The opinion
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 24, 2022
Plaintiff-Appellant,
v No. 358060
Kent Circuit Court
GERALD BENNETT, LC Nos. 18-003289-FC; 18-
005253-FC
Defendant-Appellee.
Before: BORRELLO, P.J., and M. J. KELLY and REDFORD, JJ.
PER CURIAM.
The prosecution appeals by delayed leave granted1 the trial court’s order finding that
defendant was not competent to stand trial and that there was not a substantial probability that he
would attain competency with treatment within 15 months. For the reasons set forth in this
opinion, we affirm.
I. BACKGROUND
Defendant was charged with both conspiracy to commit first-degree murder2 and perjury
during an examination conducted pursuant to an investigative subpoena involving a criminal
matter.3 After defendant was bound over to the circuit court, he was evaluated for his competency
to stand trial. Defendant was examined by Dr. Jennifer Whitmore, Dr. Elissa Benedek, and Dr.
Daniel Mayman.
Whitmore, a psychologist employed by the Center for Forensic Psychiatry, met with
defendant three times as part of her evaluation. Over the course of these meetings, Whitmore
1
People v Bennett, unpublished order of the Court of Appeals, entered October 29, 2021 (Docket
No. 358060).
2
MCL 750.316; MCL 750.157a.
3
MCL 767A.9(1)(b).
-1-
administered a series of psychological tests to defendant measuring his cognitive ability, his
intellectual functioning, whether he was feigning or malingering with respect to cognitive
functioning, his ability to learn and remember verbal information, vocabulary, and memory
function. She concluded in her report that defendant had a significant cognitive impairment, an
extremely low IQ, below average verbal abilities, a poor memory, poor literacy, and difficulties
with learning, retaining, and understanding information. She also concluded from testing that
defendant was exerting optimum effort and not feigning cognitive impairment. Defendant could
not correctly recite the alphabet. According to Whitmore, defendant reported that he had never
lived independently and could not cook or shop for himself. He claimed to rely on others to cook
for him because he only knew how to microwave “junk” food.
Additionally, Whitmore determined through discussions with defendant that he had
substantial deficits in his basic knowledge of the functions of courtroom personnel, including the
judge, prosecutor, and defense attorney. At one point, defendant made statements referring to the
prosecutor as “my attorney” and expressing a belief that the prosecutor was trying to get him to
assist her.
Whitmore attempted to discuss defendant’s charges with him on multiple occasions.
Although defendant had described perjury as lying to the police at one earlier meeting, he later
described it simply as lying and indicated his belief that Whitmore could be convicted of perjury
for lying to her husband. Defendant explained that Whitmore was not in jail because her husband
had not pressed charges. Defendant also had apparent difficulty understanding the nature of an
oath. Whitmore reported that defendant had described his conspiracy charge as “me plotting with
somebody to do something wrong, to get rid of a body.” However, defendant explained further
that he felt “ ‘hurt and disrespected’ attributable to people believing he had ‘done something to a
female child.’ ” Whitmore concluded that defendant “had little to no appreciation of the social
perception or seriousness of his current charges.” Defendant admitted that he attended a
preliminary examination but, upon further discussion, appeared unable to demonstrate an
understanding of the event or what the term meant.
Whitmore opined in conclusion that defendant was not competent to stand trial under the
standard in MCL 330.2020 and that there was not a substantial probability that he could attain
competency with treatment within 15 months. Whitmore specifically opined that defendant was
not competent to stand trial at the time of the evaluation because defendant was unable to
understand the nature of the proceedings against him or to rationally assist his defense due to his
mental condition. Whitmore explained:
Mr. Bennett’s history and current presentation are consistent with intellectual
disability; he shows significantly subaverage intellectual functioning and there are
multiple references to his impaired adaptive limitations over time. During the
course of this evaluation, Mr. Bennett appeared incapable of understanding the
nature of the proceedings against him. He showed poor ability to understand the
crux of his charges or to appreciate his charges in the social/legal scheme. Despite
his ability to intermittently respond to posed legal questions with correct responses,
this was not consistent over the course of the evaluation sessions. If the same
question was posed to Mr. Bennett on multiple occasions, he responded with
differing answers - some of which were accurate and some of which were
-2-
inaccurate. Mr. Bennett additionally showed poor emotional control; he frequently
and easily became tearful, particularly when becoming cognitively overwhelmed
with legal information. His history and current presentation suggest naivete and
suggestibility - two common features associated with intellectual disability.
