N.M. R. Crim. P. Dist. Ct. 5-602
N.M. R. Crim. P. Dist. Ct. 5-602
Committee commentary. - The requirement of a notice of the defense of "not guilty by reason of insanity" under Subparagraph (1) of Paragraph A of this rule replaces the plea of not guilty by reason of insanity, eliminated by the 1982 enactment of Sections 31-9-3 and 31-9-4 NMSA 1978. See State v. Page, 100 N.M. 788, 676 P.2d 1353 (Ct. App. 1984). See also, Rule 5-303 NMRA for the types of permissible pleas. A similar notice is required by Rule 12.2 of the Federal Rules of Criminal Procedure.
Notice of incapacity to form specific intent pursuant to Paragraph B of this rule does not constitute notice of insanity as a defense under Subparagraph (1) of Paragraph A of this rule. See State v. Padilla, 88 N.M. 160, 161, 538 P.2d 802 (Ct. App.), cert. denied, 88 N.M. 318, 540 P.2d 248 (1975). Also, a motion for psychiatric examination which states that counsel does not know whether defendant was sane when he committed the acts resulting in criminal charges and that the examination is sought for the purpose of making such a determination, does not constitute notice under Subparagraph (1) of Paragraph A of this rule. State v. Silva, 88 N.M. 631, 545 P.2d 490 (Ct. App.), cert. denied, 89 N.M. 6, 546 P.2d 71 (1976).
Subparagraph (2) of Paragraph A of this rule replaced former Section 41-13-3, 1953 Comp., which was repealed at the time of the adoption of the rule. In the event that the defendant is found not guilty by reason of insanity, he is acquitted of the crime and may be confined as mentally ill only through the civil commitment procedures.
Notice of incapacity to form specific intent
Paragraph B of this rule requires the defendant to give notice to the state if he intends to call an expert witness on the issue of his ability to form the specific intent element of the crime charged. Compare Rule 12.2(b) of the Federal Rules of Criminal Procedure. For a discussion of what crimes include an element of specific intent, see generally, Thompson & Gagne, "The Confusing Law of Criminal Intent in New Mexico," 5 N.M.L. Rev. 63 (1974).
[As revised, September 12, 1991; as amended by Supreme Court Order No. 18-8300-023, effective for all cases filed on or after February 1, 2019.]
ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-023, effective February 1, 2019, removed the provisions related to the mental competency of the defendant to stand trial, and revised the committee commentary; in the rule heading, deleted "incompetency"; and deleted former Paragraphs B through D and redesignated former Paragraph F as new Paragraph B. The 1991 amendment, effective for cases filed on or after November 1, 1991, in Paragraph E, substituted "mental" for "psychiatric" in the heading and near the beginning of the text and added "ability to form specific intent or competency to stand trial" to the end of the paragraph.
