State of Tennessee v. Jeffery D. Lemay

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 9, 2010 Session

STATE OF TENNESSEE v. JEFFERY D. LEMAY

Appeal from the Circuit Court for Marshall County

No. 17698 Robert Crigler, Judge

No. M2010-00175-CCA-R3-CD - Filed January 11, 2011

The defendant, Jeffery D. Lemay, pleaded guilty to one count of rape of a child, a Class A

felony, and reserved a certified question of law challenging the trial court’s order finding him

competent to stand trial. See Tenn. R. Crim. P. 37(b)(2)(a). Following our review, we

conclude that the defendant failed to properly certify a question of law that is dispositive of

the case. Accordingly, we dismiss the appeal.

Tenn. R. App. P. 3; Appeal Dismissed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which T HOMAS T.

W OODALL and A LAN E. G LENN, JJ., joined.

Melissa L. Thomas, Fayetteville, Tennessee, for the appellant, Jeffery D. Lemay.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempl, Assistant

Attorney General; Charles Crawford, District Attorney General; and Weakley E. Barnard,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Marshall County grand jury charged the defendant in a 20-count

indictment with two counts of rape of a child, two counts of aggravated sexual battery, eight

counts of rape, four counts of sexual battery, and four counts of statutory rape by an authority

figure for acts alleged to have been committed by the defendant against his stepdaughter on

six specific dates spanning a time frame of over two years. Defense counsel petitioned the

court for a mental evaluation to determine the defendant’s competency to stand trial pursuant

to Tennessee Code Annotated section 33-7-310(a). The trial court initially denied the

petition based upon the defendant’s non-indigent status. The trial court, however, eventually

ordered a competency evaluation. Following the completion of the evaluation and a full

evidentiary hearing, the trial court found the defendant competent to stand trial. This court

denied the defendant’s appeals pursuant to Rules 9 and 10 of the Tennessee Rules of

Appellate Procedure on two separate occasions. On February 11, 2010, the defendant

entered into a plea agreement whereby he agreed to enter a best interest plea of guilty to one

count of rape of a child, the State agreed to enter judgments of nolle prosequi on the

remaining 19 counts of the indictment, and the defendant sought to reserve a certified

question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A) concerning

the propriety of the trial court’s finding him competent to stand trial.

At the March 6, 2009 competency hearing, Doctor Donna Moore testified that

she had reviewed the defendant’s academic records as part of her evaluation of the

defendant’s competency to stand trial. Doctor Moore said that an evaluation by school

agents when the defendant was nine years old revealed that the defendant had an intelligence

quotient (IQ) of 59, which was in the mild mental retardation range. Further school

evaluations when the defendant was 16 years old revealed that the defendant had difficulty

processing verbal information, although his ability to perform manual tasks was not as

impaired. Doctor Moore said that the defendant received a special education diploma upon

graduating high school. Based upon this information, Doctor Moore determined that the

defendant was mentally retarded. Likewise, she determined that the defendant’s difficulties

in processing verbal information hindered his ability to understand the judicial process and

to assist his attorney in the preparation of his defense, so she recommended that the

defendant undergo competency training in hopes of improving his understanding of the

judicial system and his ability to assist counsel. After completing seven one-hour

competency sessions, Doctor Moore determined that the defendant could not learn because

he was unable to retain the verbal information requisite to a competency finding. She stated

that the defendant did not have a “complete factual or rational understanding” of the

proceedings in which he was involved. She also determined that additional training would

be futile.

On cross-examination, Doctor Moore admitted that she was familiar with some

mentally retarded patients facing trial who had been housed in a mental health facility and

who had undergone competency training “for years.” She stressed, however, that no amount

of competency training would help the defendant. When confronted with the defendant’s

specific answers to competency questions, Doctor Moore denied that the defendant evinced

any understanding of the adversarial process. She also denied that the testing revealed any

evidence of malingering by the defendant. Doctor Moore admitted that she could have

benefitted from more time to gather information concerning the defendant’s mental status

and that the reliability of her diagnosis was tied to the reliability of the school records she had

utilized in formulating her opinion. When asked about the defendant’s IQ score of 80 at the

age of 16, Doctor Moore opined that the testing method employed for that score was not as

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reliable as the one utilized when the defendant was 9 years old that had indicated an IQ of

59.

