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In re Komrowski

Superior Court of Rhode Island, Providence

December 6, 2018

In re: Matthew Komrowski

          ATTORNEYS:

          For Plaintiff: John Clayton Krollman, Esq.

          For Defendant: Collin M. Geiselman, Esq.

          DECISION

          MCGUIRL, J.

         At issue before this Court is whether the Defendant, Matthew Komrowski (Defendant), is now competent to stand trial on the charges against him. This Court exercises jurisdiction pursuant to G.L. 1956 § 40.1-5.3-3(g).

         I

         Travel

         In December of 2011, the Defendant was charged in a three-count indictment, case number P1-2011-3415ADV, with Count (1) murder, domestic in nature; Count (2) possession of a stolen motor vehicle or parts; and Count (3) larceny under $1500. The first competency evaluation was ordered on July 1, 2013. The Court ordered this evaluation after being told by his two defense attorneys that they were unable to effectively communicate with the Defendant. In that report, [1] Dr. Barry Wall and Dr. Katherine Liebesny concluded that the Defendant was competent to stand trial. The Defendant contested the finding. A hearing was held on October 9 through October 11, 2013. The Defendant then retained his own expert, Dr. Wade C. Myers, to evaluate the Defendant. On November 4, 2013, Dr. Myers submitted a report on behalf of the Defendant. Dr. Myers found that the Defendant was incompetent to stand trial. A hearing was held on December 6 and 16, 2013. Based on these conflicting reports, and the complexities of the findings, the Court, with the agreement of counsel, appointed a third doctor, Dr. Joseph V. Penn, to conduct a review. Dr. Penn submitted a report on March 30, 2014 and concluded that the Defendant was incompetent to stand trial. This Court found the Defendant incompetent to stand trial on July 3, 2014, based on the information and testimony contained in the various reports and findings.

         After the Court declared the Defendant incompetent to stand trial, the Defendant was ordered to Eleanor Slater Hospital (ESH) pursuant to § 40.1-5.3-3, and periodic, six-month reviews were ordered in accordance with § 40.1-5.3-3(k). See Order at 1-2, Dec. 1, 2014. Following the Defendant's placement in a facility, Dr. Pedro Tactacan, the treating physician, prepared a report that was received by this Court on September 19, 2014. A hearing was held on September 23, 2014.

         Soon after, Dr. Tactacan, Dr. Wall and ESH determined that there was a conflict in treating the Defendant, as they did not believe that he was incompetent. Therefore, the Defendant was not receiving any treatment. Both doctors recused themselves, and an outside expert, Dr. Howard V. Zonana, was retained in December of 2014.

         After Dr. Zonana's appointment in 2014, a hearing was held in April of 2015[2] regarding the Defendant's treatment. See Hr'g Tr., Apr. 16, 2015. In that hearing, Dr. Zonana testified that the Defendant was, in his opinion, incompetent to stand trial to a reasonable degree of medical certainty. Id. In June of 2015, Dr. Tactacan filed a Petition for Instruction (PFI), regarding the Defendant's treatment and care. Later, in July of 2015, Dr. Zonana testified again before this Court regarding issues of informed consent and forced medication, stemming from the PFI. See Hr'g Tr., July 29, 2015. In his July 2015 report, Dr. Zonana found that the Defendant was able to communicate regarding treatment choices and able to understand the relevant information regarding risks and benefits of medication, but that he was not able to reason clearly about treatment options due to his distrust of medical staff. See Report at 5, July 22, 2015.

