Opinion
NO. 2017-CA-000959-MR NO. 2017-CA-001025-MR
05-24-2019
MIKAEL HUGENBERG APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Linda Roberts Horsman Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE V, JUDGE
ACTION NO. 14-CR-00678 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JAMES R. SCHRAND III, SPECIAL JUDGE
ACTION NO. 15-CR-00406 OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND KRAMER, JUDGES. JONES, JUDGE: The Appellant, Mikael Jackson Hugenberg, filed two appeals. The appeals arise out of separate convictions for third-degree assault. Even though the appeals involve two separate criminal matters, the issues are nearly identical. Accordingly, the Court ordered the appeals consolidated for all purposes, including briefing. Having reviewed the record and applicable law, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
These appeals concern two separate incidents, both in which Hugenberg assaulted correctional officers working at the Campbell County Detention Center ("Detention Center"). In July 2014, Hugenburg was being detained at the Detention Center awaiting trial on a charge of assault in the first degree. This charge allegedly stemmed from Hugenberg assaulting his brother. Hugenberg was being housed in an individual cell, equipped with an overhead camera, located in the booking area of the Detention Center.
On July 16, 2014, Hugenberg assaulted Lt. Jared Dorneheggen ("Lt. Dorneheggen") after he entered Hugenberg's cell and advised him that he was going to be moved to another cell. Lt. Dorneheggen suffered various scrapes in the scuffle. He received medical treatment and was placed on light duty while an internal investigation was completed. Lt. Dorneheggen was cleared of any wrong doing. On August 28, 2014, Hugenberg was indicted on a charge of assault in the third degree for the altercation with Lt. Dorneheggen ("July 2014 assault").
Hugenberg's counsel had concerns about his competency to stand trial. As a result, the trial court referred Hugenburg to the Kentucky Correctional Psychiatric Center ("KCPC") for evaluation. Hugenburg stayed at KCPC for approximately twenty-seven days, during which time he was evaluated by KCPC psychiatrist Dr. Amy Trivette. The trial court conducted a competency hearing in October of 2014. At the hearing, Dr. Trivette opined that Hugenberg was competent to stand trial. She explained that Hugenberg was a highly intelligent individual who understood the court process and the charges against him. She believed that he had the ability to cooperate with his counsel and aid in his defense. She explained that while Hugenberg did not suffer from mental illness, he did have narcissistic personality disorder. She explained that Hugenberg could be uncooperative at times, but he had the ability to choose to be cooperative with his counsel if he so desired.
Hugenberg's counsel questioned Dr. Trivette concerning a previous head injury Hugenberg had suffered. Defense counsel wanted to know whether the head injury might affect Hugenberg's behavior. Dr. Trivette responded that she was not a neuropsychologist or neuropsychiatrist, and therefore, not qualified to make such an assessment. She explained that her role was to evaluate Hugenberg's competency to stand trial, not provide an opinion on his criminal responsibility and the impact a head injury might have on that issue.
At the end of the hearing, the trial court found Hugenberg competent to stand trial. At this time, defense counsel asked the trial court for expert funds to secure the services of a neuropsychologist to evaluate Hugenberg for criminal responsibility. The trial court granted the request. Defense counsel retained Dr. Scott Bresler, Ph.D, a clinical psychiatrist.
Hugenberg was involved in another assault on a correctional officer before the evaluation could take place. In March 2015, Hugenberg was still being detained at the Detention Center when he assaulted Deputy Jailer Miles Vaught. Vaught sustained injuries to his face and ankle. The following day Hugenberg was again involved in another altercation with Detention Center deputies. During this scuffle the Detention Center K9 officer was called. Hugenberg struck the K9 handler in the face before he was bitten by the dog. Hugenberg was indicted by grand jury, this time on two counts of assault in the third degree ("March 2015 assault").
