[This decision has been published in Ohio Official Reports at
94 Ohio St.3d 173.]
THE STATE OF OHIO, APPELLEE, v. WERE, APPELLANT.
[Cite as State v. Were, 2002-Ohio-481.]
Criminal law—Aggravated murder of a prison guard—Death penalty reversed
and cause remanded for new trial, when—Under former R.C. 2945.37(A),
now subsection (B), trial court must hold a competency hearing, when—
An evidentiary competency hearing is constitutionally required, when.
(No. 98-2197—Submitted September 18, 2001—Decided February 6, 2002.)
APPEAL from the Court of Appeals for Hamilton County, No. C-950908.
__________________
SYLLABUS OF THE COURT
1. Under former R.C. 2945.37(A) (now subsection [B]), a trial court must hold a
competency hearing if a request is made before trial.
2. An evidentiary competency hearing is constitutionally required whenever there
are sufficient indicia of incompetency to call into doubt defendant’s
competency to stand trial. (State v. Berry [1995], 72 Ohio St.3d 354,
650
N.E.2d 433, followed.)
__________________
FRANCIS E. SWEENEY, SR., J.
{¶ 1} In April 1993, inmates rioted at the Southern Ohio Correctional
Facility in Lucasville, Ohio. During the upheaval, groups of inmates overpowered
prison guards and held authorities at bay for several days. Before control was
regained at the maximum security facility, several inmates and one guard were
murdered. In this death-penalty case, defendant-appellant, James Were, was tried
and found guilty of the murder of the prison guard, Robert Vallandingham.1 Upon
1. Although appellant was also tried for the murder of inmate Bruce Harris, the jury acquitted him
of those charges.
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appeal, the court of appeals affirmed. This cause is now before the court upon an
appeal as of right from the court of appeals.
{¶ 2} Appellant raises thirty-one propositions of law for our consideration.
However, because we find merit in appellant’s claim in one of those propositions
that the court committed reversible error, we do not reach the other issues. In
proposition VIII, appellant asserts that he was deprived of a fair trial because the
trial court failed to conduct a competency hearing as repeatedly requested by trial
counsel. We find this argument meritorious. Accordingly, we overturn his
convictions and death sentence and reverse and remand for a new trial.
{¶ 3} Fundamental to our adversarial system of justice is the due process
right of a criminal defendant who is legally incompetent not to be subjected to trial.
State v. Berry (1995), 72 Ohio St.3d 354, 359,
650 N.E.2d 433, 438, citing Pate v.
Robinson (1966),
383 U.S. 375,
86 S.Ct. 836,
15 L.Ed.2d 815, and Drope v.
Missouri (1975),
420 U.S. 162,
95 S.Ct. 896,
43 L.Ed.2d 103. In Dusky v. United
States (1960),
362 U.S. 402, 402,
80 S.Ct. 788, 789,
4 L.Ed.2d 824, 825, the United
States Supreme Court defined the test for competence to stand trial as whether the
defendant “ ‘has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a rational as well
as factual understanding of the proceedings against him,’ ” quoting the brief of the
United States Solicitor General.
{¶ 4} In R.C. 2945.37, the General Assembly codified the criminal
defendant’s right to a competency hearing and set forth the test to determine
competency. At the time of Were’s trial, this statute provided:
“(A) In a criminal action in a court of common pleas or municipal court, the
court, prosecutor, or defense may raise the issue of the defendant’s competence to
stand trial. If the issue is raised before trial, the court shall hold a hearing on the
issue as provided in this section. …
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January Term, 2002
“A defendant is presumed competent to stand trial, unless it is proved by a
preponderance of the evidence in a hearing under this section that because of his
present mental condition he is incapable of understanding the nature and objective
of the proceedings against him or of presently assisting in his defense.” (Emphasis
added.) 142 Ohio Laws, Part I, 755-756.
