No. 20967-9-III.The Court of Appeals of Washington, Division Three. Panel Five.
Filed: September 30, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 99-1-00581-7. Judgment or order under review. Date filed: 03/15/2002.
Counsel for Appellant(s), Kevin Lee Holt, Attorney at Law, 7502 W Deschutes Pl, Kennewick, WA 99336-7719.
Wai Man Yung (Appearing Pro Se), #838609, P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Andrew Kelvin Miller, Attorney at Law, 7320 W Quinault Ave # E, Kennewick, WA 99336-7665.
SCHULTHEIS, J.
Not long before his trial for first degree assault, Wai Man Yung’s prescription for an antidepressant was discontinued by the county jail. He contends the denial of this medication violated his right to assist counsel and his right to be tried while competent. Wash. Const. art. I, sec. 22 (amend. 10); RCW 10.77.050. Although we find that the jail’s decision to deny medication was untenable, we also find no prejudice, and affirm.
Facts
Mr. Yung was born and raised in Hong Kong. He moved to the United States with his wife and daughter in 1991 and held down a number of jobs, predominantly as a cook in Asian restaurants. He is now a United States citizen.
On August 21, 1999, Mr. Yung was working as a cook in the Richland Food Pavilion. After an argument with his supervisor — Christopher Pang — Mr. Yung thought he had been fired and went home. Later that day, he returned to the Food Pavilion with a kitchen knife and stabbed Mr. Pang repeatedly until a customer disarmed him. During a subsequent police interview, Mr. Yung stated that he had intended to kill himself in front of Mr. Pang. Fortunately, Mr. Pang survived his injuries.
Mr. Yung was charged by information on August 25, 1999, with one count of first degree assault. RCW 9A.36.011(1)(a). The information was amended in May 2001 to include the allegation that he was armed with a knife in the commission of the crime.
On several occasions before trial finally occurred in October 2001, defense counsel requested neuropsychological evaluations of Mr. Yung. Psychiatrist Dr. Lanny Snodgrass was appointed in October 1999 to evaluate Mr. Yung’s mental competence and the possibility of diminished capacity.
In February 2000, the court appointed psychologist Dr. Mark Mays to examine Mr. Yung. At the omnibus hearing held in March 2000, defense counsel declared that at trial he would argue diminished capacity.
Then, in April, defense counsel successfully moved to have Mr. Yung evaluated for competency to stand trial. Counsel stated that Mr. Yung was anxious and suffering from poor vision, pressure in his head, and ringing in his ears. Mr. Yung was sent to Eastern State Hospital for the evaluation. According to the report completed after this evaluation (based in part on the reports by Dr. Snodgrass and Dr. Mays), Mr. Yung suffered from an adjustment disorder and a personality disorder. He showed some irregularity in thinking and a degree of difficulty in exercising his legal choices, but the examiners thought that some of these problems were due to cultural differences. On balance, the examiners found that Mr. Yung was not competent to stand trial because he had impaired concentration, difficulty with abstract thinking, and inadequate motivation toward his own self-interest. The examiners requested additional time for evaluation and deferred an opinion on Mr. Yung’s sanity. Based on this report, the trial court found that Mr. Yung did not have capacity to understand the proceedings against him or to assist in his defense. The court ordered the proceedings stayed 90 days while Mr. Yung was evaluated and treated pursuant to former RCW 10.77.090 (1998).[1]
While at Eastern, Mr. Yung was given several medications: Risperidone, an antipsychotic; Paxil for anxiety and depression; and Trazodone, an antidepressant and sleep aid. The only medication he was still taking upon discharge was Paxil. Based on the report from Eastern dated August 25, 2000 the court ordered that Mr. Yung was competent to stand trial.[2]
By November 2000, Mr. Yung’s sister and defense counsel were concerned that Mr. Yung seemed increasingly upset and incoherent when contacted at the jail. Defense counsel asked Dr. Mays to reevaluate Mr. Yung. Dr. Mays found that Mr. Yung was nonpsychotic and could understand abstractions, recall events, and pay attention. However, Dr. Mays decided that Mr. Yung was unable to assist counsel in his own defense because he was clinically depressed, highly emotional in his reactions, and self-defeating in his behavior. On November 17, defense counsel moved for another mental status evaluation. He noted that the county jail was depriving Mr. Yung of his antidepressant and that Mr. Yung again suffered from depression and inability to discuss his case. The trial court ordered the proceedings stayed while Mr. Yung was reevaluated at Eastern.