Ultimately, Dr. Bresler conducted two sessions with Hugenberg. The objective of the sessions was for Dr. Bresler to render an opinion on criminal responsibility. However, Hugenberg was not cooperative. As such, Dr. Bresler reported that he was not able to give an assessment on criminal responsibility. Instead, he gave his opinion that Hugenberg was not competent. As a result, Hugenberg was sent to KCPC for a second evaluation. This time Hugenberg stayed at KCPC for nineteen days during which time he was evaluated by Dr. Martine Turns, a licensed clinical psychologist.
Following completion of the second evaluation, the trial court held another competency hearing. At this hearing, Dr. Turns testified that she found Hugenberg competent to stand trial, just like her supervisor Dr. Trivette had previously. In response, defense counsel presented Dr. Bresler. The Commonwealth objected arguing that Dr. Bresler had been retained to offer an opinion on criminal responsibility not competency. The trial court allowed Dr. Bresler to testify, but reserved ruling on the Commonwealth's objection.
Dr. Bresler testified that he disagreed with Drs. Turns's and Trivette's diagnoses of narcissistic personality disorder. Instead, Dr. Bresler believed Hugenberg suffered from bipolar disorder, type I. He explained that bipolar disorder, type I is a difficult diagnosis to make because it often contains features of narcissism, delusions of grandeur and a need to be controlling, which are also present in some personality disorders. Dr. Bresler opined that Hugenberg was incompetent to stand trial because he lacked the ability to effectively assist his counsel. Dr. Bresler also believed that Hugenberg's prior head injury could have exacerbated his bipolar disorder.
Following the hearing, the trial court issued a ruling finding Hugenberg competent to stand trial. As part of its determination, the trial court noted that it did not consider Dr. Bresler's testimony because Dr. Bresler was not retained to offer an opinion on competency.
Hugenberg was tried before a Campbell County jury in June of 2016 for the July 2014 assault on Lt. Dorneheggen. Hugenberg proved to be a difficult defendant during this trial. He did not cooperate with his attorney, was disrespectful to the trial court and had to be removed from the courtroom on several occasions. Ultimately, the jury found Hugenburg guilty of assault. The jury recommended a sentence of three years with access to mental health treatment. After trial, Hugenberg refused to cooperate in the preparation of a pre-sentence investigation report and his sentencing was delayed. Upon defense motion, the trial judge recused himself from the matter and a special judge was appointed to proceed over the remaining charges pending against Hugenberg as well as the sentencing for July 2014 assault.
The March 2015 assault charges were tried before a jury in August of 2016, but a mistrial was declared after Hugenberg could not be made to communicate with his defense counsel about a plea offer made by the Commonwealth; he was ultimately ordered removed from the courtroom. At this point, Hugenberg tried to attack one of the bailiffs. The empaneled jurors heard the tussle outside of the courtroom and a mistrial was declared by the special judge.
Thereafter, defense counsel again raised the issue of competency. Defense counsel urged the special judge to revisit the prior trial judge's ruling on competency, specifically the determination not to consider Dr. Bresler's testimony. The special judge deferred revisiting the prior determination not to consider Dr. Bresler's testimony but agreed to have Hugenberg sent to KCPC for another competency evaluation based on his behavior before the special judge. Dr. Turns was again assigned to evaluate whether Hugenberg was competent to stand trial. This time, however, Hugenberg refused to cooperate. As a result, Dr. Turns relied on her previous opinion from 2015; she again opined that Hugenberg was competent to stand trial because he had the ability to cooperate, if he wanted to do so. The special judge accepted this third competency evaluation.
In May of 2017, Hugenberg went to trial for the charges arising out of the March 2015 assault. Once again, Hugenberg proved to be a difficult defendant. He was disruptive, disrespectful and uncooperative during the trial. He elected to testify on his own behalf, but his testimony had to be cut off and the jury removed from the courtroom five times, until finally the special judge ended his testimony. The jury ultimately found Hugenberg guilty of two counts of assault in the third- degree. The jury recommended sentences of three and one-half years to be served concurrently.