Although he discusses his intention to follow his attorney’s advice, it appears he
does not enact his intentions and, instead, inappropriately discusses his case and
seeks legal advice from other inmates, which appears particularly ill-advised given
the nature and context of his legal situation. His ability to provide relevant
historical information appears impaired; he shows little to no ability to provide an
accurate accounting of his previous diagnoses or treatment providers. Similarly, he
appears to have limited ability to understand and/or discuss the intentions or
motives of others in a sophisticated manner, which I further attributed to his
intellectual disability. Finally, Mr. Bennett exhibits an overlay of inconsistent
interactional styles that further complicate his fitness to proceed; he vacillates from
an inappropriate bravado, to paranoia, to significant feelings of hopelessness
attributable to his cancer diagnosis. These factors, along with potential
complicating cognitive effects of chemotherapy, are significant in understanding
Mr. Bennett’s complete forensic/clinical picture. Taken together, these
observations suggest Mr. Bennett would have marked difficulties appropriately and
rationally assisting in his own defense. Based available [sic] data, it is my opinion
that Mr. Bennett, at the time of this evaluation, was incompetent to stand trial.
Next, with respect to the likelihood that defendant would obtain competency if provided a
course of treatment, Whitmore referenced available research studies indicating that treatment was
less likely to be effective in helping individuals with intellectual disability to attain competency
than it was in helping individuals with treatable mental illnesses “because intellectual disability is
a lifelong cognitive deficiency that does not respond to traditional psychiatric treatments and has
a poor prognosis for meaningful change.” Whitmore concluded:
[I]t is my opinion that the weight of available data suggest that Mr. Bennett is not
likely to attain the requisite knowledge and skills to be considered competent to
stand trial on the current charges, even if provided with a mandated course of
competency restoration treatment/training. First and foremost, Mr. Bennett has a
longstanding history and presentation consistent with intellectual disability; he will
consistently demonstrate significantly subaverage thinking and reasoning skills,
despite any course of available intervention. Several pieces of data suggest that he
benefits minimally from outside sources of influence: despite a long history of
criminal justice involvement, he continues to show very poor knowledge of basic
legal information; despite repeated focused education over the course of this
evaluation, he showed minimal ability to consistently and accurately recall
provided information; despite training, he reportedly continued to show deficits in
his ability to perform basic, everyday tasks. Importantly, Mr. Bennett’s current
charges are patently abstract in nature. Both perjury and conspiracy are based upon
abstract constructs that only assume criminal status based on their social context.
Consistent with a diagnosis of intellectual disability, Mr. Bennett views and
understands the world in a concrete nature; no amount of education or training is
likely to allow him to fully understand abstract social constructs. Thus, I believe
-3-
Mr. Bennett’s cognitive impairment will prevent him from ever having a full
appreciation of the crux of his current charges and, subsequently, it is unlikely he
will be able to meaningfully participate in the criminal defense process.
Recognizing the difficulties inherent in estimating the likelihood of an
individual attaining competency to stand trial in the future, it is my opinion that,
based on available research and clinical data, Mr. Bennett would be unlikely to
acquire, via a course of treatment, the legally-relevant knowledge and skills
required for him to be determined competent to stand trial. I respectfully
acknowledge that the ultimate decisions in these matters depend upon judicial
determinations.