{¶ 5} Thus, under former R.C. 2945.37(A), a trial court must hold a
competency hearing if a request is made before trial. (Substantially the same
requirement is now in subsection [B].) Our cases have underscored that
requirement. See State v. Hessler (2000), 90 Ohio St.3d 108, 124,
734 N.E.2d 1237,
1253; State v. Bock (1986),
28 Ohio St.3d 108, 109, 28 OBR 207, 209,
502 N.E.2d
1016, 1018.
{¶ 6} Defense counsel filed a pretrial motion requesting a competency
hearing on March 27, 1995. Although the trial court ordered a competency
evaluation, the requested hearing was not held or waived. Instead, on August 23,
1995, the trial court issued a journal entry that determined competency without a
hearing:
“The court finds that the Shawnee Forensic Center attempted to conduct a
competency examination of the defendant as ordered by the court. The court finds
that the defendant refused to speak with the examiners in a face to face
confrontation with the defendant ordered by the court. A copy of this report is
attached. The examiners concluded based on their information that defendant was
intentionally refusing to cooperate as part of a deliberate ploy on his part to disrupt
these legal proceedings. It was their further opinion that defendant is competent
and is capable of understanding the nature and objective of the proceedings and
assisting in his defense.
“The court finds defendant is competent to stand trial and these proceedings
should continue as scheduled.”
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{¶ 7} Thus, based on the examiners’ report, the trial court concluded that
appellant was competent. Since appellant refused to meet with the examiners, this
determination was made without the benefit of a psychiatric evaluation. Also, the
court’s decision was made without a defense stipulation to the report or a hearing
on the matter. We find this to be error. The issue was raised prior to trial; thus, in
accordance with the express language of the statute, the trial court was required to
hold a competency hearing. Accordingly, we find that the trial court did not satisfy
the requirement of a hearing in former R.C. 2945.37(A).
{¶ 8} Moreover, the record supports a further finding that the failure to hold
a competency hearing was a constitutional violation. In Berry, supra, we stated,
“The right to a hearing on the issue of competency rises to the level of a
constitutional guarantee where the record contains ‘sufficient indicia of
incompetence,’ such that an inquiry into the defendant’s competency is necessary
to ensure the defendant’s right to a fair trial.” Berry,
72 Ohio St.3d at 359,
650
N.E.2d at 438, quoting Drope v. Missouri (1975),
420 U.S. 162, 175,
95 S.Ct. 896,
905,
43 L.Ed.2d 103, 115. We hold that an evidentiary competency hearing is
constitutionally required whenever there are sufficient indicia of incompetency to
call into doubt defendant’s competency to stand trial. (State v. Berry [1995],
72
Ohio St.3d 354,
650 N.E.2d 433, followed.)
{¶ 9} Here, the record is replete with suggestions of appellant’s
incompetency. Defense counsel directly raised the issue and asked for a
competency hearing on several occasions: (1) in the previously mentioned pretrial
motion, (2) after opening arguments, (3) during the trial, and (4) before the
mitigation phase began. While defense counsel was afforded the opportunity to
offer reasons in support of their request for a competency hearing at these various
points, they were never afforded an evidentiary hearing.
{¶ 10} Also, on many occasions, defense counsel directly or indirectly
represented to the court that they believed appellant to be incompetent. For
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January Term, 2002
instance, at a status conference held on July 18, 1995, defense counsel John Mackey
stated that he had served for the past eight years as a part-time referee in probate
court handling civil commitments. Based on this experience, he believed that
appellant exhibited signs of paranoia and harbored suspicion against the defense
team that, in counsel’s view, could not be overcome.
{¶ 11} Additionally, defense counsel filed two separate motions to
withdraw and a motion for a continuance. As grounds for these motions, counsel
cited appellant’s bizarre belief that counsel was taping confidential conversations
and turning the tapes over to the state. Counsel also cited appellant’s refusal to
speak with them or any member of the defense team and his refusal to accept their
correspondence. Counsel consistently claimed that appellant’s failure to cooperate
seriously hampered their ability to present a defense.
