Opinion
P1-2015-0544AG
08-11-2022
STATE OF RHODE ISLAND v. ZACKERY KHAMVONGSA
For Plaintiff: Meghan E. McDonough, Esq. For Defendant: Michael DiLauro, Esq. Karen A. Clark, Esq.
For Plaintiff: Meghan E. McDonough, Esq.
For Defendant: Michael DiLauro, Esq.
Karen A. Clark, Esq.
DECISION
VOGEL, J.
Through counsel, Zackery Khamvongsa (Defendant) brings this motion to dismiss the indictment against him or, in the alternative, to end his commitment to the Director of the Rhode Island Department of Behavioral Health, Developmental Disabilities and Hospitals (BHDDH). The Court exercises jurisdiction over this motion under G.L. 1956 § 40.1-5.3-3. For the reasons set forth in this Decision, the Court grants Defendant's motion. The Court finds that Defendant is incompetent to stand trial, and no reasonable likelihood exists that he will become competent in the foreseeable future and not prior to the dismissal of the charges pursuant to § 40.15.3-3.
Although fashioned in the alternative, the Court considers Defendant's filing as a motion to dismiss the charges against him. Defendant contends that he is incompetent to stand trial and no reasonable likelihood exists that he will become competent in the foreseeable future and not prior to the dismissal of the charges against him pursuant to G.L. 1956 § 40.1-5.3-3.
This Decision granting Defendant's motion to dismiss does not mean that the Defendant will be released from commitment and permitted to return to the community. Instead, this Decision will be followed by the filing of a petition by BHDDH to have the Defendant civilly committed pursuant to G.L. 1956 § 40.1-5-8. (Court Hr'g Aug. 1, 2022.)
I. Facts and Background
A. Alleged Offense
The parties have submitted the following joint statement of facts for purposes of the evidentiary hearing on Defendant's motion to dismiss:
"On December 17, 2014, Anthony Mitchell and Areis Degraca were leaving Rodrigues Market on Hartford Avenue, when they were approached by the Defendant who asked Degraca for a light. He also asked Mitchell and Degraca respectively if they were "bloods" (i.e., gang members). Before Mitchell could answer the defendant, the defendant pulled out a handgun from his right front pocket and fired several rounds at Mitchell. Degraca witnessed the shooting and his friend succumb to his gunshot wounds. Investigators interviewed Kevin Chet and Nikki Chet, who were with the defendant prior to the shooting. They explained they gave the defendant a ride to pick up a check. Upon their return to Hartford Avenue, the defendant pointed out a male who was wearing red and ask[ed] Kevin Chet who was driving to pull out. The defendant exited the vehicle and Kevin circled the block and parked his car on Manton Avenue where both he and Nikki waited for the defendant to return. A few minutes later, they heard gunshots and the defendant re-entered the vehicle. He stated, "I think I hit 'em." When asked what happened, the defendant responded, "I did what I had to do." After hearing this, Kevin dropped the defendant off on Manton Avenue. The defendant was identified as the shooter by Degraca. A witness observed the shooter run from the scene and enter a gold Maxima parked across the street. The description of the shooter matched the description of the defendant. The defendant was depicted on surveillance at the market at the time of the shooting." (Joint Statement of Facts, July 20, 2022.)
Upon information and belief, if this matter proceeded to trial, there would be no evidence presented to support any contention that Defendant knew Mr. Mitchell or knew of him. By all accounts, the evidence would support a finding that Mr. Mitchell was an innocent victim.
The circumstances surrounding Anthony Mitchell's death are particularly tragic. The Court notes the presence of the victim's mother at both hearings and would be remiss if her attendance and suffering went without mention. The Court recognizes the magnitude of her loss and how difficult it must have been for her to observe the technical court proceedings focused on Defendant's ability to stand trial rather than on the senseless loss of human life. Her attendance honored her son's memory and displayed an impressive act of courage.
B. Indictment
On February 20, 2015, the Grand Jury of the State of Rhode Island charged Defendant in a four-count indictment as follows:
"COUNT 1
"That ZACK KHAMVONGSA, alias Zachary Khamrongsa, alias Zackery A. Khamvongsa, alias Zackery Khamvongsa, alias John Doe, of Providence County, on or about the 17th day of December, 2014, in the City of Providence, in the County of Providence, did murder Anthony Mitchell, in violation of §11-23-1 of the General Laws: of Rhode Island, 1956, as amended (Reenactment of 2002).
"COUNT 2
"That ZACK KHAMVONGSA, alias Zachary Khamrongsa, alias Zackery A. Khamvongsa, alias Zackery Khamvongsa, alias John Doe, of Providence County, on or about the 17th day of December, 2014, in the City of Providence, in the County of Providence, while committing a crime of violence, to wit, murder, did use and discharge a firearm resulting in the death of Anthony Mitchell, in violation of §11-47-3.2(b)(4) of the General Laws of Rhode Island, 1956, as amended (Reenactment of 2002).
