State v. Pollard

Annotate this Case

STATE_V_POLLARD.92-592; 163 Vt 199; 657 A.2d 185

[Filed 20-Jan-1995]

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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 92-592

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Franklin Circuit

Minoca Pollard, a/k/a January Term, 1994
Monica Pollard

George T. Costes, J.

Jo-Ann L. Gross, Franklin County Deputy State's Attorney, St. Albans, for
plaintiff-appellee

T. Lamar Enzor, Rutland, for defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

JOHNSON, J. Defendant Monica Pollard, who pled guilty to second-degree
murder and was sentenced to a term of fifty years to life imprisonment,
appeals his conviction and sentence. We are called upon to review the trial
court's rulings that defendant was competent to plead guilty and to waive
counsel. Upon review of the record, we conclude that there was insufficient
support for the court's competency determinations; accordingly, we reverse.

On July 9, 1985, defendant fatally stabbed a man in a department store
in St. Albans, apparently, because the victim accused him of shoplifting a
pair of shoes. Defendant admitted

the stabbing at the crime scene, first to the store manager and then to
police. Counsel was appointed, and defendant appeared the next day with two
public defenders for arraignment on charges of second-degree murder.

Although the offense had occurred only the day before the arraignment,
defendant insisted on entering a plea of guilty, contrary to the advice of
his attorneys, who had urged him at least to wait twenty-four hours. After
making the following observations, which it noted would not be revealed by
the transcript, the court, sua sponte, ordered a competency evaluation.

The defendant appeared anxious and upset over the proceedings.
He appeared eager to plead guilty and get the matter over with in
a hurry. His eyes appeared to roll back on occasion as he talked.
He smiled and grinned frequently when it was inappropriate to the
occasion or to his situation. At other times, he appeared angry
and hostile. He spoke in terms which suggested an intelligent
vocabulary, but with words which did not always make sense in
the context they were used. His conversation rambled at times.
He appeared eager to talk, but unwilling to listen to either his
attorneys or the Court. He frequently crossed his arms, and
appeared to be holding his breath as though trying to control
something inside himself or to restrain himself. His responses to
questions from the Court were frequently inappropriate in context
or unintelligible. While he insisted he understood the nature of the
proceedings and his procedural and constitutional rights, it was
apparent to the Court that he did not. He appeared defiant against
the judicial system. He insisted he was not going to the State
Hospital. He indicated that he did not mix well with people and
demanded that he be held in "quarantine" at the correctional
center.

The examination was undertaken by Dr. John O. Ives, who testified at a
competency hearing on September 5, 1985, before a different judge. Based on
his forty-five-minute examination of defendant, Dr. Ives testified that
defendant was competent to stand trial. The doctor's direct testimony
covered only eight pages of transcript. Dr. Ives noted that defendant had an
unusual pattern of speech, particularly in his lengthy responses to questions
about legal

matters. From each such response, Dr. Ives stated, he was able to "extract
from each paragraph a sentence" showing comprehension of the question. Dr.
Ives did not believe that defendant's unusual speech pattern was a feature of
any known psychiatric illness.

The doctor testified that he asked defendant "the usual questions
regarding the offense . . . and the functions of the court and its officers."
When he was asked if he had talked to defendant about defendant's ability to
communicate with his counsel, Dr. Ives replied that defendant said he would
not cooperate with counsel regarding an insanity defense or a reduced charge
because he considered himself sane and because he considered murder, not
manslaughter, to be the appropriate charge. Dr. Ives also testified that
defendant's desire to plead guilty may be explained by the fact that he was
"institutionalized" -- that he felt comfortable and secure in an
institutional environment. On cross-examination, the doctor stated that he
neither paid attention to, nor relied on, the interaction between defendant
and his counsel during the interview. He indicated that his understanding of
the competence evaluation was that the defendant must comprehend the offense
with which he is charged and the functions of a court and its officers.

