Opinion
A-13528
06-19-2024
E.T., Appellant, v. STATE OF ALASKA, Appellee.
Kelly R. Taylor, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Trial Court No. 3AN-12-06051 CR
Appearances:
Kelly R. Taylor, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
Judge ALLARD, writing for the Court.
MEMORANDUM OPINION
E.T. was convicted, following a jury trial, of one count of first-degree assault and two counts of attempted first-degree assault based on a violent altercation in which E.T. stabbed one police officer and attempted to stab two other police officers.
Because E.T.'s competency remains an open question on the record currently before us, we granted the defense attorney's request to use initials instead of his name.
AS 11.41.200(a)(1) and AS 11.41.200(a)(1) & AS 11.31.100(a), respectively.
On appeal, E.T. argues that the superior court erred in finding him competent to stand trial and further erred in failing to revisit the issue of competency after E.T. provided bizarre and incoherent testimony at trial and prior to sentencing. Because we are unable to determine the basis for the superior court's conclusions from the current record, we remand this case for further clarification and, as appropriate, a retrospective competency determination.
Because we are remanding for further proceedings, we do not address E.T.'s challenges to his sentence at this time.
Background facts
Around 2:00 a.m. on June 18, 2012, Anchorage Police Officers Keo Fujimoto and Nathan Keays responded to a report of a disturbance, possibly involving a gun, in the parking lot of an Anchorage apartment building. E.T. and a woman were standing in front of the building when the officers arrived. Officer Fujimoto, the first officer to respond to the scene, called out to E.T. and the woman, asking what was going on. In response, E.T. reached into the body of his jacket. After Officer Fujimoto asked what he was doing, E.T. took his hand out of his jacket and then placed both hands in his jacket pocket. Officer Keays began approaching E.T. and the woman from the other side, while Officer Fujimoto continued to ask the pair what they were doing. E.T. responded that he was just talking to the woman; however, the woman denied even knowing E.T.
Because E.T.'s behavior concerned him, Officer Fujimoto told E.T. he was going to pat E.T. down to make sure that he had no weapons. However, E.T. pulled away from the officers and started swinging his arms at the officers. He attempted to run away, which caused the officers to chase after him. Officer Fujimoto testified that, while trying to restrain E.T., he felt E.T. hitting his leg multiple times. The officers then discovered that E.T. had a knife (a folding pocketknife with a three inch blade) and began shouting at him to drop the knife. E.T. refused to do so and continued to struggle with the officers. The officers took E.T. down onto the ground and attempted to subdue him while Officer Keays placed his gun onto E.T.'s head and continued to yell at him to drop the knife. E.T. continued to refuse.
A third officer, Officer George Vrablik, responded after Officer Keays radioed for help. Officer Vrablik stepped on E.T.'s forearm of the hand that was holding the knife and placed the muzzle of his shotgun on E.T.'s palm in an attempt to get E.T. to drop the knife. E.T. still refused to drop the knife and continued to move the knife around close to Officer Vrablik's foot while laughing at the officers. The officers began hitting E.T.'s hand with a police baton until they broke his hand. It was only then that E.T. dropped the knife.
The officers eventually were able to handcuff E.T., and placed him in total restraints, meaning his arms and legs were bound together. Once E.T. was restrained, Officer Fujimoto discovered that he had been stabbed in the thigh by E.T.'s pocketknife. Officer Keays discovered that his ballistic vest had slash marks near his neck and back. Officer Vrablik was unharmed despite E.T.'s attempts to stab him.
Officer Fujimoto sought medical treatment for his injury. The doctor who examined Fujimoto later testified that the knife had entered the outer portion of Fujimoto's thigh just below the hip socket, cutting a tendon and causing damage to the femur bone. The injury ultimately healed, but the doctor testified that it could have been "catastrophic" if the knife had cut one of the major arteries in the upper leg.
The State charged E.T. with one count of first-degree assault (for stabbing Officer Fujimoto in the leg) and two counts of attempted first-degree assault (for attempting to stab Officer Keays and Officer Vrablik).
AS 11.41.200(a)(1).
AS 11.41.200(a)(1) & AS 11.31.100(a).
Pretrial proceedings
E.T. was represented by a series of assistant public defenders, most of whom expressed competency concerns about E.T. to the superior court.
The first time competency was raised was two years into the case. Assistant Public Defender James Ferguson requested a competency hearing a few weeks before trial was scheduled to begin. The superior court granted the request and ordered a competency evaluation.
The competency evaluation was completed by Dr. Kristy Becker, a forensic psychologist at the Alaska Psychiatric Institute, and Dr. Wendy Elliot, a licensed psychologist at the Alaska Psychiatric Institute. The psychologists diagnosed E.T. with Delusional Disorder, Mixed Type. Their report indicated that the Department of Corrections had previously diagnosed E.T. with a delusional disorder, polysubstance dependence, and a personality disorder with antisocial and narcissistic traits. However, E.T. was not receiving any psychotropic medication, and he reported no history of past psychiatric treatment.
The psychologists reported that E.T. presented with "symptoms of delusional thought processes" that impaired his judgment and interfered with his ability to make rational assessments of his circumstances. According to the report, E.T. had "an excellent factual understanding of his charges, and the proceedings against him," but he lacked "a sound rational understanding of the proceedings" because of his persecutory delusions. The psychologists reported that E.T. was not able to discuss his alleged crime "in a logical fashion," nor was he "able to make informed decisions that are free from influence of his delusional symptoms." As one example of his irrational thinking, the report noted that E.T. believed his case would be dismissed because of his injuries and he was focused on seeking compensation for those injuries in federal court. The report also noted other delusions, such as E.T.'s belief that the police officers were not actually police officers, and that he was related to unnamed "important people" in Alaska. The report ultimately concluded that, despite E.T.'s "factual knowledge" being intact, "he appears to have neither a rational ability to proceed, nor the ability to meaningfully assist counsel in his defense," and he was therefore currently incompetent to stand trial.
The court held an evidentiary hearing at which Dr. Becker testified to the findings in the report. Dr. Becker testified that E.T. was "unable to really create a narrative of his crime . . . it's littered with this delusional thinking." She noted that E.T.'s delusions were focused around a "concern about corruption in local law enforcement" and that he believed the arresting officers were not actually police officers, but were instead involved in a robbery. Dr. Becker testified that E.T. would be difficult to confer with during trial because his understanding of the trial would be rooted in his delusions rather than reality, and she opined that he would likely be unable to separate reality from delusion if he testified. Dr. Becker further testified that she did not think this was a close case, and that she had "more than a preponderance" when she concluded that E.T. was incompetent.