For determination of present competency, see Sections 31-9-1 to 31-9-2 NMSA 1978. Failure to determine competency. - Where defense counsel raised the issue of defendant's competency at defendant's preliminary hearing in magistrate court; the case was then transferred to district court; the district court ordered a competency evaluation of defendant; based on the results of the evaluation, defense counsel was satisfied that defendant was competent to stand trial, and the court entered an order finding defendant competent to stand trial; defense counsel again raised the issue of defendant's competency on the day of trial, prior to the start of trial; the court took no action and proceeded to trial; during the trial, defendant made noises, talking to someone who was not present in the courtroom; the court admonished defendant not to disrupt the trial; defense counsel attempted, but the court refused, to allow defense counsel to raise the issue of defendant's competency; the jury returned a verdict of guilty; defense counsel again raised the issue of defendant's competency; the court then permitted defense counsel to fully raise the issue and instructed defense counsel to request a competency evaluation; based on the evaluation, the court found defendant to be incompetent, but declined to dismiss the charges and proceeded to sentence defendant; defendant was denied due process of law, because the court erred when it refused to permit defense counsel to raise the issue of defendant's competency prior to and during trial, when it failed to stay the proceedings pending a determination of whether reasonable doubt existed as to defendant's competency to stand trial, and after finding defendant incompetent. State v. Montoya, 2010-NMCA-067, 148 N.M. 495, 238 P.3d 369, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Sufficient evidence of competency. - Where the defendant had an understanding of the charges against him and the consequences if he were found guilty; the defendant was able to identify most court participants in pictures of a typical courtroom, knew that witnesses would testify as to what happened, and understood that the defense attorney worked for him, that he should tell the defense attorney what he remembered about the incident for which he was charged, and tell defense attorney if he did not understand something; the defendant understood concepts when they were explained to him in other terms; and the defendant functioned reasonably well in daily life, held the same job for two years, engaged in social interactions with his co-workers, progressed through the eleventh grade, and obtained a driver's license, the evidence was sufficient to support the district court's determination that the defendant was competent to stand trial notwithstanding the fact that the the defendant's expert testified that the defendant was incompetent to stand trial. State v. Rael, 2008-NMCA-067, 144 N.M. 170, 184 P.3d 1064. Submission of competency issue to jury. - Subsection (b) of Rule 5-602(B)(2) NMRA requires a finding by the court of reasonable doubt as to the defendant's competency before the issue may be submitted to the jury. State v. Rael, 2008-NMCA-067, 144 N.M. 170, 184 P.3d 1064. Court may consider defense counsel's observations and opinions, but those observations and opinions alone cannot trigger reasonable doubts about defendant's competency. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011. Expert testimony is not required in order to obtain an evaluation of competency pursuant to Paragraph C of this rule. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011. Competency is not and does not act as an element of an offense. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011. Effect of competency on sentencing. - A competency determination does not enhance or increase a defendant's maximum sentence. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011. Constitutionality of Paragraph B. - The supreme court has power to regulate pleading, practice and procedure, and this power may be applied to regulate the procedure to be followed in securing the right to a jury trial, but it may not be used to prohibit entirely the right to jury trial which, under the constitution, is to remain inviolate. Subdivision (b) (see now Paragraph B) of this rule does more than regulate the procedure for securing a jury trial; and to the extent that it eliminates the right to a jury determination on the question of mental capacity to stand trial, it violates N.M. Const., art. II, § 12 and is void. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631. "Insanity". - The insanity defense does not comprehend an insanity which occurs at a crisis and dissipates thereafter. It is a true disease of the mind, that is, any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls, normally extending over a considerable period of time rather large in extent or degree as distinguished from a sort of momentary insanity arising from the pressure of circumstances. