2018 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 9 - Mental Illness and Competency
Section 31-9-1 - Determination of competency; raising the issue.

Whenever it appears that there is a question as to the defendant's competency to proceed in a criminal case, any further proceeding in the cause shall be suspended until the issue is determined. Unless the case is dismissed upon motion of a party, when the question is raised in a court other than the district court or a metropolitan court, the proceeding shall be suspended and the cause transferred to the district court. If the question of a defendant's competency is raised in the metropolitan court and the court determines that the defendant is incompetent to proceed in a criminal case, the cause, if not dismissed upon motion of a party, shall be transferred to the district court.

History: 1978 Comp., § 31-9-1, enacted by Laws 1988, ch. 107, § 1 and by 1988, ch. 108, § 1; 1989, ch. 94, § 1; 1993, ch. 240, § 1; 1993, ch. 249, § 1.

Repeals and reenactments. — Laws 1988, ch. 108, § 1 and Laws 1988, ch. 107, § 1, both approved March 8, 1988, repealed former 31-9-1 NMSA 1978, as amended by Laws 1987, ch. 353, § 1, and enacted identical new sections designated 31-9-1 NMSA 1978, effective May 18, 1988.

Cross references. — For the interstate compact on mentally disordered offenders, see 31-5-10, 31-5-11 NMSA 1978.

For commitment of the mentally ill, see 43-1-2 to 43-1-23 NMSA 1978.

For rule of criminal procedure governing defenses of insanity, incompetency, and lack of capacity, see Rule 5-602 NMRA.

1993 amendments. — Identical amendments to this section were enacted by Laws 1993, ch. 240, § 1 and Laws 1993, ch. 249 § 1, both approved on April 6, 1993, and both effective June 18, 1993, which inserted "to proceed in a criminal case" in the first sentence, substituted "Unless the case is dismissed upon motion of a party, when" for "If" at the beginning of the second sentence and added the third sentence. The section is set out above as amended by Laws 1993, ch. 249, § 1. See 12-1-8 NMSA 1978.

The 1989 amendment, effective July 1, 1989, inserted "or a metropolitan court" in the second sentence.

Incompetency is distinct from insanity. — A claim of incompetency to stand trial is distinct from the defense of insanity. The competency issue is whether a defendant understands the nature and significance of the proceedings, has a factual understanding of the charges, and is able to assist defense counsel in defendant's defense. The insanity defense concerns a defendant's mental state at the time the offense was committed. State v. Najar, 1986-NMCA-068, 104 N.M. 540, 724 P.2d 249, cert. denied, 104 N.M. 460, 722 P.2d 1182.

Failure to determine competency. — Where defense counsel raised the issue of defendant's competency at defendant's preliminary hearing in magistrate court; the case was then transferred to district court; the district court ordered a competency evaluation of defendant; based on the results of the evaluation, defense counsel was satisfied that defendant was competent to stand trial, and the court entered an order finding defendant competent to stand trial; defense counsel again raised the issue of defendant's competency on the day of trial, prior to the start of trial; the court took no action and proceeded to trial; during the trial, defendant made noises, talking to someone who was not present in the courtroom; the court admonished defendant not to disrupt the trial; defense counsel attempted, but the court refused, to allow defense counsel to raise the issue of defendant's competency; the jury returned a verdict of guilty; defense counsel again raised the issue of defendant's competency; the court then permitted defense counsel to fully raise the issue and instructed defense counsel to request a competency evaluation; based on the evaluation, the court found defendant to be incompetent, but declined to dismiss the charges and proceeded to sentence defendant, defendant was denied due process of law because the court erred when it refused to permit defense counsel to raise the issue of defendant's competency prior to and during trial, when it failed to stay the proceedings pending a determination of whether a reasonable doubt existed as to defendant's competency to stand trial, and after finding defendant incompetent. State v. Montoya, 2010-NMCA-067, 148 N.M. 495, 238 P.3d 369, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.