Hugenberg was sentenced by the special judge for July 2014 assault conviction on or about May 25, 2017. He appeared before the court via closed-circuit television while in the detention center because he was unable to contain his behavior sufficiently to allow him to appear in person before the court. Thereafter, he filed his first appeal, 2017-CA-000959-MR, wherein he challenges the trial court's various determinations that he was competent to stand trial for the July 2014 assault.
Hugenberg was sentenced by the special judge for the March 2015 assault convictions on or about June 9, 2017. The special judge sentenced Hugenberg to seven years' imprisonment over his continued outbursts. Thereafter, he filed his second appeal, 2017-CA-001025-MR, wherein he challenges that he was not competent to stand trial for the March 2015 assault.
II. Standard of Review
"A competency determination is based on the preponderance of the evidence standard. We may disturb a trial court's competency determination only if the trial court's decision is clearly erroneous (i.e., not supported by substantial evidence)." Chapman v. Commonwealth, 265 S.W.3d 156, 174 (Ky. 2007).
III. ANALYSIS
Hugenberg maintains the trial court erred in finding him competent to stand trial. Specifically, he argues that the trial court violated his right to due process under both the United States Constitution and the Kentucky Constitution by deciding not to consider the testimony of Dr. Bresler. Hugenberg further argues that the trial court's decisions finding him competent were clearly erroneous as evidence of record supported a finding that he was not competent to stand trial.
Kentucky Revised Statute ("KRS") 504.090 provides that "[n]o defendant who is incompetent to stand trial shall be tried, convicted or sentenced so long as the incompetency continues." "'Incompetency to stand trial' means, as a result of mental condition, lack of capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one's own defense." KRS 504.060(4). "The test for a defendant's competency to stand trial . . . is whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense." Commonwealth v. Griffin, 622 S.W.2d 214, 216-17 (Ky. 1981). The burden is on the defense to prove a defendant incompetent by a preponderance of the evidence. Gabbard v. Commonwealth, 887 S.W.2d 547 (Ky.1994).
As an initial matter, we address the original trial judge's decision to sustain the Commonwealth's objection with respect to Dr. Bresler's testimony. The first trial judge explained the basis of this decision as follows:
The first question for this Court to answer is whether Defendant has satisfied the legal requirements for presentation of his own expert on the issue of competency. The Court find that he has not. Defendant is represented by the Public Advocate. Dr. Bresler, however qualified he may be to render an opinion regarding the Defendant's competence to stand trial, was initially hired as an expert on the issue of criminal responsibility. Instead of issuing a report to defense counsel regarding criminal responsibility, Dr. Bresler's assignment morphed into one of competence to stand trial. In order for the state to pay these private facilities or to authorize the hiring of a Defendant's private expert on the issue of competence, the defense attorney must be heard ex parte and on the record with regard to use of private facilities. The Defendant must make a specific showing that state facilities are unavailable for use or would be impractical. The Defendant must also demonstrate that the desired expert assistance is reasonably necessary. In the instant matter, there was no ex parte hearing on the record nor was Bresler hired to address competency. Even had defense counsel approached the Court in this manner regarding the use of private facilities, defense counsel would have been unable to show that state facilities were unavailable for his use. He may, however, been able to show that it was necessary under the circumstances, or, that use of state facilities was impractical had Defendant sought to use him on the issue of competence. Indeed, state facilities were available as is evidenced by the second competency evaluation and report performed and authored by Martine Turns, Psy.D. Therefore, this Court may not consider the testimony of Dr. Scott Bresler on the issue of competence.(R. at 154). We cannot conclude this determination was an abuse of discretion.
In relevant part, KRS 31.185, provides:
(1) Any defending attorney operating under the provisions of this chapter is entitled to use the same state facilities for the evaluation of evidence as are available to the attorney representing the Commonwealth. If he or she considers their use impractical, the court of competent jurisdiction in which the case is pending may authorize the use of private facilities to be paid for on court order from the special account of the Finance and Administration Cabinet.