"COUNT 3
"That ZACK KHAMVONGSA, alias Zachary Khamrongsa, alias Zackery A. Khamvongsa, alias Zackery Khamvongsa, alias John Doe, of Providence County, on or about the 17th day of December, 2014, in the City of Providence, in the County of Providence, did, without a license, carry a revolver on or about his person, in violation of §11-47-8(a) of the General Laws of Rhode Island, 1956, as amended (Reenactment of 2002).
"COUNT 4
"That ZACK KHAMVONGSA, alias Zachary Khamrongsa, alias Zackery A. Khamvongsa, alias Zackery Khamvongsa, alias John Doe, of Providence County, on a day and date between the 1st day of December, 2014 and the 17th day of December, 2014, in the City of Providence, in the County of Providence, did, without a license, carry a revolver on or about his person, in violation of §11-47-8(a) of the General Laws of Rhode Island, 1956, as amended (Reenactment of 2002). (Indictment.)
C. Defendant's Mental Health History Prior to Charged Event
Defendant's mental health history, predating his alleged crime, is significant and complex. His contacts with the mental health system began in his late teens. Beginning in 2013, Defendant had a series of in-patient psychiatric admissions, and his behavior became increasingly psychotic. He was prescribed a variety of antipsychotic medications. However, it appears he was non-compliant with the prescriptions unless he was administered them during in-patient care or by injection pursuant to court order.
One hospitalization was triggered by multiple self-inflicted stab wounds to his abdomen. Another followed his attempt to stab himself in the chest in the purported effort to donate his heart. On another occasion, he hung himself out of a window. During one admission, in a paranoid episode, he attacked a fellow patient because he erroneously thought the patient killed his cousin. Defendant reported auditory hallucinations and appeared to have little insight into his illness. Defendant was discharged from his last hospitalization with a diagnosis of Schizophreniform Disorder. In May 2014, Defendant was receiving court ordered antipsychotic injections but indicated his intention to discontinue mental health treatment once the court order expired on July 7, 2014. Approximately five months after the expiration of that order, Defendant allegedly murdered Anthony Mitchell.
Defendant was admitted to Eleanor Slater Hospital (ESH) following his arrest for killing Anthony Mitchell. Since that time, BHDDH has been authorized to administer antipsychotic medications to Defendant pursuant to court order. (District Court Order, Dec. 3, 2021.) The medication has stabilized him but has not improved his anosognosia-a lack of insight into his mental illness and a symptom of his condition. (Report of Drs. Wall and Virani, Nov. 5, 2021.)
D. Competency Evaluations and Psychiatric Criminal Responsibility Evaluation
Defendant had been set to be arraigned on the charges before a justice of the Superior Court on February 27, 2015. Prior to that date, Attorney Michael A. DiLauro entered his appearance on behalf of Defendant and filed an "OMNIBUS MOTION REGARDING THE DEFENDANT'S CONDITION &THE FORENSIC MENTAL HEALTH ISSUES PRESENTED." (Motion for Competency Evaluation, Feb. 24, 2015.) He requested the Court order Defendant's examination to determine his competency to stand trial. He further requested that the Court cancel Defendant's scheduled February 27, 2015 arraignment in light of "defendant's inability to properly assist counsel in his defense and failure to meet the other competency criteria prescribed by law[.]" Id.
On February 26, 2015, this trial justice granted the request for a competency evaluation and postponed the scheduled arraignment. Dr. Barry W. Wall evaluated Defendant to determine his competency to stand trial pursuant to that order and has performed nearly all of the subsequent competency evaluations conducted in this case.
Dr. Wall has been board certified by the American Board of Psychiatry and Neurology since 1995 and received additional certification in forensic psychiatry in 1996. He has spent most of his professional career as a psychiatrist with ESH, joining the staff in 1995 after completing his education and training. Dr. Wall has authored seventeen original publications in peer-reviewed journals and has written several other articles and letters to the editors of non-professional publications in the field of forensic psychiatry. His professional responsibilities at ESH include evaluating patients to determine their competence to stand trial. He is highly experienced in performing such evaluations. (Curriculum Vitae, Dr. Wall.)
1. March 20, 2015 Report by Dr. Wall
In response to the Court's order of February 26, 2015, Dr. Wall submitted an undated halfpage report finding Defendant incompetent to stand trial. (Competency Report, Mar. 20, 2015.) On July 28, 2015, the Court rejected that report for the failure of Dr. Wall to include adequate facts upon which the expert opinion was based. The Court ordered BHDDH to prepare and submit a more detailed report and specified each of the items for BHDDH to address in the evaluation. (Order, Aug. 11, 2015.)