By the time of the evidentiary hearing, E.T.'s defense attorney had been replaced by a new defense attorney. The new defense attorney, Assistant Public Defender Jonathan Torres, filed a post-hearing brief in which he argued that the superior court should find E.T. incompetent based on Dr. Becker's testimony and the report.
The State filed its own post-hearing brief in which it argued that E.T. had failed to prove that he was incompetent. The State's brief focused on E.T.'s "excellent" factual understanding and E.T.'s lengthy criminal history, and it argued that Dr. Becker's analysis was based primarily on her disagreement with what she viewed as E.T.'s "irrational" defense strategy of focusing on his injuries.
The superior court issued a written order in which it found E.T. competent to stand trial. The court's order emphasized E.T.'s lengthy criminal history, his experience with the criminal justice system, and his "excellent" factual understanding of the charges and proceedings. The order also indicated that the court did not find Dr. Becker's conclusion that E.T. lacked a rational understanding of his situation to be "convincing." Instead, the court believed that it was not necessarily irrational for E.T. to be focused on his injuries because a person in E.T.'s situation could rationally think that "a conviction is a foregone conclusion" and that "pushing his injury-related claims may give him a chance at jury nullification or as a bargaining chip to use in overall negotiations with the Department of Law."
The court noted that it had "no idea whether [E.T.] has actually reached these conclusions," but concluded that "such thinking is not irrational." The court further noted that "famously, such notable strategists as Carl von Clausewitz and Mao Tse-Tung have taught that distracting one's opponent with an unexpected attack may lead to victory." The court therefore concluded that "[t]he beliefs and views expressed by [E.T.] to date are not necessarily irrational" and the court further concluded that "[g]iven the presumption of competence and [E.T.]'s excellent factual understanding of the charges and proceedings," E.T. had failed to prove by a preponderance of the evidence that he was incompetent to stand trial.
E.T.'s attorney filed a motion for reconsideration, arguing that the question was not whether "a hypothetical non-delusional defendant could conduct himself similarly to [E.T.] and yet be acting rationally," but rather whether E.T.'s delusional disorder "impact[ed] his ability to recall and relate the facts of his case." The defense attorney similarly argued that the question was "not whether a hypothetical defendant could malinger his symptoms . . . but whether that is what [E.T.] is doing." The court denied the motion for reconsideration in a summary order without any additional explanation.
E.T.'s case was later continued for almost four years in large part because E.T. did not wish to proceed to trial. During this time, E.T.'s attorney was replaced by a new defense attorney. The new defense attorney, Assistant Public Defender Mary Burnell, expressed continuing concerns about E.T.'s competency, and explained that she was in a difficult position because, like E.T.'s prior attorneys, she had not been able to have any meaningful conversation with E.T. about how to move forward with the case.
Burnell explained that E.T. had turned down a plea offer several years prior that would have resulted in a time-served sentence, but he also did not want to go to trial. The superior court asked Burnell if she was ready for trial, and she responded that she was "as ready as I can be without consulting with my client about the case."
The prosecutor noted that the case had been pending for over six years at this point and the State had already been prejudiced because some of its witnesses had died. The superior court agreed that no further delay should occur.
In response, Burnell said that she wanted to be clear "for the sake of the record," that by agreeing to the trial date, she was not conceding that E.T. was competent to stand trial. Her position remained that E.T. was incompetent to stand trial. The superior court responded that she had "certainly preserved that point for appeal" and set the case for trial two weeks later.
E.T.'s testimony at trial
At trial, the State presented evidence of E.T.'s altercation with the three police officers, E.T.'s stabbing of the one officer, and his attempts to stab the other two officers.
E.T.'s trial attorney argued a variety of defenses. She argued that the officer's injury did not qualify as a serious physical injury and that E.T. had not intended to inflict serious physical injury on the other two officers. She also argued that E.T. had acted in self-defense in response to a "terrifying situation."
E.T. testified on his own behalf at trial. His testimony was incoherent and bizarre. E.T.'s testimony began as follows:
I was born in 1964. I was pronounced Sun King of Lima, Peru, domain and dominions, when I was a little boy. We came to the United States shortly thereafter. My relatives in the United States are the George Herbert Walker Bush family, Senior . . . who recently passed away.
I've got a background connected to Langley Air Force Base and Langley, Virginia CIA headquarters. I am with the CIA. And I agreed to stay in the United States during the long term and put in a career working for the federal U.S. Department of Defense and Treasury Department.
And my family - my primary family was murdered amidst an attempt to - to get my brother back from some kidnappers.E.T.'s testimony continued in the same vein. He testified that he had "diplomatic immunity" through the governor's office and the Secret Service and that Joint Base Elmendorf-Richardson and Eielson Air Force Base "keep an overhead-based satellite on [him]."
When asked about what he was doing at the apartment complex the night of the incident, E.T. stated he was "looking into some things" while working undercover for the CIA to reveal police corruption. He stated he "had [his] eye on this particular place" because a man "was rumored to have been in possession of a police badge and some police uniforms." He stated that the CIA had provided him with a license to possess and sell cocaine and he "had numerous contacts with . . . the Anchorage Police Department." The prosecutor objected to his testimony as a narrative, and the superior court sustained the objection.
E.T. proceeded to testify that on the evening of the incident, he "heard there were people involved in some trafficking that had police uniforms illegally" and he called his "contact" because "something ain't right." He further testified that the police were "dropping the dope off" and he needed to "straighten this out." He testified that this was around when the police approached him, but he "did not know who these people were." He stated that he thought he was being robbed and "jumped" because all he could see was a "dark shadow." He stated that he "popped the knife open" because he "wanted to show" the Eielson Air Force Base, who keeps "an overhead-based satellite on [him]," a "good, clear photograph" of what was happening to him. He proceeded to testify that he thought these men were trafficking drugs and were part of organized crime.
After E.T. testified, the prosecutor asked the court to instruct the jury that "the defendant's competency is not . . . part of the jury's deliberations." E.T.'s attorney then asked the superior court to revisit the issue of competency. The court described E.T.'s testimony as "a wild, almost unbelievable account," but refused to revisit the question of competency. The court also refused to give the prosecutor's requested instruction on competency, although the court amended the usual instruction on self-defense to define an "objectively reasonable belief" as a belief that "a reasonable, mentally healthy, and sober person would have held." (Emphasis added.)
