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State v. McLean

Superior Court of Rhode Island, Providence

March 27, 2019


          For Plaintiff: Joseph J. McBurney, Esq. Jeffrey Q. Morin, Esq.

          For Defendant: Robert Kando, Esq.


          KRAUSE, J.

         Andrew McLean's current (now fourth) attorney and the chief forensic psychiatrist at Rhode Island Hospital say that McLean is not competent to stand trial. McLean's three prior defense attorneys and the director of forensic psychiatry at Eleanor Slater Hospital say that he is. So does this Court.

         On November 24, 2015, a grand jury returned an indictment charging Andrew McLean and two others with first degree robbery of a pawnshop, assault with a dangerous weapon (shooting the pawnbroker in the head), conspiracy, and ancillary firearm offenses. On March 22, 2016, assisted by retained (and his first) attorney John M. Cicilline, McLean pled guilty to first degree robbery in exchange for a parolable life sentence and concurrent ten-year terms for other charges. He also received a mandatory consecutive, non-parable twenty-year term, which was suspended with probation, for discharging a firearm and injuring the shopkeeper during the robbery.[1]

         Some months later, McLean learned from ACI inmates that Mr. Cicilline had mistakenly told him, prior to the guilty plea, that his initial parole eligibility date would be in ten years, instead of the twenty years which the Legislature had recently decreed for a life term on a first degree robbery charge. With the assistance an of an ACI inmate librarian, McLean filed a pro se postconviction relief (PCR) application based upon ineffective assistance of counsel and asked that his guilty plea be vacated. Since he could no longer afford counsel, the Court appointed Glenn Sparr, an experienced criminal defense attorney, to represent him in his pursuit of the PCR petition. At the March 24, 2017 PCR hearing, Mr. Cicilline readily acknowledged that he had erred, and the prosecutor also admitted that he, too, had been unaware that the ten-year parole eligibility had been extended to twenty years and that he had misinformed Mr. Cicilline of the ten-year period. PCR Hr'g. at 5, Mar. 24, 2017.

         The Court, with Mr. Sparr's participation, thoroughly and carefully explained to McLean that if his PCR application were granted, all of the original counts in the indictment would be restored and that this Court would no longer engage in any binding plea negations. That colloquy included the following dialog, during which McLean was under oath:

MR. SPARR: I have met with Andrew three times about this since I've been appointed, and I indicated to him that I was going to find merit in one of his contentions. I will also put on the record that in my opinion he is making this request of this Court knowing and voluntary [sic].
I have discussed with him the ramifications of making this request to the Court, that he obviously doesn't have to do this. That if he wanted to, he could withdraw his request and his application and could leave well enough alone, so to speak, but I believe, based on my conversations with him, that this is what he does want to do. I know the Court will address him, but I do believe that he is making this request, if this is what he still wants to do, knowing and voluntary [sic] and intelligently. ***
THE COURT: Mr. McLean, I want to be sure that I have your assent to the application that has been filed and the comments that Mr. Sparr has made, that you are in full agreement with his representations to the Court, that you are in full agreement with that which he seeks from the Court, namely, essentially to have your guilty pleas vacated, and that the matter would thus be back in the process as if you had never pled guilty to this case, the matter would simply be pending and it would be back to, if I can use the vernacular, square one.
Is that your desire, sir?
Q. You understand that if this post-conviction petition for relief is granted, not only are you back to square one, but I would advise you that this Court will in no way in the future engage in any binding plea negotiations or discussions with counsel for you or counsel for the state, and only one of two things will happen, or possibly three things: The matter will go to trial on all counts, we understand that; or the state will dismiss the case. I don't know that that's very likely; or thirdly, you may later decide to change your mind and plead to some or all of the counts, but if the third option occurs, this Court will not bind itself in any way to any sentence that would be imposed under those circumstances.
Do you understand all three of those?
A. The last one -
Q. I can't hear you.
A. I said the last one I kind of don't understand. The third one.
Q. What part did you not understand, sir?
A. The third one.
Q. That is, if you went to trial or that if you plead guilty later on?
A. Yeah.
Q. If you plead guilty later on, I'm telling you after today, if I grant this petition, I'm not binding myself to any kind of sentence that will ever be imposed in this case. You're back to square one. I am not going to get involved and get involved in any binding plea agreements whatsoever.
A. Oh.
Q. Do you understand that?
A. Yes.
Q. Do you agree to that?
A. Yes.
Q. Okay. Very well. The state not voicing any objection to the particular circumstances present in this case, and the defendant-excuse me-the applicant being insistent on pursuing this application, knowing full well the consequences and ramifications, the petition is granted. Unless there's something else you want to add [addressing the prosecutor].
PROSECUTOR ROKLAN: *** I just want to make it clear, though, the dismissed counts in exchange for the plea come back.
THE COURT: Everything is back to square one. Every count in this indictment is right back in play.
Do you understand that?
MR. MCLEAN: Yes. PCR Hr'g. at 4; 8, Mar. 24, 2017.