{¶ 12} Appellant’s own letters and statements to the court suggest that
appellant’s paranoia centered on defense counsel. In addition to other pro se filings,
appellant filed six pro se motions to dismiss his attorneys. He stated that his
attorneys were racially biased, had threatened his life, were conspiring with the
prosecution, and had failed to adequately prepare for the mitigation phase. The last
argument ignored his refusal to speak with the mitigation specialist.
{¶ 13} The state admits that an evidentiary hearing on competency was not
held. However, the state relies on Bock, supra,28 Ohio St.3d 108, 28 OBR 207,
502 N.E.2d 1016, where this court found that the failure to hold a competency
hearing was harmless error. We find that the state’s reliance on Bock is misplaced.
The facts in Bock are far different from those present in this case.
{¶ 14} In Bock, the court found harmless error in the trial court’s failure to
conduct a competency hearing in part because the defendant testified in his own
defense and was subject to cross-examination, and the record failed to reveal
sufficient indicia of incompetency. In addition, the court noted, “Defense counsel,
after the original motion for a hearing, failed ever again to mention the defendant’s
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competency until the time for appeal.” Id.,28 Ohio St.3d at 111, 28 OBR at 210,
502 N.E.2d at 1019.
{¶ 15} Here, defense counsel continually raised the issue of appellant’s
competency. Also, unlike the defendant in Bock, appellant never testified during
the guilt phase, and his unsworn statement offered during mitigation was not subject
to cross-examination. Nor can it be said that the record here lacks sufficient indicia
of appellant’s incompetency. In addition to defense counsel’s repeated allegations,
the many pro se motions filed by appellant clearly cast doubt on appellant’s
competency.
{¶ 16} The court of appeals found that appellant’s “intransigence” was to
blame for the trial court’s failure to hold the statutorily mandated hearing.
However, the appellate court does not explain how appellant’s refusal to speak with
appointed mental health experts prevented the judge from conducting a hearing.
Even without an interview, experts could have reviewed counsel’s problems and
the many letters and motions written by appellant. In addition, appellant could have
been moved to a mental facility in order to be observed as requested by defense
counsel. Moreover, the record does not support the lower court’s conclusion that
appellant was engaged in a “calculated effort to avoid prosecution by delaying the
progress of the trial.” In fact, the contrary may be true in light of appellant’s stated
desire to be brought to trial earlier.
{¶ 17} Understandably, appellant’s intransigence and lack of cooperation
were frustrating to the trial court. However, “[c]ommon sense dictates that no
defendant can make a record of lack of competency absent the findings and hearings
contemplated by R.C. 2945.37 and 2945.371.” Bock, 28 Ohio St.3d at 113, 28 OBR
at 212,
502 N.E.2d at 1021 (Wright, J., dissenting).
{¶ 18} Based on these facts, we conclude that the trial court violated
appellant’s constitutional and statutory right to a competency hearing. We find
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January Term, 2002
appellant’s proposition VIII to be well taken. Accordingly, we vacate appellant’s
convictions and sentence, reverse the judgment, and remand for a new trial.
Judgment reversed
and cause remanded.
MOYER, C.J., DOUGLAS, PFEIFER and LUNDBERG STRATTON, JJ., concur.
RESNICK, J., dissents.
COOK, J., dissents.
__________________
ALICE ROBIE RESNICK, J., dissenting.
{¶ 19} I believe that the arguments the majority relies on are unpersuasive
and inapposite to the conclusion it has reached in vacating the appellant’s
convictions and sentence and remanding the case for a new trial. I, therefore,
dissent from the judgment of the court.
{¶ 20} The trial court aptly described the situation: “[T]he Shawnee
Forensic Center attempted to conduct a competency examination of the defendant
as ordered by the court. The court finds that the defendant refused to speak with
the examiners in a face to face confrontation with the defendant ordered by the
court. … The examiners concluded based on their information that defendant
was intentionally refusing to cooperate as a part of a deliberate ploy on his part to
disrupt these legal proceedings. It was their further opinion that defendant is
competent and is capable of understanding the nature and objective of the
proceedings and assisting in his defense.” (Emphasis added.) How then can the
trial court be found to have committed reversible error when the appellant himself
refused to cooperate during the attempted evaluation? The trial court made a goodfaith effort to comply with defense counsel’s request, yet the only stumbling block
to ensuring that a hearing would take place was the appellant’s unwillingness to
speak with the examiners assigned to determine his competence to stand trial.
