STATE OF KANSAS, Appellee, v. RANDALL A. MURRAY, Appellant.
No. 110,214
Supreme Court of Kansas
July 31, 2015
353 P.3d 1158
Opinion filed July 31, 2015.
Jerome A. Gorman, district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: In State v. Murray, 293 Kan. 1051, 271 P.3d 739 (2012) (Murray I), we remanded this case for a determination of Randall A. Murray‘s motion to correct an illegal sentence. In his motion, he argued the district court lacked jurisdiction to convict him because it failed to suspend proceedings after ordering a competency examination in the underlying criminal case. On remand, the district court determined: (1) a competency hearing had not been conducted; (2) a retrospective competency hearing was feasible; and (3) Murray had been competent when tried and convicted. Murray now argues the district court on remand exceeded this court‘s mandate and, alternatively, that the district court erred in determining the retrospective competency hearing was feasible.
FACTS AND PROCEDURAL HISTORY
The State charged Murray in February 1983 with felony murder and aggravated robbery for holding up a gas station and shooting the cashier. Prior to trial, Murray filed a motion to determine competency. Under
After an unsuccessful direct appeal and a number of unsuccessful collateral challenges,
On appeal, this court held a district court loses jurisdiction if it proceeds without a competency evaluation and hearing when statutorily mandated. Murray I, 293 Kan. at 1054; see State v. Davis, 281 Kan. 169, 180, 130 P.3d 69 (2006). Since Murray alleged that was what occurred in his case, this court remanded
“to determine whether his factual assertion that he never received a competency hearing is accurate. Significantly, the State has not argued otherwise so far. On remand, in order to effectively contest Murray‘s assertion (and presumably his willingness to take the stand and swear that his assertion is the truth), the State must come forward with evidence to fill in the gaps in the reconstructed record to show that a competency hearing occurred. If the district court determines that Murray did not, in fact, receive a competency hearing under
K.S.A. 22-3302(1) , then the statute and our holding in Davis will compel it to grant relief.” Murray I, 293 Kan. at 1055.
On remand, the district court conducted an evidentiary hearing. The hearing included the testimony of Dr. Reese, the prosecutor, Murray‘s attorney, and Murray.
Dr. Reese indicated he had no memory of his examination of Murray, so he had little to add beyond his report. He read his report to the court into the record:
“[O]n March 28, . . . 1983, I concluded my initial evaluation appraisal of Randall Murray. It is my observation that Randall Murray does not warrant further evaluation. I am satisfied he is competent to stand trial. I‘m aware he has certain emotional liabilities; however, he sufficiently understands and comprehends the charges against him . . . , the need to communicate with his attorney . . . , and the consequences of his behavior . . . . I do not recommend further evaluation at this time. . . . [I]f I can be of further assistance, please don‘t hesitate to contact me.”
The Wyandotte County Assistant District Attorney who prosecuted Murray also indicated he could not specifically remember Murray‘s proceedings. Based on his files and the court record, he testified that he had agreed to the district court‘s order to determine competency and that he had received Dr. Reese‘s evaluation. He also testified that the preliminary hearing had been originally scheduled for March 15, 1983, but was continued to allow time for Dr. Reese‘s evaluation. Murray‘s preliminary hearing occurred on March 29, 1983, which was the day after receipt of Dr. Reese‘s evaluation. The attorney testified, however, that there was no competency hearing as required by
Carl Cornwell, Murray‘s defense attorney, also testified that he could not remember many details of Murray‘s case. He recognized his motion to determine competency, and he testified that he must have observed something leading him to question whether Murray was “hitting on all cylinders.” While he found no evidence of a competency hearing in the record, he conceded that he had received Dr. Reese‘s report and apparently chose not to challenge it. Cornwell also testified he allowed the preliminary hearing to proceed the next day without seeking a second continuance and also counseled Murray through a plea in a parallel case—circumstances he would not have allowed if he had any concern about Murray‘s competence.
Murray testified that he remembered Dr. Reese‘s interview, which he estimated lasted only 5 or 15 minutes. Murray explained that he felt he had some “psychological problems” when he was younger. He also believed he had suffered a head injury the day before his arrest; he indicated this had caused him to lose his memory from one minute to the next. Further, he reported that he felt Cornwell was “out to get [him].”