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535 P.2d 657. Capability of understanding proceedings and making rational defense. - It is a generally accepted rule that no person shall be called upon to stand trial or be sentenced who because of mental illness is incapable of understanding the nature and object of the proceedings, or of comprehending his own condition in reference thereto, or of making a rational defense. State v. Cliett, 1968-NMCA-099, 79 N.M. 719, 449 P.2d 89 (decided under former law). Nothing is required for mental competence to stand trial beyond a sufficient present ability to consult with his lawyer with a reasonable degree of rational as well as factual understanding of the proceedings against him. Gantar v. Cox, 1964-NMSC-215, 74 N.M. 526, 395 P.2d 354 (decided under former law). The test as to whether the accused is competent to stand trial is: has the defendant capacity to understand the nature of and object of the proceedings against him, to comprehend his own condition in reference to such proceedings and to make a rational defense? State v. Armstrong, 1971-NMSC-031, 82 N.M. 358, 482 P.2d 61 (decided under former law). In considering the evidence and whether reasonable doubt exists, the court must keep in mind the requirement that defendant must have sufficient present ability to consult and understand as required under due process of law. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011. Determination of sufficient evidence of insanity question of law. - The problem of determining whether there is sufficient evidence of insanity to permit the jury to consider it as a factual question is, in the first instance, a question of law for the court. State v. Murray, 1977-NMCA-111, 91 N.M. 154, 571 P.2d 421, cert. denied, 91 N.M. 249, 572 P.2d 1257. Ordinarily, issue then submitted to jury, but court may rule as matter of law. - If the trial court determines the evidence is sufficient to raise an issue as to defendant's sanity, ordinarily, the issue is submitted to the jury for decision. However, there may be instances where the evidence is so clear that the trial court may rule, as a matter of law, that defendant was insane. State v. Murray, 1977-NMCA-111, 91 N.M. 154, 571 P.2d 421, cert. denied, 91 N.M. 249, 572 P.2d 1257. The trial court is to rule whether a reasonable doubt exists as to the accused's sanity. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631. If court rules affirmatively the issue is to be submitted to jury for determination. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631. If, in the progress of a trial on a criminal charge, the trial judge concludes from observation or otherwise that there is reason to doubt the sanity of the defendant at that time, he should submit that question to the jury along with the principal issue requiring a special verdict on that point. Territory v. Kennedy, 1910-NMSC-047, 15 N.M. 556, 110 P. 854 (decided under former law). The state is not required to affirmatively prove sanity but can rely on the presumption of sanity. State v. Wilson, 1973-NMSC-093,85 N.M. 552, 514 P.2d 603. Except in a case where the evidence of insanity is so clear as to require a directed verdict, i.e., the presumption of sanity is rebutted as a matter of law, the presumption abides with the state throughout the case and continues even after the defendant has made a sufficient showing to procure insanity instructions. State v. Wilson, 1973-NMSC-093, 85 N.M. 552, 514 P.2d 603. Defendant must offer insanity evidence to raise jury question. - A defendant, who claims to have been insane at the time of the commission of the offense with which he is charged, must offer evidence tending to show his insanity at the time in order to create a jury question upon this issue. State v. Wilson, 1973-NMSC-093, 85 N.M. 552, 514 P.2d 603. Unless jury question on this issue is raised by evidence adduced by the state which tends to show such insanity. State v. Wilson, 1973-NMSC-093, 85 N.M. 552, 514 P.2d 603. Burden on defendant to prove mental unsoundness. - The defendant in a criminal case has the burden of proving, by a preponderance of the evidence, that he is too mentally unsound to stand trial. State v. Armstrong, 1971-NMSC-031, 82 N.M. 358, 482 P.2d 61. Burden on defendant to prove incompetency. - When a defendant advances the contention that he is incompetent to stand trial, he has the burden of proving his claim by a preponderance of the evidence. State v. Santillanes, 1978-NMCA-051, 91 N.M. 721, 580 P.2d 489. Court decides issue of competency to stand trial in one of three ways: (1) by deciding that there is no reasonable doubt that the defendant is incompetent to stand trial, in which case further proceedings shall be conducted concerning the question of involuntary hospitalization; (2) by deciding there is a reasonable doubt as to defendant's competency