Mr. Yung was readmitted to Eastern in December 2000 for evaluation of his sanity and competency. Dr. Daniel Lord-Flynn and Dr. David Bot authored a letter to the court following this evaluation. Their diagnosis was that Mr. Yung had no current clinical disorder, but had a history of an adjustment disorder and suffered a personality disorder with narcissistic, borderline, and histrionic features. They found that Mr. Yung’s Confucian training encouraged him to accept his fate and the authority of the court. Defense counsel’s challenge to this attitude was seen by Mr. Yung as disrespectful. Further, Mr. Yung understood that his counsel was frustrated by his lack of participation in defense strategies. Dr. Lord — Flynn and Dr. Bot concluded that Mr. Yung had no mental disease or defect.
In their opinion, Mr. Yung had a personality disorder that was influenced by his cultural values and beliefs, yet his behaviors were under his volitional control. Because he understood the charges against him, the roles of the officers of the court, the options for pleading, and the potential jeopardy he faced, Dr. Lord-Flynn and Dr. Bot concluded that he had capacity to understand the legal proceedings and to assist in his defense. There was no mention in the report of the effect Mr. Yung’s prescribed antidepressant had on his behavior or abilities.
The trial court entered a second order of competency on January 19, 2001. Trial was scheduled for October 2001. Before trial began, the county jail again discontinued Mr. Yung’s antidepressant (Paxil). When Mr. Yung complained to counsel, the prosecutor checked with the jail and was told (incorrectly) that only the medications for tuberculosis and stomach upset had been discontinued, but the Paxil medication was ongoing.
Trial was held in mid-October 2001. Mr. Yung testified and attempted to establish a diminished capacity defense. The jury found him guilty of first degree assault with a special verdict that the crime was committed with a deadly weapon.
In a posttrial November 2001 hearing, defense counsel asked to continue the sentencing hearing so Mr. Yung could again be evaluated for his capacity to assist counsel during sentencing. When Mr. Yung began exhibiting symptoms of depression and incoherence after the verdict, defense counsel checked the jail records and discovered that, contrary to the assertions made before trial, Mr. Yung’s prescription for Paxil had been discontinued in September. Defense counsel requested a mental evaluation of Mr. Yung’s current condition as well as his probable condition during trial, although counsel admitted that his `subjective impression’ was that Mr. Yung did very well at trial. Report of Proceedings (RP) (Nov. 2, 2001) at 4. The State did not object to a continuance and the court granted the motion. Dr. Mays was appointed to conduct the evaluation.
In January 2002, Dr. Mays reported that he believed Mr. Yung suffered some impairment during trial due to his lack of medication, but he nonetheless believed Mr. Yung met the test of competency. Mr. Yung was back on Paxil at the time of his evaluation, but he reported that during trial he had vision difficulty, pounding in his head, lack of concentration, and difficulty understanding events. These symptoms subsided gradually after the abrupt discontinuation of his medication. On the other hand, Mr. Yung was able to describe most of the events at trial, recalled specific statements, and understood the adversarial nature of the proceedings. Dr. Mays concluded that while Mr. Yung’s depression may have made it more difficult for him to attend to matters, his recollection of events showed that he understood the proceedings, even if imperfectly. Based on this report, the trial court found Mr. Yung competent both at trial and for sentencing purposes.
Mr. Yung was sentenced to a standard range sentence of 147 months (including the deadly weapon enhancement). He now appeals, contending he was incompetent at trial due to the discontinuation of his antidepressant.
Competency and the Ability to Assist Counsel
In Washington, an incompetent person cannot be tried, convicted, or sentenced for a crime as long as that person is incompetent. RCW 10.77.050; State v. Marshall, 144 Wn.2d 266, 278, 27 P.3d 192 (2001); In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001). The two-part test for competency asks (1) whether the accused understands the nature of the proceedings against him or her; and (2) whether he or she is capable of assisting in the defense. Former RCW 10.77.010(9) (1999); Fleming, 142 Wn.2d at 862. Once the trial court has reason to doubt a defendant’s competency, it must order a competency hearing pursuant to the mandates of former RCW 10.77.060 (1998). Marshall, 144 Wn.2d at 278-79.
In this case the record shows that the court took great care to ensure that Mr. Yung was competent at trial. On two occasions the trial court ordered Mr. Yung to undergo evaluations at Eastern and conducted competency hearings. Each of these evaluations was precipitated by a motion from defense counsel. Mr. Yung now contends he was incompetent because his antidepressant was involuntarily discontinued. Yet his counsel did not raise this issue during trial. Consequently, we must examine the record to determine whether Mr. Yung exhibited irrational behavior or any other indication that he did not understand the nature of the proceedings or that he could not assist in preparing his defense.
