Opinion
2 CA-CR 2022-0173
03-08-2024
The State of Arizona, Appellee, v. Bert Curtis, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20210309001 The Honorable Catherine M. Woods, Judge The Honorable Howard Fell, Judge Pro Tempore
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee
Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Bert Curtis appeals his convictions and sentences for aggravated assault and robbery. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Curtis. State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In February 2021, Curtis attempted to steal three large glass bottles of beer from a convenience store. An employee tried to physically block Curtis from leaving, but Curtis hit him on the head multiple times with one of the bottles. Curtis then left the store.
¶3 Police located Curtis walking nearby, carrying beer bottles of the same type as those taken from the store. They arrested Curtis, who eventually admitted to taking the beer without paying and to hitting the store employee on the head with one of the bottles.
¶4 In October 2021, at the conclusion of a three-day trial, a jury found Curtis guilty of aggravated assault and robbery. Before the trial court sentenced Curtis in this case, however, it held a change of plea hearing on an assault charge Curtis was facing in a separate matter. During that hearing, Curtis's counsel noted he intended to file a motion requesting competency proceedings pursuant to Rule 11, Ariz. R. Crim. P. The court continued sentencing in this matter. In December 2021, the court appointed two mental health experts to examine Curtis, pursuant to Rule 11.
¶5 In January 2022, after considering the expert reports, the trial court found Curtis incompetent to stand trial but restorable, pursuant to A.R.S. § 13-4510. In June 2022, the court found Curtis still incompetent but restorable. By September 2022, the court found Curtis restored to competency. In October 2022, the court set sentencing in this matter, as well as a trial date for the separate criminal matter.
One of the two experts determined Curtis was competent to stand trial and the other determined he was incompetent.
¶6 In November 2022, the trial court sentenced Curtis in this matter to concurrent, presumptive terms of imprisonment, the longer of which is 6.5 years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶7 Curtis argues he is entitled to a retrospective competency hearing as to his trial for aggravated assault and robbery. He contends that the "record overwhelmingly shows that [he] was likely incompetent at the time of trial." He therefore maintains the trial court should have "retrospectively considered [his] competence at the time of trial as well as his competence to stand trial in the second case or to be sentenced in this case," independent of a request by counsel for such an evaluation.
¶8 We review a trial court's denial of a retrospective competency examination for abuse of discretion. See State v. Mendoza-Tapia, 229 Ariz. 224, ¶ 22 (App. 2012). We likewise review the court's decision not to order a competency evaluation sua sponte for abuse of discretion. See State v. Kemp, 185 Ariz. 52, 67 (1996).
Curtis did not raise the issue of his competency to stand trial for the underlying convictions at the trial court level. The state argues fundamental error analysis therefore applies. See State v. Escalante, 245 Ariz. 135, ¶¶ 12-13 (2018); see also State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005). Curtis argues that because "conducting trial while a defendant is incompetent" is structural error, fundamental error review does not apply. Because we find no error, we need not resolve this disagreement.
¶9 Trial courts have "a continuing duty to inquire into a defendant's competency, and to order a [R]ule 11 examination sua sponte if reasonable grounds exist." State v. Amaya-Ruiz, 166 Ariz. 152, 162 (1990); Ariz. R. Crim. P. 11.3(a)(2); see also Drope v. Missouri, 420 U.S. 162, 181-82 (1975). "Reasonable grounds exist when 'there is sufficient evidence to indicate that the defendant is not able to understand the nature of the proceeding against him and to assist in his defense.'" Amaya-Ruiz, 166 Ariz. at 162 (quoting State v. Borbon, 146 Ariz. 392, 395 (1985)). The inquiry must center on whether, at the time of the proceedings in question-here, the trial-the defendant "ha[d] sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he ha[d] a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). The trial court has broad discretion in determining whether reasonable grounds exist to necessitate a competency evaluation. State v. Verdugo, 112 Ariz. 288, 289 (1975).
¶10 A post-trial finding of incompetence does not necessitate a retroactive Rule 11 hearing if no reasonable grounds exist to cast doubt on a defendant's competency during trial. See Mendoza-Tapia, 229 Ariz. 224, ¶¶ 21, 24 (upholding denial of request for retroactive Rule 11 hearing, where defendant found incompetent two months after trial); see also State v. Romero, 130 Ariz. 142, 146-47 (1981) (no abuse of discretion in trial court's refusal to order post-trial Rule 11 examination, despite state's agreement in presentence report that defendant experienced "severe mental problems"). For example, we have found no abuse of discretion in a trial court's denial of a retroactive Rule 11 hearing based on a defendant's "sheer speculation that his decision at trial that he was not 'mentally or emotionally ready to testify'" combined with the fact that restoration to competency took "several months." Mendoza-Tapia, 229 Ariz. 224, ¶¶ 21, 24.