to stand trial, in which case the defendant has a right to have the question submitted to and answered by the same jury which is selected for and tries the case on its merits (via a special interrogatory submitted to the jury at the time the case is submitted to it for its verdict); and (3) by deciding that there is no reasonable doubt as to the defendant's competency to stand trial, in which case there is no question for a jury to decide, and such a determination is only subject to review for abuse of discretion. State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153. Whenever a legitimate concern about the present ability of a defendant to consult and understand is brought to the court's attention, the court is required to consider whatever competency-related evidence is before the court and to determine whether there exists a reasonable doubt as the defendant's competency to stand trial. If the court determines that there is reasonable doubt as to defendant's competency, the court must have defendant's competency professionally evaluated by a qualified professional who must submit a report to the court. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011. Permitting court-appointed psychologist to attend independent evaluation of defendant was not an abuse of discretion. - Where defendant was charged as a serious youthful offender with two alternative counts of first-degree felony murder, and where the state requested, and the district court allowed, an independent evaluation of defendant's alleged mental retardation following a court-appointed psychologist's recommendation that defendant be found incompetent to stand trial due to mental retardation, the district court did not abuse its discretion in granting a defense request permitting the court-appointed psychologist to attend the state's independent evaluation, because the district court's decision to order a second evaluation was entirely discretionary and, due to the unnecessary delay that had already occurred in the case, the court-appointed psychologist's attendance would ensure that the proceedings were expedited. State v. Linares, 2017-NMSC-014. Judges may draw own conclusions. - Since judges may weigh evidence as to competency themselves and draw their own conclusions, there was no error in a judge's reasonable interpretation of evidence so as to conclude that a defendant was competent to stand trial, despite the defendant's alleged inability to remember because of amnesia, alcoholic blackout or epileptic seizure. State v. Coates, 1985-NMSC-091, 103 N.M. 353, 707 P.2d 1163. Adjudication of incompetency raises presumption that the defendant is incompetent. The presumption may be rebutted, but inasmuch as defendant has the benefit of the presumption, it is the state which has the burden at a redetermination hearing of going forward with evidence to show that the defendant is competent to stand trial. State v. Santillanes, 1978-NMCA-051, 91 N.M. 721, 580 P.2d 489. Shifts burden to state to prove competency. - Where there is an existing ruling that the defendant is incompetent and incompetency is to be redetermined by the jury, the state has the burden of persuading the fact finder that the defendant is competent to stand trial. State v. Santillanes, 1978-NMCA-051, 91 N.M. 721, 580 P.2d 489. When jury should decide competency. - Where at the conclusion of a hearing the trial court states it cannot determine beyond a reasonable doubt whether the defendant is or is not competent to stand trial, the competency issue properly should be decided by a jury. State v. Santillanes, 1978-NMCA-051, 91 N.M. 721, 580 P.2d 489. The right to have a jury determination of competency attaches only where competency to stand trial is at issue and when a reasonable doubt is raised after the trial has begun but before it has ended; in all other instances, the judge has discretion to make the determination himself or to submit the issue to a nontrial jury. State v. Nelson, 1981-NMSC-100, 96 N.M. 654, 634 P.2d 676. Proof by preponderance of evidence. - The proof required for incompetency has consistently been held to be proof by a preponderance of the evidence, and this same quantum of proof applies to a redetermination of competency. State v. Santillanes, 1978-NMCA-051, 91 N.M. 721, 580 P.2d 489; State v. Sena, 1979-NMCA-043, 92 N.M. 676, 594 P.2d 336. Duty to inquire as to present sanity. - Once the issue of "present sanity" is raised, the trial court has a duty to inquire into the matter. State v. Cliett, 1968-NMCA-099, 79 N.M. 719, 449 P.2d 89 (decided under former law). Where a prior record of insanity existed and other evidences of mental disorder, it was an abuse of trial court's discretion to refuse to inquire into the present mental condition of the defendant and submit the issue of sanity to the jury. State v. Folk, 1952-NMSC-079, 56 N.M. 583, 247 P.2d 165 (decided under former law). Incompetency issue may be raised at any