2. September 22, 2015 Report by Dr. Wall
On September 22, 2015, Dr. Wall provided a sixteen-page report titled "SEMI-ANNUAL REVIEW" (SAR), although it was a supplement to his initial report which the Court had rejected. In the September 22, 2015 report, Dr. Wall opined that Defendant was then competent to stand trial. (Report of Dr. Wall, Sept. 22, 2015.) He diagnosed Defendant with "Schizophrenia (a chronic mental illness characterized by loss of contact with reality, impaired relatedness to others, and cognitive problems)." Id. at 13. He concluded Defendant's competency to stand trial was restored after receiving treatment for his mental illness. Id. The Court notes that Dr. Wall characterized that competency as
"fledgling because he has only recently recovered from active symptoms of psychosis, and because he has significant ongoing negative symptoms. He has poverty of speech as well as poverty of content of thought, which may impact his ability to discuss finer elements of his case with his attorney. In addition, his lack of insight into his mental illness appears to impact his ability to appreciate all possible pleas." Id. at 14.
Dr. Wall focused on what he viewed as Defendant's ability to understand the criminal justice system as evidence of his competence to stand trial. Defendant was able to describe the differences between pleading nolo contendere, guilty, and not guilty, and he understood the ramifications of each plea. He understood that Mr. DiLauro was his lawyer.
However, when Dr. Wall told Defendant that Mr. DiLauro might discuss with him the possibility of pleading not guilty by reason of insanity (NGRI), Defendant balked.
"In response to every attempt to discuss this with him, he adamantly insisted that he would not consider this as a plea because he is not 'insane,' which he appeared to interpret in lay terms. I tried to explain that the plea/finding of NGRI only has legal meaning, but he continued to say [that] he is not mentally ill." Id. at 12.
When asked to articulate the charges brought against him, Defendant replied, "I don't even know . . . about it." He said he was at his girlfriend's house at the time of the crime. He acknowledged that the charge is "serious, cause I'm innocent and I could lose my life over this, cause someone threw my name in the mix and said it was me." Id. at 11. He said he wanted to go to trial "because I didn't do it. I'm innocent." Id. at 13.
3. December 4, 2015 Report by Dr. Wall
Dr. Wall supplemented his September 22, 2015 report on December 4, 2015. At that time, he altered his opinion that Defendant was competent to stand trial after conferring with defense counsel, reviewing the discovery package provided to him from Attorney DiLauro, and meeting with Defendant. Counsel had expressed concern that Defendant's lack of insight into the seriousness of his illness impacted his ability to appreciate the defenses available to him. Dr. Wall found those concerns to be valid and consequently opined that Defendant was not competent to stand trial.
4. October 20, 2016 Report by Dr. Wall
On October 20, 2016, Dr. Wall submitted a SAR report. He concluded that Defendant remained incompetent to stand trial due to his lack of insight. (Report of Dr. Wall, Oct. 20, 2016.)
5. May 5, 2017 Report by Dr. Wall
In a SAR report submitted May 5, 2017, Dr. Wall found Defendant competent to stand trial. (Report of Dr. Wall, May 5, 2017.) He drew this conclusion in spite of the following reported exchange: "[W]hen asked about his previous behavior when he was first admitted to ESH, he denied having any and all past symptoms of mental illness. He would not accept the description of past bizarre behaviors and hyperreligiosity." Id. at 3. He reported that "[m]ajor themes" expressed by Defendant "include wanting to proceed with a trial, by agreeing to plead NGRI." Id. at 4. Dr. Wall attributed his restored competency to his finding that Defendant "has changed his position on the NGRI defense. He is now willing to consider it. This reflects continued lessening of his negative symptoms of illness as well as ongoing competency education." Id. at 5.
6. March 21, 2018 Report by Dr. Penn
Attorney DiLauro engaged the services of a psychiatrist, Joseph V. Penn, M.D., to opine on the strength of an NGRI defense. Dr. Penn met with Defendant, interviewed Defendant's parents, and spoke with Dr. Wall. He reviewed voluminous materials on Defendant's mental health history, his prior police contacts, and the facts and circumstances surrounding the killing of Anthony Mitchell. On March 21, 2018, Dr. Penn issued a report detailing the facts upon which he based the opinion that Defendant
"committed the criminal act on 12/14/14, that he was in an acute psychotic state superimposed on his chronic paranoid schizophrenia with a marked breakdown in his ability to reality test as evidenced by his chronic oddities in behavior, delusional thinking, disorganized behavior, and impairments in his activities of daily living (ADL's), his abrupt psychotic decompensation shortly after his ACI incarceration, and as a result, he lacked the substantial capacity, as a result of his chronic mental disease, to appreciate the wrongfulness of his conduct and to control his conduct within the requirements of the law." (Report of Dr. Penn 36-37, Mar. 21, 2018.)