After arguments from counsel, the district court took Murray‘s motion to correct an illegal sentence under advisement and later
Murray timely appealed the denial to this court, and we have jurisdiction under
ANALYSIS
Before discussing the issues raised by Murray, we must discuss the procedural mechanism for Murray‘s claim—a motion to correct an illegal sentence—in light of our holding in State v. Ford, 302 Kan. 455, 353 P.3d 1143 (2015). Ford, like Murray, alleged the district court lacked jurisdiction to convict him because he had been convicted without compliance with
Today, however, in Ford we have disapproved that part of the Davis and Murray I decisions that hold a failure to comply with
To put the merits discussion in perspective, we again note that in Murray I we held that Murray had satisfied his initial burden of establishing, from the record or other evidence, that there was reason to believe he was incompetent to stand trial and that the requirements of
After the evidentiary hearing conducted on remand from Murray I, the district court determined the State had not established compliance with
Here, the State points to evidence that might have led the district court to a different result. Further, the State argues the attorneys in Murray‘s case believed they would not have proceeded without a hearing, so a hearing must have occurred. Contrary to this assertion, the prosecutor testified, “There wasn‘t any hearing.” Similarly, Cornwell
Because Murray‘s motion now proceeds with a finding that he did not receive a competency hearing, his allegation that his rights under
On appeal, Murray focuses his arguments on this step of the proceedings. He argues first that the district court on remand exceeded the mandate in Murray I when it undertook a feasibility examination. Second, he makes an alternative argument that the district court erred in determining the retrospective competency hearing was feasible.
ISSUE 1. The district court did not exceed the Murray I mandate.
In Murray‘s first argument he focuses on the last sentence of our Murray I decision, which stated: “If the district court determines that Murray did not, in fact, receive a competency hearing under
Murray‘s reading removes the incorporation of Davis into the Murray I holding. As we have noted, Davis specifically discussed the “relief” available in the face of a failure to comply with
ISSUE 2. A retrospective competency hearing was feasible.
In Davis, we explained that upon the State‘s request and in the face of a procedural violation of
“(1) [T]he passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial . . . .” Davis, 281 Kan. at 181 (citing McGregor, 248 F.3d at 962-63).
On review of a district court‘s application of those factors in Ford, today we held an appellate court will review the district court‘s conclusion regarding those factors for an abuse of discre- tion. See Ford, 302 Kan. at 473 (citing Hooker v. United States, 70 A.3d 1197, 1202-03 [D.C. 2013]; State v. Blancher, 170 N.C. App. 171, 174, 611 S.E.2d 445 [2005]). An abuse of discretion occurs when a judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Although
2.1 First McGregor factor—passage of time
The first McGregor factor—passage of time—weighs in Murray‘s favor. Almost 30 years passed between the order to determine Murray‘s competency and the time of his retrospective determination. Certainly, a lengthy passage of time makes retrospective determinations inherently difficult, as competency is subject to change and witnesses’ memories fade.
2.2 Second McGregor factor—contemporaneous medical evidence
As the second McGregor factor recognizes, the availability of contemporaneous medical evidence can significantly diminish the problems that arise over time. Ford, 302 Kan. at 472; Davis, 281 Kan. at 182-83; Maxwell v. Roe, 606 F.3d 561, 576-77 (9th Cir. 2010); McGregor, 248 F.3d at 963. And here, the State presented the district court with Dr. Reese‘s March 1983 evaluation of Murray. Dr. Reese concluded that Murray “does not warrant further evaluation. . . . [H]e is competent to stand trial.” That contemporaneous finding carries significant weight. See Davis, 281 Kan. at 182.
In an attempt to minimize the exam‘s value on appeal, Murray challenges the brevity of Dr. Reese‘s report. But as the Tenth Circuit Court of Appeals concluded under similar circumstances, “[a]lthough the report was admittedly brief, it nonetheless constituted a contemporaneous medical determination.” Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir. 1999). Indeed, Dr. Reese‘s brevity suggests there was nothing to discuss—he had no concerns about Murray‘s competence. Cf. McGregor, 248 F.3d at 955 (McGregor had a substantial history of mental illness, was not properly medicated throughout his trial, exhibited odd behaviors at trial, and his counsel made “repeated and vehement contentions that his client was unable to assist in his own defense.“).
For a number of other reasons, Murray asserts that Dr. Reese‘s report was not meaningful. First, Murray claims it was just an “initial report,” which suggested that further evaluation was meant to occur. But Dr. Reese‘s evaluation expressly states, “I do not recommend further evaluation at this time.”
Second, Murray claims the evaluation is suspect because Dr. Reese did not specifically describe what test he used, and he did not expressly state that Murray was able “to make or assist in making his defense.”
Moreover, even when a district court finds reason to believe a defendant is incompetent, the ordering of an expert psychological examination under
2.3 Third McGregor factor—Murray‘s statements in trial record
Regarding the third McGregor factor—statements by Murray in the trial record—the district court had access to the transcript of Murray‘s pretrial and trial testimony. See Davis, 281 Kan. at 181-82 (considering
The suppression hearing arose from Murray‘s attempt to suppress his shoes, which investigators had linked to a shoe print left at the scene. At the hearing, Murray testified about specific prison officials who took his shoes despite his refusal to consent. His testimony reflects that he understood the purpose of the proceeding and the law upon which the court‘s decision depended and that he testified accordingly.