(2) The defending attorney may request to be heard ex parte and on the record with regard to using private facilities under subsection (1) of this section. If the defending attorney so requests, the court shall conduct the hearing ex parte and on the record.
The Kentucky Supreme Court has held that "[i]n order to hire a state-funded private psychologist, the defendant must make the requisite showing that the state facilities were unavailable or that the use of state facilities would be impractical." Commonwealth v. Wooten, 269 S.W.3d 857, 862 (Ky. 2008). Further, "[t]he defendant must also demonstrate that the desired expert assistance is 'reasonably necessary.'" Id. at 862 (quoting Crawford v. Commonwealth, 824 S.W.2d 847, 850 (Ky. 1992)). Whether or not to authorize the use of a private facility, paid for by public funds, is a matter within the discretion of the trial court and is based on the trial court's finding that the use of state facilities is impractical. Binion v. Commonwealth, 891 S.W.2d 383, 385 (Ky. 1995).
As a primary matter, Hugenberg did not request funds to obtain an independent competency evaluation. After the first competency hearing, at which KCPC psychiatrist Dr. Trivette testified, Hugenberg requested expert funds to evaluate criminal responsibility due to a head injury because Dr. Trivette testified criminal responsibility was beyond the scope of her evaluation and outside her area of expertise. At that point, the trial court granted Hugenberg's request for expert funding to assess criminal responsibility. Instead of rendering an opinion on that issue, however, Dr. Bresler made a threshold determination that Hugenberg was not competent to stand trial. While the trial court would have been entitled to move forward with trial at that point, it did not do so. Instead, it ordered Hugenberg be committed to KCPC for another competency evaluation. Dr. Turns conducted this evaluation and, interestingly, had access to Dr. Bresler's report as part of that evaluation. Nevertheless, she ultimately agreed with Dr. Trivette that Hugenberg was competent.
There is no evidence of record that Hugenberg sought the evaluation and expertise of Dr. Bresler, a private psychologist, because state facilities were either unavailable or impractical. In fact, just the opposite occurred here. KCPC was available; Hugenberg was evaluated there three times; there was no showing made by defense counsel that it was impractical for KCPC to do so; and there was no showing by defense counsel, outside of Dr. Bresler's opinion, that additional examination of competency was necessary.
Hugenberg never made a showing to the trial court that a competency evaluation by an independent expert was necessary because of unavailability or impracticability. He requested that Dr. Bresler be allowed to testify on that issue because he disagreed with the results of the evaluations performed at KCPC. At this point, the Commonwealth objected. Having reviewed the record, we believe the Commonwealth's objection was well founded and properly sustained by the trial court. The rules are designed to provide the trial court with an expert opinion on competency. They are not designed to allow a defendant to continually attack the first state-funded evaluation by obtaining subsequent evaluations paid for by the Commonwealth. Crawford, 824 S.W.2d at 851.
We note that the Commonwealth's objection makes this case quite different than Wooten, 269 S.W.3d at 859, where the report of an independent expert was considered by the trial court. ("The Commonwealth stated that an indigent defendant is first required to use state facilities before getting funds for a private expert, and that the proper procedure had not been followed. However, the Commonwealth made no formal objection, nor asked for any relief."). --------
This brings us to the ultimate competency determinations made by the initial trial judge and later by the special judge. The conclusions are supported by expert opinions from two different KCPC evaluators. Hugenberg posits, however, that his refusal to cooperate and violent outbursts show that he could not participate in his defense. A defendant's unwillingness to cooperate or regulate his behavior, however, is not the determinative factor. The evidence, including the expert reports, show that Hugenberg has the intellectual capacity to understand the proceedings. Moreover, while he may not be inclined to regulate his behavior, it appears that with some effort he is able to do so if he so desires.
IV. CONCLUSION
For the above stated reasons, the May 25, 2017, and June 9, 2017, judgments of the Campbell Circuit Court are AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Linda Roberts Horsman
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Joseph A. Beckett
Assistant Attorney General
Frankfort, Kentucky