7. December 7, 2018 Report by Dr. Recupero
Attorney DiLauro also engaged the services of a psychiatrist, Patricia Ryan Recupero, M.D. She possesses the unique credentials of medical background, a law degree, and significant experience in medical/legal issues. Dr. Recupero is highly credentialed in the field of forensic psychiatry. She has been board certified in psychiatry by the American Board of Psychiatry and Neurology since 1990 and received added certification in 1994 in forensic psychiatry. She has served as an examiner for other psychiatrists seeking board certification. Dr. Recupero is licensed to practice psychiatry in both Rhode Island and Massachusetts. She practiced law in Rhode Island before attending medical school and has been a member of the Rhode Island and Massachusetts bars for nearly fifty years. Dr. Recupero graduated from prestigious law and medical schools with honors. She has received numerous honors and awards in her professional career and continues to treat psychiatric patients. Her experience includes hospital appointments at facilities in Rhode Island and Massachusetts where she filled significant administrative roles while remaining an active staff member. Of note, she served as President and CEO of Butler Hospital, Rhode Island's premier psychiatric facility, for fifteen years and remains President Emeritus. Dr. Recupero has authored forty-two original publications in peer-reviewed journals, twenty-six peer-reviewed books and book chapters, and forty-four other publications in the field of law and medicine. She has testified as an expert in the Rhode Island Superior Court on numerous occasions. (Curriculum Vitae, Dr. Recupero.)
In forming her opinion on Defendant's competency, Dr. Recupero reviewed and relied upon forensic reports from psychiatrists at ESH and Dr. Penn, reports of Defendant's past medical and psychiatric history, reports of prior contacts with the criminal justice system, and discovery responses by the Attorney General regarding the charged event. Dr. Recupero also interviewed Defendant three times.
Based upon her experience, medical and legal education, and her review of pertinent records and her interviews with Defendant, Dr. Recupero opined that Defendant was not competent to stand trial. She stated
"he has a delusional belief that the state will not be able to get the witnesses to testify or, if they do, they will recant their lies. He understands the likely
consequences of an NGRI plea and does not want to enter such a plea because his schizophrenia prevents him from understanding that he has a mental illness." (Report of Dr. Recupero 46, Dec. 7, 2018.)
8. December 31, 2018 Report by Dr. Wall
On December 31, 2018, Dr. Wall submitted an SAR report wherein he found Defendant incompetent to stand trial. He further opined that
"it is becoming increasingly unlikely that Mr. Khamvongsa will become competent prior to the dismissal of the charges pursuant to R.I.G.L. § 40.1-5.3-3(k). Mr. Khamvongsa has been in active treatment at ESH since March 2015, and many of his symptoms of Schizophrenia have improved. But his lack of insight is not trending toward improvement as I had thought it was. Because many people never develop insight, and Mr. Khamvongsa is not developing insight (despite his statements to me in the spring of 2017), my earlier prognosis that Mr. Khamvongsa is restorable may not become true." (Report of Dr. Wall 6, Dec. 31, 2018.)
9. December 2, 2019 Report by Dr. Wall
On December 2, 2019, Dr. Wall submitted a SAR wherein he opined that Defendant remained mentally incompetent to stand trial and would not become competent prior to the dismissal of the charges pursuant to § 40.1-5.3-3(k). (Report of Dr. Wall, Dec. 2, 2019.) Dr. Wall stated:
"Mr. Khamvongsa will not become competent prior to the dismissal of the charges pursuant to the statute. Psychotic disorders usually respond to treatment and although his symptoms of psychosis have subsided, he has not gained insight into his mental illness or his need for treatment during the course of his five-year hospitalization. He remains unwilling to consider a NGRI plea and is not open to discussing his plea options with his attorney. He has evidenced an inability to make logical decisions about his case or understand the implications of the charge. Therefore, in my opinion, his competency to stand trial is non-restorable. In years past, I had believed that his anosognosia might improve (it sometimes can), and he appeared briefly to consider NGRI as a plea available to him. At this point the totality of the information suggests that he cannot view NGRI as a plea, and never will. Therefore, in my opinion, his competency is nonrestorable." Id. at 6-7.
10. June 1, 2020 Report by Dr. Yarnell-MacGrory
Stephanie Yarnell-MacGrory, M.D. submitted a status report on Defendant's mental condition and competency to stand trial on June 1, 2020. She concurred with Dr. Wall's December 2, 2019 conclusion that Defendant is incompetent to stand trial and that his competence to stand trial was nonrestorable. (Report of Dr. Yarnell-MacGrory, June 1, 2020.)
The Court notes that she incorrectly references Dr. Penn as having evaluated Defendant for his competency to stand trial. (Report of Dr. Yarnell-MacGrory, at 1.)
11. December 22, 2020 Report by Dr. Miller
On December 22, 2020, Richard Miller, M.D., also a staff psychiatrist with BHDDH and Defendant's treating psychiatrist at the time, authored a status report on Defendant's mental condition. He opined that Defendant was incompetent to stand trial and his competence was non-restorable. (Report of Dr. Miller, Dec. 22, 2020.)
