Wayne Circuit Court. LC No. 13-003985-FH.
For PEOPLE OF MI, PLAINTIFF-APPELLANT: DAVID A. MCCREEDY, DETROIT, MI.
For DEMOND EARL DAVIS, DEFENDANT-APPELLEE: GERALD FERRY, ST CLAIR SHORES, MI.
Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.
[310 Mich.App. 278] Gleicher, P.J.
Defendant is a cognitively impaired young adult. After the district court bound defendant over on unarmed robbery and assault charges, the circuit court questioned whether defendant was competent to stand trial. Initial examination supported defendant's current incompetency but revealed that defendant potentially could be rendered competent to stand trial within 15 months if provided appropriate treatment. For the next two months, defendant remained in county jail because no vacancies opened at an appropriate psychiatric facility. The circuit court then determined that the delay in treatment made it impossible to have defendant ready for trial within the statutory period and dismissed the charges against defendant without prejudice. Because the circuit court lacked statutory authority to dismiss the case over the prosecution's objections, we reverse.
On the afternoon of April 15, 2013, then 17-year-old defendant, along with six other young men, " jumped" a 16-year-old autistic boy and stole his portable gaming system. Detroit police arrested defendant three days later. Defendant waived his rights and admitted, but minimized, his role in the attack. Following preliminary [310 Mich.App. 279] examination, the district court bound defendant over for trial on charges of unarmed robbery and assault with intent to commit great bodily harm less than murder.
On June 6, 2013, the circuit court ordered that defendant undergo an examination to determine whether he was competent to stand trial. Defendant was released on bond until his examination at the Center for Forensic Psychiatry (CFP). On July 27, 2013, family members transported defendant to the center, where he met with a licensed psychologist, Cathie Zmachinski. In the report detailing her clinical observations, Zmachinski
noted that defendant's mother had given her records indicating that defendant was " 'Moderately impaired.'" Zmachinski went on to state
[Defendant] showed limited comprehension of questions. So, I simplified my questions and comments which facilitated his understanding. His responses were relevant but brief, usually only three to four words long. His thoughts were coherent. He required direct questioning in order to obtain related information. . . . [Defendant] demonstrated other cognitive difficulties. He showed limited abstract reasoning. He showed limited understanding of the world around him. He showed limitations in expressing himself. He demonstrated immature interests. . . . He also showed a tendency to agree without regard to the specific content of some questions. Based on his clinical presentation and understanding of his world, [defendant] appeared to be functioning in the mild mentally retarded range. Additionally, he gave the indication that he was able to process more information than indicated by his verbal responses.
Zmachinski described defendant's memory deficits. In addition, she opined, " Besides his limited insight into his cognitive abilities he showed limited insight into his affective life."
[310 Mich.App. 280] Zmachinski also interviewed defendant's mother, Tiffany Davis. Davis reported that defendant had received special education services since kindergarten, was restless and had difficulty staying on task at home. Davis indicated that defendant had been incarcerated for two months before being released on bond. During that time, the other inmates took advantage of defendant and " beat [him] up."
In relation to defendant's competency to stand trial, Zmachinski opined:
It is my opinion that [defendant] has a limited understanding of the nature and object of the proceedings against him. He was asked some questions about the criminal justice system and in particular about his legal case. He demonstrated the following. He said he could not remember the charges against him. But he could acknowledge them. He was aware of the circumstances from which those charges arose. When asked specifically, he claimed not to know what happens were he to be found guilty or the maximum penalty given his charges. He could recall his attorney " Came to my house--asked about my job--same as you." [Defendant] further indicated his mother was with him while talking to his attorney, " She does a lot of talking." He said he did not know the jobs of the prosecutor or judge. He could not give an explanation of a plea bargain or the essence of a trial. He did however say if you believe the witness was lying, he would tell his attorney. Due to his limited expressive knowledge about the legal system, he was given the CAST-MR. This measure is designed for those with mental retardation. Individuals are asked questions about the criminal justice system in a multiple choice format. Also they are asked questions about various scenarios regarding the legal process. On this measure, [defendant] could correctly identify the basic job of the witness, judge but not the jury, his attorney and the prosecutor. He could identify such words as " Sentence, crime, penitentiary, felony, misdemeanor, and time served." He knew that if found guilty, it would mean the prosecutor proved he did it. He could not identify plea [310 Mich.App. 281] bargaining. Thus, he demonstrated greater knowledge about the system than when asked more open ended questions. But he continued to show some limited knowledge. [Defendant] also
was given various problematic scenarios related to legal charges and arrest. He showed in his answers that he was capable of being protective of himself in the jail and with the prosecutor. But he showed some problems with situations requiring more than a black and white reasoning. His overall performance suggested he knows more about the process than he was able to express. Yet his knowledge was, in my opinion, still considered limited.