         The Court ordered the most recent periodic review of Defendant's competency in January of 2017. In his report dated April 4, 2017, Dr. Zonana concluded that the Defendant is now competent to stand trial since he is now able to understand the character and consequences of the proceedings against him and is now able to properly assist his attorneys with a reasonable degree of rational understanding, if he so chooses.[3] See Report at 10, Apr. 4, 2017. A hearing regarding this most recent report was held on June 20, 2017. On July 12, 2017, the Defendant filed his memorandum of law contending that he remains incompetent to stand trial. The Court received the State's memorandum in support of finding the Defendant competent to stand trial on July 17, 2017. The Court must now decide whether, based on the evidence before it, the Defendant is competent to stand trial at this point in time.[4]

         II

         Competency Standard in Rhode Island

         Rhode Island law begins with the presumption that the Defendant is competent to stand trial. See § 40.1-5.3-3(b). Section 40.1-5.3-3(a)(2) states that "[a] person is mentally competent to stand trial if he or she is able to understand the character and consequences of the proceedings against him or her and is able properly to assist in his or her defense." See § 40.1-5.3-3(a)(2). Section 40.1-5.3-3(a)(5), conversely, defines incompetency stating, "A person is mentally incompetent to stand trial if he or she is unable to understand the character and consequences of the proceedings against him or her or is unable properly to assist in his or her defense." See § 40.1-5.3-3(a)(5).

         Rhode Island law provides for a hearing regarding competency where such an issue is in dispute:

"Upon receipt of the report and appropriate notice to the parties, the court shall hold a hearing . . . At the hearing, the report shall be introduced, other evidence bearing on the defendant's competence may be introduced by the parties, and the defendant may testify, confront witnesses, and present evidence on the issue of his or her competency. On the basis of the evidence introduced at the hearing, the court shall decide if the defendant is competent." Sec. 40.1-5.3-3(g); see also State v. Peabody, 611 A.2d 826, 829 (R.I. 1992).

         If the Court finds, after the hearing, that a defendant is competent, the Court shall proceed with the criminal case. See § 40.1-5.3-3(h). However, if the Court finds that the defendant is incompetent, the Court "shall commit him or her to the custody of the director for the purpose of determining whether or not the defendant is likely to imperil the peace and safety of the people of the state or the safety of himself or herself and whether the defendant will regain competency. . . ." Sec. 40.1-5.3-3(h)(2). The director must issue the written report no more than fifteen days from the date of the commitment. See 40.1-5.3-3(h)(3). Subsequent to the filing of that report, the Court must hold a hearing to review the evidence presented, and-if the Court finds that the defendant is likely to imperil the peace or safety of the people of the state or the peace and safety of himself-the Court may order the defendant to remain at the facility. See § 40.1-5.3-3(i)(3).

         Once ordered to remain at the facility, the director "shall petition the court to review the state of competency of a defendant committed . . . not later than six (6) months from the date of the order of commitment and every six (6) months thereafter, or when the director believes the defendant is no longer incompetent, whichever occurs first." See § 40.1-5.3-3(k). Finally, a committed defendant may, at any time, petition the court to review the state of his or her competency. See § 40.1-5.3-3(1).

         In the instant case, Dr. Zonana's latest report, written on April 4, 2017, concluded that the Defendant was competent to stand trial. The Defendant did not retain his own expert to refute Dr. Zonana's determination of competency, and instead the Defendant cross-examined Dr. Zonana's findings on the record at the hearing.

         III

         Defendant's History

         Born in 1976, the Defendant-according to a 2011 Investigative Report (Report)-was nine years old when he was hit by a tractor trailer on Manton Avenue and very badly injured. See Invest. As a result, the Defendant was in a body cast and he spent an extended period of time at Rhode Island Hospital. Although doctors could not find any physical brain injury, the Defendant's family reported that he began having behavioral problems at school after his accident. In fact, the Defendant had four admissions to Bradley Hospital between 1986 and 1992. See Report at 7, Nov. 4, 2013. In the summer of 1992, during one of the admissions to Bradley Hospital, "[the Defendant] became tangential, grandiose, and agitated after being given Prozac . . . [and] [h]e was diagnosed as having Bipolar Disorder . . . ." Id. The Defendant has since had multiple psychiatric diagnoses, including "oppositional disorder, conduct disorder, developmental disorder, dysthymic disorder, cyclothymic disorder, psychosis, major depression with psychotic features, posttraumatic stress disorder, schizophrenia, malingering, bipolar disorder, depression, different personality disorders (e.g., Antisocial, Borderline), adjustment disorder, and substance abuse." Id. at 7-8.