Requirements on court. — Whenever a legitimate concern about the present ability of a defendant to consult and understand is brought to the court's attention, the court is required to consider whatever competency-related evidence is before the court and to determine whether there exists a reasonable doubt as to the defendant's competency to stand trial. If the court determines that there is reasonable doubt as to defendant's competency, the court must have defendant's competency professionally evaluated by a qualified professional who must submit a report to the court. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011, 138 N.M. 586, 124 P.3d 564.

In considering whether reasonable doubt exists, the court must keep in mind the requirement that defendant must have sufficient present ability to consult and understand as required under due process of law. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011, 138 N.M. 586, 124 P.3d 564.

Constitutionality. — This article did not deprive an incompetent criminal defendant of equal protection under the law, or of substantive or procedural due process. State v. Rotherham, 1996-NMSC-048, 122 N.M. 246, 923 P.2d 1131.

Multi-step competency proceeding. — The New Mexico statutory scheme provides for a multi-step competency proceeding when it appears that there is a question as to a defendant's competency. State v. Webb, 1990-NMCA-077, 111 N.M. 78, 801 P.2d 660, cert. quashed, 111 N.M. 164, 803 P.2d 253.

Due process requires incompetent defendants to be treated differently. The conviction of an accused person while that person is legally incompetent violates due process, and thus incompetent defendants cannot be brought to trial in the same manner as competent defendants. State v. Gallegos, 1990-NMCA-104, 111 N.M. 110, 802 P.2d 15, cert denied, 111 N.M. 77, 801 P.2d 659.

Defendant cannot be validly tried while mentally incompetent to stand trial. State v. Tartaglia, 1969-NMCA-110, 80 N.M. 788, 461 P.2d 921.

Effect of false claim of lack of competency. — Where the file and records conclusively establish that his claim of lack of competency to stand trial was false, defendant was not entitled to a hearing on the claim. State v. Kenney, 1970-NMCA-038, 81 N.M. 368, 467 P.2d 34.

Section provides for questioning of competency prior to suspension. — This section provides that there must be a "question" as to the mental competency of a defendant to stand trial, before the court is required to suspend proceedings in the cause until the issue as to defendant's competency is determined. State v. Smith, 1969-NMCA-101, 80 N.M. 742, 461 P.2d 157.

Question of competency requires more than mere assertion. — This section requires there to be a "question" as to the accused's capacity to stand trial. The "question" is not raised by an assertion of that issue, even though the assertion is in good faith. As in the similar federal statute, there must be a showing of reasonable cause for the belief that an accused is not competent to stand trial. State v. Hollowell, 1969-NMCA-105, 80 N.M. 756, 461 P.2d 238.

Counsel's impressions of defendant's mental state insufficient. — "Wondering" about defendant's mental capacity which is based solely on counsel's impression is not reasonable cause for a belief that defendant is incompetent to stand trial. State v. Hovey, 1969-NMCA-049, 80 N.M. 373, 456 P.2d 206.

When court justified in proceeding without competency hearing. — Defense counsel's representations to the trial court that the defendant was competent to plead guilty and responsible for his actions effectively removed any question of competency from the case and justified court in proceeding without competency hearing, despite previously ordered psychiatric examination of defendant. State v. Bius, 1973-NMCA-057, 85 N.M. 98, 509 P.2d 573.

Motion must include grounds for belief of lack of capacity. — A motion on behalf of an accused for a judicial determination of mental competency to stand trial shall set forth the ground for belief that such mental capacity is lacking. When the motion does not set forth grounds for reasonable cause to believe the defendant may be insane or mentally incompetent, the motion can be denied. "The statute requires such an examination only when it is shown that there is reasonable cause to believe that an accused may be presently insane or otherwise mentally incompetent." State v. Hovey, 1969-NMCA-049, 80 N.M. 373, 456 P.2d 206.

Court not required to grant motion for examination. — An examination is not necessary, nor is the court required to grant a motion seeking such examination unless there is a question as to the mental capacity of defendant. State v. Morales, 1970-NMCA-036, 81 N.M. 333, 466 P.2d 899, cert. denied, 81 N.M. 305, 466 P.2d 871, cert. denied, 400 U.S. 842, 91 S. Ct. 84, 27 L. Ed. 2d 77.

