Opinion
No. 81402-8-I
10-04-2021
STATE of Washington, Respondent, v. Delane Michael DUFLOTH, Appellant.
Maureen Marie Cyr, Christopher Mark Petroni, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, for Appellant. Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, Scott Michael O'toole, Attorney at Law, 516 Third Avenue, Seattle, WA, for Respondent.
Maureen Marie Cyr, Christopher Mark Petroni, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, for Appellant.
Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, Scott Michael O'toole, Attorney at Law, 516 Third Avenue, Seattle, WA, for Respondent.
OPINION PUBLISHED IN PART
Coburn, J.
¶1 Dufloth appeals his conviction for burglary in the second degree. He argues that the trial court erred by not ordering a competency evaluation when the court was aware that another court found him not competent and ordered restoration that had not taken place. Dufloth also contends that the prosecutor committed misconduct during closing argument. We agree and reverse and remand.
FACTS
¶2 On the evening of July 4, 2019, resident manager Jonathan Williams was notified that a security alarm was triggered at the Seattle Salvation Army warehouse. At the time of the alarm, the warehouse was closed. Williams and others entered the building to look for the intruder. Williams testified that the warehouse had been disturbed with boxes overturned and inventory, including purses, thrown on the floor. Williams heard Dufloth locked inside an emergency stairwell.
¶3 Dufloth claimed, through the locked door, to be a Salvation Army employee who had fallen asleep in the warehouse. Williams told Dufloth he was calling police. Williams then heard a crash and opened the stairwell door to find that Dufloth had forcefully escaped through another door leading to an administrative office. Dufloth locked himself inside the office until after police arrived. When searching the stairwell, police recovered a bicycle, a jacket, and a purse, the only item with a Salvation Army price tag. A police dog, after obtaining Dufloth's scent, alerted to the jacket. Nearby, police also discovered a black eyeglass case containing cash and glass "drug pipes." Dufloth admitted the case belonged to him. Police arrested Dufloth. He was later charged with burglary in the second degree.
Dufloth initially denied the case belonged to him but claimed ownership once the officer indicated that it also contained $40 in cash.
¶4 Though he was represented by counsel, Dufloth sent multiple letters to the court before his trial, including a pro se motion to dismiss. In a handwritten letter filed a week before trial, Dufloth wrote,
In these pro se communications with the trial court, Dufloth objected to trial continuances, discussed the availability of his witnesses, and motioned to have his case dismissed on grounds that the State's charging documents were insufficient. When asked about the motion to dismiss, Dufloth's defense counsel told the court that he, as counsel, did not wish to proceed with the motion.
The Kitsap County Superior Court found me incompetent to proceed with Trial. I was given an evaluation by the Western State Hospital. [T]he Court accepted the opinion and ordered me to a restoration period to restore my competency. I believe that my constitutional right to a fair trial has been violated. Due to my current, worsening, mental health conditions ... where I become delusional, having hallucinations. These hallucinations effect me to the point that I believe the voices in my head. These voices, Carol. Tells me things to confuse me to where I don't understand or comprehend what[‘]s going on, and why all these rights of mine are violated.
I am currently experiencing a major manic episode and am in need of medication and help from Western State doctors and medication to bring me back to competency – normal.
¶5 Additionally, Dufloth wrote in the letter that he had "not been sent to WSH because of this burglary charge" and that his attorney was "not addressing the court with this issue."
¶6 During pretrial motions, the court asked defense counsel about Dufloth's claim of incompetency:
THE COURT: In this letter, Mr. Dufloth is stating that he believes he is incompetent. ... I take that to be basically a request for an evaluation pursuant to RCW 10.77.060 ... I'll ask counsel, both counsel, have you seen this, and is anybody going to pursue this?
[DEFENSE COUNSEL]: [T]his issue has been a common theme during the course of my representation with Mr. Dufloth. I will tell the Court he was, I believe, ruled to be incompetent in Kitsap or Kittitas County.
THE COURT: Kitsap. Yeah, there's a reference to his having been found–
[DEFENSE COUNSEL] Right. ... I will tell the Court, I am not raising competency at this point. I have informed [the prosecutor] of that.