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{¶ 21} Furthermore, the majority’s wide-ranging examples of appellant’s
supposed incompetence are equally unpersuasive. The appellant’s desire to dismiss
his counsel does not, in and of itself, lead to the conclusion that appellant is
incompetent. Nor does the fact that defense counsel attempted to withdraw and to
continue the case prove that appellant was incapable of understanding the charges
against him. As the appellate court thoughtfully stated, “In those meaningful
respects where objective evidence of the state of his competency might have been
provided, Were acted with varying degrees of intransigence that, at times, rose to
the level of an outright refusal to cooperate. In particular, he resisted any
meaningful attempt to have his mental state evaluated by the court-appointed
experts. In our view … Were’s lack of cooperation was a symptom not of mental
illness, but of his calculated effort to avoid prosecution by delaying the progress of
the trial.” State v. Were (Sept. 30, 1998), Hamilton App. No. C-950908,
unreported, at 16, 1998 WL 682146. The appellant wittingly created every obstacle
that has ultimately led this court to find in his favor. Moreover, due to the
appellant’s deliberate acts, there was no way the trial court could conduct a hearing.
It is unfortunate that appellant’s seemingly purposeful delay tactics have now been
misconstrued as a violation of his due process rights. If any error occurred, it was
invited error on the part of the appellant and certainly not reversible error as the
majority has found. Thus, I would affirm the judgment of the court of appeals and
impose the sentence of death on the appellant.
__________________
COOK, J., dissenting.
{¶ 22} I fully agree with the legal principles set forth in the syllabus. And
I also agree with the majority that the trial court violated Were’s due process rights
by failing to hold the pretrial competency hearing mandated by R.C. 2945.37. But
despite my agreement with these aspects of the majority’s decision, I cannot join
the ultimate disposition of this case. Today’s decision implies that a reversal and
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January Term, 2002
remand for a new trial are the only remedy available to rectify the trial court’s
constitutional error. I would follow the lead of numerous jurisdictions, however,
and order a remand to the trial court for the limited purpose of conducting, if
possible, a retrospective competency hearing.
I
{¶ 23} The majority finds that the record contains “sufficient indicia of
incompetence” that triggered Were’s due process right to a competency hearing.
See State v. Berry (1995), 72 Ohio St.3d 354, 359,
650 N.E.2d 433, 438. I agree
with the majority’s conclusion in that regard, but for somewhat different reasons.
{¶ 24} Defense counsel first raised the issue of Were’s competency to stand
trial in a motion filed in March 1995. Following a court order for a psychological
examination, which was not completed because Were did not cooperate, the trial
court journalized an entry denying defense counsel’s motion for a competency
hearing. The court, relying on a psychologist’s report and a letter from Were, found
that “the defendant appears to be competent to stand trial” and noted that Were’s
“lack of cooperation alone is not sufficient to render him incompetent.”
{¶ 25} In the months following the psychological examination, Were filed
several pro se motions seeking removal of his counsel and appointment of new
counsel. Were also requested new counsel at a pretrial hearing in July 1995, during
which he told the court that his attorneys “show[ed] prejudice and racism towards
me” and that he could not trust them because of their “trickery.” Following this
hearing, the trial court denied Were’s request to have counsel removed and ordered
a second psychological evaluation, despite the fact that the defendant had refused
to cooperate with the previous evaluation. In a journal entry the court stated:
“The Court finds that counsel for defendant are competent, highly skilled
practitioners fully capable of representing this defendant in these matters. The
Court finds that counsel for defendant have filed numerous motions and received
and reviewed voluminous discovery. The defendant on the other hand has refused
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in every way to cooperate or assist his counsel in his defense. This failure to
cooperate is either a deliberate tactic on the part of the defendant to inject error in
these proceedings or the product of some mental incapacity.” (Emphasis added.)