12. November 5, 2021 Report by Drs. Wall and Virani
On November 5, 2021, Dr. Wall and Sanya Virani, M.D. submitted a SAR on Defendant's mental status. They opined that Defendant was mentally incompetent to stand trial and would not become competent prior to the dismissal of the charges against him pursuant to the applicable statute, § 40.1-5.3-3(k). (Report of Drs. Wall and Virani, Nov. 5, 2021.) They noted that Defendant denies mental illness while attributing past issues to his "spiritual journey." Id. at 4. They reported Defendant expressed a strong desire to "have his day in court and have a chance to prove his innocence." Id. at 7. "Mr. Khamvongsa explains several times that he will not accept/enter a plea of NGRI." Id. at 8. Drs. Wall and Virani attributed Defendant's failure to gain insight into his mental illness over his five-year hospitalization as evidence that he is nonrestorable. Id. at 10.
E. Court Orders on Defendant's Competency and Commitment
The Court has issued several uncontested orders requiring Defendant's continued commitment to the custody of the Director of BHDDH. On March 26, 2015, this justice found Defendant incompetent to stand trial. The Court has never modified this finding. At that time, the Court ordered Defendant admitted to ESH, found that he was "likely to imperil the peace and safety of the people of the state or to himself[; and] [t]hat he shall remain in the custody of the Director of [BHDDH] . . . until further order of this Court." (Order, Mar. 26, 2015.)
On July 28, 2015, the Court issued another order rejecting a one-page report submitted by Dr. Wall as lacking sufficient detail to assist the Court adequately in making a competency determination. The Court identified information required in a supplemental report and continued the case for further proceedings. (Order, Aug. 11, 2015.)
On October 19, 2015, the Court continued the case for hearing on Defendant's competency to stand trial. The Court ordered him to remain committed to the custody of BHDDH and not to be transferred from custody of BHDDH without notice. (Order, Oct. 30, 2015.)
In a February 1, 2022 Order, the Court continued to find Defendant incompetent to stand trial and noted that it was not then opining on two additional issues: "1. Whether a reasonable likelihood exists that the defendant will become competent prior to the dismissal of the charges pursuant to RIGL § 40.1-5.3-3(j), (k) [and] 2. Issues regarding 'dangerousness.'" (Order 5-6, Feb. 1, 2022.)
F. Defendant's Motion to Dismiss and Court Hearings
On October 28, 2021, through counsel, Defendant filed the instant Motion to Dismiss or, in the Alternative, to End Defendant's Commitment to the Director of BHDDH pursuant to § 40.1-5.3-3(v), (j). (Motion to Dismiss, Oct. 28, 2021.) He argues that there is no reasonable likelihood he will become competent within twenty years of commitment. He seeks the release of Defendant's commitment to the custody of the Director of BHDDH.
On July 22, 2022 and August 1, 2022, the Court conducted hearings on the instant motion. Drs. Wall and Recupero testified on the issues of whether Defendant is incompetent to stand trial and whether there exists a reasonable likelihood that he will be restored to competency within twenty years of his initial commitment to ESH. In preparation for her testimony, Dr. Recupero reviewed records and reports pertaining to Defendant's mental status that were prepared after her December 7, 2018 report and met again with Defendant. (Court Hr'g Aug. 1, 2022.)
Both psychiatrists opined that Defendant remains incompetent to stand trial and further testified that his competence is nonrestorable. (Court Hr'g July 22, 2022, Aug. 1, 2022.) Both explained Defendant suffers from paranoid schizophrenia, a severe mental illness. Defendant suffers from anosognosia, a symptom of this condition which causes Defendant to lack the insight necessary to understand and perceive his mental illness. This lack of insight prevents Defendant from appreciating the facts and circumstances of the event that resulted in Anthony Mitchell's death and his alleged involvement in that event. It also prevents him from understanding why he should consider pleading "NGRI" rather than "not guilty." Id. Consequently, he is "unable to understand the character and consequences of the proceedings against him . . . [and] is unable properly to assist in his . . . defense." Section 40.1-5.3-3(a)(5). Dr. Recupero noted the many years that have passed from Defendant's ESH admission and the treatment he has received and his continued lack of insight into his mental illness and the likely outcome of a trial based on a plea other than a NGRI plea. She opined that his mental illness coupled with his continued lack of insight rendered his competence to stand trial nonrestorable pursuant to § 40.1-5.3-3(k).
Both Drs. Wall and Recupero explained that the persistence of anosognosia over this length of time suggests that Defendant's lack of insight is permanent. Both witnesses opined that "there is no reasonable likelihood that in the foreseeable future the defendant will become competent." (Court Hr'g July 22, 2022, Aug. 1, 2022; § 40.1-5.3-3.)
II
Analysis
The Court now considers whether Defendant's charges must be dismissed pursuant to § 40.1-5.3-3. Murder charges against a defendant must be dismissed if he is incompetent to stand trial and there is no reasonable likelihood that his competency will be restored within two-thirds of thirty years after his commitment to the custody of BHDDH. Section 40.1-5.3-3(j).