THE COURT: What was your understanding of what the Kitsap County Court did?
[DEFENSE COUNSEL]: They ordered him to Western State Hospital. I believe he was out of custody at that point. He was ordered to Western State Hospital for restoration.
THE COURT: And did it happen?
[DEFENSE COUNSEL]: And it did not happen. These charges came about and Mr. Dufloth found himself back in custody, and so here we are. I do not have competency concerns. I'm not raising those at this point.
THE COURT: Okay.
[DEFENSE COUNSEL]: I've spoken to [Dufloth] multiple times, even as recently as well, and so I'm not raising competency. Of course, competency is a fluid statement, so if it changes, as an officer of the Court, I'll bring that to the Court's attention to address that. But at this point, I'm not raising – I'm not asking for a competency evaluation.
THE COURT: Okay. Well, in that case, since neither party has briefed these issues, and I have nothing in front of me that I can – I, frankly, have not seen an issue where a party has raised a motion, but his own lawyer declines to pursue it. And then, I guess, you're saying that absolves the Court of having to rule on it, because the lawyers are not engaged on that issue.
The prosecutor then commented that if Dufloth wanted to proceed with a pro se motion he could request to represent himself, because "if he wants [defense counsel] to represent him, he has to kind of live with that representation, his choices". The court then replied, "Well, there's no motion before the Court right now to discharge counsel and proceed without counsel on a pro se basis. So, let's go to the next issue then." Dufloth's competency was not addressed again at trial.
¶7 A jury convicted Dufloth of burglary in the second degree. Dufloth appeals.
DISCUSSION
Competency for Trial
¶8 We review a trial court's decision on whether to order a competency examination for an abuse of discretion. State v. McCarthy, 193 Wash.2d 792, 803, 446 P.3d 167 (2019). A trial court abuses its discretion when it reaches a conclusion on untenable or unreasonable grounds. State v. Heddrick, 166 Wash.2d 898, 908, 215 P.3d 201 (2009).
¶9 Dufloth argues that the trial court erred by not ordering a competency hearing pursuant to RCW 10.77.060. We agree.
¶10 An accused person must be legally competent to stand trial. State v. Coley, 180 Wash.2d 543, 551, 326 P.3d 702 (2014) ; RCW 10.77.050. The fundamental right not to stand trial unless competent is guaranteed by the due process clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV ; State v. Ortiz-Abrego, 187 Wash.2d 394, 402-03, 387 P.3d 638 (2017). "Failure to observe procedures adequate to protect an accused's right not to be tried while incompetent to stand trial is a denial of due process." In re Fleming, 142 Wash.2d 853, 863, 16 P.3d 610 (2001). Defendants are incompetent if they lack "the capacity to understand the nature of the proceedings against [them] or to assist in [their] own defense as a result of mental disease or defect." RCW 10.77.010(16). Washington law requires that a "court on its own motion or on the motion of any party" must order a mental health evaluation whenever there is "reason to doubt" a defendant's competency. RCW 10.77.060(1)(a).
¶11 As an initial matter, the State maintains that there is "nothing in the record to support Dufloth's statement that he had previously been found incompetent in Kitsap County." The State argues that because the record lacks facts supporting Dufloth's claim that he was incompetent, which the State characterizes as nothing more than a "self-serving letter," Dufloth may only raise this issue through a personal restraint petition because we cannot consider facts outside the record.
¶12 The State misunderstands the basis in which a competency evaluation should be ordered. While the court could have ordered Dufloth's counsel to obtain a copy of the Kitsap County order finding Dufloth not competent, the record is sufficiently complete to allow review.
¶13 Dufloth's counsel is an officer of the court. See State v. White, 94 Wash.2d 498, 502, 617 P.2d 998 (1980) ("An attorney is an officer of the court. As such, he owes it a duty of frankness and honesty."). He confirmed to the court that another court had found his client not competent and ordered restoration, which was interrupted by this burglary charge. Defense counsel's representation also confirmed that Dufloth has repeatedly raised this issue and that counsel was not inclined to pursue it based on counsel's own opinion that competency was not at issue. Neither the court nor the prosecutor ever questioned the existence of the incompetency finding. Based on this record, we are left to determine whether there was a reason to doubt Dufloth's competency. We proceed with our analysis based on the record before us.