During closing argument, the prosecutor referred to E.T.'s testimony as "interesting," and he commented that "there is something going on with [E.T.]." When the prosecutor stated that E.T. did not actually have a permit to buy and sell cocaine, E.T. interrupted and interjected a number of statements before the court could regain control. The prosecutor then urged the jury not to view E.T.'s mental health issues as a reason for sympathy or leniency and suggested that E.T. had crafted this narrative in order to elicit sympathy. After E.T. interrupted a second time, the prosecutor argued that "they want you to believe there's some delusions," and he again urged the jury not to fall for this tactic, which he argued was calculated to elicit sympathy.
Following deliberations, the jury convicted E.T. of all charges.
The parties' sentence memorandums and the defense request to revisit the issue of competency
Prior to sentencing, E.T.'s attorney filed a sentencing memorandum in which she again raised competency concerns and recounted the recurrent problems that E.T.'s attorneys had in communicating with him. The attorney pointed out that E.T.'s prior counsel had moved for reconsideration after the superior court found E.T. competent because the prior counsel continued to believe that E.T. was unable to assist in his own defense. And the attorney pointed out that she continued to have concerns about E.T.'s competency and his ability to assist in his own defense. The attorney noted E.T.'s irrational decision to refuse a time-served offer from the State while also refusing to go to trial. And the attorney noted the bizarre nature of E.T.'s testimony at trial. The attorney therefore requested that the court revisit the issue of competency prior to sentencing.
The State submitted a sentencing memorandum that focused on E.T.'s lengthy criminal history and his poor record on supervision. The State proposed a number of statutory aggravating factors based primarily on E.T.'s criminal history and argued that E.T. qualified as a "worst offender." The State requested that the court impose the maximum sentence for each of the convictions and that the court run all three sentences entirely consecutively for a composite sentence of 40 years to serve.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) (providing that a worst offender finding may be based on the defendant's history, the current offense, or both).
The State's memorandum included excerpts from past presentence reports in which multiple probation officers had characterized E.T. as a worst offender. None of the prior presentence reports included in the record mentioned anything about E.T. having delusions.
Attached to the 2000 presentence report was a 2000 competency evaluation completed by Dr. Lawrence Maile, a licensed psychologist at the Alaska Psychiatric Institute. Dr. Maile diagnosed E.T. with Antisocial Personality Disorder, which he clarified was not a diagnosis of a mental illness. Dr. Maile noted that E.T. "makes some statements which are reminiscent of delusions or paranoia; however, these do not have the flavor of paranoia in a typical psychiatric patient." Dr. Maile viewed these statements as "characteristic of an angry man who has had legal difficulties over an extended period of time." Dr. Maile also noted that E.T. might direct his attorney "to do things which are not consistent with standard legal defenses," but he opined that "[t]his does not reflect a psychotic disorder or any other mental illness on [E.T.]'s part, but rather his understanding of how to best proceed with his legal defense." Dr. Maile ultimately concluded in 2000 that there were no psychiatric impediments to E.T. being found competent to stand trial or serving as his own attorney.
Also attached to the State's memorandum was a transcript with sentencing comments from a November 2000 sentencing involving Superior Court Judge Michael Wolverton. In his comments, Judge Wolverton said to E.T.:
You strike me at times as a very engaging bright person. And I think that you just have a disturbing worldview. You look at the world the way you want to. I don't think you're dishonest about it but I just don't agree with you. I wish you didn't have to look at the world that way. I think it prohibits you from contributing what you have to offer and I really mean that.Judge Wolverton did not refer to any "delusions" in his 2000 sentencing remarks. However, the transcript shows that E.T. refused to sign his paperwork because he considered the hearing "an illegal proceeding." In addition, while being fingerprinted, E.T. asked Judge Wolverton if he had "covered up Prince Charles' murder of Maximillion (inaudible)?" The judge replied, "Nope."
The sentencing hearing
At the beginning of the sentencing hearing, the superior court noted that the defense attorney had raised competency again. The court noted that "this issue has come up a number of times throughout the trial, and he's been found to be competent." The court asked the defense attorney if she had any evidence to offer on the issue.
The defense attorney pointed out that E.T. had rejected the State's time-served offer but also consistently refused to go to trial. She also argued that E.T.'s bizarre trial testimony raised concerns about his mental fitness. She requested that an updated evaluation be performed through the Alaska Psychiatric Institute.
The prosecutor argued that E.T. was competent. The prosecutor asserted that E.T. had also testified to being the "Sun King of Lima, Peru" in 2000 and had been found competent in that case. The prosecutor also asserted that E.T. had been found competent in 2007 in addition to the 2015 competency finding by the superior court in the current case. The prosecutor argued that E.T.'s testimony in the current trial reflected a "game that [E.T.] plays," rather than a competency issue.
We are unable to verify if, and to what extent, E.T.'s testimony in 2000 was similar to his testimony in 2019 because the record does not include a copy of the 2000 testimony.
We note that there is nothing in the current record regarding a 2007 competency evaluation and it is unclear when or how competency was raised or determined at that time.
The defense attorney pointed out that prior competency determinations were not dispositive because competency can be fluid. She argued that E.T.'s testimony constituted a change in circumstances that required the court to revisit the 2015 competency determination, and she again repeated her belief that E.T. had been unable to assist his defense during trial.
The superior court denied the defense attorney's request for another evaluation. The court noted Judge Wolverton's view that E.T. was "a smart person" and "someone who could contribute if he . . . decided he was going to contribute." The court stated that "jibes with [the court's] observations," and that E.T. just had a world view that was "antisocial." The court found that "if [E.T.] wanted to stay out of jail, he is certainly capable of assisting his attorney and working with his attorney, based on [the court's] observations." The court therefore concluded that the presumption of competency had not been overcome and the sentencing would proceed.
The prosecutor repeated the same arguments he had made in his sentencing memorandum, arguing that E.T. was a dangerous "worst offender" who should receive a maximum sentence.
The defense attorney stated that she could not speak to many of the factual issues raised by the prosecutor because of E.T.'s "either inability or unwillingness to confer with [counsel]." She urged the court not to impose fully consecutive sentences under Neal/Mutschler.