          According to Dr. Myers, "[the Defendant] ha[d] been tried on virtually all classes of psychotropic medications, such as antidepressants, antianxiety agents, mood stabilizers, and antipsychotics, with limited or inconsistent results." Id. at 8. Dr. Meyers also noted that "[the Defendant] ha[d] been a dreadful management problem for institutions." Id. According to Dr. Myers, "[t]here are multiple reports of past suicide attempts; self-mutilation (e.g., cutting, biting self); inserting foreign objects into his body, urethra and rectum; swallowing of foreign objects; and threatening or engaging in hunger strikes." Id.

         In March of 2009, during a period of time while the Defendant was admitted to ESH, Dr. Tactacan and Dr. Wall reviewed the Defendant's behavior and mental health through a joint report entitled "Forensic Treatment Interim Summary Report." See Report at 1-7, Mar. 6, 2009. In their opinion, the Defendant was diagnosed with Antisocial Personality Disorder, Borderline Personality Disorder (BPD), and Malingering. See id. at 6. Additionally, Drs. Tactacan and Wall found that the Defendant met the criteria for Post-Traumatic Stress Disorder (PTSD)- which was in remission-as well as Polysubstance Dependence (also in remission within a controlled environment). See id. Drs. Tactacan and Wall wrote that in their opinion, the Defendant's "continued impulsive behavior is willful" and that he "will demonstrate the ability to control his impulsive behavior, terminate self-damaging behaviors, and have alleviation of suicidal impulses/ideation . . . only when he believes that his needs are met by ACI or ESH staff[.]" Id.

         IV

         Review of Previous Competency Reports

         A

         Dr. Wall and Dr. Liebesny

         In July of 2013, Dr. Wall and Dr. Katherine Liebesny (Dr. Liebesny) reviewed the Defendant's competency to stand trial. In that July 2013 report, the doctors diagnosed the Defendant with Borderline Personality Disorder, Antisocial Personality Disorder, Malingering, Polysubstance dependence in remission, Asthma, and GERD. See Report at 14, July 24, 2013. Dr. Wall and Dr. Liebesny included "Malingering" in the list of Defendant's diagnoses, stating in their report that the Defendant is "known to exaggerate his symptoms and at times overemphasized how his depressive symptoms interfered with his focus on his case." Id. at 15. Based on these observations, Drs. Wall and Liebesny concluded that the Defendant met both prongs under Rhode Island's competency test and was competent to stand trial in July of 2013. See id. at 14.[5]

         B

         Dr. Myers

         In November of 2013, Dr. Myers conducted a psychiatric evaluation, at the request of the Defendant, in order to review the Defendant's competency to stand trial. See Report at 1, Nov. 4, 2013. In his report, Dr. Myers stated that the Defendant's "diagnostic picture is complicated[, ]" ultimately writing that the Defendant exhibits behavior consistent with Bipolar Disorder, Borderline and Antisocial Personality Disorders, and possibly a Neurocognitive Disorder Due to Traumatic Brain Injury. See id. at 10.

         Dr. Myers concluded that-in his opinion and to a reasonable degree of medical certainty-the Defendant was incompetent to stand trial since he was unable to properly assist counsel in his defense. Id.[6] at 10-11. Overall, Dr. Myers concluded that Defendant was, in his opinion, incompetent to stand trial because he "has shown continued difficulty with his ability to properly assist counsel in preparing a defense." Id. at 11.

         C

         Dr. Penn

         In March of 2014, Dr. Penn evaluated the Defendant, at the request of the Court, for competency purposes. See Report, Mar. 30, 2014. In his report, Dr. Penn recounted the Defendant's previous diagnoses of possible schizophrenia, major depressive disorder, Bipolar Disorder, PTSD, Polysubstance dependence (in remission), Antisocial and Borderline Personality Disorders, and malingering. Id. at 17.

