Opposition Brief — Lafferty v. Utah

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No. 01-228 | OCT 9 2001

IN THE OFFICE ‘F a: rr 5

SUPREME COURT OF THE UNITED STATES _

OCTOBER TERM, 2001

RONALD WATSON LAFFERTY,

Petitioner,

v.

STATE OF UTAH,

Respondent.

On Petition for Writ of Certiorari

To the Supreme Court of the State of Utah

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

MARK SHURTLEFF (4666)

Utah Attorney General

J. FREDERIC VOROS, JR. (3340)

Chief, Appeals Division

KRIS C. LEONARD (4902)*

Assistant Attorney General

Counsel for Respondent

160 East 300 South, 6th Floor

P O BOX 140854

Salt Lake City, Utah 84114-0854

Telephone: (801) 366-0180

Facsimile: (801) 366-0167

* Counsel of Record

QUESTIONS PRESENTED

I. Should this Court review a state court’s unanimous

determination that technical procedural violations of state statutory

law which occurred in connection with a competency hearing were

harmless under the specific circumstances of this case where

petitioner fails to establish that any of the violations implicates the

constitution, and the state supreme court’s ruling is consistent with

prior decisions of this Court which require a review of the

circumstances of each case?

II. Should this Court review a state court’s unanimous

determination under the appropriate legal standard that concerns

voiced by petitioner’s counsel and his expert concerning his trial

behavior did not warrant an additional competency hearing?

PARTIES TO THE PROCEEDING

The caption of the case contains the names of all the parties.

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TABLE OF CONTENTS

Page

CUBSTIONS PRESENTED ............ccccscccceees oe

PARTIES TO THE PROCEEDING..............--000055- ii

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OE ES ee v

a seek bes iasnasee 2

RS Te ey ea ee ee 2

CONSTITUTIONAL AND STATUTORY

a 2

STATEMENT OF THE CASE :............02-00eeeeee: 3

STATEMENT OF FACTS. .....-.---.-02020e0eeeeeerees 8

a ne 11

a As acban cues vies ens 11

Sa Sa ge oP One 12

ts las daek nae ken piwawn sees 16

aes pac s ch cxabiva tenes 18

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APPENDIX A. Utah Code Ann. § 77-15-1, et seg. (1995)

iV

TABLE OF CITED AUTHORITIES

FEDERAL CASES

Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896,

Pegm@. &' Efi, 1.) err rey errr reer ers 12, 14

McGregor v. Gibson, 248 F.3d 946 (10™ Cir. Okla. 2001)... 12, 15

Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836,

15 L BADE GIS (IGGD on ihn i eesek eee awe 12,15

STATE CASES

Lafferty v. Cook, 949 F.2d 1546, 1552 (10" Cir. 1991),

cert. denied, 504 U.S. 911 (1992) [“Lafferty IT’]......... 3,4

State v. Lafferty, 749 P.2d 1239 (Utah 1988),

rev'd by 949 F.2d 1546 (10" Cir. 1991) [“Laffertyl”]..... 3

State v. Lafferty, 2001 UT 19, 20 P.3d342............. By Be Oe

14, 15,17

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment XIV Section1...... 2

FEDERAL CODE

38 USA. § LASROD 6 0ccscccevetebavescssehiuwiecuseee 2

STATE STATUTES

Utah Code Ann. § 76-4-201 (1999)... cccccccccccccesess 4

Utah Code Ann. § 76-5-202(1)(b) (1995)... ...........2.0.. +

Utah Code Amn. § 76-S-205 (1995)... c cccccccccctscnceeses +

Utah Code Ann. § 76-6-203 (1999). .....ccccccccccccccces 4

Utah Code Ann. § 77-15-1 et seg. (1995) .............44. 3, 12,

13, 16

vi

No. 01-228

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

RONALD WATSON LAFFERTY,

Petitioner,

STATE OF UTAH,

Respondent.

On Petition for Writ of Certiorari

To the Supreme Court of the State of Utah

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

The Utah Attorney General, on behalf of the State of Utah,

respectfully requests this Court to deny the petition for a writ of

certiorari to review the judgment of the Supreme Court of the State

of Utah in this case.