See Neal v. State, 628 P.2d 19, 20-21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
The court imposed the maximum sentence for each conviction, running the time fully consecutively for a composite sentence of 40 years to serve.
This appeal followed.
The appellate attorney's notice of competency concerns
After the appeal was filed, the assigned appellate attorney filed a notice expressing her concerns about E.T.'s competency. The attorney noted that Dr. Becker had found E.T. incompetent and that E.T.'s defense attorneys had continued to maintain that E.T. was incompetent through and after trial. The attorney explained that she had spoken with E.T. and those communications had "raised concerns about his ability to consult meaningfully with appellate counsel." She stated that she was notifying the court of her competency concerns but that she would continue to work on E.T.'s appeal pursuant to this Court's decision in Buxton v. State.
Buxton v. State, 352 P.3d 436 (Alaska App. 2015).
In Buxton, this Court held that a criminal defendant's direct appeal would proceed notwithstanding the appellate attorney's concerns that the defendant was incompetent. Our holding was based on the American Bar Association's Criminal Justice Mental Health Standards, which advises appellate attorneys to make their competency concerns known to the appellate court but to nevertheless proceed with the appeal on behalf of the defendant, raising "all issues deemed by counsel to be appropriate." This policy is based on three assumptions: (1) that defendants generally wish to move forward expeditiously with their appeals because it is in their best interests to do so; (2) that while a defendant makes the decision of whether to appeal, the decision of what to appeal generally belongs to the attorney; and (3) that a defendant's incompetence "rarely affects the fairness or accuracy of appellate decisions" because defendants generally do not actively participate in appellate proceedings. The decision also notes, however, that "if the defendant can later show that he was prejudiced by his appeal moving forward despite his mental incompetency, he will be able to obtain appropriate relief through subsequent post-conviction proceedings."
Id. at 438.
Id. at 437-38 (quoting ABA Criminal Justice Mental Health Standards § 7-5.4(b)(ii) (1989)).
Id. at 437-38 (quoting Commentary Introduction to ABA Criminal Justice Mental Health Standards § 7-5.4 (1989)).
Id. at 438.
In accordance with Buxton, this appeal has been fully briefed and considered by this Court, notwithstanding the ongoing competency concerns raised by E.T.'s appellate attorney.
Why we conclude that a remand for further clarification and, as appropriate, a retrospective competency determination should occur
Under the federal constitution, a defendant is competent to stand trial if the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "he has a rational as well as factual understanding of the proceedings against him." Alaska Statute 12.47.100(a) similarly provides that a defendant is incompetent to stand trial if "as a result of mental disease or defect . . . the defendant is unable to understand the proceedings against the defendant or to assist in the defendant's own defense."
Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam).
AS 12.47.100(a); see also Gamble v. State, 334 P.3d 714, 716 (Alaska App. 2014) (noting that the Alaska statutory standard for competency to stand trial necessarily incorporates the federal constitutional standard for competency to stand trial).
The prosecution and conviction of a defendant who is not competent to stand trial violates the defendant's due process right to a fair trial. As the Alaska Supreme Court has explained, "The accuracy of the factfinding process, the philosophy of punishment and the appearance of fairness in the adversary system are severely compromised by the conviction and sentencing of a defendant who is unable to consult with his attorney and rationally understand the charges against him." For these reasons, a defendant who is incompetent "may not be tried, convicted, or sentenced for the commission of a crime so long as the incompetency exists."
Drope v. Missouri, 420 U.S. 162, 172 (1975).
McKinney v. State, 566 P.2d 653, 658 (Alaska 1977), on reh'g, 570 P.2d 733 (Alaska 1977), and overruled on other grounds by Evans v. State, 645 P.2d 155 (Alaska 1982).
AS 12.47.100(a).
A trial court has a duty to order a competency evaluation whenever there is good cause to believe that the defendant may be incompetent to stand trial. A defendant is presumed to be competent under Alaska law, and, as a general matter, the party raising the issue of competency bears the burden of proving the defendant is incompetent by a preponderance of the evidence. Of considerable importance to this case, "the duty to determine competency is not one that can be once determined and then ignored." Rather, because competency can be fluid, "a trial court is required to be responsive to competency concerns throughout the criminal proceeding."
See Leonard v. State, 658 P.2d 798, 799 (Alaska App. 1983) ("Once a motion is made under AS 12.45.100, that is neither frivolous nor lacking in good faith and that sets forth reasonable cause to believe the accused may be incompetent, the trial court has a mandatory duty to order an examination.").
AS 12.47.100(c) ("A defendant is presumed to be competent. The party raising the issue of competency bears the burden of proving the defendant is incompetent by a preponderance of the evidence. When the court raises the issue of competency, the burden of proving the defendant is incompetent shall be on the party who elects to advocate for a finding of incompetency. The court shall then apply the preponderance of the evidence standard to determine whether the defendant is competent.").
Smiloff v. State, 579 P.2d 28, 36 (Alaska 1978).
Gamble v. State, 334 P.3d 714, 717 (Alaska App. 2014).
Under current Alaska Supreme Court case law, a trial court's competency determination is reviewed for "substantial evidence." This is a deferential standard of review that acknowledges the fact-intensive nature of the competency determination and the fact that the trial court is in a position to directly observe the defendant while an appellate court is not.
See McKinney v. State, 566 P.2d 653, 659 (Alaska 1977), on reh'g, 570 P.2d 733 (Alaska 1977), and overruled on other grounds by Evans v. State, 645 P.2d 155 (Alaska 1982) (holding that if the trial court applies the correct standards of law, the role of the appellate court is limited to determining whether, viewing the evidence in the light most favorable to the State, there is substantial evidence in the record to uphold the ruling below). On appeal, E.T. argues that this Court should review de novo "the legal significance of the trial court's factual determinations." But under the doctrine of stare decisis, this Court is not allowed to depart from supreme court precedent. Thus, E.T. must present his arguments for a different standard of review to the supreme court, not to this Court.
Id. ("If there is substantial evidence [supporting the trial court's competency decision], we will not substitute our opinion for that of the trial court.").
Although our review is deferential, due process also requires it to be meaningful. As we recently explained in an unpublished case:
[T]his is an area of law where each case must largely be evaluated on its particular facts, and where an appellate court must extend substantial deference to the observations and findings of the trial judge. What an appellate court can properly demand, however, is that trial judges take assertions of incompetency seriously, that judges conscientiously investigate this issue when there are obvious grounds to do so, and that judges put the reasons for their decision on the record (either orally or in writing) so that an appellate court can meaningfully review their ruling.