Defendant was subsequently evaluated by Benedek, who is a psychiatrist, after the
prosecutor requested a second opinion. Benedek reviewed the testing administered by Whitmore
and also conducted her own personal examination of defendant. Based on defendant’s behavior
and interview with Benedek, she similarly concluded that defendant had a mild to moderate
intellectual disability. Nonetheless, Benedek opined that defendant was competent to stand trial
under MCL 330.2020 because he understood the nature and object of the proceedings against him
and could rationally assist his defense. In support of this conclusion, Benedek cited information
gleaned from her record review and examination of defendant. Benedek reasoned that defendant
had been able to “succeed in a life on the streets,” despite his mental limitations and impairments,
by selling drugs, doing odd jobs, and collecting Social Security. Benedek noted defendant’s
reported knowledge of drug prices on the streets of Detroit and Grand Rapids. She further
explained that defendant spent a great deal of time during the examination insisting that he was
innocent of the charges and describing his version of events. Benedek concluded that defendant
understood the nature of the perjury and conspiracy charges: she noted that defendant equated
perjury with lying in court or courtroom, which he denied doing, and that defendant understood
his conspiracy charge to based on an allegation that he helped dispose of a body. Benedek also
concluded that defendant could correctly explain the role of the personnel in the courtroom even
if he first gave an incorrect explanation. Benedek gave weight to defendant’s long history of
involvement with the criminal justice system and his demonstrated ability to “survive in prison.”
Finally, defendant was additionally evaluated by Mayman, who is also a psychiatrist.
Mayman opined that defendant was not competent to stand trial at the time of the evaluation
because defendant’s mental impairment caused him to have an “inadequate understanding of the
nature and object of the proceedings against him” and an inability to rationally assist his defense.
However, Mayman was somewhat equivocal about defendant’s ability to obtain competency.
Mayman opined:
It is possible that, with appropriate training, he could achieve an adequate
understanding of the nature and object of the proceedings against him, but it appears
unlikely that his ability to rationally assist in his defense could be restored in the
time allowed by statute. However, this is difficult to predict and an admission to
the Center of Forensic Psychiatry for restoration of competency may be
appropriate.
-4-
Mayman also stated in his report that he found Whitmore’s evaluation “extremely
rigorous” and that most of the tests administered by Whitmore “must be conducted by testing
psychologists and are outside of the scope of practice for psychiatrists such as Drs. Benedek and
Mayman.” Mayman described his discussion with defendant regarding relevant legal concepts,
including the nature of the charges and the roles of courtroom personnel, and Mayman explained
that defendant “would often give different answers to the same question at different points during
the interview” and “could be led to correct responses but moments later could not arrive at them
on his own.” According to Mayman:
After spending quite some time discussing Mr. Bennett’s knowledge of the
legal proceedings, it became quite apparent that he was significantly lacking a
rational understanding of his charges as well as in his ability to rationally assist in
his defense. He would regularly provide contradictory information, apparently
unaware of any contradiction. One example was noted in the previous section when
Mr. Bennett said that he would like to act as his own attorney. Immediately after I
reminded him that he cannot read and understand the legal materials, he said that
he wished he had spent more time in the law library in prison. This was one of
many times that it appeared that Mr. Bennett did not comprehend the seriousness
of his intellectual limitations.
In explaining his final opinion that defendant was not competent to stand trial, Mayman
noted that it was undisputed that defendant suffered from a significant intellectual impairment but
the issue was whether that impairment impacted his competency to stand trial. Mayman disagreed
with Benedek’s assessment that defendant had been able to succeed on the streets, observing that
defendant had spent the majority of his adult life incarcerated or homeless. Mayman also noted
that defendant tended to fill in memory gaps with fabricated information that he believed to be true
rather than admitting that he did not know something, which Mayman called “confabulat[ing],”
and that defendant had adopted a survival strategy of attempting to appear more “intellectually
capable” than he is.
The trial court conducted a two-day evidentiary hearing on defendant’s competency.
Whitmore, Mayman, and Benedek testified as experts at the hearing regarding their evaluations of
defendant and their opinions regarding his competency. Their opinion testimony was consistent
with their respective written reports, summarized above.
Whitmore testified that she met with defendant for a total of approximately seven hours,
over the course of three separate meetings. She also explained that opinions regarding competence
to stand trial are often based on an interview without the aid of standardized psychological tests
but that if such tests are used to obtain additional information, the tests must be administered by
someone trained in psychology. She further explained that psychological testing could be used as
part of a competency evaluation and that “part of psychologists’ training is how to administer and
interpret psychological testing.” Whitmore testified, “It’s rare to say that someone’s permanently
incompetent to stand trial.”