The defendant’s ex-wife, Heather Lemay, testified that she had known the

defendant for approximately nine years. She said that she never had any idea that the

defendant had a special education diploma or that he was mentally impaired in any way until

he attempted to qualify for social security disability in 2004. She said that the defendant had

always worked during their marriage and that he had been employed by the same factory for

20 years until its closing. She recalled that she and the defendant split household expenses

while married and that the defendant wrote checks, balanced the checkbook, and always paid

their bills in a timely manner. In fact, she said that the defendant “was very good about

paying things early.” After a factory where he had worked for many years closed, the

defendant worked as a maintenance supervisor in a mobile home community where the

couple lived. As part of his duties, the defendant read water meters, computed water bills

for each tenant, collected rent, and wrote receipts. Ms. Lemay said that no psychologists ever

contacted her regarding the defendant’s competency evaluation.

The defendant’s school records, 2004 disability application report, and several

psychological reports were made exhibits at the competency hearing. The trial court found

significant the defendant’s malingering evidenced at the 2004 disability evaluation and in an

earlier competency evaluation.

In an initial forensic evaluation performed in January 2008, psychologist

Doctor Kimberly Brown reported that the defendant understood the purpose of the

competency evaluation and that he agreed to participate in the evaluation. Doctor Brown’s

report also stated that the defendant presented appropriate affect and demeanor during the

interviews. Her report further noted that, although the defendant’s “adaptive functioning was

not formally assessed during his school years,” his school records noted that he evinced a

level of emotional immaturity. The defendant self-reported that he relied upon others to

assist him in his daily activities. His sister also reported that he “has difficulty understanding

what happens in court and what is said in meetings with his attorney.” Significantly, Doctor

Brown reported that the defendant “was minimizing what he really knew” during the

competency evaluation. Doctor Brown concluded that the defendant suffered from “mild

mental retardation” affecting his competency, but she also noted that her findings were

“complicate[d]” by “some malingering and poor effort” on the defendant’s part.

A competency assessment instrument administered by Doctor Moore indicated

that the defendant had a general understanding of courtroom proceedings and the adversarial

process with some confusion about legal terminology. Significantly, the assessment also

showed that the defendant possessed an accurate historical understanding of the charges

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against him and of the factual basis of the charges.

On July 2, 2009, the trial court entered an order with written findings

concerning the defendant’s competency. In its findings, the trial court noted that the

defendant was “gainfully employed full-time for approximately twenty (20) years by the

same employer” until the factory closed and that the defendant successfully pursued a

worker’s compensation claim and had held a job requiring some “bookkeeping ability”

subsequent to the factory’s closure. Based upon Doctor Moore’s testimony, the trial court

noted that a mental retardation diagnosis required an IQ test score below 70 and deficits in

adaptive behavior, both of which should be manifest before the age of 18. Additionally, the

trial court noted Doctor Moore’s testimony that someone who is in special education classes

is not necessarily mentally retarded and that people who fall into the mild mental retardation

range, like the defendant, “tend to be competent.”

In ruling that the defendant failed to establish by a preponderance of the

evidence his incompetency, the trial court found specifically that Doctor Moore’s diagnosis

of mental retardation was not supported by the proof in the school records because the school

records were “insufficient to establish deficits in adaptive behavior.” The trial court also

found that Doctor Moore’s interpretation of previous evaluations was “not accurate.” The

trial court found that Doctor Moore “did not give appropriate consideration to the

defendant’s work history, evidence of the defendant’s malingering and the . . . adaptive

functioning measure completed by the defendant’s sister.” Because the trial court ruled that

the defendant was competent, the trial court made no findings related to Doctor Moore’s

conclusions regarding the defendant’s ability to be competency trained.

The defendant sought an interlocutory appeal of the trial court’s July 2, 2009

order pursuant to Tennessee Rule of Appellate Procedure 9. This court denied permission

to appeal on August 7, 2009. See State v. Jeffrey Lemay, No. M2009-01455-CCA-R9-CD

(Tenn. Crim. App., Nashville, Aug. 7, 2009) (Order).1 On December 15, 2009, the trial court

denied a motion to reconsider the competency issue. The defendant then sought an

extraordinary appeal of the December 15, 2009 order pursuant to Tennessee Rule of

Appellate Procedure 10. This court denied permission to appeal on February 9, 2010. See

State v. Jeffrey Lemay, No. M2010-00175-CCA-R10-CD (Tenn. Crim. App., Nashville, Feb.

9, 2010) (Order).

1

In previous orders, this court did not have a full record available for review and relied upon the

spelling of the defendant’s name as provided by the parties in their pleadings. The custom of this court is

to spell a defendant’s name as it appears in the charging instrument. Accordingly, we will utilize the name

appearing in the indictment unless referring to a previous order of this court.