Section 40.1-5.3-3 provides, in pertinent part:
"[Section] 40.1-5.3-3. Competency to stand trial
"(a) Definitions. As used in this section: ...
"(5) "Incompetent" or "incompetency" means mentally incompetent to stand trial. A person is mentally incompetent to stand trial if he or she is unable to understand the character and consequences of the proceedings against him or her or is unable properly to assist in his or her defense.
"(b) Presumption of competency. A defendant is presumed competent. The burden of proving that the defendant is not competent shall be by a preponderance of the evidence, and the burden of going forward with the evidence shall be on the party raising the issue. The burden of going forward shall be on the state if the court raises the issue.
"(c) Request for examination. If at any time during a criminal proceeding, prior to the imposition of sentence, it appears that the defendant is not competent, counsel for the defendant or the state, or the court, on its own motion, may request an examination to determine the defendant's competency.
"(d) Examination of defendant.
"(1) If the court finds that the request for examination is justified, the court shall order an examination of the defendant. The scope of the examination shall be limited to the question of whether the defendant is competent. ...
"(f) Reports of examining physicians. Each examining physician shall prepare a report, in writing, in which he or she shall state his or her findings concerning the
defendant's competency, together with the medical and other data upon which his or her findings are based...
"(g) Hearing. Upon receipt of the report and appropriate notice to the parties, the court shall hold a hearing unless the report concludes that the defendant is competent and the defendant and the attorney for the state in open court state their assent to the findings on the record. At the hearing, the report shall be introduced, other evidence bearing on the defendant's competence may be introduced by the parties, and the defendant may testify, confront witnesses, and present evidence on the issue of his or her competency. On the basis of the evidence introduced at the hearing, the court shall decide if the defendant is competent.
"(h) Commitment of the defendant.
"(1) If the court finds, after the hearing, that a defendant is competent, it shall proceed with the criminal case.
"(2) If the court finds that a defendant is incompetent, it shall commit him or her to the custody of the director for the purpose of determining whether or not the defendant is likely to imperil the peace and safety of the people of the state or the safety of himself or herself and whether the defendant will regain competency within the maximum period of any placement under this chapter.
"(3) Not later than fifteen (15) days from the date of the order of commitment, the director shall prepare and file with the court a written report in which he or she shall state his or her opinion regarding the defendant's dangerousness; the likelihood of the defendant becoming competent to stand trial within the maximum period of any placement order; and the recommendations of the department regarding appropriate care and treatment of the defendant.
" ... "(i) Hearing.
"(1) Upon receipt of the report and appropriate notice to the director, the attorney general, and the defendant, or his or her counsel, the court shall hold a hearing at which the report shall be introduced, other evidence bearing on the question of the mental condition of the person may be introduced by the parties, and the person may testify, confront witnesses, and present evidence." ...
"(3) If the court finds that a defendant who is incompetent is likely to imperil the peace or safety of the people of the state or the peace and safety of himself or herself, it may order the defendant to the [facility established] pursuant to § 40.15.3-1 [or to the general wards of the institute of mental health, if the director agrees that the defendant should be placed on the general wards]. A person who is ordered to be treated on inpatient status shall not be paroled, furloughed, placed on outpatient status or removed from a locked facility, or otherwise released from the institution where he or she is being treated except upon petition to the court by the director, on notice to the attorney general and the defendant, or his or her counsel, and after hearing thereon and entry of an order by a judge of the court authorizing release. The commitment ordered pursuant to this section shall terminate upon the occurrence of any of the following:
"(i) The defendant is determined by the court to be competent; or "(ii) The charges against the defendant are dismissed pursuant to subsection (j); or
"(iii) The charges against the defendant are dismissed or a nolle prosequi is entered; or "(iv) The defendant is civilly committed pursuant to § 40.1-5-8; or
"(v) The court finds there is no reasonable likelihood that in the foreseeable future the defendant will become competent and his or her condition is such that he or she cannot properly be committed under § 40.1-5-8.
"(j) Period of commitment. When a court commits a defendant pursuant to subsection (i)(2) or (i)(3), it shall compute, counting from the date of entry to the order of commitment, the date of the expiration of the period of time equal to two thirds (2/3) of the maximum term of imprisonment for the most serious offense with which the defendant is charged. If the maximum term for the most serious offense charged is life imprisonment or death, the court shall, for the purpose of computation, deem the offense to be punishable by a maximum term of thirty (30) years. In the order of commitment, the court shall provide that if, on the date so computed, the defendant is still committed under the order, the charges against him or her shall be dismissed.
"(k) Periodic review. The director shall petition the court to review the state of competency of a defendant committed pursuant to subsection (i)(2) or (i)(3) not later than six (6) months from the date of the order of commitment and every six (6) months thereafter, or when the director believes the defendant is no longer incompetent, whichever occurs first. Outpatient facilities that are providing treatment to defendants in accordance with subsection (i)(2) shall prepare reports to be submitted to the director in accordance with the requirements of this section. The director shall attach to the petition a report on the condition of the defendant. If the report indicates that the defendant remains incompetent, it shall include a prognosis regarding the likelihood that he or she will become competent prior to the dismissal of the charges pursuant to subsection (j). Copies of the report shall be given to the attorney for the state and to the defendant or his or her counsel.