OPINION BELOW

The opinion of the Utah Supreme Court is reported at State v.

Lafferty, 2001 UT 19, 20 P.3d 342, and is attached to the petition

for writ of certiorari as appendix A.

}

JURISDICTION

The judgment of the Utah Supreme Court was entered on

February 23, 2001. A petition for writ of certiorari was submitted

to this Court on May 24, 2001, but was returned by the court clerk

due to a deficiency. A revised petition was filed in this Court on

August 7, 2001-165 days following entry of the Utah Supreme

Court’s opinion, as permitted by Rules 13.1, 13.5 and 14.5, Rules

of the Supreme Court of the United States. Accordingly, this Court

has jurisdiction to review petitioner’s claims under 28 U.S.C. §

1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment XIV Section 1.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Utah Code Ann. § 77-15-1, et seq. (1995)

(complete text is attached in appendix A).

STATEMENT OF THE CASE

This appeal is from petitioner’s second capital trial for the

murders of his sister-in-law, Brenda Lafferty, and her infant

daughter, Erica, and related crimes. During the proceedings related

to the first trial, several competency reviews were held. The first

review involved two court-appointed alienists, Dr. Jess Groesbeck

and Dr. Phillip Washburn, and resulted in a determination by the

court that petitioner was competent to proceed to trial (Record

[hereinafter “R.”] 154-59, 376). A second review, involving an

evaluation performed at the Utah State Hospital, resulted in a

similar determination (R. 468-473). Petitioner thereafter attempted

to commit suicide by hanging himself, and a third competency

review was had (R. 265, 423-26). The court found petitioner

incompetent to proceed and sent him to the state hospital for

treatment. Lafferty v. Cook, 949 F.2d 1546, 1552 (10" Cir. 1991),

cert. denied, 504 U.S.911 (1992) [“Lafferty IT’]. After a fourth and

final competency review before petitioner’s first trial, the trial court

ultimately found that there was insufficient evidence to establish

that petitioner was incompetent to stand trial (R. 423-26).' Trial

proceeded in 1985, and petitioner was convicted of the two capital

felonies and related crimes and was sentenced to death (R. 658-60).

The Utah Supreme Court affirmed his convictions and sentences on

direct appeal. State v. Lafferty, 749 P.2d 1239 (Utah 1988), rev’d

'The four experts for the fourth evaluation all came from the

Utah State Hospital: Van O. Austin, M.D., Robert J. Howell,

Ph.D., Peter Heinbecker, M.D., and Jess Groesbeck, M..D. (R.

423-26). The State also called Eugene Thorne for this competency

hearing (R. 5450:52).

-"

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by 949 F.2d 1546 (10" Cir. 1991) [“Lafferty I’’]. Petitioner filed a

federal habeas petition, which was ultimately denied. Lafferty

appealed to the Tenth Circuit, which ruled that the trial court had

used the wrong legal standard to determine the issue of petitioner’s

competency to stand trial, then granted the petition for writ of

habeas corpus and vacated petitioner’s convictions and sentences.

Lafferty II, 949 F.2d at 1556.

Petitioner was again charged with two first-degree felony counts

of capital homicide, in violation of Utah Code Ann. § 76-5-

202(1)(b) (1995); aggravated burglary, in violation of Utah Code

Ann. § 76-6-203 (1999); and conspiracy to commit first-degree

homicide, in violation of Utah Code Ann. § 76-4-201 (1999) and §

76-5-203 (1995) (R. 3712-14). Competency examinations occurred

at the Utah State Hospital in 1992, and testimony was ultimately

received from Dr. Louis Moench, Dr. Robert Howell, and Dr.

Phillip Washburn (R. 3462-64, 3473-74). The trial court found that

petitioner was not competent to proceed to trial as of November 19,

1992, because of mental illness and remanded him to the Utah State

Hospital for treatment (R. 3599-601). A subsequent competency

hearing was held on April 4, 1994, at which Dr. Steven Golding and

Dr. Noal C. Gardner testified (R. 3612-13).” The trial court found

petitioner competent to proceed to trial (R. 3612-13; R. 5423:207).