A curious event occurred following Dr. Ives's testimony. Apparently,
defendant insisted to his counsel that he wanted to take the stand. Counsel
informed the court that defendant was taking the stand against his advice.
When defendant took the stand, his lawyer asked him to state his name, which
he did. Counsel then stated he had no further questions. There were no
questions on cross-examination. Defendant was told to retake his seat, and
he did so without incident. The trial court issued written findings and
conclusions of law, which tracked the limited testimony of Dr. Ives, with
this additional finding:

The Defendant took the stand, with the consent of his Guardian Ad
Litem, and responded to a question by his lawyer in a forthright
manner. After he was excused, he took his seat without objecting
or becoming unmanageable.

(Emphasis supplied.)

Based on Dr. Ives' testimony, the court concluded that defendant was
competent to enter a guilty plea to the charges. The guardian ad litem who
had been appointed prior to the competency hearing was discharged. At a
second arraignment hearing on September 12, 1985, defendant pled guilty to
second-degree murder. The court accepted the plea and ordered a presentence
investigation report for the sentencing hearing.

The day before the October 25 sentencing hearing, defendant's appointed
counsel moved to withdraw from the case. At the hearing, the court initially
denied the attorneys' motion, but granted the request after defendant
indicated during the following colloquy that he wanted to proceed pro se:

The Court: Now, if I do permit these two attorneys to withdraw
and if you want to go ahead and represent yourself; is that what
you want?

Defendant: Pro se, like you.

The Court: You want to represent yourself pro se?

Defendant: Most certainly, exactly.

The Court: Any doubts in your mind about that?

Defendant: No doubt whatsoever. I think we've already reiterated
that.

The Court: Now, let me ask you this: If you do represent
yourself,. . . you understand that you cannot afterwards claim any
inadequacy of representation?

Defendant: I most certainly cannot. I assume a matter of an
individual entering their plea of guilty to adverse effects, that they
waive all their rights.
Like I say, waive all their rights to trial and anything
adamant to stand on the grounds that preview -- like I said, would
follow the previews and the entrance of fact of a post-conviction
sentencing, and the withdrawal of plea, appeal, and the matter of
collateral attack.

. . . .

The Court: Are you aware of the dangers of self-representation?

. . . .

Defendant: Exactly. Like I say, I practiced law in California
before. You know, you individuals don't really have all the scoop
on my past. You have a little there. It's basically primarily
excerpts, but I've got an epilogue that is precise and concise on
my own; you see what I'm saying?
Like I say, you've very few. And I practiced law in
California myself before, and I'm very aware of the matter of pro
person and a pro se and all things of that nature, and we are
definitely aware of the 5th, the 6th, and the 14th Amendment to
the Constitution regarding due process of law.
Just say, in this particular instance, due process of law in
the 14th amendment, we're aware of the constitutionality.

The Court: How old were you when you first starting studying
law?

Defendant: Excuse me? Oh, 19 years old. Six years ago.

. . . .

The Court: And have you acquainted yourself with the statutes of
what states?

Defendant: Excuse me? What states? California. California.
Well, actually, that's the only state in which I've really been in for
the past five years prior to my coming out to the -- out to the State
of New York to do some novelist work.

. . . .

The Court: You understand that if I . . . allow you to represent
yourself and discharge your attorneys, . . . you understand that
you must follow all the technical laws here of substantive law, the
criminal procedure and the evidence?

Defendant: Most certainly.

. . . .

The Court: Right, and you understand you're going to be up
against someone who's a member of the bar?

Defendant: I understand that individual is a member of the bar,
right.

The Court: And is the attorney of this county and is the
prosecutor of this county?

Defendant: I'm aware of the disposition. I'm aware of the
disposition, exactly.

Although the court permitted defendant to proceed pre se, it instructed
defendant's attorneys to remain at his side during the remainder of the
hearing to answer any questions that defendant might have. Defendant offered
no mitigating evidence before he was sentenced. In fact, he offered
aggravating evidence, agreeing with the State that he was dangerous, and
stating that, under the same circumstances, he would act in the same manner
as he had before.