Williams v. State, 2016 WL 756970, at *7 (Alaska App. Feb. 24, 2016) (unpublished) (citations omitted).
In this case, the current record is inadequate for us to determine whether the superior court properly fulfilled its legal obligations. The primary problem we face is that the court did not meaningfully revisit the question of competency after E.T.'s trial testimony in April 2019 when requested to do so by the defense attorney. By this point in time, more than four years had passed since the psychologists had evaluated E.T. and opined that he was incompetent. During those four years, E.T.'s defense attorney continued to express concern that E.T. would not work with her, and E.T. continued to act in an erratic, and seemingly irrational, manner, not only refusing to take a time-served offer but also refusing to come to court, to work with his attorney, or to take the case to trial.
When the trial did finally occur in E.T.'s case, E.T. provided bizarre and incoherent testimony about being the Sun King and an undercover operative for the CIA. E.T. also made a number of outbursts in court when the prosecutor challenged some of his fantastical assertions. The bizarre nature of E.T.'s trial testimony spurred the prosecutor to request that the court instruct the jury that it was not to consider competency. Although the court did not give the jury a competency instruction, the prosecutor's request demonstrates that competency issues were forefront in both parties' minds. The bizarre nature of E.T.'s testimony also spurred the defense attorney to request that the court order a second competency evaluation and revisit its competency ruling.
However, the superior court did not order a second competency evaluation, and the court only addressed competency in an abbreviated manner at sentencing. The court noted Judge Wolverton's view (during the 2000 sentencing) that E.T. was "smart," which the court said "jibes with [the court's] observations" that E.T. was "articulate and intelligent" but had an "antisocial" worldview. The court also stated that its observations led it to believe that "if E.T. wanted to stay out of jail, he is certainly capable of assisting his attorney and working with his attorney." The court did not explain what those observations were or when they occurred.
The court did not directly address the issue of possible malingering, which was raised by the prosecutor and the 2000 competency evaluation. It is clear from the record that the prosecutor believed E.T. was malingering, and that the prosecutor believed that E.T.'s bizarre trial testimony was simply part of the "game" he liked to play. It is not clear from the record whether the superior court shared this view. It is also not clear from the record how similar E.T.'s testimony in the 2000 case was to his testimony in the current case, and whether the superior court believed the 2000 diagnosis was still accurate, notwithstanding the fact that it was nearly twenty years old.
The court also did not address the tension between its comments at sentencing, which suggested that the court believed that E.T.'s condition had not materially changed since 2000, and its statements in the original written order, which indicated that the superior court accepted the 2014 diagnoses and recognized that E.T. suffered from a delusional disorder (which was not E.T.'s diagnosis in 2000).
Ultimately, because the superior court did not order a second competency evaluation and did not issue written or oral findings other than the original 2015 written order finding E.T. competent, we are left without a clear understanding of why the court continued to believe that competency was not a concern even after E.T.'s bizarre behavior both prior to and at trial.
Because we are uncertain about the basis for the superior court's decision to not reevaluate E.T.'s competency in 2019, we conclude that a remand for further clarification and, as appropriate, a retrospective competency determination is needed. On remand, the superior court shall make additional findings regarding whether E.T. is malingering and, if so, the basis for that finding.
The court shall also consider conducting a retrospective competency hearing, as appropriate. We recognize that retrospective competency determinations are disfavored under the law given the difficulty of evaluating a defendant's competency years after the fact. But it is possible that, in this case, there is additional evidence of competency (or incompetency) that could have been submitted by the parties for the court's consideration in 2019, when E.T. finally went to trial. For example, there may be relevant records from E.T.'s prior criminal cases or from the Department of Corrections. There may also be other relevant competency evaluations from E.T.'s other criminal cases. Ultimately, we leave the decision of how to conduct any retrospective competency determination to the sound discretion of the superior court. If the superior court ultimately concludes that it is impossible to make a determination of competency on the current record, even after supplemented on remand, the court shall notify this Court of that finding.
See Leonard v. State, 658 P.2d 798, 800 (Alaska App. 1983) (concluding that due to the difficulties associated with retrospective competency determinations, the remedy for the erroneous denial of a competency evaluation was a new trial preceded by a competency determination); see also Pate v. Robinson, 383 U.S. 375, 386-87 (1966) (noting that due to the difficulty of retrospectively determining a defendant's competence to stand trial, the proper remedy for error in a competency determination was a new trial preceded by a new competency determination); Dusky v. United States, 362 U.S. 402, 403 (1960) (per curiam) (emphasizing the difficulties of retrospectively determining a defendant's competence).
See, e.g., Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001) (holding that retrospective competency hearings are permissible "when the record contains sufficient information upon which to base a reasonable psychiatric judgment" of the defendant's competence); United States v. Arenburg, 605 F.3d 164, 171-72 (2d Cir. 2010) (per curiam) (remanding for a determination of whether there is sufficient information to allow a meaningful retrospective competency hearing); see also United States v. Jones, 336 F.3d 245, 260 (3d Cir. 2003); People v. Ary, 13 Cal.Rptr.3d 482, 493 (Cal.App. 2004) (remanding for determination of whether a retrospective competency hearing could be held); State v. Hawkins, 363 P.3d 348, 354 (Idaho 2015) (discussing non-exhaustive list of factors to be considered when determining if retrospective competency hearing is possible).
Though we remand based on the superior court's failure to order a new competency evaluation, we also note that the superior court's 2015 decision finding E.T. competent is flawed. As noted, the psychologists who examined E.T. in 2014 concluded that although E.T. had a factual understanding of the accusations against him, he suffered from delusional thought patterns, and he was unable to distinguish his delusions from reality. They further concluded that given those delusions, E.T. possessed "neither a rational ability to proceed nor the ability to meaningfully assist counsel in his defense." As one specific example of his irrational thinking, the report noted that E.T. believed his case would be dismissed because of his injuries and he was focused on seeking compensation for those injuries in federal court. But the report also included references to other delusional thinking such as fears of persecution and grandiose beliefs about his profession and connections, as well as his belief that the police were robbers who "jumped" him.
In finding that E.T. had failed to prove that he was incompetent, the superior court focused primarily on E.T.'s apparent preoccupation with his own injuries. The court concluded that such thinking was not necessarily irrational because a rational defendant, knowing that the State had him "dead to rights," could believe that his injury-related claims would give him "a chance at jury nullification" or "a bargaining chip to use in overall negotiations with the Department of Law."