"(l) Defendant's right to petition. A defendant committed pursuant to subsection (i)(2) or (i)(3) may at any time petition the court to review the state of his or her competency.
"(m) Hearing on petition. Upon receipt of a petition pursuant to subsection (k) or (1) and appropriate notice to the defendant, the state, and the director, the court shall hold a hearing at which the parties may introduce evidence as to the defendant's competency, including any reports of the director, and the defendant may testify, confront witnesses, and present evidence as to his or her competency and prognosis. On the basis of the evidence, the court shall make a finding as to the defendant's competency and, if he or she is found to be incompetent, whether a reasonable likelihood exists that he or she will become competent prior to the dismissal of the charges pursuant to subsection (j). If the court finds that the defendant is competent, it shall enter an order to that effect. If the court finds that the defendant is incompetent and that a reasonable likelihood exists that he or she will become competent prior to the dismissal of the charges pursuant to subsection (j), it shall order continuation of the commitment of the defendant. If the court finds that the defendant is incompetent and that a reasonable likelihood does not exist that he or she will become competent prior to the dismissal of the charges pursuant to
subsection (j), it shall order that thirty (30) days thereafter the defendant be discharged from detention under the order of commitment. Upon entry of the order, the state may commence proceedings seeking to commit the defendant pursuant to § 40.1-5-8.
"(n) Statements inadmissible. No statements made by a defendant in the course of an examination conducted pursuant to subsection (d) or during a hearing conducted pursuant to subsection (i) or (m) shall be admissible in evidence against the defendant in any criminal action on any issue other than his or her mental condition. The statements shall be admissible on the issue of his or her mental condition even though they might otherwise be deemed to be privileged communications.
"(o) Disposition of charges. The court may, at any time, proceed to a disposition of the charges pending against a defendant who has been committed pursuant to subsection (i)(2) or (i)(3) if the factual and legal issues involved can be resolved without regard to the competency of the defendant." Section 40.1-5.3-3.
This statute is consistent with the United States Supreme Court's landmark opinion in Jackson v. Indiana, 406 U.S. 715 (1972). In that case, the Court held that
"a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant." Id. at 738.
A. Calculation of Maximum Period of Confinement
Defendant was committed to the custody of BHDDH in 2015, over seven years ago. Under § 40.1-5.3-3, criminal charges against a defendant must be dismissed if there is no reasonable likelihood that he will be restored to competency before the expiration of two-thirds of the maximum penalty for those charges. Section 40.1-5.3-3(j). For purposes of such calculation, if the criminal charge carries a life sentence, the maximum sentence is thirty years, and two-thirds of that sentence is twenty years. Section 40.1-5.3-3(j). The Court considers whether the Defendant has proven that there is no likelihood that he will be restored to competency before 2035, twenty years after he was committed to the custody of BHDDH.
The State argues because the maximum penalty for conviction under Counts I and II of the indictment would be consecutive life sentences, the maximum period of confinement should equal forty years (two-thirds of sixty years), rather than twenty years (two-thirds of thirty years). (Court Hr'g Aug. 1, 2022.) The State contends that Defendant must prove that there is no reasonable likelihood that he will be restored to competency before 2055, not 2035. The State then suggests that there may be advances in treatment for Defendant's anosognosia by 2055 which would restore him to competency. This argument is flawed for two reasons: First, neither expert witness who testified at trial has a "crystal ball." The Court would not permit them to offer an opinion that, at an unknown time in the future, psychiatrists will be able to treat Defendant's anosognosia with medications that have not yet been developed. It is well established that an expert's opinion cannot be based upon "speculation, mere conjecture or surmise." Morra v. Harrop, 791 A.2d 472, 477 (R.I. 2002).
Second, the State incorrectly interprets § 40.1-5.3-3(j) as providing for a calculation based upon consecutive sentences. The statute refers to "two thirds (2/3) of the maximum term of imprisonment for the most serious offense with which the defendant is charged." Section 40.1-5.3-3(j) (emphasis added). The statutory language references "the most serious offense," not "offenses." The most serious offense carries a maximum sentence of life in prison. The statute provides that the calculation on a life sentence must be based upon two-thirds of a thirty-year sentence, or twenty years. If the General Assembly had intended the calculation be made on multiple charged offenses, the statute would have read differently.
The word "offense" must be given its plain and ordinary meaning as singular rather than plural. "[W]hen the language of a statute is clear and unambiguous, [the] Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996); see also Planned Environments Management Corp. v. Robert, 966 A.2d 117, 121 (R.I. 2009).