On appeal, defendant makes two claims. First, he contends that the
court erred in finding him competent to plead guilty and in failing to advise
him of his rights before accepting the plea. Second, defendant asserts that
the court denied him his constitutional right to counsel at the sentencing
hearing by allowing him to represent himself.

II.
Defendant argues that the court erroneously found him competent to enter
a guilty plea, and that because he lacked the competence to enter the plea,
he could not, in pleading guilty,

knowingly and voluntarily waive his rights to trial, to confrontation of
witnesses, and against self-incrimination. We conclude that the minimum due
process standard for competency was not satisfied by the evidence presented
at the competency hearing.

As a matter of due process, only a mentally competent criminal defendant
can be tried or permitted to plead guilty. Godinez v. Moran, 113 S. Ct. 2680, 2685-86 (1993). Competence to enter a guilty plea depends on "whether
the defendant has 'sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding' and has 'a rational as well as
factual understanding of the proceedings against him.'" Id. (quoting Dusky
v. United States, 362 U.S. 402, 402 (1960) (per curiam)); accord State v.
Lockwood, 160 Vt. 547, 554, 632 A.2d 655, 660 (1993). A competency
determination is warranted in the first place if the court reasonably doubts
the defendant's competence. Godinez, 113 S. Ct. at 2688 n.13; see 13 V.S.A.
4814(a)(4) (court may order psychiatric examination if there is doubt as
to defendant's competency to stand trial).

In this case, defendant's peculiar style of gibberish and his haste to
plead guilty without considering any defenses to the serious charges he faced
raised the question of his competence early on during the first arraignment.
Although we might conclude on this record that defendant had a "factual"
understanding of the charge and of the trial functions of the judge, the
prosecutor, and the defense counsel, it is impossible to conclude that he had
a "rational" understanding of the proceedings against him, or that he could
rationally consult with counsel. Indeed, what little evidence exists compels
the contrary conclusion. The examining physician's understanding of the
competence determination appeared to be limited to the requirement that

defendant comprehend only the charges and the function of the court
personnel.(FN1) Further, defendant's deportment and speech hardly indicated
that he was able to consult with his attorney rationally. This is a
defendant whose garbled speech was nearly impossible to understand, who
expressly stated that he did not want to go to the state hospital, who wanted
to plead guilty to avoid that event, who refused to take his lawyers' advice
at all stages of the case, and who insisted on taking the stand at the
competency hearing for no apparent reason. Given these facts, we cannot
accept the trial court's conclusion of law that defendant had "sufficient
present ability to consult with his lawyer with a reasonable degree of
rational understanding." Dusky, 362 U.S. at 402 (emphasis supplied).

In short, the serious questions about defendant's competence first
raised by the trial court itself were only compounded by the hearing to
determine defendant's competence. Neither the defendant's testimony nor the
psychiatrist's opinion of competence established a basis that would allow
acceptance of defendant's plea consistent with the minimum standards of due
process. Godinez, 113 S. Ct. at 2688. Therefore, we must vacate defendant's
plea, conviction, and sentence, and remand the matter for a determination of
whether defendant is currently competent to stand trial. Pate v. Robinson,
383 U.S. 375, 386-87 (1966) (it would be inadequate to attempt to determine
defendant's competence at time of trial, but State may retry defendant if he
is found competent).

III.

Because, at least technically, the court's ruling allowing defendant to
proceed without the

services of the public defender still stands, we address the issue of whether
he properly waived counsel. Waiver of counsel requires a two-part inquiry:
first, whether defendant is mentally competent to waive counsel, and second,
whether defendant makes such a waiver knowingly, with full awareness of the
consequences of the waiver. Godinez, 113 S. Ct. at 2687 & n.12. We conclude
that there was an insufficient showing that defendant competently and
intelligently waived counsel, with full awareness of the consequences of the
waiver.