As the court acknowledged, however, it had "no idea whether [E.T.] has actually reached these conclusions" - i.e., the court had no idea if E.T. was pursuing this injury-focused strategy for rational reasons, or if his decision was instead the irrational product of his delusional thought processes, as the psychologists had concluded. Furthermore, the superior court's order never discussed E.T.'s other delusions and the court offered no explanation for how those delusions could also be the product of rational thinking. Instead, the primary reason the court articulated for rejecting E.T.'s claim of incompetence was that a rational person who was not suffering from delusions could have developed the same strategy as E.T.
Indeed, in its written order, the superior court acknowledged that E.T. "[n]o doubt . . . suffers from delusions, as diagnosed." But, the superior court suggested these delusions would not impact E.T.'s rational understanding of the proceedings against him or his ability to aid in his defense. The superior court quoted from a 1973 Alaska Supreme Court case, Schade v. State, in which the supreme court recognized that "[t]he presence of some degree of mental illness is not an invariable barrier to prosecution." That is, "[t]here may be an impaired functioning of some aspects of the defendant's personality and yet he may still be minimally able to aid in his defense and to understand the nature of the proceedings against him."
Schade v. State, 512 P.2d 907, 914 (Alaska 1973).
Id.
But the record in Schade was very different than the record in the current case. In Schade, the defendant, who was diagnosed with paranoid schizophrenia, was evaluated by two different psychiatrists, both of whom found the defendant to be competent, notwithstanding his mental illness. Schade's defense attorney likewise believed Schade to be competent and the attorney made clear to the court that Schade was able to assist in his defense. In affirming the superior court's finding of competency, the Alaska Supreme Court held as follows:
Id. at 912-13.
Id. at 913.
Where, as here, the psychiatric examination of the defendant yields professional findings that the defendant is competent to stand trial, the question of whether to hold any further or evidentiary hearings is addressed to the sound discretion of the trial court. . . . Nothing in the record of the case at bar suggests a need for a more extensive inquiry into defendant's competence. It was not error for the trial court to find Schade competent to stand trial.
Id. at 914 (citations omitted).
In the current case, we face a record that is virtually the opposite of the record in Schade. Here, two different psychologists opined that E.T. was incompetent to stand trial based on the nature and extent of his delusions, and one of the psychologists testified that it was not even a "close call." E.T.'s multiple defense attorneys were also consistently of the opinion that E.T. was not capable of assisting in his own defense. Their opinions were later seemingly substantiated, at least in part, by E.T.'s erratic behavior which included rejecting a time-served offer, refusing to take his case to trial for several years, testifying at trial in a nonsensical and bizarre manner, and interjecting when the prosecutor challenged his delusional beliefs at trial.
This is not to say that the superior court was obligated to accept the psychologists' conclusions or to defer to the defense attorneys' assertions. The law is clear that competency is ultimately "a legal matter for determination by the court, not a medical matter for determination by an expert witness." While the superior court was obligated to consider the informed opinions of the medical professionals, it was not bound by those opinions. Likewise, although defense attorneys "will often have the best-informed view of the defendant's ability to participate in [their] defense," the superior court was free to reject that view, provided that the court adequately explained why it was doing so.
Adams v. State, 829 P.2d 1201, 1207 (Alaska App. 1992) (Bryner, C.J., concurring).
See id. at 1207-08 (concluding that the superior court's complete deference to the psychologist's opinion that the defendant was competent amounted to a "failure to exercise judicial discretion" and independently required reversal).
Medina v. California, 505 U.S. 437, 450 (1992). We have previously stated that defense counsel's assessment of competence should be accorded substantial weight. See Gamble v. State, 334 P.3d 714, 718 (Alaska App. 2014) (noting that a defense attorney "is in a unique position with regard to assessing a defendant's ability to assist in his own defense," and the attorney's assessment is therefore "an important factor for the court to consider"); Fajeriak v. State, 520 P.2d 795, 802-03 (Alaska 1974); see also Commentary to ABA Criminal Justice Mental Health Standards § 7-4.8 (1989). But see McKinney v. State, 566 P.2d 653, 660 (Alaska 1977), on reh'g, 570 P.2d 733 (Alaska 1977), and overruled on other grounds by Evans v. State, 645 P.2d 155 (Alaska 1982) (noting that a defense attorney's assertions of incompetency may be influenced by counsel's advocacy and therefore, while relevant, such assertions are not determinative and are not the only relevant consideration).
Here, the superior court failed to adequately explain its reasons for rejecting both the psychologists' opinions on E.T.'s competency as well as defense counsel's concerns. Accordingly, on remand, the superior court shall also explain in more detail why it disagrees with the 2014 competency evaluation and the factual basis for that continued disagreement even after E.T.'s trial testimony.
Conclusion
This case is REMANDED to the superior court for further proceedings consistent with this opinion. On remand, the court may, in its discretion, hold a retrospective competency hearing. If the court concludes that it is impossible to make a retrospective determination of E.T.'s competency to stand trial even on the supplemented record, the court shall notify this Court of that finding. If the court concludes that it is possible to make a retrospective competency determination, the court shall issue a new order clarifying its findings of fact and conclusions of law regarding E.T.'s competency to stand trial. The court shall issue its order in 120 days. This deadline may be extended for good cause through notice to this Court. We retain jurisdiction.
Judge TERRELL, concurring.
This Court remands to the superior court for additional findings regarding E.T.'s competency to stand trial, as reflected in the superior court's oral ruling made at the start of E.T.'s sentencing hearing. The Court also states the superior court made an insufficient record when initially ruling on E.T.'s pretrial competency motion. I concur fully with the remand, but write separately to briefly explain my view that the pretrial competency determination was not insufficient.
Starting with the pretrial competency motion, several years into the case, E.T.'s then-counsel, Assistant Public Defender James Ferguson, moved for an evaluation of E.T.'s competency to stand trial, but did not articulate a specific reason why he thought E.T. might be incompetent. He stated only that "[d]efense counsel has concerns regarding [E.T.'s] competence and his ability to meaningfully assist in his own defense."