Mayman also provided testimony regarding the differences between evaluations conducted
by psychologists and psychiatrists and how those differences were relevant in the instant case:
-5-
[D]efendants can be evaluated by either a Ph.D. or an M.D., and they probably, you
know, have the same, you know, overlapping skills in many cases.
You know, in this particular case, when the question of low intelligence is
-- is part of the evaluation, Ph.D. psychologists have a bit of an advantage because
they are the ones that are actually able to do -- some of them are actually able to do
things like intelligence testing. They also can do the more complex psychological
tests like, you know, in this case, Dr. Whitmore did the TOMM, the Test of
Malingered Memory -- Memory Malingering, which his kind of a gold-standard
test to look at whether somebody’s, you know, intentionally producing symptoms
or not. So, I think in this case, it’s actually -- I -- I relied a fair amount on Dr.
Whitmore as a Ph.D. to get all of the -- those testing results.
Benedek disagreed that psychologists were superior to psychiatrists in assessing cognitive
functioning, testifying that “[w]e assess in different ways.” She explained:
Psychologists have standard tests that they administer, and we -- and they
use that testing. We use our clinical impressions of what someone’s intellectual
ability is. And then -- and if you look at the DSM, which is the current diagnostic
manual in psychiatry, there are three ways that you look at issues. One is
conceptual domain. That’s cognitive that we were talking about. Second is social
domain, and that is interaction with others. And, third, is practical domain.
And so, we assess not on the basis of testing, but interaction -- someone’s
use of language, someone’s use -- use of language, ability to create sentences, to
explain things. We intellect -- assess intellectual domain.
Social domain, how does somebody get along in the world? Do they have
friends? Do they have family? Do they have social interactions? How do they get
along if they’re in prison with other prisoners, or on the street, or with their family,
or in school? Social domain. Look at a variety of ways.
And then practical domain, how do they get along on the street, or in their
homes, or in their communities.
And so, we assess on three areas of -- and that’s the contemporary way of
thinking about abilities.
The prosecution also called two lay witnesses: defendant’s former girlfriend and a detective
who took part in questioning defendant at the investigative-subpoena hearing. Defendant’s former
girlfriend testified that defendant managed his own money, could cook, and could read. The
detective testified that defendant seemed to understand his rights and the nature of the investigation
during the investigative subpoena.
Following the evidentiary hearing, the trial court issued a written opinion and order
concluding that defendant had established by a preponderance of the evidence that he was not
-6-
competent to stand trial and that there was not a substantial probability that he would obtain
competency within 15 months.
In making its competency determination, the trial court assessed the credibility of the
experts and found Whitmore’s opinions most credible. The trial court primarily adopted her
reasoning as supported, in some respects, by Mayman’s opinions. In concluding that Whitmore
was most credible, the trial court found it significant that Whitmore was an independent expert,
that she spent more time interviewing defendant than Benedek, that she was a psychologist with
an opinion that was supported by psychological testing regarding intellectual functioning and
malingering that she was trained to administer and that psychiatrists were not trained to perform,
and that she had performed the greatest number of competency evaluations of the testifying
experts. The trial court also found Mayman’s opinion—that a psychologist was in a superior
position to a psychiatrist to offer an opinion in this case involving intellectual disability because
of the qualifications required to administer relevant psychological testing—more credible than
Benedek’s opinion on that issue.
The trial court found “Whitmore’s testimony credible that Defendant is incapable of
understanding the nature and object of the proceedings against him” because defendant “showed
a poor ability to understand the crux of the charges against him or appreciate the charges in the
social/legal scheme” and was unable because of his intellectual disability and memory deficits to
fully understand “basic legal information or the abstract nature of the crimes he is charged with
committing” even though he could intermittently provide appropriate responses to questions. The
trial court also found that Whitmore’s opinions were bolstered by Mayman’s opinion based on his
interview and record review that defendant was not capable of understanding the nature and object
of the proceedings against him due to his intellectual and memory deficits. The trial court found
that Mayman’s testimony regarding defendant’s competency was more credible than Benedek’s
opinion that defendant’s ability to function and “street smarts” showed that he was competent.