A defendant may waive publicly provided counsel "if the court, at the
time of or after waiver, finds of record that [the defendant] has acted with
full awareness of his rights and of the consequences of a waiver and if the
waiver is otherwise according to law." 13 V.S.A. 5237. This standard
accords with the general standard we have developed for waiver of the right
to representation, which is that the defendant's waiver must be made
competently and intelligently. State v. Merrill, 155 Vt. 422, 425, 584 A.2d 1129, 1131 (1990); State v. Quintin, 143 Vt. 40, 43, 460 A.2d 458, 460 (1983)
(right to counsel must be waived "intelligently and competently").

In making its determination, the trial court should first "conduct
sufficient inquiry into the defendant's experience, motives, and
understanding of what he is undertaking to determine the quality of his
purported waiver," and then "provide a clear explanation of the adverse
consequences of pro se representation." Merrill, 154 Vt. at 425, 584 A.2d at
1131. Additionally, "defendant may need to be advised of . . . the full
nature of the charges against him, the range of allowable punishment, and the
consequences of proceeding without the aid of an attorney." Id. at 425-26,
584 A.2d at 1131. Under 5237, the court "shall consider such factors as
the person's age, education, and familiarity with the English language, and
the complexity of the crime involved." 13 V.S.A. 5237. While the
competency inquiry should

be made on the record, this Court is not limited to a review of the record
alone to determine whether the waiver was competently and intelligently made.
Merrill, 154 Vt. at 426, 584 A.2d at 1131-32. Instead, determination of
proper waiver requires "a totality of the circumstances approach" that is
"identical to that for waiver of other important rights, such as the waiver
of Miranda rights." Id. at 427, 584 A.2d at 1132.

In this case, the district court did engage in a colloquy with defendant
concerning his desire to waive counsel. Defendant's answers, noted above in
part, speak best to the issue of competent and intelligent waiver. While the
colloquy indicates that the court touched on some of the dangers of
self-representation, such as the defendant's inability to later claim
ineffective assistance of counsel, it also demonstrates that the court did
not engage in the full-scale Merrill determination that is particularly
necessary given the facts of this case. As a threshold, Merrill requires an
inquiry into defendant's experience, motives, and understanding of his
undertaking. Id. at 425, 584 A.2d at 1131.

The court properly considered defendant's past experience with criminal
justice systems in other states, see State v. Lewis, 155 Vt. 653, 654-55, 586 A.2d 550, 552 (1990) (mem.); Merrill, 155 Vt. at 425-26, 584 A.2d at 1131-32,
but it made no inquiry into whether defendant represented himself in those
matters. Despite hearing bizarre statements from defendant, the court failed
to inquire into defendant's education or background, which might have
provided some insight into his ability to make a competent waiver.
Apparently, with little further inquiry, the court accepted at face value
defendant's statement that he had been studying law in California beginning
at the age of nineteen.

Neither did the court make an inquiry into why defendant wished to
represent himself.

This is particularly troubling in this case because of the conflict between
defendant and his assigned counsel concerning their representation; in
essence, counsel sought to withdraw because defendant forbade them to put on
any evidence to support a finding of incompetence or to defend against the
charges. There is no indication that defendant understood that he could
obtain alternative counsel who would follow his instructions. Rather than
pursuing this course of action, the court allowed defendant to appear pro se,
apparently to avoid delay of the sentencing.

Most importantly, there is little in the colloquy that discussed the
nature of the sentencing proceeding itself or the range of allowable
punishment. See Merrill, 155 Vt. at 425, 584 A.2d at 1131. Indeed,
defendant seems to have misapprehended a very fundamental aspect of
sentencing. Following his colloquy with the court, defendant summarized his
understanding as follows: "You [the court] impose your sentencing, you put
your imposition of sentencing here, and then I don't care whatever you have,
because it's left up to me to appeal the decision." This statement indicates
that defendant did not understand that a sentence itself is not directly
appealable. See State v. Hohman, 137 Vt. 102, 105, 400 A.2d 979, 981 (1979).