It is unclear from the record exactly how close in time the incompetency finding was to Dufloth's July 2019 arrest and February 2020 trial.
¶14 Dufloth contends that the trial court erred when it failed to order a competency hearing on the basis that defense counsel declined to make such a motion. We agree.
¶15 RCW 10.77.060(1)(a) permits "any party " to motion the court for a competency evaluation. A defendant is a party. It is undisputed that the court understood Dufloth's letter stating, "I take that to be basically a request for an evaluation pursuant to RCW 10.77.060." Despite Dufloth's request and defense counsel's confirmation that Dufloth had been found not competent, the court gave great deference to counsel's representation that counsel did not have competency concerns.
¶16 While the defense bears the "threshold burden" of establishing that there is a reason to doubt the defendant's competency, and "although ‘considerable weight’ should be given to the attorney's opinion regarding the client's competency, that opinion is not necessarily dispositive. Instead, the ultimate question for the trial court is whether there is a ‘factual basis’ to doubt the defendant's competence." State v. Woods, 143 Wash.2d 561, 604-05, 23 P.3d 1046 (2001) (quoting State v. Lord, 117 Wash.2d 829, 903, 822 P.2d 177 (1991) ). Defense counsel may not waive a defendant's right not to stand trial while incompetent. Fleming, 142 Wash.2d at 866, 16 P.3d 610.
¶17 The court misapplied the law when it determined that it was absolved of having to make a ruling "because the lawyers are not engaged on that issue." Even where no party moves for a competency hearing, the court "shall," on its own motion, order a formal evaluation whenever there is reason to doubt a defendant's competency. RCW 10.77.060(1)(a). The procedures of the competency statute are mandatory. Fleming, 142 Wash.2d at 863, 16 P.3d 610.
¶18 The question before us, then, is whether the record reflects that there was a "factual basis" for the trial court to doubt the competency of Dufloth.
¶19 A "reason to doubt" is "not definitive, but vests a large measure of discretion" to the trial court. McCarthy, 193 Wash.2d at 804, 446 P.3d 167 (quoting City of Seattle v. Gordon, 39 Wash. App. 437, 441, 693 P.2d 741 (1985) ). Though there are no "fixed signs" that trigger a competency hearing, a trial court might consider a defendant's demeanor, conduct, and medical and psychiatric reports. State v. Fedoruk, 5 Wash. App. 2d 317, 336, 426 P.3d 757 (2018).
¶20 The State argues that the trial court properly exercised its discretion not to order a competency evaluation because Dufloth appeared competent, exhibiting "no outbursts, unusual behavior," and his pro se communications "displayed a sophisticated understanding of the trial process." However, this argument fails to recognize the difference between "a reason to doubt" a defendant's competency and "an actual determination of competency." Fedoruk, 5 Wash. App. 2d at 335, 426 P.3d 757.
¶21 The question before the trial court and before us on appeal is not whether Dufloth was actually competent at the time of his trial. The only relevant question is whether there was a reason to doubt his competency.
¶22 This was not a case where the defendant claimed to have a competency issue without any support in the record. The court had undisputed confirmation from defense counsel, an officer of the court, that another superior court had found Dufloth not competent and ordered restoration at Western State Hospital. This strongly suggested the existence of medical and psychiatric reports supporting that finding. That is because when a competency evaluation is ordered, the court "shall either appoint or request the secretary to designate a qualified expert or professional person , who shall be approved by the prosecuting attorney, to evaluate and report upon the mental condition of the defendant." RCW 10.77.060(1)(a) (emphasis added). Counsel further disclosed that restoration had not taken place because "[t]hese charges came about and Mr. Dufloth found himself back in custody, and so here we are."
¶23 The trial court abused its discretion by failing to order a competency evaluation because the record supports a reason to doubt whether Dufloth was competent to stand trial. We reverse and remand for further proceedings. Although we remand to the trial court, we address the following issue because it may repeat upon further proceedings on remand.
¶24 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. See RCW 2.06.040.
WE CONCUR:
Bowman, J.
Dwyer, J.