Also supporting the district court‘s finding that the record reflected Murray‘s competence were other steps Murray took prior to trial, testimony he gave at trial, and his actions in a parallel proceeding. Specifically, prior to trial, Murray learned his friend had confessed to the crime. In response, Murray sent a letter to the friend advising him to exercise his constitutional right to silence and encouraging him to try and get his confession suppressed. Murray understood the evidence against him, and he actively attempted to assist in his defense. Further, at trial, Murray provided a detailed timeline of the events of the day of the crime. He testified that he was never at the gas station on February 17, 1983. Finally, as part of a plea in a parallel case, Murray certified that he had never been confined in a mental institution nor judged mentally incompetent. Nothing in the record indicates that Murray did not understand the proceedings or that a mental disease or defect rendered him mentally incapable of assisting in his defense under
Murray points on appeal to a witness at trial who testified that people said Murray was “crazy.” Cornwell objected at trial, but he decided not to seek clarification of the remark through cross-examination. The district court noted, “Crazy means a lot of things. Seldom does it mean insane.” The court then admonished the jury to disregard the statement. As the trial court contemporaneously noted, the witness’ remark, which could mean just about anything, does not call Murray‘s competence into question.
In short, Murray does not point to anything he said or did that raises the sort of competency question a retrospective hearing could not answer. He seems to concede this point, claiming on appeal that his trial testimony “was unremarkable as to having relevance [on the competency] issue.” This factor weighs in the State‘s favor.
2.4 Fourth McGregor factor—availability of those who interacted with Murray
Finally, as to the last McGregor factor—the availability of individuals who were in a position to interact with Murray before and during his trial—the district court heard the testimony of Cornwell (Murray‘s defense counsel), Murray‘s prosecutor, and Murray. See State v. Davis, 281 Kan. 169, 181-82, 130 P.3d 69 (2006) (considering the opinions of witnesses that interacted with defendant); McGregor, 248 F.3d at 960 (quoting Bryson v. Ward, 187 F.3d 1193, 1201 [10th Cir. 1999]) (” ‘Defense counsel is often in the best position to determine whether a defendant‘s competency is questionable.’ “).
While Cornwell said he must have felt Murray was not “hitting on all cylinders” when he initially requested the evaluation, he also testified he would not have proceeded in this case or assisted Murray in entering a plea in a parallel case if he had ongoing concerns about Murray‘s competency. Cornwell‘s testimony also suggests that he had no concerns about Murray‘s competence and considered the issue resolved after Dr. Reese‘s evaluation. Concededly, he never contested Dr. Reese‘s evaluation of Murray.
And it was not that he let the competency issue fall through the cracks—in a pretrial report Cornwell indicated that insanity might be a possible defense. Cornwell apparently made the decision not to pursue that defense. Moreover, after Murray‘s conviction, Cornwell sought another mental evaluation in the hopes that he could present some mitigating circumstances that would land Murray in a care and treatment facility rather than prison. Cornwell did not often make that sort of posttrial motion for an evaluation. He only filed such a motion when there arguably might be mitigating emotional issues but no
The prosecutor testified similarly. He never had a concern about Murray‘s competency, and he considered the matter resolved after receiving Dr. Reese‘s evaluation.
Even Murray did not testify during the 2013 hearing that he had been incompetent to stand trial. He mentioned that he thought he had some “psychological problems” that arose before his arrest. Putting aside that his perceived “psychological problems” might not amount to a “mental illness or defect” implicating his competence under
2.5 Conclusion regarding McGregor factors
In summary, there was a significant period of time—nearly 30 years—between the order to determine Murray‘s competence and the 2013 hearing. But in the 2013 hearing, the district court had the benefit of a contemporaneous mental examination finding Murray competent; both attorneys in Murray‘s case testified to no concerns about Murray‘s competence; the record reflected Murray‘s understanding of the case and rational assistance in his de- fense; and Murray‘s own testimony never clearly alleged that he was incompetent at the time of his trial. Reviewing the available evidence in this case, we cannot say the district court abused its discretion in finding that a retrospective hearing on Murray‘s competency was feasible.
As a result, the district court did not err in determining the retrospective competency hearing could rectify the procedural due process error in Murray‘s underlying case. See Ford, 302 Kan. 475; Davis, 281 Kan. 169, Syl. ¶ 5.
Murray presents his challenge only as a procedural competency claim under
Affirmed.