trigger,
  established the factual basis for the crime of second-degree murder, and in
  so doing demonstrated defendant's understanding of the relationship between
  the law and facts, as element for establishing the voluntariness of the
  plea); Cleary, 2003 VT 9, at 29.  Defendant's claim that the court should
  have explained the possible mens rea defenses of diminished capacity and
  insanity has no merit.  We have never held that the court needs to address
  available defenses to negate the elements of the crime.  In any event, this
  omission cannot be plain error where defendant admitted to the requisite
  mens rea by stating that he wanted to kill his victim, and where the trial
  court specifically found in the competency determination that defendant was
  aware that an insanity defense was available. 

       ¶  25.  Defendant also asserts that the trial court violated Rule
  11(c)(5) because the court never informed him of his right to withdraw the
  plea should the court refuse to impose a sentence within the parameters
  established in the plea agreement.  See V.R.Cr.P. 11(c)(5); State v.
  Turgeon, 161 Vt. 561, 561, 641 A.2d 88, 89 (1993)(mem.).  The purpose of
  Rules11 (c)-(d) is to assure that a plea is knowingly and voluntarily made,
  and to that end we require practical application of the rule rather than a
  technical formula.  See Morrissette, 170 Vt. at 571, 743 A.2d at 1092-93;
  Thompson, 166 Vt. at 475, 697 A.2d  at 1113.  The court's omission had no
  effect on any substantial right of defendant because defendant's sentence
  was within the limits agreed to by the parties.  Reversal for this
  technical defect is not warranted where, as here, we have determined that
  there has been substantial compliance with the requirements of Rule 11.
   
          Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice