DAVID A. MACK v. COMMONWEALTH OF KENTUCKY
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RENDERED: March 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002936-MR
DAVID A. MACK
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES E. KELLER, JUDGE
INDICTMENT NO. 97-CR-983
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** ** ** **
BEFORE:
GARDNER, HUDDLESTON and KNOX, Judges.
HUDDLESTON, Judge.
David A. Mack was convicted of Trespass in the
First Degree and sentenced to twelve months in jail.
He contends
on appeal that the judgment of conviction should be vacated because
he was denied the pre-trial mental evaluation to which he was
entitled.
In the early morning hours of January 26, 1997, Mack
approached Kevin Joint, President of Alpha Tau Omega (ATO), a
University of Kentucky fraternity, inside the fraternity house to
return a wallet that he had stolen from a member of the fraternity.
Mack told Joint that he was involved in a program as part of his
probation pursuant to which he was instructed to inform individuals
how to keep their belongings safe.
Mack requested an opportunity
to speak at an ATO fraternity meeting to discuss these issues.
He
gave Joint his telephone and pager numbers.
In May 1997, Mack contacted Joint for the second time
inside the ATO fraternity house.
He gave him another wallet that
he had stolen from an ATO member.
Mack asked why he was not
contacted about speaking at a fraternity meeting.
Joint replied
that Mack was not welcome in the ATO fraternity house.
Despite the
warning, Mack went back to the ATO house for a third time to speak
with Joint.
Mack knocked at the door another fraternity member's
room and told him that he was an acquaintance of Joint's.
Mack was
informed again that he was not welcome at ATO.
On
June
26,
1997,
at
approximately 6:00 a.m., Mack
attempted to enter through a door of the Farmhouse fraternity at
the University of Kentucky.
a
window.
Mack
fraternity member.
was
When this failed, he climbed through
confronted
by
Clay
Crouch,
a
Farmhouse
Mack told Crouch that he was doing a mock
break-in as a way to sell security systems.
with the Farmhouse President.
He wanted to speak
Mack left his name and mentioned
that he had spoken with the ATOs.
Mack's actions were first reported as a result of an
investigation of other burglaries and/or thefts at U.K. fraternity
houses.
Mack was identified in a line-up by members of several
fraternities as the man who had been in their fraternity houses.
2
Mack was later arrested and admitted being inside the ATO house on
three occasions and inside Farmhouse on one occasion.
Mack was also alleged to have made statements about his
criminal history to several fraternity members and claimed that he
had gone to fraternity houses as condition of his probation.
Mack
later remembered visiting the fraternity houses but could not
recall making any such statements.
Based upon Mack's unusual behavior and his statements
regarding his memory, Mack's counsel moved for a continuance of
Mack's trial and for a mental evaluation of Mack.
were denied.
Both motions
The only issue on appeal is whether the trial court
erred in denying Mack's motion for a mental examination.
Mack argues that he should have been examined pursuant to
Ky. Rev. Stat. (KRS) 210.360, which provides, in pertinent part,
that:
(1) When a person who has been twice previously convicted
of a felony is indicted by a grand jury as a persistent
felony offender, the circuit clerk of the court in which
he is indicted shall give notice of the indictment to the
secretary of the Cabinet for Human Resources within seven
(7) days after the indictment is returned by the grand
jury.
The
examined
secretary
by
a
shall
cause
psychiatrist
or
such
person
licensed
to
be
clinical
psychologist already in the employ of the cabinet, to
determine his mental condition and the existence of any
mental illness or retardation which would affect his
3
criminal responsibility.
This examination shall be made
without expense other than the amount to cover necessary
travel, as provided by law for any other employee of the
state traveling on official business.
(2) The psychiatrist or licensed clinical psychologist
making the examination shall submit a written report of
his
findings
to
the
judge
of
the
court
having
jurisdiction, who shall make the report available to the
prosecuting attorney and the attorney for the defendant.
(Emphasis supplied.)
Mack was indicted on September 8, 1997, on four counts of
Burglary in the Second Degree and one count of being a Persistent
Felony Offender in the First Degree.
On September 10, 1997, in
response to the Fayette Circuit Court's notification, the Cabinet
for Health Services advised the court that an appointment for an
examination was available at Eastern State Hospital.
On October 30, 1997, Mack filed his motion for a mental
examination
based
upon
what
"delusional type illness."
finding
"no
sufficient
his
counsel
referred
to
as
a
The trial court denied Mack's motion
reason
to
continue
the
trial
for
an
evaluation."
Despite the mandatory language of KRS 210.360 (formerly
KRS 203.340), the Kentucky's highest court has held that the
statute is not mandatory.
