STATE OF NEW JERSEY v. TREVOR WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4966-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TREVOR WALKER,

Defendant-Appellant.

________________________________

Submitted June 1, 2011 Decided June 28, 2011

Before Judges Parrillo and Skillman.

On appeal from Superior Court of New Jersey, Law

Division, Hudson County, Indictment No. 08-12-2223.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Jacqueline E. Turner, Assistant Deputy

Public Defender, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney

for respondent (Monalisa Tawfik, Assistant Prosecutor,

on the brief).

PER CURIAM

Following a hearing in which he was found competent to stand trial, defendant Trevor Walker pled guilty to two separate robberies occurring within thirty days of each other, the later one being of the first-degree, N.J.S.A. 2C:15-1. Defendant reserved the right to challenge the competency determination. He was sentenced to an aggregate twelve-year term subject to the eighty-five percent parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals, arguing that the State did not meet its burden of proving his competency and that his sentence is excessive. We affirm.

According to the State's expert, Dr. Peter Paul, an in-house psychologist at the Ann Klein Forensic Center who testified at the November 19, 2009 competency hearing, defendant immediately began self-reporting classic malingering symptoms at the outset of the evaluation, which led the expert to conclude defendant was feigning mental illness:

Then he was volunteering psychiatric symptoms starting with at the beginning of the interview. And in my experience with psychiatric patients, they tend not to do that. Usually[,] when you're interviewing someone and they're pushing their symptoms forward, there's an ulterior motive.

The defendant reported experiencing excessive number of impairments altogether, including psychiatric symptoms, inability to understand legal definitions, and poor orientation to time.

People who are malingering tend to throw out a lot of difference symptoms thinking its going to make a stronger case, whereas individuals who are suffering from mental illness usually will not present such a variety to you.

The defendant reported experiencing visual hallucinations, particularly seeing people distinctly. And that symptom is very rarely reported in a genuine psychiatric population, unless there's clear evidence of neurological [impairment] or recent substance abuse. However, it's frequently reported among people who are feigning mental illness in correctional settings.

The defendant said he began experiencing visual hallucinations when he was 14 years old. And this is earlier than someone who would typically report experiencing hallucinations, usually auditory. And that's common among people who are feigning illness, they report that they have an earlier onset with the belief that it makes a stronger case for their impairment.

Dr. Paul based his finding of competency on his in-person evaluation of defendant and review of defendant's criminal history. Significantly, defendant had prior involvement with the criminal justice system without any competency issue ever being raised. Moreover, defendant had never been hospitalized or prescribed medication for any of his self-described symptoms. To the contrary, Dr. Paul found defendant's responses at the evaluation to be coherent, relevant and focused. According to Dr. Paul, defendant exhibited the mental capacity to appreciate his presence in relation to time, place and things. He understood that he was charged with two robberies and the terms of the State's plea offer. Defendant also referred to the judge as a referee and knew that if he went to trial he would testify by telling the truth.

An opposing opinion was offered by the defense expert, Dr. Paul Fulford, who concluded that defendant suffered from mental retardation and was unable to participate in his own defense. Dr. Fulford based his finding of incompetency on the results of a number of tests administered to defendant, including a Wide Range Achievement Test, showing defendant to be functioning intellectually on a third or fourth grade level; a Bender-Gestalt Test, demonstrating defendant's poor visual memory; and an IQ test, placing defendant in the mildly retarded range.

At the conclusion of the evidence, the trial judge credited the testimony of Dr. Paul as reliable and convincing, and therefore found defendant competent to stand trial. The judge reasoned:

I've listened to Dr. Paul's testimony regarding his interview and the contradictions in the interview with Mr. Walker about the quickly reporting of hallucinations, the looking in the medical records, and having received no medication at all for any of that.

. . . .

So that clearly he's now reporting something that if he had been reporting those type of symptoms, he would have probably been medicated and it would have been there much differently.

. . . .

. . . I find that Dr. Paul's analysis was much more convincing that the defendant is competent, that he does understand the nature of what's happening in this courtroom, of the charges against him, of the offers being made, and I could understand that the defense attorney is having some difficulty not necessarily because he doesn't tend to cannot understand, but does not want to understand the evidence against him and the significance of it.

On appeal, defendant challenges the court's competency determination and the quantum of his sentence. We reject these arguments as without merit. R. 2:11-3(e)(2).

The test for determining a defendant's competency to stand trial has been defined by the United States Supreme Court as "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 a factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960).

The test in New Jersey has been codified in the Criminal Code as follows:

a. No person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures.

b. A person shall be considered mentally competent to stand trial on criminal charges if the proofs shall establish:

(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and

(2) That his elementary mental processes are such that he comprehends:

(a) That he is in a court of justice charged with a criminal offense;

(b) That there is a judge on the bench;

(c) That there is a prosecutor present who will try to convict him of a criminal charge;

(d) That he has a lawyer who will undertake to defend him against that charge;

(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;

(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and

(g) That he has the ability to participate in an adequate presentation of his defense.

[N.J.S.A. 2C:4-4.]

Where evidence raises a bona fide doubt as to a defendant's competence, a competency hearing must be held. Pate v. Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 842, 15 L. Ed. 2d 815, 822 (1966); State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007). Once the issue is raised, the State bears the burden of establishing competence by a preponderance of the evidence. Purnell, supra, 394 N.J. Super. at 47; State v. Lambert, 275 N.J. Super. 125, 129 (App. Div. 1994).

Equally clear, our review of a trial court's competency determination must be "typically, and properly highly deferential." State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000); see also State v. M.J.K., 369 N.J. Super. 532, 547 (App. Div.), certif. granted, 181 N.J. 549 (2004), appeal dismissed, 187 N.J. 74 (2005). A determination of competency will be sustained if there is sufficient supporting evidence. Purnell, supra, 394 N.J. Super. at 50.

Here, the judge relied heavily on the testimony of the State's expert, whom he credited as reliable and convincing. Although the ultimate determination of the issue is for the judge, not the experts, id. at 52; M.J.K., supra, 369 N.J. Super. at 548, nevertheless the expert's opinion was supported not only by his own evaluation, but also by defendant's own criminal and medical history. The fact that the State's expert did not administer intelligence testing to defendant matters not in light of Dr. Paul's finding that defendant was feigning mental illness and was a malingerer. Even the defense expert Dr. Fulford acknowledged the possibility of malingering, for which he himself never tested. In any event, defendant's low intellectual functioning, as reported by his expert, does not necessarily render him incompetent to stand trial as he may nevertheless comprehend the charging and trial processes and be able to assist in his defense, as clearly found by Dr. Paul. See, e.g., State v. Coleman, 46 N.J. 16, 40 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966). We therefore conclude that, in light of the substantial deference accorded the trial court in these matters, there is sufficient credible evidence supporting its competency determination.

We also find no reason to disturb the sentence imposed. The twelve-year term reflects a proper consideration of the applicable aggravating factors, N.J.S.A. 2C:44-1a(3), (6) and (9), and the nature of the dual robberies to which defendant pled guilty and for which he was otherwise exposed to consecutive punishment. Although defendant faults the sentencing judge for not weighing the mitigating circumstance of his so-called "mental retardation," defendant has not demonstrated the applicability of any subsection of N.J.S.A. 2C:44-1b to this matter and we discern no abuse of the court's discretion in failing to consider it.