The trial court found the lay witness testimony to be of little or no probative value in addressing
the statutory criteria for competence.
With respect to whether defendant could rationally assist in his defense, the trial court
stated:
In deciding whether Defendant is capable of assisting in his defense in a
rational manner, the Court must determine Defendant’s ability to perform the tasks
reasonably necessary for him to perform in the preparation of his defense and
during his trial. MCL 330.2020(1).
The Court finds that Defendant has sustained his burden of proof on this
issue. For the reason noted in Section II above [regarding whether defendant was
incapable of understanding the nature and object of the proceedings against him],
the Court finds the opinions of Drs. Whitmore and Mayman more credible than the
opinions of Dr. Benedek on this issue. Defendant has cognitive and memory
deficits which prevent him from assisting in his defense. Moreover, as Dr. Mayman
opined, Defendant has a tendency to confabulate, which would cause significant
difficulties in preparing his defense and assisting his attorney at trial.
-7-
Further, the Court finds that Dr. Benedek’s opinions that Defendant is
competent based on “street smarts” is simply not credible. There is no question
that the Defendant does have some limited functional ability. However, testing
concerning his cognitive functioning and memory make him incapable of rationally
assisting in his defense based on the credible testimony of Drs. Whitmore and
Mayman.
Finally, as outlined in Section II above, the Court finds that the lay witness
testimony submitted has little to no probative value on this issue.
Next, with respect to whether there was a substantial probability that defendant could attain
competency within 15 months if provided treatment, the trial court also found Whitmore’s opinion
on this issue credible for the court’s previously discussed reasons. The trial court concluded:
Defendant is permanently incompetent to stand trial. Due to his cognitive deficits
and memory problems, attempts to educate or train the Defendant to make him
competent would not be fruitful. He simply does not have the intellectual
functioning or memory skills to retain the information he would need to attain
competency.
The prosecutor moved for reconsideration, which the trial court denied. The prosecutor
now appeals by delayed leave granted.
II. STANDARD OF REVIEW
This Court reviews a court’s decision on a defendant’s competence to stand trial for an
abuse of discretion. People v Harris, 185 Mich App 100, 102; 460 NW2d 239 (1990). “[A]n
abuse of discretion occurs only when the trial court’s decision is outside the range of reasonable
and principled outcomes.” People v Kammeraad, 307 Mich App 98, 140; 858 NW2d 490 (2014)
(citation and quotation marks omitted; alternation in original).
“In Michigan, the competence of criminal defendants to stand trial is governed by
provisions of the Mental Health Code. MCL 330.2020 et seq.” People v Davis, 310 Mich App
276, 288; 871 NW2d 392 (2015). The trial court is empowered in MCL 330.2020(1) to determine
whether a criminal defendant is incompetent to stand trial pursuant to the standards provided in
that statutory provision. Davis, 310 Mich App at 288, 293. The trial court’s competency
determination under MCL 330.2020(1) “as with any judicial decision, must be based in fact.”
Davis, 310 Mich App at 293. “The judgment of a defendant’s competence and ‘whether there is a
substantial probability that the defendant’ could attain competence must be based on ‘the evidence
admitted at the hearing . . . .’ ” Id., quoting MCL 330.2030(2) (ellipsis in original).
“A trial court’s findings of fact may not be set aside unless they are clearly erroneous.”
People v Bylsma, 493 Mich 17, 26; 825 NW2d 543 (2012), citing MCR 2.613(C) and People v
Dawson, 431 Mich 234, 258; 427 NW2d 886 (1988). “A ruling is clearly erroneous if the
reviewing court is left with a definite and firm conviction that the trial court made a mistake.”
Bylsma, 493 Mich at 26 (quotation marks and citation omitted). When reviewing the trial court’s
factual findings for clear error, “regard shall be given to the special opportunity of the trial court
-8-
to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). To the extent
issues of statutory interpretation are involved, our review is de novo. Davis, 310 Mich App at 286.
III. ANALYSIS
Pursuant to MCL 330.2020(1),
A defendant to a criminal charge shall be presumed competent to stand trial.