Copeland v. Commonwealth, Ky., 397
S.W.2d 59 (1965). In Etherton v. Commonwealth, Ky., 379 S.W.2d 730
(1964), the Court said that:
4
In Harrod v. Commonwealth, 311 Ky. 810, 226 S.W.2d 4
(1950), the purpose of the statute was found to be to
determine whether such an accused should be sent to one
of the State's penal institutions or to one of its mental
hospitals, and we expressly declared, 'It is manifest
that
the
prisoner
acquires
no
right
to
such
an
examination under the statute itself.'
We are bound to follow those rulings.1
However, if "KRS 210.360 affords the only real avenue by
which
[a
defendant]
can
have
the
benefit
of
a
psychiatric
examination, a denial might well raise a question under the Equal
Protection Clause of the Fourteenth Amendment [to the Constitution
of the United States]."
940, 941 (1969).
Brister v. Commonwealth, Ky., 439 S.W.2d
Likewise, when a defendant demonstrates to the
trial court that his sanity at the time of the offense is to be a
significant factor at trial, the state must, at a minimum, assure
the defendant access to a competent mental health professional who
will conduct an appropriate examination and assist in evaluation,
preparation and presentation of his defense.
Ake v. Oklahoma, 470
U.S. 68, 82-83, 105 S.Ct. 1087,1096, 84 L.Ed.2d 53,66-67 (1985).
See also Hunter v. Commonwealth, Ky., 869 S.W.2d 719, 722 (1994).
Ky. R. Crim. Proc. (RCr) 8.06 provides that:
1
Supreme Court Rule (SCR) 1.030(8)(a) provides that the
Court of Appeals is bound by and shall follow applicable precedents
established in the opinions of the Supreme Court and its
predecessor court.
5
If upon arraignment or during the proceedings there are
reasonable grounds to believe that the defendant lacks
the capacity to appreciate the nature and consequences of
the proceedings against him, or to participate rationally
in his defense, all proceedings shall be postponed until
the issue of incapacity is determined by KRS 504.100.
KRS 504.100, to which reference is made in RCr 8.06,
requires that if during any stage of the proceedings the court has
reasonable grounds to believe that the defendant is incompetent to
stand trial, the court shall appoint at least one psychiatrist or
psychologist to examine, treat and report on his mental condition.
The "reasonable grounds" for belief must be called to the attention
of the court by the defendant or must be so obvious that the judge
cannot fail to be aware of them.
Pate v. Commonwealth, Ky., 769
S.W.2d 46 (1989).
We hold that the evidence before the trial court of the
defendant's
bizarre
behavior,
coupled
with
his
counsel's
representations, was sufficient under RCr 8.06 and KRS 504.100, as
well as Ake v. Oklahoma, supra, to require that the trial be
postponed until the issue of Mack's capacity to stand trial could
be
determined;
instance
only
and
after
that
Mack
determination
had
been
could
examined
be
by
made
a
in
this
qualified
psychiatrist or clinical psychologist.
Accordingly, Mack's conviction is vacated and this case
is remanded to Fayette Circuit Court with directions to appoint a
psychiatrist or clinical psychologist to examine Mack and report
6
upon his mental condition.
Upon receipt of the mental health
professional's report, the trial court shall conduct a hearing to
determine whether Mack was competent to stand trial on November 4,
1997.
In the event that Mack is determined to have been competent
to stand trial, his conviction shall be reinstated.
If, however,
Mack is determined to have been incompetent at the time he stood
trial, his conviction shall be vacated and he shall be granted a
new trial.
If an new trial is granted, the issue of Mack's
competence to stand trial may again be raised.
GARDNER, JUDGE, CONCURS.
KNOX, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
KNOX, JUDGE, DISSENTING.
I respectfully dissent.
I see nothing that would have provided the trial court
with reasonable grounds to believe that Mack was incompetent to
stand trial, considering KRS 504.100, or that Mack lacked the
capacity
to
proceedings
appreciate
against
him
the
or
nature
to
and
consequences
participate
rationally
of
the
in
his
defense, considering RCr 8.06.
I believe trial counsel’s characterization of Mack’s
behavior as “bizzare” has influenced the perception that the trial
court was given a basis for directing a mental examination.
I
would instead characterize Mack’s excuse for his criminal behavior,
i.e. that he was performing a service for the fraternity members by
stealing their wallets, as disingenuous rather than bizzare.
7
To
judge a defendant’s mental status only by the absurdity of his
excuse for his criminal conduct would constitute an expansive view
of mental incompetency and mental incapacity.
Were we to do so, we
would benefit no one except those called upon to conduct the many
evaluations that would, no doubt, be necessary to resolve the
issue.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert T. West
FAYETTE COUNTY LEGAL AID
Lexington, Kentucky
A. B. Chandler III
Attorney General of Kentucky
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
8
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