STATE OF MONTANA, Plaintiff and Appellee, v. MARK NICHOLAS WHITE, Defendant and Appellant.
No. DA 13-0589.
SUPREME COURT OF MONTANA
Decided December 23, 2014.
2014 MT 335; 377 Mont. 332; 339 P.3d 1243
Submitted on Briefs October 29, 2014.
For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman (argued), Assistant Attorney General, Helena; Marty Lambert, Gallatin County Atty., Eric Kitzmiller, Deputy County Attorney, Bozeman.
CHIEF JUSTICE MCGRATH delivered the Opinion of the Court.
¶1 Appellant Mark White (White) appeals from his felony conviction for assault with a weapon in the Eighteenth Judicial District. We affirm.
¶2 We restate the following issues for review:
Issue One: Whether the District Court erred when it determined White was not mentally fit to stand trial at a proceeding in which White was not present.
Issue Two: Whether the District Court erred by failing to complete the initial appearance process.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 During the early morning of February 15, 2011, Mark Ward (Ward) was delivering newspapers to the Darlington Manor in Bozeman, Montana. White lived in the Darlington Manor. After hearing noises in the hallway, White had a brief conversation with Ward and told him to never return to the building.
¶4 Ward returned the following day to deliver papers to residents of the building. As Ward was leaving the building, White confronted him, stating, “I thought I told you to get out of here and never come back.” White then assaulted Ward, slamming him into a door and jumping on him multiple times. After the assault ended, Ward returned to his vehicle and called 911. While on the phone, White entered the vehicle and cut Ward‘s face. Ultimately, Ward was able to drive to safety and police arrested White.
¶5 During the event, White made multiple statements indicating he was suffering from mental health problems. On the 911 call, White is heard referring to Ward as a “Kraut.” When police arrived at the scene, White stated, “Come on, let‘s go. The Nazis are over here. Let‘s go kill them.” White also told police that he was wearing gloves because he planned to cut Ward‘s eyes out and feed the eyes to a cat.
¶6 On February 17, 2011, White was charged by complaint with assault with a weapon after a justice of the peace determined there was probable cause to believe he committed the offense. Soon after his placement at the Gallatin County Detention Center, White was transferred to the Hope House for psychiatric treatment. While at Hope House, White was delusional and acted aggressively. As a result, involuntary civil commitment proceedings were initiated. In late February 2011, the District Court found that probable cause existed for the offense and an information charging White with assault with a weapon was filed.
¶7 On February 28, 2011, White and his attorney, Mr. Petaja, appeared before Judge Salvagni via video from Hope House. The District Court and defense counsel had the following conversation:
The Court: You‘re telling me, Mr. Petaja, that he is not in a mental condition for me to do an Initial Appearance with him this morning; is that correct?
Mr. Petaja: Yes, Your Honor.
The Court: So it would be of no benefit to advise him about these charges filed against him; is that correct?
Mr. Petaja: Not at this time, Judge.
The Court: Okay. The Court will enter a not guilty plea at Mr. Petaja‘s request to the charge of— Mr. Petaja: They‘re entering a not guilty plea, Mark.
The Court: — to the charge of assault with a weapon. The Court will issue a Conditional Release Order, however, in the criminal case.
The Court: So the Court will set bail in the amount of $20,000, will order that he shall not be released from custody until he appears before the Court setting conditions if he proposes to post bail.
¶8 The District Court then ordered a fitness evaluation pursuant to
¶9 On August 1, 2011, the District Court conducted a review hearing pursuant to
¶10 In a subsequent report, dated October 6, 2011, doctors concluded that White had regained the ability to rationally understand the proceedings and consult with his attorney. Staff further reported that White had the substantial capacity to form the particular mental state that was an element of the offense, but that his schizoaffective disorder substantially impaired his capacity to conform his conduct to the law at the time of the offense. Subsequently, White was transferred to the Gallatin County Detention Center. After months of continuances, an omnibus hearing was held in May 2012. The District Court did not conduct an initial appearance after White was deemed fit.
¶11 White waived his right to a jury trial and Judge Salvagni conducted a bench trial. Judge Salvagni found White guilty of assault with a weapon. White was sentenced to twenty years with the Department of Public Health and Human Services. Section
STANDARD OF REVIEW
¶12 Whether a criminal defendant‘s right to be present at a critical stage has been violated is a question of constitutional law. State v. Matt, 2008 MT 444, ¶ 12, 347 Mont. 530, 199 P.3d 244 (overruled in part by State v. Charlie, 2010 MT 195, 357 Mont. 355, 239 P.3d 934). This Court exercises plenary review over constitutional questions. Charlie, ¶ 21.