¶11 Curtis identifies the following facts as constituting reasonable grounds for a retrospective competency evaluation: (1) in addition to the attorney representing him, a second attorney sat with and assisted him during trial; (2) he "had difficulty answering that he was taking prescription medication" during his colloquy with the trial court regarding his waiver of the right to testify; (3) he "had a crying outburst during trial"; and (4) at the time it ordered the Rule 11 evaluation, the court "was aware that defense counsel had been sitting on a cache of records documenting schizophrenia and other mental health disorders." He contends these factors, in conjunction with his "borderline intellectual functioning" and history of prior Rule 11 proceedings and mental health disorders, should have triggered the court's sua sponte reconsideration of his competency to stand trial in October 2021.
¶12 In determining whether grounds exist to doubt a defendant's competency, a trial court may rely on its "observations of the defendant's demeanor and ability to answer questions." State v. Moody, 208 Ariz. 424, ¶ 48 (2004). Here, the trial court had opportunity to observe and interact first-hand with Curtis during a colloquy regarding Curtis's decision not to testify in his own defense. During that conversation, Curtis originally and incorrectly told the court he had not taken any "type of drug, alcohol or medicine" in the prior twenty-four hours. But, after his counsel interjected and reframed the question, Curtis was able to state with specificity two types of medication he received, as well as the timing of those medications. He further agreed that the medications did not interfere with his ability to think clearly and that he believed he was thinking clearly that day. And, he discussed with the court his educational background, his English-language fluency, and in his own words told the court "I wish to remain silent." Nothing about this colloquy suggests Curtis lacked the "present ability" to consult with his lawyer or to understand the proceedings. Dusky, 362 U.S. at 402.
¶13 Curtis also suggests that because he was "visibly upset" and "crying" during the testimony of the assault victim, that behavior should have weighed toward a finding he was not competent to stand trial. Although Curtis represents this incident as a "crying outburst," the trial court indicated that it "personally didn't notice" any crying, suggesting it was not disruptive or particularly notable. No additional emotional incident is indicated in the record. The record therefore does not support Curtis's suggestion that his single, non-disruptive emotional response to the victim's testimony indicated an inability to understand or appreciate the nature of the proceedings. Cf. Fitzgerald v. Myers, 243 Ariz. 84, ¶ 3 (2017) (noting "emotional outburst during victim impact statements" in penalty phase of capital-offense trial had led to mistrial and additional Rule 11 evaluation).
¶14 Similarly, the fact that a second licensed attorney sat with Curtis during trial and acted as advisory counsel does little to suggest he had an insufficient understanding of the proceedings against him. To the contrary, the trial court may reasonably have assumed that the additional assistance bolstered Curtis's understanding of the proceedings. In any event, a "defendant need only show the ability to rationally communicate with counsel and a rational and factual understanding of the proceedings to stand trial." State v. Ibeabuchi, 248 Ariz. 412, ¶ 18 (App. 2020). The record clearly indicates that Curtis's communication with counsel met those criteria. For example, the colloquy cited above demonstrates that Curtis was able to intelligently respond to questioning regarding his background and his present circumstances. The court was also entitled to consider that neither of Curtis's trial counsel ever raised concerns about Curtis's ability to rationally communicate with them or understand the proceedings.
¶15 Finally, the "cache" of documentary evidence indicating Curtis had a history of "schizophrenia and other mental health disorders" does not constitute reasonable grounds, standing alone, to doubt his competency to stand trial. See A.R.S. § 13-4501(3) ("presence of a mental illness, defect or disability alone is not grounds for finding a defendant incompetent to stand trial"); see also Ariz. R. Crim. P. 11.1(b) ("defendant is not incompetent to stand trial merely because the defendant has a mental illness, defect, or disability"). As our supreme court has emphasized, "The test for whether a competency hearing is mandated is not whether a defendant was insane at some time in the past, or even whether he was free of all mental illness at the time" of trial. State v. Cornell, 179 Ariz. 314, 322-23 (1994) (considering defendant's waiver of counsel, where defendant claimed temporary insanity at time of crime); cf. State v. Glassel, 211 Ariz. 33, ¶ 30 (2005) (evidence that defendant's "condition worsened after the original competency hearing" not inconsistent with trial court's finding of competency at time of trial, despite mental illness). As we discuss above, Curtis's demeanor during trial did not cast doubt on his ability to understand and assist with the trial proceedings. See Amaya-Ruiz, 166 Ariz. at 162-63. His history of mental illness does not compel a contrary conclusion. See § 13-4501(3); Ariz. R. Crim. P. 11.1(b).
¶16 Although a finding of incompetence several months after the trial, coupled with a pre-existing documented history of mental illness and borderline intellectual functioning, could have reasonably supported a decision to order a retroactive competency evaluation, we must review the trial court's failure to order one merely for abuse of discretion. See Verdugo, 112 Ariz. at 289. In so doing, we conclude the court did not abuse its broad discretion by refraining from sua sponte ordering a retroactive competency evaluation. See Mendoza-Tapia, 229 Ariz. 224, ¶ 24. We therefore find no error.
Disposition
¶17 For the foregoing reasons, we affirm Curtis's convictions and sentences.