E.T. was subsequently evaluated for competency by two psychologists, Drs. Kristy Becker and Wendy Elliott. Their written report, in the section titled "Factual and rational understanding of the proceedings against him," stated:
[E.T.] exhibited an excellent factual understanding of his charges, and the proceedings against him. He was aware of his charge titles, the alleged behavior that led to the charges, and the severity of his circumstances. He noted that he could receive "what amounts to be a life sentence. I'm fifty, I could die in prison." He was aware of legal options available to him including the different pleas, and potential plea bargains. He understood the plea bargaining process and the role of all parties in that process. He was well aware of the role of courtroom actors, as well as his role in the Court. He evidenced a good understanding of his rights as a defendant. He was able to provide aggravating as well as mitigating information that might be addressed in trial.
The competency report reiterated that E.T. had an "excellent factual understanding of the legal process," but nonetheless concluded that he was "not able to make informed decisions that are free from influence of his delusional symptoms." As evidence of his delusional thinking, the report referred to E.T.'s "fixat[ion] on the idea that he could receive a dismissal on the grounds that he was injured in the course of his arrest," and stated that "his only defense strategy seems to be that he was injured during the course of his arrest, which given the circumstances of his arrest articulated in available police reports, does not appear to be a self-serving or logical defense strategy." The report stated that E.T. "seemed rather disinterested in discussing evidence in his case, and rather wished to discuss ways in which he could seek renumeration and leniency as a result of his injured hands." The report also noted E.T.'s statements "that the individuals who arrested him were not police, were robbing him, and were 'jumping' him." The report noted that E.T. was suspicious of his attorney and alluded vaguely to conspiracies involving the government and the arresting officers.
The superior court held an evidentiary hearing at which Dr. Becker testified, and then the parties presented post-hearing briefing. The State's briefing stated that E.T.'s fixation on the alleged excessive use of force by the arresting officers appeared to be part of a strategy of arguing self-defense and also based on E.T.'s desire to have the arresting officers charged with federal crimes for their use of force against him. The State's briefing noted a 1996 letter of intent adopted by the legislature with respect to amendments to the competency statute, AS 12.47.100, where the legislature stated, inter alia, that:
A defendant need not have a complete understanding of legal nuances in order to understand the nature of the proceedings. The ability to comprehend the significance of a trial and the defendant's relation to it is sufficient.
A defendant can assist counsel even if the defendant's views are not consistent with the evidence or the most plausible explanation for the evidence. Mentally competent individuals often advance versions of the facts which
conflict with the state's evidence, even when the state's evidence of the defendant's guilt is overwhelming. . . .
The fact that a psychiatrist or defense counsel or judge thinks the defendant is taking positions adverse to his interests or is not acting in his or her best interest is insufficient to render a defendant incompetent to stand trial. Defendants often take positions that their attorneys think[] are wrong-headed, and the fact that they make decisions which are contrary to their best interests does not render them incompetent to stand trial.
Letter of Intent regarding H.B. 321, 1996 House Journal 4203-05.
The superior court's written order regarding competency rejected the competency report's conclusion that E.T. should be viewed as delusional or irrational because of his fixation on the injuries to his hand. The court stated:
[I]t is entirely rational for a defendant [in E.T.'s situation] to reach several conclusions - first, that he has been caught "dead to rights" and conviction is a foregone conclusion, so focusing efforts towards recompense for injuries received is a better use of his time; and second, that the best defense is a good offense, so that pushing his injury-related claims may give him a chance at jury nullification or a bargaining chip to use in overall negotiations with the Department of Law. The court has no idea whether [E.T.] has actually reached these conclusions, but such thinking is not irrational.
It is the superior court's statement that it "has no idea whether [E.T.] actually reached these conclusions" that E.T. and the majority take issue with, suggesting that the superior court needed to make specific findings about what E.T. actually thought. I respectfully disagree.
I recognize that if a criminal defendant expresses beliefs or makes statements that are substantially likely to be the result of seriously irrational thinking - i.e., thought processes that show that the defendant is incompetent to stand trial - the fact that one could hypothesize some narrow range of circumstances where those statements or beliefs were actually grounded in rational or arguably rational thinking would not be sufficient to defeat the prima facie showing of a need for a competency evaluation, or to overcome a mental health professional's conclusion, following a competency evaluation, that the defendant is incompetent. A judge would need to find that those narrow range of circumstances applied, and that the defendant's statements or beliefs actually reflected rational thinking. But, where a defendant's statements or beliefs are not presumptively or substantially likely to be the result of a thinking process that is so distorted as to render the defendant incompetent to stand trial, and the assertion is made that those statements or beliefs point to the defendant's incompetence to stand trial, it is sufficient for the court to point out why those statements or beliefs would generally reflect reasonably rational thought processes, without having to make findings about the defendant's specific thought processes. The latter is the situation here.
E.T.'s litigation posture was reflected in a discovery motion his trial counsel filed, which stated, inter alia, that:
It is [E.T.'s] position that he was attacked without provocation by three armed members of the Anchorage Police Department. Such an assault is a crime. The assault goes to his defense. The assault goes to the officers' biases and motives to fabricate: A convicted [E.T.] is much less of a civil threat to them. He is much less of a disciplinary threat to them. . . . Whether the officers used unlawful force and whether to believe and what weight to give the officers' testimony are crucial issues to be contested at motion hearing and at trial.
Also, prior to trial E.T.'s counsel filed a "notice of defenses" that stated that E.T. would be arguing that he was entitled to use both non-deadly and deadly force in self-defense and that he was under duress. It can be presumed that E.T.'s litigation posture reflected counsel's consultation with E.T. and was consistent with and reflected E.T.'s version of events.
E.T.'s litigation position was built upon his factual version of events, so it is appropriate to start there. As noted previously, the fact that a criminal defendant has their own view of the offense, which is substantially at odds with the evidence against them, does not generally suggest incompetence to stand trial. E.T. had to come up with a defense to resisting arrest and stabbing at three uniformed police officers, in the early morning hours near the longest day of the year in Anchorage, where it was light enough that he should have been able to detect that they were police officers. He worked with the available facts to build out a defense. As seen in his trial testimony, he argued that the police officers who responded to the scene parked off to the side and came at him in opposite directions out of the darkness and shadows of nearby buildings, and were wearing dark clothing, thus explaining why he was not initially aware that they were police officers. Further, he testified that they asked him what was in his pocket, which made him think they were going to rob him. He also testified that he had "heard there were people involved in some trafficking that had police uniforms illegally," which again would help explain why he did not necessarily believe that the persons who supposedly accosted him were police officers, even if they were wearing standard dark police uniforms. E.T.'s version of events is not strongly suggestive of delusional thinking but rather reflects the creativity commonly seen in criminal defendants in formulating a defense that takes into account all the key known facts of the case.