stage in the proceedings. - Because the conviction or the sentencing of an incompetent violates due process of law, the question or issue of competency may be raised at any stage of a criminal proceeding where there is a sufficient basis for the question or issue. State v. Sena, 1979-NMCA-043, 92 N.M. 676, 594 P.2d 336. The issue of competency to stand trial may be raised by motion at any stage of the proceedings. State v. Flores, 2005-NMCA-135, 138 N.M. 636, 124 P.3d 1175, cert. denied, 2005-NMCERT-011. Untimely notice of expert testimony. - Where defendant was arraigned on an open charge of murder in May 2008; trial was set to commence in May 2009; one month before trial, defendant gave the court and the prosecution notice of a trial witness list that included a previously undisclosed forensic psychologist and disclosed the expert's written report, dated March 2009, that was based on an evaluation of defendant that had occurred in November 2008 in which the expert concluded that defendant had the capacity to form specific intent to kill; when the state interviewed the expert nine days before trial, the expert stated that the expert had changed the expert's opinion and would testify that defendant was not able to commit deliberate first-degree murder; and two days after the state interviewed the expert, defendant filed a notice of intent to present testimony on the lack of specific intent, the court did not abuse its discretion in denying the admission of the expert's testimony. State v. Guerra, 2012-NMSC-014, 278 P.3d 1031. No right to jury trial on competency issue raised after trial. - There is no right to a jury trial on the issue of defendant's competency when the matter is first raised at any time after trial. State v. Baca, 1980-NMCA-124, 95 N.M. 205, 619 P.2d 1249. When issue first raised at sentencing hearing. State v. Sena, 1979-NMCA-043, 92 N.M. 676, 594 P.2d 336. There is no right to a jury trial on the issue of competency to stand trial when that issue is first raised at the sentencing hearing. State v. Nelson, 1981-NMSC-100, 96 N.M. 654, 634 P.2d 676. Rule not applicable to habitual offender proceeding. - The habitual offender proceeding is not a trial in the constitutional sense for purposes of making a determination as to competency, and this rule does not apply to such proceedings. State v. Nelson, 1981-NMSC-100, 96 N.M. 654, 634 P.2d 676. Motion for examination must show good cause. - In a prosecution for possession of heroin defendant's motion for a psychiatric examination was properly denied where the record was silent on any attempt of defendant to show good cause for a mental examination. State v. Jaramillo, 1975-NMCA-091, 88 N.M. 179, 538 P.2d 1201. While Paragraph C employs mandatory language, i.e., "court shall order a mental examination," limiting this provision to the movant's showing of good cause effectively invokes the district court's exercise of its discretion. State v. Garcia, 2000-NMCA-014, 128 N.M. 721, 998 P.2d 186. Good cause for mental examination not shown. - Evidence of defendant's alcoholism and refusal to plea bargain is insufficient to show good cause for an order of a mental examination under Subdivision (c) (see now Paragraph C). State v. Chacon, 1983-NMCA-151, 100 N.M. 704, 675 P.2d 1003. The state's mere allegation that a psychiatric evaluator failed to inquire as to defendant's "dangerousness" did not per se render the original mental evaluation insufficient such that "good cause" existed for a second examination. State v. Garcia, 2000-NMCA-014, 128 N.M. 721, 998 P.2d 186. Motion for examination does not constitute notice of insanity defense. - Motion for a psychiatric examination stating that counsel did not know whether defendant was sane when he committed the acts resulting in criminal charges and that the examination was sought for the purpose of making such a determination could not be construed as giving notice within the time provided by this rule that an insanity defense would be raised. State v. Silva, 1976-NMCA-003, 88 N.M. 631, 545 P.2d 490, cert. denied, 89 N.M. 6, 546 P.2d 71. A motion by the defendant for a court-ordered mental examination to determine competency gives no notice of an insanity defense. State v. Young, 1978-NMCA-040, 91 N.M. 647, 579 P.2d 179, cert. denied, 91 N.M. 751, 580 P.2d 972, and cert. denied, 439 U.S. 957, 99 S. Ct. 357, 58 L. Ed. 2d 348 (1978). Defendant must allege specific factual basis for relief sought when alleging incapacity to stand trial by reason of incompetency. State v. Cliett, 1968-NMCA-099, 79 N.M. 719, 449 P.2d 89 (decided under former law). Procedure when defendant moves for jury trial on question of competency. - Where defendant moved for a jury trial on the question of his competency, the trial court should have determined, after an evidentiary hearing, whether there was reasonable doubt as to defendant's competency, and if the trial court ruled there was reasonable doubt, the issue was for the jury to decide. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631. Expert testimony on issue of insanity is not binding of the fact finder and the jury may believe or disbelieve expert testimony as it chooses. Thus, such evidence presents a question of fact which is properly submitted to the jury to decide. State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153. It is for the jury to reach a conclusion as to the sanity or insanity of the accused. The province of the experts is to aid the jury in reaching a conclusion. Their opinions are not to be taken as conclusive. The judgments of experts or the inferences of skilled witnesses, even when unanimous and uncontroverted, are not necessarily conclusive. The testimony of an expert is purely his opinion and is not testimony as to facts and is not conclusive, even when uncontradicted. State v. James, 1973-NMCA-077, 85 N.M. 230, 511 P.2d 556, cert. denied, 85 N.M. 228, 511 P.2d 554. Recent confinement in mental institution as raising issue of competency to plead. - Allegations of post-conviction confinement in a mental institution in 1962 and early 1963 when sufficiently close to the date of the defendant's plea raise a factual issue concerning his mental competency to plead. State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803 (decided under former law). Allegations of post-conviction confinement in a mental institution and diagnosis as a psychotic are sufficiently close to the date of his plea to raise a factual issue concerning his competency to plead. State v. Cliett, 1968-NMCA-099, 79 N.M. 719, 449 P.2d 89 (decided under former law). Record of insanity proceeding. - There is no objection to introduction of the record of insanity proceeding or one for appointment of guardian or a committee to handle the estate of an incompetent person where it is sought to establish that person as a defendant in a criminal prosecution is either insane at time of trial, or was insane at the time the crime was committed, if the earlier proceeding was had at a time not too remote, which question would go to its weight and not to its competency. State v. Folk, 1952-NMSC-079, 56 N.M. 583, 247 P.2d 165 (decided under former law). Demeanor at trial not sufficient to dispense with sanity hearing. - While defendant's demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue. State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803 (decided under former law). Insanity defense raised only after prosecution rests case in chief excluded. - Where the defendant attempts to raise an insanity defense for the first time after the prosecution rests its case in chief but no issue is raised as to defendant's competency to stand trial, and the defendant knew of an insanity defense the day before trial at latest, the prosecution would be prejudiced by allowing the insanity defense to be raised, and there is no abuse of discretion in excluding the tendered testimony. State v. Young, 1978-NMCA-040, 91 N.M. 647, 579 P.2d 179, cert. denied, 91 N.M. 751, 580 P.2d 972, and cert. denied, 439 U.S. 957, 99 S. Ct. 357, 58 L. Ed. 2d 348 (1978), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978), 439 U.S. 957, 99 S. Ct. 357, 58 L. Ed. 2d 348 (1978). Relief in post-conviction proceeding not barred by earlier failure to plead incompetence. - Where at the time of a guilty plea, neither defendant nor his counsel suggested that defendant was mentally incompetent to plead, this failure, in and of itself, does not bar relief in a post-conviction proceeding. State v. Guy, 1968-NMCA-020, 79 N.M. 128, 440 P.2d 803 (decided under former law). Issue of insanity decided at first trial found to bar issue at second trial. - Where the issue of defendant's sanity was an issue of fact in the first trial, insanity having been raised as an affirmative defense, it was actually litigated, and it was absolutely necessary to a decision in that trial, and the identical issue of fact, the sanity of the defendant, was raised in the second trial between the same parties (the state and the defendant) for offenses committed some 16 hours prior to the crime which was the subject of the first trial, it was held that the issue of insanity which was decided in defendant's favor at the first trial was the same issue of fact as the issue of insanity at the second trial and therefore collateral estoppel was a bar to the second trial. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535 P.2d 657. Error found in counsel's waiver of issue of competency. - The trial court erred in refusing to grant defendant a new trial on grounds that her attorney's stipulation to the prosecution's facts and waiver of the issue of competency were the result of a plea bargain with the result that the issue of defendant's competency was never clearly determined or considered. State v. Romero, 1974-NMSC-042, 86 N.M. 244, 522 P.2d 579. Opinion as to sanity based partly on statements of third persons. - The opinion of a medical expert as to the sanity of a defendant in a criminal proceeding based partly upon the statements of third persons out of court is generally considered inadmissible. State v. Chambers, 1972-NMSC-069, 84 N.M. 309, 502 P.2d 999. Standard of review for refusal to submit competency issue to jury. - Where the court decides that there is no reasonable doubt as to the defendant's competency to stand trial, in which case there is no question for the jury to decide, such a determination is only subject to review for abuse of discretion. State v. Montano, 1979-NMCA-101, 93 N.M. 436, 601 P.2d 69, cert. denied, 93 N.M. 683, 604 P.2d 821. Intoxication. - In light of defense attorney's representations that defendant was competent and not impaired, and, in the absence of evidence that defendant did not understand the proceedings or charges, or could not assist in his defense, the trial court's implicit determination that there was no reasonable doubt as to defendant's competence, or sobriety, did not constitute an abuse of discretion. State v. Padilla, 1994-NMCA-067, 118 N.M. 189, 879 P.2d 1208. No abuse found in failing to submit competency issue to jury. - Where there was no conflict in the testimony presented at the hearing concerning the defendant's competency to stand trial, and no further pursuit of that question was made by defendant, the trial court did not abuse its discretion in not submitting the issue of competency to the jury. State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153. Insufficient proof of incompetence. - Defense counsel's statements regarding his observations of defendant's unwillingness or possible inability to communicate with him and help in his own defense, regarding pretrial incarceration did not comprise sufficient testimony to support the defendant's contention that he was incompetent to stand trial. State v. Najar, 1986-NMCA-068, 104 N.M. 540, 724 P.2d 249. The court did not abuse its discretion in determining that the defendant was competent to stand trial based on its consideration of the testimony of four experts, three of whom opined that the defendant was competent. State v. Duarte, 1996-NMCA-038, 121 N.M. 553, 915 P.2d 309. Law reviews. - For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981). For article, "The Guilty But Mentally Ill Verdict and Plea in New Mexico," see 13 N.M.L. Rev. 99 (1983). For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev. 341 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 34 to 44, 46, 47, 49 to 61. Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434. Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case, 17 A.L.R.3d 146. Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228. Necessity or propriety of bifurcated criminal trial on issue of insanity defense, 1 A.L.R.4th 884. Mental subnormality of accused as affecting voluntariness or admissibility of confession, 8 A.L.R.4th 16. Adequacy of defense counsel's representation of criminal client regarding incompetency, insanity, and related issues, 17 A.L.R.4th 575. Power of court, in absence of statute, to order psychiatric examination of accused for purpose of determining mental condition at time of alleged offense, 17 A.L.R.4th 1274. Competency to stand trial of criminal defendant diagnosed as "mentally retarded" -modern cases, 23 A.L.R.4th 493. Competency to stand trial of criminal defendant diagnosed as "schizophrenic" - modern state cases, 33 A.L.R.4th 1062. Admissibility of results of computer analysis of defendant's mental state, 37 A.L.R.4th 510. Pyromania and the criminal law, 51 A.L.R.4th 1243. Probation revocation: Insanity as defense, 56 A.L.R.4th 1178. Instructions in state criminal case in which defendant pleads insanity as to hospital confinement in event of acquittal, 81 A.L.R.4th 659. Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement, 43 A.L.R.5th 777. Necessity and sufficiency of competency hearings, as judged by federal constitutional standards, in federal cases involving validity of guilty pleas entered by allegedly mentally incompetent state convicts, 37 A.L.R. Fed. 356. Compliance with federal constitutional requirement that guilty pleas be made voluntarily and with understanding, in federal cases involving allegedly mentally incompetent state convicts, 38 A.L.R. Fed. 238. Notice to government of defense based upon defendant's mental condition at time of alleged crime, and court-ordered psychiatric examination thereon, under Rule 12.2, Federal Rules of Criminal Procedure, 63 A.L.R. Fed. 552. Competency to stand trial of criminal defendant diagnosed as "schizophrenic" - modern federal cases, 63 A.L.R. Fed. 696. Pathological gambling as basis of defense of insanity in federal criminal case, 76 A.L.R. Fed. 749. Construction and application of 18 USCS § 17, providing for insanity defense in federal criminal prosecutions, 118 A.L.R. Fed. 265. 57 C.J.S. Mental Health § 254 et seq.