         Ultimately, Dr. Penn concluded that the Defendant was incompetent to stand trial since he was "unable to demonstrate an understanding of the character and consequences of the proceedings against him and he was also unable to demonstrate an ability to properly assist in his defense." Id. at 18. Dr. Penn based this conclusion on the fact that the Defendant exhibited some impairment in his thinking and behavior throughout the interviews, which caused the Defendant to be an "extremely poor and unreliable historian." Id. at 17.[7] However, he concluded by writing that "[i]t was very difficult for this evaluator to clarify if this belief system was delusional (a fixed false belief) and specifically psychotic in nature, an over-valued belief system, or more suggestive of malingering." Id. at 18.

         1 Issue of Malingering

         The issue of the Defendant's malingering was described by the experts in their various reports and testimony. Dr. Tactacan reported that the Defendant often exaggerates the symptoms of his illnesses and noted that individuals will often malinger or fake symptoms in order to "achieve certain goals, such as [a] transfer from one part of an institution to another to get out of a problem, or to access a hospital." See Report at 29, 30, Feb. 12, 2008.[8]

         Dr. Wall and Dr. Liebesny also raised the issue of malingering in their report when they stated that the Defendant is "known to exaggerate his symptoms and at times overemphasized how his depressive symptoms interfered with his focus on his case." See Report at 15, July 24, 2013. Moreover, Dr. Penn discussed the possibility of Defendant's malingering, noting that there are some inconsistencies in the Defendant's presentation. See Report at 18, Mar. 30, 2014.[9]

         Dr. Myers testified at the previous hearing that the Defendant told lies, and that those lies were volitional in nature. Hr'g Tr. 75, Dec. 6, 2013. In addition, Dr. Myers testified that the Defendant had the ability to engage in normal conversations, but would then get emotional when the discussion focused on the charges against him, at which time the Defendant "would suddenly start becoming preoccupied with the system mistreating him and persecuting him and then he would be off and racing on that topic and hard to get him off of it." Id. at 77. When asked if the Defendant's "hunger strike" was manipulative, the doctor said that "[i]t may have some manipulative component to it, but I don't think it is just manipulation." Id. at 89. Dr. Myers also testified that Mr. DiLauro succeeded in getting the Defendant to focus on the case during a meeting between the two that the doctor observed. Id. at 91.

         When asked about whether Dr. Wall's opinion that the Defendant was a malingerer had any effect on his opinion of the Defendant's malingering, Dr. Myers said: "[y]ou have to look at what repeated episodes of malingering means in that context. He looks like a very seriously mentally ill man throughout those records. I'm not as convinced everything that happens with him on a day-to-day basis is malingering." Hr'g Tr. 20, Dec. 16, 2013.[10] Lastly, Dr. Myers appeared to say that it is possible for an individual to suffer from psychosis but also be a malingerer when he testified that "[someone] can be psychotic and malinger and still have psychosis while [they] are malingering." Id. at 4.

         Dr. Zonana, in his April 2015 report, wrote that "[t]here certainly have been times, when [the Defendant] was incarcerated in the Department of Corrections, that he claimed to have fabricated symptoms in order to get out of difficult situations." Report at 9, Apr. 10, 2015. The doctor also said that "[the Defendant] seems to have the capacity to both exaggerate real symptoms as well as fabricate others. Unfortunately there is no bright line that allows us to specify when it is real, an exaggeration, or outright malingering." Id. at 10.

         V

         Court's Initial Decision on Competency

         On July 3, 2014, this Court found the Defendant to be incompetent to stand trial. In its opinion, this Court noted that the issue in making the determination was not whether the Defendant understood the character and consequences of the proceedings against him. Instead, the significant issue for this Court had been whether the Defendant could properly assist his attorneys in his defense. In making its determination that the Defendant was incompetent to stand trial, this Court relied upon the various reports discussed above, particularly the portions discussing the concept of malingering[11], as well as multiple expert reports discussing the factors to be considered when determining if a defendant is competent to stand trial, specifically the reports of Drs. Wall and Liebesny, Dr. Myers and Dr. Penn.