Although it is not determinative, we note that defendant's performance
at the sentencing hearing only proved the dangers of self-representation.
Indeed, following defendant's closing statement, the prosecutor responded
that defendant's own statement supported an extremely harsh sentence.
Defendant's commission of "sentencing suicide" was entirely predictable from
his responses during the waiver discussion. In short, we cannot conclude
that defendant waived his right to counsel at sentencing either competently
and intelligently or with full awareness of the consequences of that waiver.

Reversed and remanded.

-----------------------------------------------------------------------------
Footnotes

FN1. If there was greater elaboration in a report written by Dr. Ives, neither
the trial court nor this Court have had the benefit of it.

-----------------------------------------------------------------------------
Concurring

No. 92-592

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Franklin Circuit

Minoca Pollard, a/k/a January Term, 1994
Monica Pollard

George T. Costes, J.

Jo-Ann L. Gross, Franklin County Deputy State's Attorney, St. Albans, for
plaintiff-appellee

T. Lamar Enzor, Rutland, for defendant-appellant

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

ALLEN, C.J., concurring. I agree that the conviction must be reversed
and the matter remanded.

Defendant's contentions on appeal are that the record does not support a
finding that he was competent to enter a plea pursuant to V.R.Cr.P. 11, that
he was not properly advised of his rights during the Rule 11 proceeding and
that he did not properly waive his right to counsel at the change of plea
hearing.(FN1)

The court's obligation under the Rule is to determine that the defendant
understands the nature of the charge, the penalties, the right to plead not
guilty, the consequence of a guilty plea,

the implications of the court's refusal to accept a plea agreement and that
the plea is voluntary. The defendant had been found to be competent to stand
trial a week before the change of plea hearing. While the defendant suggests
there were serious questions raised about his competency during those
proceedings, he does not ask to have that determination reversed. The
competency standard for pleading guilty is the same as the competency
standard for standing trial. Godinez v. Moran, 113 S. Ct. 2680, 2685-86
(1993). At the change of plea hearing the trial court's task was to make
certain that defendant understood the implications of his plea and that his
decision was voluntary; not to hold another competency hearing.

Defendant does not seriously argue that he was not properly advised of
his rights. A review of the record indicates that the court carefully
reviewed them before accepting the plea. In re Hall, 143 Vt. 590, 596, 469 A.2d 756, 759 (1983) (rule does not require that the court read verbatim the
rights enumerated under subdivision (c)).

The thrust of defendant's challenge is that the record fails to
demonstrate that the defendant knowingly and intelligently waived his right
to counsel, and with this, I agree. The trial court had a letter from the
defendant requesting that appointed counsel "disembarks from the case." The
court attempted to determine whether defendant desired to proceed with or
without counsel, but its efforts were fruitless and it is unclear from the
record what defendant's wishes were. The defendant had the Sixth Amendment
right to the assistance of counsel, but could waive that right only if he did
so "knowingly and intelligently." Johnson v. Zerbst, 304 U.S. 458, 462-65
(1938). He also had a constitutionally protected right to represent himself.
Faretta v. California, 422 U.S. 806, 832 (1975). The trial court, before
proceeding with the Rule 11(c) and (d) inquiries, was obligated to resolve
this issue, and the failure to do so was the error requiring reversal.
Godinez, 113 S. Ct. at 2687.

-----------------------------------------------------------------------------
Footnotes

FN1. Although defendant failed to properly preserve his claims for appeal, State
v. Thompson, 5 Vt. L. Wk. 73 (1994), V.R.A.P. 3(b) requires this Court to
review Pollard's claims. V.R.A.P. 3(b) ("In any criminal case resulting in a
sentence of life imprisonment, no notice of appeal shall be necessary. . . .
The Supreme Court shall in each such case review the record in the interests
of justice and pass upon any claim of error therein as if a notice of appeal
had been filed, unless the defendant with the advice of counsel has waived
such appeal in writing.").

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.