¶13 Whether an initial appearance is sufficient to satisfy the requirement of
¶14 Appellants must make a timely objection or risk waiver for purposes of the appeal. State v. Reim, 2014 MT 108, ¶ 28, 374 Mont. 487, 323 P.3d 880 (citing
DISCUSSION
¶15 Issue One: Whether the District Court erred when it determined White was not mentally fit to stand trial at a proceeding in which White was not present.
¶16 White asserts on appeal that the District Court erred by making a fitness determination at the August 1, 2011 hearing without him present. White argues that the fitness determination was a critical stage in the case and that his exclusion resulted in a violation of his fundamental right to participate in his own defense.
¶17 In response, the State argues that in situations where neither the prosecutor nor the defense counsel contests the findings of the fitness report, the district court may determine fitness based on the report alone, without conducting a hearing. The State asserts that the District Court acted in conformity with
¶18 The prosecution of an incompetent individual violates due process. Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903 (1975).1 Persons whose mental condition renders them unable to understand the proceedings against them or to assist in their own defense may not be tried, convicted, or sentenced so long as the incapacity continues. Section
¶19 Both the United States and Montana Constitutions guarantee the right to be present at all critical stages of a criminal prosecution. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987); Reim, ¶ 36. A “critical stage” includes “any step of the proceeding where there is potential for substantial prejudice to the defendant.” Charlie, ¶ 40 (citations omitted). A defendant waives this right only through an on-the-record statement acknowledging that he voluntarily, intelligently, and knowingly waives his right to be present. Matt, ¶ 69.
¶20 A defendant‘s absence from a critical stage is subject to harmless error review. Matt, ¶ 35. The State must persuade the Court, “based upon the record before us and given the interests the right of presence was designed to protect, that the violation was harmless.” Charlie, ¶ 45. More precisely, this requires the State to show that “there is no ‘reasonable possibility’ that the violation of the defendant‘s right to be present caused him prejudice.” Charlie, ¶ 40 (citing Matt, ¶ 35).
¶21 Neither the United States Supreme Court nor this Court has determined whether a fitness to proceed determination constitutes a critical stage of a criminal prosecution. Because we conclude that White‘s absence from the fitness proceeding did not cause him prejudice, we will not address the initial questions of whether the fitness proceeding constituted a “critical stage” or whether White waived his right of presence. We will assume for purposes of analysis that the proceeding constituted a critical stage and that White did not waive his right to be present.
¶22 What remains is whether White suffered prejudice due to his exclusion from the August 1 proceeding. The Court is persuaded, based on the record and given the interests the right of presence was designed to protect, that White was not prejudiced by his absence.
¶24 White also maintains that, had he been present, he would have contested the report‘s conclusion that he was unfit. During the early course of his commitment, White maintained that he was sane; however, later he acknowledged his mental illness and continued to take his medicine after the involuntary medication order expired. And, while White may have contested his fitness, the reports from the Montana State Hospital establish that White‘s ability to consult with his attorney and understand the criminal process was substantially impaired by his schizoaffective disorder at the time. There is no reasonable probability that White‘s presence at the proceeding would have altered the District Court‘s conclusion that White was unfit to proceed.
¶25 Finally, White‘s absence from the proceeding does not render the result unjust or unfair. White was not tried until after he was found fit. The Ninth Circuit‘s decision, Sturgis v. Goldsmith, 796 F.2d 1103 (9th Cir. 1986), is instructive. In Sturgis, 796 F.2d at 1112, the court concluded that the defendant had a constitutional right to be present at his competency hearing. However, the court held that “if the government can prove that [the defendant] was, in fact, competent at the time of trial, the error will not require reversal of the conviction.” Sturgis, 796 F.2d at 1109. Here, although White was not present at the fitness proceeding, he was fit at the time of trial. Once Mr. Petaja raised the issue of fitness, the District Court had a duty to determine White‘s fitness through an evaluation. The State did not move forward with the prosecution until White was deemed fit. Clearly, he was not prejudiced.
¶26 Issue Two: Whether the District Court erred by failing to complete the initial appearance process.
¶27 White argues his due process rights were violated when the District Court failed to comply with the requirements of
¶28 Montana‘s initial appearance law requires law enforcement to bring an arrested individual before the nearest and most accessible judge without unnecessary delay. Section
¶29 Here, an initial appearance was conducted and White was present with his attorney. However, the proceeding failed to comply with the requirements of the initial appearance statute. Clearly, it was necessary to delay the initial appearance at the February 28, 2011 proceeding, when it appeared to Judge Salvagni and counsel that White lacked the capacity to understand the proceeding.2 Nevertheless, it was an error
¶30 Notably, defense counsel failed to object or request an initial appearance after White was deemed fit. Generally, failure to make a timely objection constitutes a waiver of the objection for purposes of appeal. Section
¶31 Individuals are guaranteed due process before deprivation of life, liberty, or property.