         Drs. Wall and Liebesny felt that the Defendant showed a good understanding of the charges against him and the potential consequences. See Report at 9, July 24, 2013.[12] The doctors also discussed different types of pleas with the Defendant, including guilty, not guilty and nolo contendere. See id.[13] Drs. Wall and Liebesny also felt that the Defendant had an understanding of the trial process. See id. at 10. In response to what the role of the judge was, the

         Defendant stated:

"Who controls the court room? I'll try to tell you, the victim, the family, the witnesses, the people spreading lies. None of your questions. The lawyer doesn't. It's the people on the news. You can sit there and lie to me. It's the people on the outside who are in control. The people want to complain. They want to lock you up not because you committed a crime but because the public wants you locked up." Id.[14]

         With respect to the role of a defense attorney-imagining that he had private counsel rather than a public defender-the Defendant said that the defense attorney's role is "[t]o take [his] money. Don't believe that anyone is here to help me. If people wanted to help me they would have helped me a long time ago." Id. In response to the doctors' question about why people would not want to help him, the Defendant said, "I don't know. I can't read people's minds. People only want to help when things get bad or after the fact." Id. When asked about the role of the prosecutor, the Defendant said a prosecutor's role is to "[tell] lies to satisfy the public." Id.

         In response to the question about the role of the jury, the Defendant answered angrily:

"I've never been to a trial . . . to help the prosecutor to prosecute your ass and give the people justice. You got to sit there and fight to change one of those people's minds. You've gotta win them over. The state is paying them. It's corrupt. You tell me, who's paying those people? It will be the same people talking on the news that he should go away for the rest of his life, they are going to put me away.'" Id.

         The Defendant then said that the role of witnesses is "'[t]o do what the police tell them to do, same thing they do on the reports. Tell lies to say you were somewhere you weren't. TV mimics real life you know." Id. According to the doctors, the Defendant began mimicking a witness and said "Let's do this, guilty verdict, I'm tired of sitting here." Id.

         With respect to purpose of a trial, Defendant responded:

"Formality-it's what we are supposed to do so we are going to go through the motions but the result is going to be what the result is going to be. Unless they know that the case is shit, sorta like my case, if they mishandle the evidence. That could free you. If they want to fry your ass they take you to trial." Id. at 11.

         Finally, Drs. Wall and Liebesny believed that the Defendant was able to participate in his defense. See id. According to the doctors, the Defendant "was able to answer questions and respond to candid redirection for a 60 minute interview with Dr. Liebesny. However, he was frosty and terse with Dr. Wall, pretty much glumly sitting there waiting for the interviews with Dr. Wall to pass." Id. The doctors also stated that the Defendant "sat calmly and appeared to have good insight as to when he should censor himself." Id. With regards to the Defendant's motivation to defend himself, the doctors wrote that the Defendant "gave conflicting responses. At times he would indicate that he did not care about the outcome but the overall content of many of his angry tirades was to demonstrate numerous ways he could defend himself and errors of police and the legal system that would be in his favor." Id. Regarding the Defendant's hopes for the best outcome of his case, the doctors wrote that "[b]ased on [the Defendant's] insistence that he can only plead not guilty and his repetition of facts that would help his case, his demeanor was not consistent [with] someone resigned to a bad outcome or someone looking for punishment from others." Id.[15]

         With respect to the "Appreciation of the Charges," Dr. Myers wrote that the Defendant "showed an appreciation of the charges he is facing and could name them (e.g., murder, kidnapping)," which, according to Dr. Meyers, was "[a]cceptable." Evaluation at 4, Nov. 4, 2013. Regarding the "Defendant's Appreciation of the Range and Nature of Possible Penalties," Dr. Myers wrote that the Defendant

"believed that the best outcome, if he proceeded to trial, would be a not guilty verdict. If found guilty, he estimated he would receive a prison sentence ranging from five to 30 years. He understood the plea bargaining process and that he did not have to accept one. He added that he was charged in the past with assault on an officer, a misdemeanor, and he refused a plea bargain of 30 days. Instead, his case was heard by a judge and he was sentenced to six months."