Trial was delayed by petitioner’s filing of numerous motions

and by disqualification of the county attorney’s office (R. 3634-

3710, 3747-54, 4010-13, 4043-54, 4309-4416). On February 26,

1996, petitioner filed a motion opposing his removal from the

Respondent believes petitioner’s reference to a competency

hearing on February 4, 1994, is, in fact, a reference to this April 4

hearing. Petition at 5.

sili

courtroom in the event he engaged in verbal or physical outbursts

during trial (R. 4626-39). Allegations in the supporting

memorandum concerning petitioner’s competency caused sufficient

concern to the State that it sought further examination to determine

whether another competency hearing was required (R. 5435:40-62).

The trial court permitted an expert from each side to examine

petitioner (R. 5435:62-64). Based on the experts’ reports, the court

ordered a full competency hearing, requiring that the eight experts

who had previously seen petitioner examine him to determine his

current level of competency (R. 5436:3-8)._ Dr. Gardner, Dr.

Golding, Dr. Cohen, and Dr, Wooton testified at the March 1996

hearing that petitioner was not mentally ill and was competent to

proceed to trial (R. 5438:57, 205; R. 5439:17-18, 22-25, 84-85).

Dr. Howell, Dr. Groesbeck, and Dr. Washburn testified that

petitioner was mentally ill and was not competent to proceed to trial

(R. 5437:24; R. 5438:35, 48). Dr. Heinbecker was not willing to

say whether or not petitioner was competent without further

evaluation (R. 5438:10-13, 16).

Following the March competency hearing, the trial court issued

a detailed memorandum decision and thorough findings of fact on

petitioner’s competency to stand trial (R. 4754-73, 4957-67, 5330-

35, 5382). These exhaustive documents provide a solid basis for

the court’s determination that petitioner was competerit to stand

trial under the appropriate legal standard. Both documents are

comprehensive in outlining the rationale for the court’s decision,

including specific reasons why petitioner’s expert witnesses’

Pursuant to rule 15.2, respondent notes that petitioner

erroneously represents that Dr. Heinbecker “opined that mameaicd

was not competent to proceed” to trial. Petition at 8.

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testimony was unconvincing and entitled to little weight (R. 4754-

73, 4957-67).

The court’s sixteen-page memorandum decision and its later

order also specify why the testimony of the State’s expert witnesses

was more credible and provided a more detailed, more well-

reasoned explanation for petitioner’s behavior. The judge credited

the ability of the State’s expert witnesses to cite to specific parts of

their interviews with petitioner to support their conclusions, to

apply, in detail, the requisite competency standard, and to identify

specific examples to illustrate why petitioner did not have a mental

illness (R. 4768-69). The State’s expert witnesses gave persuasive

explanations for petitioner’s “revelations” and demonstrated

~ convincingly how petitioner’s background and upbringing largely

contributed to what the experts were seeing in petitioner (R. 4762-

64). The court also found the testimony from the State’s expert

witnesses was corroborated, in part, by the testumony of two lay

witnesses who had observed the petitioner over a long period of

time during his incarceration and who had not observed any of the

signs Or symptoms associated with the mental illnesses diagnosed

by petitioner’s expert witnesses (R. 4769). This testimony was

significant in view of expert testimony that the symptoms of

petitioner’s disorders would be readily visible even to a lay person

(R. 5439:22-25; R. 5452:249).

In addition, the court noted its own interaction with petitioner

and its opportunities to observe him during the proceedings (R.

4767-68). Those experiences more closely aligned with the

explanations provided by the State’s expert witnesses about

petitioner’s perceptions of reality and motivations behind many of

his actions (id.). For example, the court noted petitioner’s obvious

“wit and warmth” and his easy ability to engage in ordinary kinds

.*

AI a

of conversation (R. 4765-66). The court also noted that some of

petitioner’s stances are “not atypical” of other defendants, that

many of his views are “consistent with his fundamentalist religious

and political upbringing,” and that his conduct and claims were

rationally-based and arose from his real experiences (R. 4766; R.

