# Opposition Brief — Lafferty v. Utah

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2258%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 1018

## Text

Supreme Cour, a.
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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.

il

TABLE OF CONTENTS

Page
CUBSTIONS PRESENTED ............ccccscccceees oe
PARTIES TO THE PROCEEDING..............--000055- ii
ey rr iii
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

ili

a

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).

-"

tt i

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.

-§.

Fe

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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

-15-

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

-18-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2258%3A3. Public record. Not legal advice.