Id. Again, Dr. Myers found this appreciation to be "[a]cceptable" even though the Defendant's "understanding of the potential length of a prison sentence if found guilty is presumably unrealistic on the lower end ('five years')," because "[the Defendant] has the ability to be educated on this topic." Id.

         With respect to the "Defendant's Understanding of the Adversarial Nature of the Legal Process," Dr. Myers wrote that the Defendant's "understanding of the adversarial nature of the legal process was mostly accurate and rational when it could be discussed with him when he was not in an agitated, paranoid, emotionally labile state." Id. Dr. Myers continued:

"To wit, the public defender's role is to 'help him' and 'fight for him and get him the best outcome that he can.' In contrast, the attorney general is trying to convict him of the charges he is facing. The judge listens to the trial, 'runs the courtroom,' and is involved with sentencing. The role of the jury is to determine guilt. They are supposed to be 'neutral and open-minded.' The best choice for him in his view was to have a jury, 'if there is any chance.' However, he complained the Investigative reports were biased and not fair. 'The facts are way off.'" Id.

         Dr. Myers further wrote that "[i]n contrast to the above, for example, on my February 7, 2013 evaluation of [the Defendant], he decompensated when we began discussing his case." Id. at 4. Dr. Meyers explained:

"(This emotional lability and associated deterioration in his thought process occurred during each of my interviews with him, brought about or exacerbated either from discussing his case or from him bringing up and obsessing over the verbal abuse and other mistreatment by the ACI officers that he perceived was occurring). This abrupt change in his mental state was remarkable for a transition to paranoid ideation, agitation, and rapid, rambling and pressured speech. His verbalizations morphed into a rant about his attorneys not truly being on his team; rather, that they were surreptitiously working with the prosecution. He spoke hurriedly and with racing thoughts for about 15 minutes before he was at last interrupted. Other topics of his nonstop tirade, to name a few examples, included the evidence being 'circumstantial,' 'I could not have been there to light a fire,' conflicting witness descriptions of a car (one said red, another said gold), 'I was never with anyone else, a conspirator,' 'I know the cards are stacked against me,' 'Honestly, she was the only person I had in my life,' 'I never knew she cheated on me.' 'After a while I told them whatever they wanted to hear,' 'I was at my sister's house at 11:30 p.m.,' The fire alarm was 'pulled at 11:45 p.m.' 'They say I arrived at 11:10 p.m. . . ." Id. at 4-5.

         Unlike the first two factors, Dr. Myers found the Defendant's understanding of the adversarial nature of the legal process to be "[m]arginal." Id. at 5. This is because "[the Defendant's] understanding of the role of his defense attorneys is compromised when he is in the above-described paranoid, agitated state that phenotypically looks like mania (an abnormally elevated or irritable mood with racing thoughts and confusion).]" Id.

         Dr. Myers found the Defendant's capacity to disclose facts pertinent to the proceedings and properly assist in his defense to be "[i]mpaired." Id. Dr. Myers wrote that:

"[the Defendant's] ability to communicate with his attorney and participate in his defense is impaired based on my interviews with him, and also from my observations of his interactions with Mr. DiLauro on June 11, 2013. On that date, he was suspicious of his attorney's motives and was hesitant to discuss events pertaining to his involvement in the crimes, despite repeated assurances from his attorney it was confidential and important to his defense. He made several brief forays into discussing the crime facts and his associated mental state and behaviors, yet each time he devolved into a paranoid, frantic preoccupation with the ACI staff listening in through the door and speakers in the ceiling and would proceed no further. After the last attempt that day to discuss the crime with him he began hysterically sobbing, could not continue, and then settled into a state of paranoid preoccupation. This cycle recurred in my earlier evaluations of him." Id.