{¶ 26} By expressly acknowledging the possibility that Were was
incompetent to stand trial, the trial court implicitly acknowledged the existence of
a genuine issue concerning Were’s competency. See Thompson v. Commonwealth
(Ky.2001), 56 S.W.3d 406, 407-408. This conclusion is further bolstered by the
fact that one of Were’s attorneys, who had conducted civil commitment
proceedings as a probate court magistrate, advised the court that Were exhibited
signs of a paranoid personality disorder that rendered him incapable of assisting in
his defense. See Drope v. Missouri (1975),
420 U.S. 162, 177,
95 S.Ct. 896, 906,
43 L.Ed.2d 103, 116, fn. 13 (noting that a lawyer’s representation about the client’s
competence “is unquestionably a factor which should be considered” in deciding
whether to hold a competency hearing). Moreover, by ordering a further
psychological evaluation, the trial court sent the implicit message that it no longer
trusted its previous competency determination after having observed Were
firsthand at the pretrial hearing.
{¶ 27} It is true that the trial court later concluded that Were was merely
uncooperative with counsel and that Were was, in fact, competent to stand trial.
And the trial court found nothing about Were’s behavior during trial to change its
opinion on that issue. But because the court had already found that a genuine issue
existed concerning Were’s competency, the due process requirement for a
competency hearing was already triggered. The trial court therefore committed
constitutional error by failing to conduct the pretrial competency hearing required
by former R.C. 2945.37(A) (see R.C. 2945.37[B]).
II
{¶ 28} Having found a constitutional violation, the majority reverses
Were’s conviction and remands for a new trial. In doing so, however, the majority
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January Term, 2002
fails to consider a viable alternate remedy. Specifically, today’s judgment
overlooks the possibility of remanding this cause to the trial court for a retrospective
competency evaluation. That is, this court could remand this case to the trial court
for a hearing in which the state may establish the defendant’s competency at the
time of trial and, in effect, “demonstrate that the … trial court’s failure to hold a
competency hearing constituted harmless error.” James v. Singletary (C.A.11,
1992), 957 F.2d 1562, 1571.
{¶ 29} Admittedly, reversal and remand for a new trial because of a trial
court’s failure to hold a constitutionally required competency hearing is consistent
with United States Supreme Court precedent. See Drope v. Missouri, 420 U.S. at
183,
95 S.Ct. at 909,
43 L.Ed.2d at 119-120; Pate v. Robinson (1966),
383 U.S.
375, 386-387,
86 S.Ct. 836, 842-843,
15 L.Ed.2d 815, 822-823. In Drope, the court
reversed the petitioner’s conviction upon finding a due process violation and
declined to remand for a determination of whether the petitioner was competent at
the time of trial. “Given the inherent difficulties of such a nunc pro tunc
determination under the most favorable circumstances …, we cannot conclude
that such a procedure would be adequate here.” Drope,
420 U.S. at 183,
95 S.Ct.
at 909,
43 L.Ed.2d at 119-120. Similarly, the Pate court recognized “the difficulty
of retrospectively determining an accused’s competence to stand trial” and simply
ordered the district court to grant habeas corpus relief rather than attempt to do so.
Pate,
383 U.S. at 387,
86 S.Ct. at 843,
15 L.Ed.2d at 823, citing Dusky v. United
States (1960),
362 U.S. 402,
80 S.Ct. 788,
4 L.Ed.2d 824. In light of the
admonitions in Drope and Pate, both state and federal courts have recognized that
retrospective competency determinations are disfavored. See, e.g., United States v.