         Thereafter, the Court granted the PCR application and also installed Mr. Sparr as trial counsel. Within a few months, however, McLean began to disparage Mr. Sparr's efforts, filed a disciplinary complaint against him, and demanded to be separated from him. Because of the disciplinary complaint, Mr. Sparr also requested that he be allowed to withdraw. On September 6, 2017, Mr. Sparr was released from the case, and attorney Jay Canham, another veteran criminal defense attorney, was appointed to represent McLean, with this Court's admonition that no additional court-appointed attorneys would be furnished if McLean also failed to get along with Mr. Canham. McLean voiced his understanding and said he had no questions. Tr. 3-5, Sept. 6, 2017.

         On January 8, 2018, Mr. Canham, at McLean's request, moved for a grant of bail and a bill of particulars. Both motions were denied. Mr. Canham, also at McLean's request, asked the Court to disqualify itself. The recusal motion was also denied. McLean again, notwithstanding this Court's prior admonitions, expressed dissatisfaction with Mr. Canham in a fashion similar to the criticism he had leveled at Mr. Sparr, and he asked that Mr. Canham also be relieved as counsel.

         For all of his imprecations, aimed first at Mr. Sparr and then at Mr. Canham-and in each instance with trial looming closer-McLean nonetheless continued to lament his inability to proceed without the help of a lawyer. Accordingly, this Court, after extensive dialog with McLean, relented and appointed yet another attorney, Robert Kando (current counsel), to represent him. McLean has since complained about Mr. Kando, too; and he has filed a disciplinary complaint against him, as well. Tr. passim, Jan. 8, 2018.

          McLean, at least to date, has not requested separation from Mr. Kando, who, to his credit, has maintained his willingness to represent him. He has, however, expressed a concern that McLean is not competent to proceed to trial because, according to Mr. Kando, McLean refuses to confer with him, engages in protracted monologues complaining about the court system, and is allegedly unable to assist in his defense. On March 15, 2018, at Mr. Kando's request, this Court ordered a competency evaluation pursuant to G.L. 1956 § 40.1-5.3-3(c).

         Within a few days, McLean was interviewed at the Adult Correctional Institutions (ACI) by Dr. Barry W. Wall, Director of Forensic Psychiatry at Eleanor Slater Hospital (ESH), and his colleague Dr. Michael J. Byrne, a psychiatrist and a Fellow at ESH. They also administered what Dr. Wall referred to as a Competence Assessment Screening Tool for Persons with Mental Retardation (CAST-MR), a standardized psychological test which assists in determining competency to stand trial.[2] Thereafter, Drs. Wall and Byrne prepared a Competency Report as well as a Risk Assessment Evaluation. Neither document was intended to be discursive nor conclusive of McLean's mental condition; rather, the March 28, 2018 "competency" report was prepared in order "to trigger hospitalization so that we could do a more in-depth analysis of his intellectual capabilities. . . . It was a provisional assessment at the time. We wanted more testing which needed to occur in the hospital, and observation." Comp. Tr. at 105, 106, 107 (emphasis added). As Dr. Wall explained:

"[T]he first [March 28, 2018] examination is just a snapshot without really getting to know him, and the second examination is more in-depth, after the hospital has had the opportunity examine him 24 hours a day, seven days a week, to get an idea of what his capacities are, what his limitations are. And we've had a chance by that point to really observe him, to see if he has any symptoms of mental illness that might account for things or symptoms of drug use that might account for problems of intellectual disability. So it's more in-depth analysis because our entire team has had a chance to observe him round the clock for a long time in the hospital." Comp. Tr. at 121-22.

         The Risk Assessment Evaluation was created principally to determine whether McLean was likely to endanger the ESH populace or himself. McLean's risk was deemed "high," not because of any psychiatric reason, but because he had a "history of assaultive behavior (his current charges aside) and antisocial personality traits[.] . . . The relationship, if any, between possible Intellectual Disability Disorder and risk will be assessed during his inpatient psychiatric hospitalization." Risk Assessment Evaluation at 5 (emphasis added).

         At ESH, a neuropsychologist administered a battery of tests to assess McLean's mental functioning and to determine his IQ (69). He was further evaluated by Dr. Wall and Dr. Byrne on May 3, 2018; and, after further reviewing his progress, they presented their June 4, 2018 Competency Report, concluding that McLean was competent to stand trial.[3]

         Dr. Wade C. Myers, Director of Forensic Psychiatry at Rhode Island Hospital, who was engaged as an expert by the defendant, met with McLean on August 7, 2018. Subsequently, in his October 12, 2018 report, Dr. Myers opined that McLean was not competent to go to trial.