         With respect to the "Defendant's Capacity to Manifest Appropriate Courtroom Behavior," Dr. Myers wrote that "[the Defendant] has the ability to manifest appropriate courtroom behavior. He has been in court in the past and reported he was able to conduct himself appropriately," and Dr. Myers found this to be "[a]cceptable." Id. Regarding the "Defendant's Capacity to Testify Relevantly in Court," Dr. Myers wrote that "[the Defendant's] capacity to testify relevantly in court would be vulnerable were he experiencing significant mood and personality disorder symptoms at the time of trial. He would be at risk of using poor judgment and testifying irrelevantly were he to transition into speech that was rapid, disorganized, and pressured during testimony." Id. Dr. Myers found the Defendant's capacity to testify relevantly in court to be "[m]arginal." Id. at 6.

         Dr. Penn wrote that "[the Defendant] demonstrated impairments in his understanding of the current charges and legal proceedings against him." Report at 11, Mar. 30, 2014.[16] Regarding the Defendant's understanding of court personnel, Dr. Penn wrote that "[the Defendant] demonstrated impairments in his description of the role of his defense lawyer." Id.[17] With regards to the Defendant's ability to assist with his defense, Dr. Penn wrote that "[the Defendant] demonstrated either unwillingness or an inability to participate in his legal defense." Id. at 12.[18]

         Based on the statements of the various doctors-regarding the Defendant's malingering-and the discussions on the factors to be considered when determining a defendant's competence to stand trial, the question of whether the Defendant could properly assist his attorneys remained unclear to the Court. Even though this Court felt that the Defendant understood the character and consequences of the proceedings, it could not rule that he was competent to stand trial because it was not able to determine whether he was able to properly assist his attorneys in his defense. Specifically, this Court could not determine if he was truly unable to assist his attorneys-as a result of his illnesses-or if his inability to assist his attorneys was a result of his own volition and his potential malingering. In other words, this Court could not determine if the Defendant was making a conscious decision to not assist his attorneys.

         A

         Subsequent Competency Evaluation

         In late 2014, this Court again asked for assistance from an outside expert to review the Defendant's competency. This Court eventually retained Dr. Zonana, who prepared a report of the Defendant's competency in April of 2015. See Report at 1, Apr. 10, 2015. In preparation for that report, Dr. Zonana reviewed documents and met with the Defendant on February 5, 2015, for approximately three and one-half hours at ESH. See id. at 3.[19]

         Ultimately, Dr. Zonana concluded that the Defendant was aware of some of the factual nature of the proceedings against him. See id. at 11. However, the doctor found that there was not "enough in the record to conclude that [the Defendant] has a rational as well as factual understanding of the proceedings and [that the Defendant] has the capacity to work with his attorneys with a reasonable degree of rational understanding." Id. Dr. Zonana also noted that the Defendant "seems to have the capacity to both exaggerate real symptoms as well as fabricate others" and that "[u]nfortunately there is no bright line that allows us to specify when it is real, an exaggeration, or outright malingering." Id. at 10.

         VI

         Petition for Instruction Hearings

         A

         Dr. Tactacan

         On June 1, 2015, the Defendant's treating physician at ESH, Dr. Tactacan, submitted a PFI to the Court.[20] As a result of the standstill between the Defendant and the staff at ESH, Dr. Tactacan submitted a PFI to the Court and the Court reviewed the Defendant's situation and behavior at ESH.[21]

         In the PFI, Dr. Tactacan stated that the Defendant was diagnosed with Borderline Personality Disorder. He further stated that medication would help to manage the Defendant's symptoms, that the Defendant was unable to provide informed consent, and that the Defendant refused the necessary medications. The doctor asked the Court for permission to medicate and treat the Defendant, since there were no available substitute decision-makers to agree to the administration of medication on the Defendant's behalf.