5438:59-96, 198-206; R. 5439:18-20, 73).*

The trial court determined that the evidence amply

demonstrated that petitioner accurately perceived and related to

reality, was capable of sound reasoning, could assist others in

following his thoughts, could recall and communicate pertinent

information as he desired, and was willing to consider and discuss

legal options (R. 5438:105, 115-16, 192-93, 195-205, 215-16, 226-

27; R. 5439:18-20, 62-64, 72-73, 186). The judge found petitioner

competent to proceed, and the case went to trial in March 1996 (R.

5444).

‘For example, the State’s expert witnesses noted that petitioner

intentionally adopted ideas and labels encountered in his everyday

existence, such as the term “reflector shield” taken from the

program “Star Trek” (R. 5438:59), and “travelers” from a book by

Dean Koontz (R. 5438:59-60). He also adopted concepts from

other religions—e.g., petitioner’s “good spirits” paralleled other

people’s “guardian angels” (R. 5438:60-62), and the idea of

travelers entering and exiting a body or occupying several hosts

paralleled the exorcism and reincarnation beliefs of some religions

(R. 5438:60-64).

‘Pursuant to rule 15.2, respondent clarifies the facts surrounding

petitioner’s subsequent mid-trial discussion with the trial judge

concerning petitioner’s conduct. Petition at 8-9. Respondent

notes that petitioner’s representations to the trial judge in

chambers on Apri. 9, 1996, involved an alleged deterioration of

his behavior over the previous fwo days, net the entirety of the

trial, which began on March 25, 1996 (R. 5453:17-18; R.

5444:39). Following defense counsel’s presentation, the trial

4.

The jury convicted petitioner as charged (R. 4893-96, 5099-

5102, 5191-99), and imposed the death penalty for both murders (R.

4758-73). In a unanimous opinion, the Utah Supreme Court

affirmed petitioner’s conviction and sentence on direct appeal.

State v. Lafferty, 2001 UT 19, 20 P.3d 342.°

STATEMENT OF FACTS

In 1983, petitioner was excommunicated from the LDS church,

and in 1984, his wife, Diana, divorced him and took the children to

Florida (R. 5437:9-14; R. 5445:58). Shortly thereafter, petitioner

claimed that he had received a revelation from God that four people

were to be “removed” (R. 5444:15; R. 5445:24).’ Those four

included Chloe Low, Richard Stowe, and Brenda Lafferty—wife of

petitioner’s younger brother Allen—all of whom petitioner believed

had either helped his wife to obtain the divorce or been involved in

his excommunication (R. 5444:15, 55-60; R. 5445:62-64). The

court asked counsel if he was asking for the court to take action

(R. 5453:19). Defense counsel voiced his disagreement with the

court’s pre-trial determination that petitioner was competent to

proceed to trial, but chose not to seek court action, deciding

instead to continue with efforts to keep petitioner from prejudicing

his case (R. 5453:21-22). That is why “[t]he court took no further

action to review competency” at that time. Petition at 9.

‘Pursuant to rule 15.2, respondent points out that, contrary to

petitioner’s representation, the videotape of the crime scene shown

at the penalty phase did not show the infant’s wounds (R. 5330).

Petition at 10.

’The “removal revelation” was found in a note located in the

pocket of one of petitioner’s shirts (R. 5445:9-15). Using LDS

scriptural parlance, it named the four individuals and indicated

that they were obstacles in the Lord’s path and must be removed

(R. 5445:15).

-8-

eo aad haber

fourth individual was Brenda’s fifteen-month-old daughter, Erica

(R. 5444:15, 60).8 Thereafter petitioner claimed to have received

another revelation that the removal must be accomplished by

slitting the throats of the individuals (R. 5445:29-32; R. 5446:13-

15, 81-82).

On July 24, 1984, petitioner and his brother, Dan, packed up

petitioner’s station wagon under the auspices of going hunting (R.

5446:19-20, 87-88). During the final preparations that day,

petitioner commented that God wanted Brenda and Erica to die (R.

5446:87).