Possible prejudicial statement of expert not grounds for error. — Statement of medical expert that defendant had no mental disease either at the time of the commission of the criminal act or at the time of trial when the reason for testimony concerning defendant's mental condition at the time of trial was because the medical expert's examination had been primarily to determine defendant's present competency to stand trial found not to be error although possibly prejudicial. State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, cert. denied, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970).

Trial court's failure to determine competency not error. — Where defendant's claim is that the trial court erred in failing to judicially determine his mental competency and the context of this contention is that the motion was never called to the court's attention and no ruling was invoked; although, prior opinions indicate that an issue as to defendant's mental competency may still be litigated, still they do not support the view that a trial court errs in failing to decide an issue on which a ruling has not been invoked. State v. Madrigal, 1973-NMCA-116, 85 N.M. 496, 513 P.2d 1278, cert. denied, 85 N.M. 483, 513 P.2d 1265.

Initial orders were not final orders subject to appellate review. — Where the trial court had made only the initial orders in a multi-part proceeding to determine defendant's competency to stand trial for murder, the orders finding defendant dangerous and incompetent to stand trial from which he appealed were not final orders subject to appellate review. State v. Webb, 1990-NMCA-077, 111 N.M. 78, 801 P.2d 660, cert. quashed, 111 N.M. 164, 803 P.2d 253.

Competency of defendants in courts of limited jurisdiction. — Except for metropolitan courts, courts of limited jurisdiction have no authority to hold competency hearings. 2003 Op. Att'y Gen. No. 03-04.

Courts of limited jurisdiction have no authority to commit defendants to a mental health facility. 2003 Op. Att'y Gen. No. 03-04.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 79 et seq.

Presumption of continuing insanity as applied to accused in criminal case, 27 A.L.R.2d 121.

Constitutional right to jury trial in proceeding for adjudication of incompetency or insanity, 33 A.L.R.2d 1145.

Unanimity of verdict in proceedings to determine sanity of one accused of crime, 42 A.L.R.2d 1468.

Right to counsel in insanity or incompetency adjudication proceedings, 87 A.L.R.2d 950.

Appealability of orders or rulings, prior to final judgment in criminal case, as to accused's mental competency, 16 A.L.R.3d 714.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146.

Admissibility on issue of sanity of expert opinion based partly on a medical, psychological or hospital report, 55 A.L.R.3d 551.

Adequacy of defense counsel's representation of criminal client regarding incompetency, insanity, and related issues, 17 A.L.R.4th 575.

Competency to stand trial of criminal defendant diagnosed as "mentally retarded" - modern cases, 23 A.L.R.4th 493.

Malpractice liability based on prior treatment of mental disorder alleged to relate to patient's conviction of crime, 28 A.L.R.4th 712.

Competency to stand trial of criminal defendant diagnosed as "schizophrenic" - modern state cases, 33 A.L.R.4th 1062.

Admissibility of results of computer analysis of defendant's mental state, 37 A.L.R.4th 510.

Pyromania and the criminal law, 51 A.L.R.4th 1243.

Probation revocation: insanity as defense, 56 A.L.R.4th 1178.

Adequacy of defense counsel's representation of criminal client - issues of incompetency, 70 A.L.R.5th 1.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of insanity, 72 A.L.R.5th 109.

Incompetency at time of offense or trial as ground for vacating or setting aside sentence under 28 U.S.C. § 2255, 7 A.L.R. Fed. 565.

Notice to government of defense based upon defendant's mental condition at time of alleged crime, and court-ordered psychiatric examination thereon, under Rule 12.2, Federal Rules of Criminal Procedure, 63 A.L.R. Fed. 552.

Competency to stand trial of criminal defendant diagnosed as "schizophrenic" - modern federal cases, 63 A.L.R. Fed. 696.

Pathological gambling as basis of defense of insanity in federal criminal case, 76 A.L.R. Fed. 749.