In regards to his ability to assist defense counsel in a rational manner, again it is my opinion that this would be limited. To his favor, [defendant] provided a rendition of the incident in question, one similar to that in the police account. He could answer some questions but not others, including his understanding of his behaviors at that time. He was aware of some important elements about his case. For example, he kept repeating important aspects of the assaulted boy's testimony. Although he could not elaborate why this was important, he seemed aware on a basic level that this testimony suggested he had minimal involvement in the crime. [Defendant] also showed an ability to control his behavior within the interview. He also did not demonstrate emotional difficulties. [Defendant] showed limitations in problem-solving and decision-making. He did better when he was given simple choices and the problem was spelled out for him. [Defendant] was quite passive. Given his cognitive abilities and limited knowledge of the legal process, it is my opinion [defendant] would not communicate his concerns sufficiently to his attorney. He would not understand what has been said if more than simple language was used. Given his limited knowledge of the process, this would further limit his comprehension of the process as well as communications with his attorney. It is my opinion were he more knowledgeable about the process he may be less passive and might express some of his concerns. But nonetheless at the current time, it is my opinion that [defendant], due to [310 Mich.App. 282] his cognitive limitations as well as passivity would have significant difficulty assisting his attorney to resolve the current charges.
In summary, due to limited cognitive abilities although [defendant] showed some knowledge about the criminal justice system, in my opinion it was insufficient to be considered him [sic] capable of understanding the nature and object of the proceedings against him. Additionally, again due to this limited knowledge and limited cognitive abilities, it is my opinion that he would have problems assisting defense counsel in a rational manner. Therefore, it is my opinion that [defendant] was incompetent to stand trial.
The next question becomes whether there is a substantial probability that [defendant] could be expected to regain his competency within [the] time period provided by statute and if he were provided with a structured, inpatient, hospital setting with the provision of appropriate therapeutic intervention. It is my opinion [defendant] has some skills which he can draw upon to learn more about the legal process. So with education and treatment, he may acquire a greater knowledge of the process. Additionally given his cognitive skills as being measured in the moderately impaired range, I anticipate that his will take some time. But, it is my opinion that he would be able to gain the knowledge required. With that knowledge, it is my opinion he would likely be able, in a basic way, to work with his attorney to resolve the current charges.
This report was submitted to the circuit court on August 8, 2013. An August 9, 2013 letter from the CFP director recommended that defendant be treated at Kalamazoo Psychiatric Hospital.
At an August 22, 2013 hearing on the matter, the circuit court followed the CFP's recommendation. However, the court noted, " I'm not completely sold on their conclusion about his ability to . . . attain . . . [c]omptency. And my opinion is based on the fact that they have not received his school records and they have [310 Mich.App. 283] not received the Wayne County Jail information that they have requested." The court directed, " I'm going to have him placed there," meaning the psychiatric hospital. The court then stated its intent to schedule a hearing " within the time period prescribed by law" to determine if defendant had attained competency. Defendant was returned to court custody that day and was transported back to the Wayne County Jail to await transport to the Kalamazoo Psychiatric Hospital. The court's subsequent order provided:
Commitment is necessary for the effective administration of the course of treatment and therefore the defendant is committed to the custody of the State Department of Mental Health and placed at the facility recommended by the [CFP].
The court's next scheduled hearing occurred on October 29, 2013. Defense counsel informed the court that defendant had remained in jail since the August 22 hearing because the Kalamazoo Psychiatric Hospital did not " anticipate a bed being available for [his] client between six to eight weeks from today's date." Counsel argued that the administrative delay had interfered with defendant's right to be free on bond pending trial. Counsel did not request the dismissal of the charges, only that defendant be released to his mother's care pending treatment. The prosecutor objected to defendant's release on bond as the underlying offense was assaultive in nature and out of fear that defendant might " fall through the cracks if he is not there and waiting for the bed when it becomes available."
The court expressed displeasure at the course of events, noting defendant " has gone untreated, basically, for five months." The court continued:
[310 Mich.App. 284] I think that when a person who has been determined to not be competent is kept in jail and not treated, it kind of gets to cruel and unusual punishment.
I mean, we have a place for people that are not competent. And it is in a state facility to help them restore them to competence. I don't want to be a part of a system that jails incompetent people, that incarcerates people who don't have the capacity to stay in the criminal justice system.
To me, that's not the way that you deal with, you know, mental health challenges, to jail them and not treat them. And that's exactly where [defendant] is. He has been found not to be competent. And we have incarcerated a person that is not competent, would not have known that he was on a wait list. . . .
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. . . But somebody believes that it's all right to incarcerate incompetent people. And I don't.
Originally, this Court made a finding that, based on the report, that it was likely that he would regain competence through treatment. There has been no treatment. They're projecting out that he still won't be treated for another two months.
I'm going to, based on the new information that I have, find that he would not be restored to competence in the
allotted time that they have to treat him based on the fact that he is not being treated. And, therefore, I will leave the People to their other remedy of trying to process [defendant] through the civil branch. . . .
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. . . I can disagree with the findings that the [CFP] had said. They thought that, based on what they saw, that they would be able to restore him. I have the ability to accept their recommendations and their findings or say, you know, I don't think that that's true. I disagree with the [310 Mich.App. 285] report. And so, I can find that he is incompetent to stand trial and that there is ...