Petitioner, Dan, and two friends, Charles Carnes and Ricky

Knapp, drove to Brenda’s home in the early afternoon while Allen

was at work, and petitioner and Dan forced their way into the house

(R. 5444:45-47; R. 5446:21-26). Carnes and Knapp remained in

the car (R. 5446:27). Carnes testified that for the first fifteen

rainutes that petitioner and Dan were in the house, Carnes heard

what sounded like a “pretty good fight going, things breaking,”

Brenda screaming and begging that they not hurt her baby,

petitioner calling Brenda names, and the baby calling for her

mommy (R. 5446:26-28). Then everything went quiet, and five

minutes later petitioner and Dan came out from the back of the

house (R. 5446:27-29). The front of Dan’s shirt was covered with

blood, the forearms of both men were wet as if they had been

washed, and petitioner had blood on the right side of his shirt (R.

5446:28-29). Carnes could smell the blood as the two got in the

car, and he insisted that Dan change his shirt (id.).

’Petitioner later claimed that Erica had to be removed because

she would grow up to be “a bitch like her mother” (R. 5444:60).

-9-

The foursome drove directly to Chloe Low’s apartment, but no

one was home (R. 5446:28-31). The driver, Knapp, thereafter

missed the turn off to Richard Stowe’s home, and they decided that

they weren’t meant to kill him at that point (R. 5446:39).

The foursome then headed to Wendover (R. 5446:39-40).

During the drive, petitioner bragged about hitting Brenda as hard as

he could, beating her, yelling at her, and calling her names while

she pleaded with him to stop (P.. 5446:40-41). Petitioner said that

he had Dan hold Brenda on the f:oor while he cut a vacuum cleaner

cord and tied it around her neck (id.). He then bragged that they

carried her into the kitchen where petitioner used his knife to cut

her throat, then opened the wound to let the blood flow freely (R.

5446:41-43). As he explained the events, petitioner pulled a knife

from his boot, banged it on his knee, and said, “I killed her... . I

killed the bitch... .” (R. 5446:42-43). Petitioner then handed the

knife to Dan and said, “Thank you, Brother, for doing the baby

because I don’t think I had it in me,” to which Dan replied, “It was

no problem” (id.).

Allen found the bodies of his wife and infant daughter when he

arrived home from work later in the day (R. 5444:45-49). Erica

was slumped over in her crib; she had died from a five and one-half

inch incision across her neck made by a very sharp object consistent

with aten-inch kitchen knife (R, 5445:131-33). Her spinal column

and a little tissue was all that held her head to her body (R.

5445:131-32). Brenda was found on the kitchen floor lying in a

pool of blood (R. 5444:47-49; R. 5445:153). She had an almost

identical wound on her neck, together with wounds consistent with

a cord being tightened around her neck and injuries consistent with

a blunt force beating (R. 5445:134-37). The house was described

as being the scene of a “tremendous struggle” (R. 3444:119-20).

: — -10-

ARGUMENTS

INTRODUCTION

The Court will grant a petition for writ of certiorari “only for

compelling reasons.” Supreme Court Rule 10. The Court has

identified examples of the appropriate bases for granting a petition

to review state court decisions: 1) a state court of last resort’s

disposition of an important federal question conflicts with another

state court of last resort or a United States court of appeals; or 2)

the state court’s disposition of an important federal question that

this Court has not, but should settle, or determination of the federal

question in a way that conflicts with this Court’s relevant decisions.

Supreme Court Rule 10(b) & (c). The rule also recognizes that a

petition “is rarely granted when the asserted error consists of . . . the

misapplication of a properly stated rule of law.” Supreme Court

Rule 10.

Petitioner identifies no “compelling reason” for review of this

case.

-l1-

POINT I

PETITIONER PRESENTS NO COMPELLING

REASON FOR THIS COURT TO REVIEW THE

STATE COURT’S UNANIMOUS DETERMINATION

THAT, UNDER THE SPECIFIC CIRCUMSTANCES

OF THIS CASE, THE TECHNICAL VIOLATIONS

OF STATE STATUTORY LAW WHICH OCCURRED

IN THE EXPEDITED COMPETENCY HEARING

WERE HARMLESS AND “IN NO WAY”

UNDERMINED THE COURT’S CONFIDENCE IN

THE VERDICT

Petitioner complains of the Utah Supreme Court’s application

of a harmless error analysis in reviewing claims that the

competency hearing held by the trial court did not comply in all

respects with Utah Code Ann. § 77-15-1, et seq. (1995), which sets

forth the procedures designed to protect against trying and

convicting an incompetent defendant. Petition at 10-13. He argues

that the harmless error findings of the Utah Supreme Court conflict

with the fair hearing principles articulated by this Court in Drope v.

Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L-Ed.2d 103 (1975), and

Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L.Ed.2d 815

(1966), and by the Tenth Circuit in McGregor v. Gibson, 248 F.3d

946 (10" Cir. Okla. 2001), because violation of procedural statutes

created to protect constitutional rights can never be harmless.

Petition at 13.

This Court has held that states must establish “adequate

procedures” to protect accused individuals from being convicted

while legally incompetent, in violation of their federal due process

rights. Pate, 383 U.S. at 378. Petitioner does not challenge the

42.

adequacy of Utah’s statutes to meet this Court’s directive. See Utah

Code Ann. § 77-15-1, et seg. (1995). Instead, he argues that any

violation of those statutory requirements constitutes a per se

violation of his due process right, and that the Utah Supreme

Court’s application of a harmless error analysis to such procedural

violations denied him his right to a fair hearing. Petition at 11-13.

This Court should deny petitioner’s request for review because

he presents no federal constitutional issue warranting this Court’s

discretionary review. He faults the state supreme court’s

determination that procedural errors such as occurred under the

specific facts of this case can be harmless. However, such a claim

does not establish a constitutional violation or support petitioner’s

position that any variation from the statutory procedures necessarily

renders the statutory scheme constitutionally inadequate to protect

his constitutional rights. The mere presence of constitutional

underpinnings involving the establishment of the procedures

outlined in Utah’s statutes does not mean that any and all deviations

from the statutory procedures violate the federal constitution in

every case.

In this case, both the trial court and the state supreme court

believed that the deviations in this case did not detract from the

constitutional protections afforded by the statute, given the specific

circumstances at hand. This was not a situatton in which

petitioner’s competency was being challenged for the first time,

requiring the amassing of relevant information and data from

scratch. By the time the challenged competency hearing occurred,

petitioner had already had multiple evaluations and re-evaluations

by many court-appointed experts, including the eight to be involved

in this hearing. State v. Lafferty, 2001 UT 19, 4 30, 36, 20 P.3d

342. They brought with them a wealth of information about

At

petitioner gleaned over time from numerous sources with which

they could provide a more informed and complete evaluation in a

shorter amount of time than could a newly-appointed examiner

previously uninvolved in the case. The trial court was able to fully

protect petitioner’s rights by using a maximum of expertise, a broad

information base, and explicit knowledge of this particular

petitioner and his mentality, all brought together within a minimum

amount of time.

As adequate protection for petitioner’s constitutional rights was

in place, and petitioner has not established that any of the alleged

procedural violations rendered the statutory protections inadequate

under the facts of this case, he has not presented a “compelling

reason” to grant certiorari on this issue.”

This claim also does not present a “compelling reason” for

review by this Court because the Utah decision is consistent with

the cases cited in the petition. Those cases establish that, even in

the total absence of a necessary competency hearing, reversal

depends on the circumstances of each case. See Drope, 420 U.S.

at 18°-83 (where a second competency hearing should have

occurred, the court reversed defendant’s conviction because it was

impossible, due to case-specific facts, to remand the matter for a

nunc pro tunc determination of whether the accused was competent

*Further, the state supreme court did not apply the harmless

error doctrine to one of petitioner’s claimed errors because the

court held that no error occurred. Lafferty, 2001 UT 19, #¥ 28, 31.

Inasmuch as none of the experts were involved in “the current

treatment” of petitioner, as forbidden by the statute, and the statute

did not require the use of “independent examiners” as petitioner

claims, there was no violation of the statute by use of the eight

court-appointed alienists used in this case. Id. Where no error

occurred, no constitutional violation is implicated.

-14-

seme

to stand trial); Pate, 383 U.S. at 387 (reversal granted for the

absence of any inquiry into competence because of the case-specific

fact that six years had passed since trial, rendering any retrospective

determination of defendant’s competence to stand tnal

“difficult[]”); McGregor, 248 F.3d at 963 (no automatic reversal for

use of an unconstitutional burden of proof at the pre-trial

competency hearing; defendant met his burden of proof on appeal,

and reversal was ordered “because of the particular balance of

circumstances in this case.”).