         At a four-day competency hearing during the week of January 28, 2019 (the Competency Hearing), Dr. Wall and Dr. Myers testified, as did all four of McLean's attorneys. Also presented were transcripts of prior court proceedings before this Court in which McLean participated, as well as some of McLean's recorded (and transcribed) ACI telephone calls, and some other written materials.

         The Competency Standard

         The United States Supreme Court has long made clear that "[a] criminal defendant may not be tried unless he is competent . . . This requirement 'has a modest aim: It seeks to ensure that [the defendant] has the capacity to understand the proceedings and to assist counsel.'" United States v. Kenney, 756 F.3d 36, 43 (1st Cir. 2014) (quoting Godinez v. Moran, 509 U.S. 389, 402 (1993); see also Dusky v. United States, 362 U.S. 402 (1960) (other internal cites omitted). "The 'understanding' required [of the defendant] is of the essentials-for example, the charges, basic procedure, possible defenses-but not of legal sophistication." United States v. Brown, 669 F.3d 10, 17 (1st Cir. 2012) (quoting Robidoux v. O'Brien, 643 F.3d 334, 339 (1st Cir. 2011)).

         Under Rhode Island law, McLean is statutorily presumed competent, and he shoulders the burden to prove, by a fair preponderance of the evidence, that he is incompetent. Sec. 40.1-5.3-3(3)(b). He must thus demonstrate that he is "unable to understand the character and consequences of the proceedings against him" and that he is also "unable properly to assist" in his defense. Id. at 3(a)(5). As stated in State v. Owen, 693 A.2d 670, 671 (R.I. 1997) (quoting State v. Cook, 104 R.I. 442, 447, 244 A.2d 833, 835-36 (1968)):

"For a court to permit an accused to be prosecuted criminally, 'three things must be found: first, that defendant understands the nature of the charges brought against him; second, that defendant appreciates the purpose and object of the trial proceedings based thereon; and third, that defendant has the mental capacity to assist reasonably and rationally his counsel in preparing and putting forth a defense to the criminal charges of which he stands accused.'"

         Competency decisions, like insanity trials, are typically balanced on a fulcrum of expert testimony. "Ideally, psychiatrists-much like experts in other fields-should provide grist for the legal mill, should furnish the raw data upon which the legal judgment is based. It is the psychiatrist who informs as to the mental state of the accused-his characteristics, his potentialities, his capabilities." State v. Gardner, 616 A.2d 1124, 1127 (R.I. 1992) (citations omitted.)

         In the end, however, it is a legal not a medical decision, and the trial justice is free to choose between expert opinions so long as he does so "not from mere whim or fleeting caprice, but with reasonable justification." Cook, 104 R.I. at 449, 244 A.2d at 836. "While judges may rely heavily upon the advice of mental health professionals in assessing a defendant's competency, it is the judge, not the mental health professionals, who must make the final call and who bears the weight of the final decision on his or her shoulders." In re Tavares, 885 A.2d 139, 150 (R.I. 2005).

         The focus of the Competency Hearing was narrow, as both Dr. Myers and Dr. Wall agree that McLean understands the charges, the trial process, and the roles of the various parties (i.e., the judge, the prosecutor, defense counsel, and the jury). Comp. Tr. at 10-11, 59-61, 123, 292. In addition, both Dr. Myers and Dr. Wall agree that McLean has a Mild Intellectual Disability Disorder and a full scale IQ of 69.[4] Thus, the only issue to be decided by the Court is whether McLean has the mental capacity to assist counsel.[5]

         Dr. Myers believes that McLean's low intellectual capacity, when coupled with what he perceives as McLean's Oppositional Defiant Disorder (ODD), renders McLean without the mental capacity to assist Mr. Kando. He believes, however, that McLean's present "inability to properly assist in his defense could be treated through a combination of brief, focused psychotherapy (geared at a basic, problem-solving level) in tandem with psychotropic medication to target his underlying ODD symptoms (e.g., anger, oppositionality, resentfulness, suspicioness [sic])." Myers Rep. at 11.

         Dr. Wall disagrees. He has concluded that McLean does not suffer from ODD and that irrespective of his Mild Intellectual Disability Disorder, McLean is nonetheless able to rationally confer with his lawyer. Wall Rep.2 at 9; Comp. Tr. at 261-62. All three of McLean's prior attorneys testified that they conferred with McLean about the case without his resistance and that he never exhibited any sign that he was incompetent to stand trial. Mr. Kando offered a different scenario, testifying that McLean has resisted his efforts to discuss the case, has engaged in protracted rebukes of the criminal judicial system and has sought advice from prison inmates rather than from him.