¶32 Further, White was represented by counsel during the entire course of his civil commitment and prosecution. The State provided White copies of the Information charging him with assault with a weapon and the accompanying affidavit. Judge Salvagni set bail and entered a not guilty plea. The State Hospital report notes that White was aware of his right to remain silent and the State did not use any post-arrest statements against White. Finally, although White was never informed of the possible consequences on his ability to possess firearms, he had already lost those rights due to his civil commitments.3 While the District Court did not verbally inform White of a number of rights, White received the actual realization of those rights. Notably, White does not contend otherwise.
¶33 White‘s case is distinguishable from State v. Gatlin, 2009 MT 348, 353 Mont. 163, 219 P.3d 874 and State v. Strong, 2010 MT 163, 357 Mont. 114, 236 P.3d 580, both of which dealt primarily with the proper remedy for violating
¶34 In Gatlin, an initial appearance was held, however it did not meet the requirements of
¶35 White‘s case is distinguishable from the scenarios of Strong and Gatlin. Here, White was not held incommunicado, rather he had an attorney throughout the case, even during times when other criminal defendants are typically not represented. Unlike Gatlin, who was jailed for three months without counsel on some of the charges pending against him, White had capable representation from day one. The purpose of the initial appearance statute is to protect the defendant from extended jail time without the assistance of counsel and knowledge of certain rights. Strong, ¶ 11; Gatlin, ¶ 22. Here, the interest that the initial appearance statute was designed to protect were safeguarded. White had capable counsel, was not jailed and isolated from legal assistance for a protracted period, and the error was never raised in the District Court.
¶36 We decline to exercise plain error review. White was not prejudiced by his absence from the fitness proceeding. Additionally, we conclude that White was not prejudiced by the District Court‘s failure to provide the advisories in
¶37 Affirmed.
JUSTICES BAKER, SHEA, COTTER, WHEAT and RICE concur.
JUSTICE MCKINNON specially concurs as to Issue One and dissents as to Issue Two.
¶38 I agree with the Court‘s ultimate resolution of Issue One, concluding that White‘s conviction should not be reversed due to his absence from a status hearing held August 1, 2011. At that hearing, the District Court did not determine White was fit to proceed, but rather adopted the uncontested finding of incompetency and continued White‘s commitment at Montana State Hospital for him to regain his fitness to proceed. At the subsequent October 24, 2011 hearing, which White was present for, the District Court issued its determination White had regained his fitness. This determination was similarly based on an uncontested report from Montana State Hospital. I therefore disagree with the Court‘s analysis that suggests a competency hearing was actually held and analyzes whether White was absent from a critical stage of his trial. Pursuant to the statutory criteria of
¶39 Section
If neither the prosecutor nor the defendant‘s counsel contests the finding of the report filed under
46-14-206 , the court may make the determination on the basis of the report. If the finding is contested, the court shall hold a hearing on the issue. If the report is received in evidence upon the hearing, the parties have the right to subpoena and cross-examine the psychiatrists or licensed clinical psychologists who joined in the report and to offer evidence upon the issue.
Thus, it is only when the finding is contested that a hearing is required. White‘s presence was not necessary at the August 1, 2011 status hearing when the District Court adopted the uncontested incompetency finding of the report.1 Indeed, based on
¶40 The District Court conducted five status/review hearings where it attempted to resolve the issue surrounding White‘s fitness to proceed. At the first three hearings, held April 25, 2011, May 23, 2011, and July 11, 2011, Montana State Hospital had not completed its report and proceedings had to be continued on each occasion. By the time of the August 1, 2011 hearing, Montana State Hospital had completed its evaluation, as required by
¶41 I therefore disagree with the Court that a competency hearing was ever conducted which would potentially invoke the defendant‘s right to be present and the Court‘s harmless error analysis. See Opinion, ¶¶ 20-21. It is not necessary to address whether the District Court‘s fitness determination was a critical stage of the proceeding, because there was no contested fitness hearing conducted in White‘s absence. The District Court complied with statutory requirements in its adoption of uncontested findings. Because White has not challenged the constitutionality of the statute or its procedure on appeal or argued that a competency hearing must be held before an uncontested fitness determination can be made, I believe the Court‘s analysis is incorrect. I therefore specially concur as to Issue One.