B. The Court's Findings as to Defendant's Competency
The Court now turns to the question of whether there is no reasonable likelihood that Defendant's competency to stand trial will be restored by the expiration of twenty years following his commitment to the custody of BHDDH. In making this determination, the Court has reviewed all of the evidence offered at the Court hearings on July 22, 2022 and August 1, 2022, including the testimony of Drs. Wall and Recupero.
The Court finds Dr. Recupero's testimony compelling. She carefully reviewed the factual basis for her opinions that Defendant was incompetent to stand trial and her further opinion that he will not attain his competency to stand trial during the period of commitment set forth in § 40.1-5.3-3(j). Her opinion was buttressed by the thoroughness of her review of the facts and circumstances upon which she based her opinions. The Court was impressed with her unparalleled credentials and the manner in which she testified at the hearing. Dr. Recupero's opinion never wavered. She was consistent in her opinion as to Defendant's incompetence and nonrestorability.
The report of Dr. Penn emphasized how important it would be for Defendant to fully appreciate that his only reasonable defense to the charges against him likely would be to plead NGRI. His report was credible and provided the Court with guidance as to the significance of Defendant's failure to appreciate the applicability of that plea to the facts surrounding his case. Defendant's lack of insight into his mental illness and lack of appreciation of his involvement in Anthony Mitchell's death strongly suggest his incompetency to stand trial. He is "unable to understand the character and consequences of the proceedings against him ... [and] is unable properly to assist in his . defense." Section 40.1-5.3-3(a)(5)
The opinions expressed by Dr. Wall in his testimony at the Court hearing on July 22, 2022 mirrored those of Dr. Recupero. The Court accepts that testimony but questions the basis of his previous findings that Defendant ever was competent to stand trial while committed to the custody of the Director of BHDDH.
Based upon all of the facts and circumstances presented to the Court, including the exhibits and the testimony, it is clear that Dr. Wall erred when he found Defendant competent to stand trial on September 22, 2015 and again on May 5, 2017. In the September 22, 2015 report, Dr. Wall found Defendant competent, but qualified his competency as "fledgling" because Defendant demonstrates a "lack of insight into his mental illness [that] appears to impact his ability to appreciate all possible pleas." (Report of Dr. Wall 14, Sept. 22, 2015.) The Court rejects this finding. If Defendant lacked insight into his mental illness, that symptom of his condition rendered him unable to adequately consider a NGRI plea. There was nothing "fledgling" about it. Due to his mental illness, Defendant was then unable to participate in his defense. It is clear to the Court that Dr. Wall neglected to consider that Defendant's anosognosia rendered him incompetent to stand trial.
Dr. Wall's subsequent finding that Defendant was competent to stand trial was likewise flawed. In his May 5, 2017 report, Dr. Wall opined that Defendant's competence to stand trial had been restored merely because Defendant said that he would agree to plead NGRI. However, Defendant's statements to Dr. Wall did not suggest that such plea would have been knowing, voluntary, or intelligent. Defendant continued to deny having any and all past symptoms of mental illness, and there was no mention in the report that he accepted his involvement in Anthony Mitchell's death. Dr. Wall's conclusion that Defendant was then competent to stand trial was superficial and did not consider the Court's obligation to reject a plea that does not appear knowing, voluntary, or intelligent.
The Court rejects those two opinions expressed by Dr. Wall as lacking basis in fact and inconsistent with the statutory definition of incompetence to stand trial. See § 40.1-5.3-3(a)(5). The record fails to demonstrate any occasion where Defendant adequately appreciated the severity of his mental illness, his involvement in Anthony Mitchell's death, or the applicability of a NGRI plea to the charges against him.
The Court accepts Dr. Wall's ultimate conclusion that Defendant is incompetent to stand trial and is nonrestorable but remains baffled as to why he concluded that Defendant was competent either on September 22, 2015 or on May 5, 2017. The Court accepts the opinions expressed by Dr. Recupero in her report of December 7, 2018 and her testimony on August 1, 2022 as highly credible Her opinions were consistent and were expressed clearly and concisely. The Court was impressed by her outstanding credentials.
Based upon all of the facts and circumstances presented in this matter, the Court finds that Defendant, through counsel, has met his burden of proof. Defendant is incompetent to stand trial and his competency is nonrestorable.
III
Conclusion
Based on all of the evidence before the Court and the applicable law, the Court finds that Defendant is incompetent to stand trial and that no reasonable likelihood exists that he will become competent in the foreseeable future and not prior to the dismissal of the charges pursuant to § 40.15.3-3. In accordance with those findings, the Court grants Defendant's motion to dismiss the charges against him.
The charges set forth in the indictment shall be dismissed. Defendant shall be discharged from detention under the order of commitment thirty days following entry of an order consistent with this Decision. Upon information and belief, upon entry of the order, the State will be commencing proceedings seeking to commit the Defendant pursuant to § 40.1-5-8, the civil court certification statute. (Court Hr'g Aug. 1, 2022.)
Counsel shall prepare the appropriate order for entry.