Building on this, if the jury were to credit E.T.'s version of events, the legal conclusions reflected in his litigation posture were all reasonably sound. First, at a bare minimum if the jury credited his version of events and disbelieved the officers, it would provide the basis for the jury to acquit him, without E.T. even having to assert a self-defense claim. Second, if the jury credited his version of events, it could also provide the basis for them to acquit based on his self-defense claim. Third, it could provide the basis for the officers' criminal prosecution - in state court, for assault, or in federal court, as a civil rights violation. Fourth, it could provide the basis for a civil tort lawsuit against the officers. Last, E.T.'s view that the officers' alleged use of excessive force could result in the dismissal of the charges against him, although incorrect as a matter of current Alaska law, reflected a layperson's intuitive view of the law that was not fundamentally irrational. Specifically, the Alaska Supreme Court in 1980 rejected the idea that the use of excessive force would require the suppression of evidence obtained in connection with that use of force, but in a later case one justice dissented and would have allowed such suppression claims. In sum, E.T.'s views of the law, as reflected in his litigation posture, did not strongly suggest that he was delusional or irrational.
See State v. Sundberg, 611 P.2d 44, 50-52 (Alaska 1980) (concluding the use of excessive force would not support invocation of the exclusionary rule; but adding the caveat - "we think it appropriate to caution that our holding is not immutable. In the event a history of excessive force arrests is shown, demonstrating that existing deterrents are illusory, we will not hesitate to reexamine the question of whether an exclusionary deterrent should be fashioned in the situation where evidence is obtained as a result of an arrest which is effectuated by excessive force"); see also Martin v. State, 623 P.2d 1225, 1227-28 (Alaska 1981) (Dimond, Senior Justice, dissenting) (stating that he would permit suppression as a remedy for use of excessive force).
If E.T. did not really believe the factual version of events he was advancing, but rather was simply devising a defense that could be argued in light of the known facts, that does not make his focus on the injuries he received in the arrest, and on obtaining financial compensation for them, irrational or delusional. As the superior court noted, a rational defendant in E.T.'s situation could conclude that "conviction is a foregone conclusion, so focusing efforts towards recompense for injuries received is a better use of his time," and that "the best defense is a good offense, so that pushing his injury-related claims may give him a chance at jury nullification or a bargaining chip to use in overall negotiations with the Department of Law." And the court aptly observed that "notable strategists as Carl von Clausewitz and Mao Tse-Tung have taught that distracting one's opponent with an unexpected attack may lead to victory." That is to say, the interaction between E.T.'s factual version of events and his legal strategy suggests an overall view that is neither irrational nor delusional. Moreover, his distrust of his attorney and the government do not strongly call into question his competency. The superior court could correctly conclude that Dr. Becker's basis for concluding that E.T. was delusional in a way that would prohibit him from meaningfully assisting his counsel was unsupported and that Dr. Becker was applying an incorrect view of the competency standard. In this situation, it was not necessary for the superior court to pin down in detail the exact nature of E.T.'s beliefs about his case in order to reject the basis for Dr. Becker's assessment that E.T. was incompetent.
That leaves E.T.'s claim that the superior court should have sua sponte revisited the issue of his competency after he testified, based on the bizarre statements that he made at trial. I do not believe that the court was required to redetermine E.T.'s competency simply because he said bizarre things at trial. As the Supreme Court has noted, "there is no reason to believe that the art of dissimilation is new," and courts in the eighteenth century had warned jurors about defendants feigning incompetency in order to postpone their criminal trials. And for this reason, many courts have recognized that the fact that a defendant makes bizarre statements or engages in bizarre actions at trial does not itself mean that a trial court must launch a full-blown redetermination of their competency, when the court simply concludes that the defendant was putting on a performance to make observers think he was incompetent.
Cooper v. Oklahoma, 517 U.S. 348, 365-66 (1996) (collecting cases).
See, e.g., United States v. Arenburg, 605 F.3d 164, 170-71 (2d Cir. 2010); Hernandez v. Ylst, 930 F.2d 714, 716-18 (9th Cir. 1991); People v. Marks, 72 P.3d 1222, 1237 (Cal. 2003); People v. Marshall, 931 P.2d 262, 279 (Cal. 1997). Rather, it is only a sustained or consistent pattern of bizarre behavior or statements that would be more likely to require a sua sponte order to reevaluate competency. See Arenburg, 605 F.3d at 171 (citing United States v. Auen, 846 F.2d 872, 878 (2d Cir. 1988)).
But by the time that E.T.'s counsel requested, prior to his sentencing, that his competency be revisited, there was a sufficient basis to warrant redetermining his competency to stand trial. Not only was there the fact of his bizarre trial testimony, but there was also his refusal to bring the case to trial for almost four years while simultaneously declining the State's time-served plea offer, and his counsel's assertion that she thought he was incompetent and that he was unable to meaningfully assist her in defending the case. Collectively the picture before the court at that juncture warranted a critical look at E.T.'s competency.
The superior court did readdress competency at that juncture, but in a perfunctory manner that was insufficient to permit meaningful appellate review. As the Second Circuit stated:
We are well aware that, for any number of reasons, a criminal defendant may employ a trial strategy in which he or she attempts to feign insanity or some sort of mental defect. And we are more than willing, under most circumstances, to defer to a trial court's differentiation between a defendant who is incompetent to stand trial and a defendant who simply wants a court or a jury to believe that is the case. But there is no indication in the record before us that the district court paused during the trial to make factual findings, much less hold a hearing, regarding the import of defendant's erratic behavior.
Arenburg, 605 F.3d at 170-71 (citations omitted).
That is the case here. One can certainly view the record as suggesting that E.T. had some mental health issues, but not to a degree that prevented him from being found competent to stand trial, and that his bizarre statements at trial simply represented an attempt to feign incompetence and further delay things. However, for the reasons stated in the majority opinion, the superior court simply did not connect the dots and resolve the competing assertions before it in a manner that would permit us to resolve this claim on the current record. Accordingly, this case must be remanded for factfinding and I fully concur in the majority's conclusion to remand for further findings with respect to E.T.'s pre-sentencing request to revisit his competency to stand trial.