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On February 11, 2010, the defendant entered into a plea agreement whereby

the State entered orders of nolle prosequi on counts two through 20 of the indictment in

exchange for the defendant’s best interest guilty plea to count one of the indictment charging

rape of a child. Per the agreement, the defendant received a sentence of 15 years’

incarceration to be served at 100 percent. The guilty plea petition also provided that the

defendant reserved a certified question of law for appeal as indicated by the parties’

agreement that “all issues regarding competency are dispositive of the case.” See Tenn. R.

Crim. P. 37(b)(2)(A). On the same date, the trial court entered judgments consistent with the

plea agreement. The judgment for count one, rape of a child, indicated that “[t]he Court,

State and Defense agree that all issues concerning the defendant’s competency to stand trial

are dispositive of the case and are reserved for review by the appellate court.” The defendant

filed a notice of appeal on February 17, 2010. On March 3, 2010, the trial court entered an

order in an attempt to more specifically outline the certified question presented for appeal by

tying the competency issue to the defendant’s mental retardation.

On appeal, the defendant argues that the trial court erred by ruling that he failed

to prove by a preponderance of the evidence that he was incompetent to stand trial. He

asserts that each expert opined that the defendant was incompetent and that the State

presented no countervailing evidence. Therefore, he claims that he established incompetency

by a preponderance of the evidence. The State, as an initial matter, contends that the

appealed issue was not properly reserved because it is nonspecific. The State also contends

that, even assuming the issue was properly reserved, the issue is not dispositive of the case.

Therefore, the State urges this court to dismiss the appeal.

Initially, we note, contrary to the defendant’s argument, that the State did

indeed present countervailing evidence, including lay testimony and documents, which the

trial court accredited in its findings.

We also agree with the State that the certified question presented is very

general. Tennessee Rule of Criminal Procedure 37(b)(2)(A)(ii) provides, as a prerequisite

to this court’s review, that “the question of law is stated in the judgment or document so as

to identify clearly the scope and limits of the legal issue reserved.” Rule 37(b)(2)(A)(i) also

requires that “the judgment or other document to which such judgment refers that is filed

before the notice of appeal, contains a statement of the certified question of law that the

defendant reserved for appellate review.” The procedural requirements of Rule 37 must be

strictly met in order to afford appellate review. State v. Preston, 759 S.W.2d 647 (Tenn.

1988).

It appears that the trial court attempted to specifically identify the certified

question by entry of the March 3, 2009 order. This order, however, was ineffectual because

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it was filed subsequently to the defendant’s filing of the notice of appeal. The trial court lost

jurisdiction to amend its judgment or incorporate by reference any other order once the notice

of appeal was filed. State v. Pendergrass, 937 S.W.2d 834, 837-38 (Tenn. 1996); State v.

Irwin, 962 S.W.2d 477 (Tenn. 1998).2 Accordingly, we conclude that the defendant failed

to meet the requirements of properly certifying the question for this court’s review. See State

v. Harris, 280 S.W.3d 832, 837 (Tenn. Crim. App. 2008).

That said, even if we assumed the defendant had complied with the Rule 37

requirements, we would decline to review this issue because the question raised is not

dispositive of the case. This court has previously declined to review the propriety of a trial

court’s ruling concerning competency via Rule 37(b) because “a resolution [of the issue]

favorable to the defendant would not result in dismissal” and was, therefore, not dispositive.

State v. Bailey, 213 S.W.3d 907, 912 (Tenn. Crim. App. 2006). In Bailey, the trial court

ruled that the defendant was competent and, as a consequence, failed to make any findings

concerning whether the defendant qualified for judicial commitment and “whether there was

a substantial probability that the defendant will become competent to stand trial in the

foreseeable future.” Id. at 911 (citing T.C.A. § 33-7-301(c)).

Likewise, in this case, although Doctor Moore testified that the defendant was

not eligible for judicial commitment and that he could not be educated to competency, the

trial court did not accredit Doctor Moore’s opinion and made no findings relating to those

issues. Accordingly, just as in Bailey, “if this court agreed with the defendant that the trial

court had erred in determining that he was competent to stand trial, we would not dismiss the

matter . . . , but, instead, remand it to the trial court to follow the procedures set out in

Tennessee Code Annotated section 33-7-301.” Id. at 911-12. Therefore, this issue is not

dispositive of the case.

Because the defendant failed to meet the certification requirements of Rule

37(b)(2)(A) and because the issue raised is not dispositive of the case, this court is without

jurisdiction to review the issue. The appeal is dismissed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

2

We also note that the judgment failed to incorporate by reference the March 3 order. Therefore,

even if the notice of appeal had not intervened, the March 3 order would have failed to comply with the

Preston requirements.

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