Renfroe (C.A.3, 1987),
825 F.2d 763, 767; State v. Sanders (2001),
209 W.Va. 367,
549 S.E.2d 40, 54.
{¶ 30} Though disfavored, however, retrospective competency
determinations do not per se offend notions of due process. Numerous federal
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circuits have held that retrospective determinations of competency are
constitutionally permitted so long as a meaningful hearing on the defendant’s
competency at the prior proceedings is still possible. See United States v. Auen
(C.A.2, 1988), 846 F.2d 872, 878; Renfroe,
825 F.2d at 767; United States v. Mason
(C.A.4, 1995),
52 F.3d 1286, 1293; Wheat v. Thigpen (C.A.5, 1986),
793 F.2d 621,
630; Cremeans v. Chapleau (C.A.6, 1995),
62 F.3d 167, 169; United States ex rel.
Lewis v. Lane (C.A.7, 1987),
822 F.2d 703, 706; Reynolds v. Norris (C.A.8, 1996),
86 F.3d 796, 802-803; Moran v. Godinez (C.A.9, 1994),
57 F.3d 690, 696; James,
957 F.2d at 1570, fn. 11. “A ‘meaningful’ determination is possible where the state
of the record, together with such additional evidence as may be relevant and
available, permits an accurate assessment of the defendant’s condition at the time
of the original … proceedings.” Reynolds,
86 F.3d at 802. A number of state
courts have adopted this view and have remanded cases to trial courts for
retrospective competency hearings rather than automatically reversing and
remanding for a new trial. See Sanders,
209 W.Va. at 380-383,
549 S.E.2d at 53-
55; Thompson,
56 S.W.3d at 409-410; State v. Bostwick (1999),
296 Mont. 149,
160-161,
988 P.2d 765, 772; State v. Snyder (La.1999),
750 So.2d 832, 855; State
v. McRae (2000),
139 N.C.App. 387, 391-392;
533 S.E.2d 557, 560-561.
{¶ 31} Consistent with this weight of authority, I would remand this case to
the trial court for the limited purpose of holding a retrospective competency
hearing. On the record before this court, I see “no clear impediment” to the trial
court’s ability to retroactively assess Were’s competency at the time of his trial.
Sanders, 209 W.Va. at 381,
549 S.E.2d at 54.2 This is not to say that a remand
2. When determining whether it is appropriate to remand a case for a retrospective competency
hearing, a court should consider (1) the passage of time between the trial and the retrospective
hearing; (2) whether contemporaneous medical evidence is available, including medical records and
prior competency evaluations; (3) any statements by the defendant in the trial record; (4) the
availability of witnesses (both expert and nonexpert) who interacted with the defendant during trial,
including the trial judge, prosecutors, defense counsel, and jail officials. Sanders,
209 W.Va. at
12
January Term, 2002
would obligate the trial court to conduct a retrospective competency hearing if it
found that it could not meaningfully determine whether Were was competent at the
time of his trial. After all, “[t]he trial court is in the best position to determine
whether it can make a retrospective determination of defendant’s competency
during his trial and sentencing.” Snyder, 750 So.2d at 855, citing Renfroe,
825 F.2d
at 767. If a trial court finds that it cannot conduct a meaningful retrospective inquiry
or if the court holds a hearing and finds that a defendant was not competent to stand
trial during the prior proceedings, a defendant would be entitled to a new trial (if
and when he is competent). Snyder,
750 So.2d at 856; Thompson,
56 S.W.3d at
410; McRae,
139 N.C.App. at 392,
533 S.E.2d at 561. If a trial court holds a hearing
and concludes that a defendant was competent, then no new trial would be required
and this court could proceed to evaluate the merits of the remaining contentions on
appeal. See Snyder,
750 So.2d at 856, citing United States v. Haywood (C.A.3,
1998),
155 F.3d 674; see, also, Bostwick,
296 Mont. at 161,
988 P.2d at 773.
Because the majority chooses to reverse and remand Were’s convictions without
exploring the viable option of a retrospective competency determination, I
respectfully dissent.
__________________
Mark E. Piepmeier, Special Prosecutor, and William E. Breyer, Assistant
Special Prosecutor, for appellee.
Elizabeth E. Agar and Julia A. Sears, for appellant.
__________________
381, 549 S.E.2d at 54, citing Clayton v. Gibson (C.A.10, 1999),
199 F.3d 1162, 1169; see, also,
Reynolds,
86 F.3d at 802-803; Thompson,
56 S.W.3d at 409.
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