¶42 The Court‘s analysis and resolution of Issue Two is troubling. To understand why this is so, it is only necessary to review the record and note the complete absence of an initial appearance hearing. White‘s scheduled initial appearance on February 28, 2011 substantively did not occur: White was undisputedly not fit to proceed; defense counsel represented to the court his client could not understand the court‘s advisements; defense counsel requested a continuance, presumably until White regained his fitness to proceed; and the court accepted White‘s motion and committed White to Montana State Hospital. White‘s motion raising his fitness to proceed and the court‘s commitment of White suspended the criminal proceedings pursuant to
¶43 After White was determined to have regained his fitness on October 24, 2011, the District Court set the matter for a bench trial without conducting an initial appearance.3 I disagree with the Court that we may presume that because White was represented by counsel, he effectively “realized” these mandatory advisements to which he was both statutorily and constitutionally entitled. It is almost too basic and too simple to
¶44 White was charged on February 17, 2011, by complaint in Gallatin County Justice Court with one count of assault with a weapon in violation of
¶45 During White‘s initial appearance, which apparently followed White‘s emergency detention hearing, the District Judge inquired of defense counsel whether White was fit to proceed with his initial appearance. Defense counsel answered on two occasions that White was not fit to proceed with the initial appearance and requested that the proceedings be suspended pursuant to
¶46 The Court states the “‘purpose of the initial appearance is to ensure that a defendant is not held incommunicado for a protracted time,‘” citing State v. Gatlin, 2009 MT 348, ¶ 22, 353 Mont. 163, 219 P.3d 874, and observes that “White was not held incommunicado, rather he had an attorney throughout the case, even during times when other criminal defendants are typically not represented.” Opinion, ¶¶ 34-35. While I agree that ensuring a defendant is not held “incommunicado” is one purpose of the “without unnecessary delay” provision of
¶47 Almost every element of an initial appearance under state statutes or the Federal Rules of Criminal Procedure serve to enforce or give meaning to important individual rights that are either expressly granted in the U.S. Constitution, the Montana Constitution, or case precedent.
In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury....
¶48 Section
- of the charge or charges against the defendant;
- of the defendant‘s right to counsel;
- of the defendant‘s right to have counsel assigned by a court of record in accordance with the provisions of
46-8-101 ; - of the general circumstances under which the defendant may obtain pretrial release;
- of the defendant‘s right to refuse to make a statement and the fact that any statement made by the defendant may be offered in evidence at the defendant‘s trial;
- that conviction may result in the loss of various rights regarding firearms under state and federal law; and
- of the defendant‘s right to a judicial determination of whether probable cause exists if the charge is made by a complaint alleging the commission of a felony.
It is necessary the defendant be informed of these rights by the court. The fact that White was appointed counsel does not release the court from its obligation to provide the defendant with a proper advisement of these rights.
¶49 While recognizing that an error occurred in failing to comply with the provisions of
¶50 Initially, I want to be clear that while I believe an objection should have been made to the failure to conduct an initial hearing, I think it unfair to require a person to object to what occurred during a period when he
¶51 Secondly, I fundamentally disagree with the notion that the absence of a specific violation of one or more of the fundamental rights provided for in
[O]ur contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.
¶52 We applied these principles recently in Strong, where we declared that the Benbo suppression remedy was an insufficient incentive for officials to follow these statutory procedures and that, without more, rights declared in statute will often become “‘lost in reality.‘” Strong, ¶ 14. We held that if dismissal were the appropriate remedy in Gatlin for a failure to provide the defendant with all the information and advisories required at the initial appearance, then “manifestly dismissal is the appropriate remedy if the initial appearance itself is unnecessarily delayed.” Strong, ¶ 15. Consistent with Gatlin and Strong, I would therefore dismiss the charge for failure to conduct an initial appearance hearing—or any hearing—in which White was advised of his constitutional rights as provided for in
¶53 The final issue remaining is whether the dismissal should be with or without prejudice. In Strong, we held:
We re-affirm what was at least implied in Gatlin: if a defendant who is not afforded the rights provided by
§§ 46-7-101 and-102, MCA , demonstrates material prejudice arising from an unnecessary delay in providing an initial appearance or from failure to provide required information and advisories, then dismissal with prejudice may be warranted.
Strong, ¶ 20. As I have indicated, the Court‘s analysis dispenses with the requirement of advising a criminal defendant of the constitutional rights at an initial appearance by finding that a defendant receives the “actual realization of those rights” vicariously through counsel. Opinion, ¶ 32. Dismissal with prejudice would serve to protect the defendant‘s statutory rights and his constitutional rights. In the present case, however, White seeks only dismissal without prejudice. I therefore would dismiss the case without prejudice.
¶54 In closing, I feel constrained to comment that I understand the circumstances surrounding the District Court‘s failure to conduct an initial hearing. The register of action and minute entries of the Clerk of Court reflect that an initial hearing took place. The District Judge undoubtedly noted these docket entries and proceeded to set an omnibus hearing following White‘s release from Montana State Hospital. Everyone concerned—eight months and hundreds of cases later—understandably did not recall the particular circumstances of the February 28, 2011 hearing. There would not have