The Utah Supreme Court determined that, under the specific

circumstances of this case, reversal was not required. Lafferty,

2001 UT 19, #9 31, 32, 37, 42. Petitioner doe3net challenge the

state supreme court’s implementation of the harmless error

doctrine, only its applicability to this situation. Accordingly, there

is no conflict with the prior rulings of this Court upon which to base

certiorari review.

Under the circumstances of this case, everything the statute

required the parties and the court to know and consider was

adequately presented with full opportunity to cross-examine the

experts. The necessary safeguards to petitioner’s constitutional

right to a fair hearing were in place and a result contrary to

petitioner was reached based on the facts of this case. Discretionary

review by this Court is not warranted."°

‘In any event, the facts of this case are sufficiently unusual that

review of this case is unlikely to affect other cases, and

discretionary review is unwarranted. While there were some

technical violations of the statute, the procedures followed

regarding petitioner’s competency were more than adequate to

ensure that petitioner received the fair hearing to which he was

entitled. In fact, the procedure arguably provided more protection

for petitioner than was required by the statute and ensured that his

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POINT Il

PETITIONER PRESENTS NO COMPELLING

REASON FOR THIS COURT TO REVIEW THE

STATE COURT’S UNANIMOUS DETERMINATION

THAT CONCERNS VOICED BY PETITIONER’S

COUNSEL AND AN EXPERT CONCERNING HIS

TRIAL BEHAVIOR DID NOT ESTABLISH A BONA

FIDE DOUBT AS TO HIS CONTINUED

COMPETENCY SO AS TO REQUIRE AN

ADDITIONAL COMPETENCY HEARING

Petitioner seeks review of the Utah Supreme Court’s

determination that the concerns of petitioner’s counsel and a

medical doctor, expressed two weeks into trial and in a post-trial

motion to dismiss, did not raise a bona fide doubt about petitioner’s

competency during the trial after the initial competency hearing, as

required by section 77-15-5(1). Petition at 13-15. This claim states

--no basis for review.

First, petitioner does not challenge the state court’s articulation

of the appropriate standard to be applied to such a claim. Instead,

he complains only that the court misapplied it. Review “is rarely

granted when the asserted error consists of . . . the misapplication

of a properly stated rule of law.” Supreme Court Rule 10.

Petitioner fails to establish that this case is a “rare” case which

might warrant certiorari review.

rights would be protected so that he would not proceed to trial if

he were not competent. To the extent a retroactive determination.

of competency to stand trial could ever be made, this case presents

the circumstances under which such a determination could occur.

ay

The Utah Supreme Court not only applied the proper standard,

but acknowledged this Court’s rulings in Pate v. Robinson and

Drope v. Missouri—cited in the petition—in determining that

standard and the factors relevant to the inquiry. Lafferty, 2001 UT

19,454. Taking into account those factors and conducting its own

review of the affidavits offered by petitioner regarding his conduct

during trial, the state court agreed with the trial court in concluding

that petitioner raised no new questions from those already

addressed in the March 1996 competency hearing and, hence, had

not established a bona fide doubt as to his competency so as to

require 2 new hearing. Lafferty, 2001 UT 19, 49] 55-57.

Petitioner now complains that the evidence “should have raised

a bona fide doubt to the trial court as to the competency of the

Petitioner.” Petition at 15. Petitioner merely re-argues the evidence

and disagrees with the result reached by both lower courts. His

disagreement with the Utah Supreme Court’s assessment of the

evidence under the proper standard does not warrant this Court’s

discretionary review.

a ys

CONCLUSION

For the foregoing reasons, this Court should deny the petition

for writ of certiorari. |

Respectfully submitted this 9th day of October, 2001,

MARK SHURTLEFF

Utah Attormey General

J. FREDERIC VOROS, JR.

Chief, Appeals Division

KRIS S. LEONARD*

Assistant Attorney General

Counsel for Respondent

Utah Attorney General’s Office

160 East 300 South, 6th Floor

P O BOX 140854;

Sait Lake City, UT 84114 -0854

Telephone: (801) 366-0180

* Counsel of Record

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