         Dr. Wall

         As noted above, there is no disagreement between Dr. Wall and Dr. Myers that McLean demonstrates Mild Intellectual Disability Disorder, a debility which, as explained by Dr. Wall, is a neurodevelopmental condition reflecting low cognitive/intellectual function. However, a person who has a mild intellectual disability (typically with an IQ which hovers in the 60's to about 70) can usually function in society. Notwithstanding a substantially low IQ, he or she is capable of learning, albeit at a slower rate. Comp. Tr. at 117-120. Dr. Myers similarly testified, "Having an intellectual disability doesn't equate with a person being competent to stand trial or incompetent to stand trial." Comp. Tr. at 93.

         In May and June of 2013, Dr. Wall and Dr. Byrne again met with McLean and reviewed all of the test results and his progress at ESH. They also reviewed other pertinent materials such as court transcripts, McLean's written materials, and previously recorded ACI telephone calls. By that time McLean had also decided to engage in weekly one-on-one competency restoration classes with a psychologist and had voluntarily enrolled in GED, social studies, and life skill classes. Additionally, according to ESH staff observations, he had displayed a daily ability to conduct himself independently without any symptoms of mental illness, and, importantly, without behavioral outbursts and with no need for medication. Wall Rep.2 at 3; Comp. Tr. at 110-111, 113.

         Dr. Myers also testified that after eight to twelve classes, he expected that McLean's competency would likely have improved. Comp. Tr. at 81. He also noted that by the spring of 2018, McLean had "improved with one-on-one counseling. For example, his original CAST-MR score was 32.5 and his most recent was 38.5. So he now tests pretty much within the range of people recommended to courts as competent even though they have an intellectual disability." Comp. Tr. at 317; Wall Rep.2 at 9 ("While he still has a Mild Intellectual Disability Disorder . . . competency education has mitigated his previous deficits.").

         Notably, Dr. Myers has acknowledged that McLean himself told him during his August 7, 2018 interview that "the competency classes have been helpful." Myers Rep. at 6. Mr. Kando, too, has accepted that "McLean has learned to adapt to his handicap." McLean Supp. Mem. at 9.

         Moreover, Dr. Wall testified that those who, like McLean, have a mental disability but have experienced prior criminal prosecution, may actually better comprehend court proceedings and the importance of conferring with counsel than those who, although they suffer no such disability, have never had to deal with criminal court matters:

"It is important to assess a person's ability to stand trial based on what they know about what could happen in court. A person with a lot of experience in the criminal justice system who has a lower IQ may actually be competent or capable in some ways that a person with a higher IQ with no experience in the court might not have. So that's why the examination of competence to stand trial is separate from the examination of diagnosing an intellectual disorder. And that's why we look at both the CAST-MR, as well as the face-to-face interview to help us assess a person's ability to stand trial." Comp. Tr. at 120.

         Dr. Myers

         When Dr. Myers met with McLean at ESH on August 7, 2018, he had reviewed various source materials similar to those considered by Dr. Wall, as well as Dr. Wall's June 4, 2018 report. He also was cognizant of McLean's test results, including his IQ of 69 and low academic skills. Like Dr. Wall, he knew that McLean had not progressed beyond the ninth grade, had quit school with failing grades and had amassed a history of suspensions and abused drugs, and had demonstrated antisocial tendencies. He had also considered Mr. Kando's reported difficulties communicating with McLean, as well as Mr. Kando's concern that McLean was relying on "jailhouse notions" of other ACI inmates, particularly his incarcerated grandfather.[6]

         As noted earlier, Dr. Myers, like Dr. Wall, also acknowledged at the competency hearing that McLean's mental disability, particularly his low IQ, does not, by itself, render McLean incompetent. His opinion that McLean is nonetheless incompetent is based on McLean's intellectual disability coupled with his belief that McLean also suffers from ODD. Myers Rep. at 11; Comp. Tr. at 93-94.

         In making that ODD diagnosis, Dr. Myers relied upon the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association (5th ed. 2013) (the DSM-5), the principal authority for diagnosing mental disorders. Dr. Myers opined in his report and at the competency hearing:

"[McLean] also meets the criteria for Oppositional Defiant Disorder, which is a pattern of an angry/irritable mood, argumentative/defiant behavior, and/or vindictiveness lasting at least six months, and that occurs during interactions with at least one other person who is not a sibling. Mr. McLean has the necessary four symptoms needed for this diagnosis, and they include being touchy or easily annoyed, being angry and resentful, arguing with authority figures, and refusing to comply with authority figures." Myers Rep. at 11, Comp. Tr. at 73-76.

         The DSM-5 criteria underpinning a finding of ODD consist of the following factors and accompanying notes:

         Oppositional ...

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