         In a first hearing held on June 4, 2015, Dr. Tactacan appeared before the Court for testimony regarding the PFI. During that hearing, Dr. Tactacan testified that, in his opinion, the proposed medications may be useful in treating the symptoms of Borderline Personality Disorder. However, the doctor acknowledged that there are no medications approved by the FDA to treat Borderline Personality Disorder itself, and that medication is not an appropriate solution or remedy to the Defendant's malingering.

         Upon questioning by the Court, Dr. Tactacan testified that the Defendant was not currently receiving any formal treatment while at ESH due to his refusal to work with staff and doctors; the only treatment ESH could provide, at the time, was one-on-one supervision to prevent instances of self-injurious behavior. The doctor explained that from his conversations with the Defendant, it appeared as though the Defendant did not have an insight into his own mental illness or into the charges that brought him before the Court.

         Dr. Tactacan clarified that no guardian was appointed in this case to make medical decisions for the Defendant because the Defendant was not "globally incompetent." Hr'g Tr. 46, June 4, 2015. The doctor stated that the Defendant can make decisions and take action regarding his grievances, purchases, bank accounts, etc., and that he only refuses to work with staff when it comes to treatment and his medical decisions. Id. Dr. Tactacan testified that the Defendant is capable of advocating for himself and making decisions when it comes to matters that he feels strongly about. Id. Despite a refusal to participate in treatment or to discuss medical decisions, the doctor provided examples of times when the Defendant had asserted himself, stating that "he's very rights driven and rights oriented. He certainly can advocate for himself, you know, when he chooses to." Id. at 49-50.

         Finally, Dr. Tactacan concluded by stating that the PFI was presented to the Court because, without court-ordered medication, the only treatment that ESH can provide the Defendant is one-on-one supervision. Dr. Tactacan stated that in his opinion, and to a reasonable degree of medical certainty, the benefits of the proposed medications outweigh the risks. Id. at 7. After a short recess and a conference among the parties, the State requested a short continuance in order to present a second expert, Dr. Zonana, for a future hearing on the matter of informed consent and forced medication. Thus, the Court did not issue an order for forced medication after Dr. Tactacan's testimony on June 4, 2015.

         B

         Dr. Zonana

         On July 22, 2015, Dr. Zonana prepared a report after he was requested to address the continued issue of forced medication and informed consent. See Report at 1, July 22, 2015. Specifically, the Court asked Dr. Zonana to inquire whether the Defendant was able to make a "fully informed decision or [to] provide informed consent" regarding proposed medications. Id. In preparation for his July 2015 report, Dr. Zonana met with the Defendant on July 18, 2015 from approximately 9:45 am to noon. Id. Dr. Zonana had previously met with the Defendant on February 5, 2015, and he reviewed progress notes dating from March 30, 2015 to July 17, 2015. Id.

         In a videotaped meeting on July 18, 2015, Dr. Zonana informed the Defendant that their discussion would not be confidential, since it would be included in a report prepared for the Court. See Report at 1, July 22, 2015. The Defendant noted that he had spoken with one of his attorneys and that he was willing to proceed. Id. Dr. Zonana writes that in their July 18, 2015 meeting, the Defendant spoke "more clearly and in a normal rate and volume than he did in [the] first interview. There was no loosening of associations, neologisms, and he generally was coherent." Id. at 3. The doctor reported that the Defendant "recalled [his] previous visit and was able to bring up some of the details of what [they] had talked about quite accurately. [The Defendant] was oriented to person place and time." Id.

         Finally, Dr. Zonana concluded that the Defendant was able to communicate regarding treatment choices, able to acknowledge the symptoms of his psychiatric condition, and that he did appreciate the need for some kind of treatment. Id. at 5. However, Dr. Zonana concluded that the Defendant is unable to reason about treatment options because of his mistrust for staff and treating physicians. Id. Therefore, Dr. Zonana found that the Defendant likely cannot ...


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