According to Dr. Mays, who evaluated Mr. Yung after trial, the discontinuation of Mr. Yung’s medication did affect and impair him, but did not seem to impair him to the point that it affected his competency during trial. Dr. Mays knew that Mr. Yung was again under medication at the time of this evaluation, and relied on Mr. Yung’s memories of the trial to determine his competence. Based on Mr. Yung’s answers, Dr. Mays concluded that `{w}hile it may have been more difficult for him to attend to matters, his ability to recollect them suggests that he was able to do this, nonetheless, albeit imperfectly.’ Clerk’s Papers at 160.
Mr. Yung’s testimony at trial supports this conclusion. On direct examination, Mr. Yung recited details of his immigration to the United States, his numerous jobs, his family life, and the complex employee interactions that led up to the crime incident. He spoke in English, with only occasional assistance from an interpreter. Once or twice he professed a memory lapse — as in his failure to remember the name of a restaurant where he worked briefly — but usually he answered defense counsel’s questions appropriately and thoroughly. Throughout his testimony he underscored the stress he suffered from long hours of work and worry for his daughter’s future. He explained that he went to the restaurant to kill himself, but began feeling like he was drowning and lost consciousness during the confrontation with his supervisor. This testimony helped establish the defense of diminished capacity. During cross-examination, he was very evasive with the prosecutor and could not be made to acknowledge even those statements he made on direct examination. Claiming he was too tired and confused to answer the prosecutor’s questions, he insisted that the court should listen to his recorded police interview. Rather than an indication of mental difficulty, his response to the cross-examination seems more an awareness of the adversarial nature of the prosecution.
Over all, Mr. Yung did not exhibit difficulty understanding the proceedings. He also apparently cooperated with counsel in building a defense. Counsel acknowledged as much when he admitted to the court that it was his `subjective impression that {Mr. Yung} did very well’ at trial. RP (Nov. 2, 2001) at 4-5. On the issue of competency, considerable weight is given to the trial attorney’s opinion. City of Seattle v. Gordon, 39 Wn. App. 437, 442, 693 P.2d 741 (1985). The bottom line is that Mr. Yung’s behavior indicated he was competent at trial.
Mr. Yung also seems to argue that the county jail’s discontinuation of the antidepressant raises at least a presumption that he was denied important due process rights. Fundamental due process rights are implicated when the court takes measures that `could affect the ability of a man on trial to freely use his mental faculties.’ State v. Maryott, 6 Wn. App. 96, 100, 492 P.2d 239 (1971). In Maryott, a defendant was given substantial doses of tranquilizers by his jailers, contrary to the defendant’s wishes. The tranquilizers made the defendant suspicious and uncommunicative with defense counsel, and dull and listless on the stand. As an aspect of his defense of mental incompetence, the defendant claimed at trial to be highly excitable. Yet the jury saw him as very quiet because he was drugged. Id. at 101. Maryott held that this forced intake of drugs violated the defendant’s due process rights because mental competency was an issue at trial and consequently his demeanor likely affected the jury. Id. at 101-02. The court did not hold that the forced intake of drugs was a per se due process violation; it looked to the demonstrated effect of the drugs on the defendant’s ability to understand or assist in his defense. Id. at 104-05.
As described above, Mr. Yung’s behavior at trial simply did not exhibit any significant impairment of his ability to freely use his mental faculties. Although the jail’s decision to discontinue his antidepressant was insupportable, Mr. Yung cannot show that he was unable to understand the proceedings or to assist counsel in his own defense during trial.
In a final argument, Mr. Yung contends dismissal is also appropriate under CrR 8.3(b), which provides that
{t}he court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.
The governmental misconduct need not be evil or dishonest, but may simply constitute mismanagement. State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997). Here, the jail repeatedly discontinued Mr. Yung’s antidepressant, a medication prescribed at Eastern each time Mr. Yung began exhibiting symptoms of depression and was sent to Eastern for a competency evaluation. Whether the result of mismanagement or excusable mistake, the discontinuation of Mr. Yung’s medication satisfies the misconduct element of a CrR 8.3(b) claim. As discussed above, however, Mr. Yung can show no prejudice. Consequently, dismissal is not warranted under CrR 8.3(b).[3]
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, C.J. and KURTZ, J., concur.