He shall be determined incompetent to stand trial only if he is incapable because of
his mental condition of understanding the nature and object of the proceedings
against him or of assisting in his defense in a rational manner. The court shall
determine the capacity of a defendant to assist in his defense by his ability to
perform the tasks reasonably necessary for him to perform in the preparation of his
defense and during his trial.
Additionally, MCL 330.2030(2) provides:
On the basis of the evidence admitted at the hearing, the court shall
determine the issue of the incompetence of the defendant to stand trial. If the
defendant is determined incompetent to stand trial, the court shall also determine
whether there is a substantial probability that the defendant, if provided a course of
treatment, will attain competence to stand trial within the time limit established by
section 1034.[4]
“A defendant who is determined incompetent to stand trial shall not be proceeded against
while he is incompetent.” MCL 330.2022(1).
If the defendant is determined incompetent to stand trial, and if the court
determines that there is not a substantial probability that, if provided a course of
treatment, he will attain competence to stand trial within the time limit established
by section 1034, the court may direct a prosecuting attorney to file a petition
asserting that the defendant is a person requiring treatment as defined by section
401 or meets the criteria for judicial admission as defined by section 515 with the
probate court of the defendant’s county of residence. [MCL 330.2031.]
Here, the trial court was presented with conflicting expert opinions and the trial court’s
well-reasoned decision rested on its factual findings resulting from its resolution of the conflicting
evidence, its weighing of the evidence, and its credibility determinations. Such matters are
generally entitled to deference on appeal. MCR 2.613(C); Kammeraad, 307 Mich App at 141.
Our review of the record does not leave us with a definite and firm conviction that a mistake was
made, and we therefore do not conclude that the trial court’s factual findings were clearly
erroneous. Bylsma, 493 Mich at 26. The trial court’s ruling on defendant’s competency was not
an abuse of discretion. Harris, 185 Mich App at 102.
4
The parties do not dispute that this period is 15 months under the circumstances of this case.
-9-
Nonetheless, the prosecution argues that “the trial court abused its discretion in applying
these legal principles to the case at hand.” More specifically, the prosecution argues that “the trial
court’s reliance on Dr. Whitmore’s opinion was clearly erroneous in light of the evidence” and
that “the evidence demonstrated Defendant’s competence to stand trial when applying the proper
legal standard.” The prosecution further contends that “the trial court’s reliance on Dr. Whitmore’s
testimony and report was clearly erroneous given that Dr. Whitmore applied an improper,
heightened standard of competency throughout her evaluation.” In the alternative, the prosecution
argues that the trial court should have at least found that defendant could have obtained
competency within 15 months if provided treatment.
Contrary to the prosecution’s assertions regarding the standard employed by Whitmore,
Whitmore specifically cited and quoted MCL 330.2020(1) in her report, and her opinions are based
on MCL 330.2020(1). Accordingly, the record evidence demonstrates that Whitmore was aware
of, and relied on, the proper legal standard in forming her expert opinion. The trial court also
relied on the proper legal standard in making its competency determination, referencing language
from MCL 330.2020(1).
Moreover, although the prosecution characterizes its appellate argument as a challenge to
the legal standard employed by Whitmore and, by extension, the trial court in relying on
Whitmore’s opinions, we recognize the prosecution’s argument as a challenge to the validity and
weight that should have been afforded Whitmore’s opinions. The prosecution argues that
Whitmore expected too much in terms of defendant’s mental capacity in reaching her opinions
regarding defendant’s competency. The prosecution also points to what it views as factual
inconsistencies or illogical reasoning in Whitmore’s analysis that the prosecution views as
undermining Whitmore’s opinions and conclusions.
The prosecution strenuously maintains that the trial court should have disregarded
Whitmore’s opinion and, at least implies, that the trial court should have agreed with Benedek’s
opinions. But these arguments are actually directed at the propriety of the trial court’s factual
findings in resolving the conflicting opinions of two experts, both of whom the prosecution admits
were qualified to render these opinions. As we have already explained, the trial court’s findings
were not clearly erroneous. We therefore reject the prosecution’s arguments.
Affirmed.
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
/s/ James Robert Redford
-10-