2006-043 & 2008-442, STATE OF NH v. SCOTT W. VEALE

He was indicted in June 2003 for one count of timber trespass,

(2007), after a property owner alleged that he cut and removed oak timber from J:8-a (2000), and one count of theft by unauthorized taking, see RSA 637:3

who has been involved in various land and logging disputes for many years. The relevant facts are as follows. The defendant is a real estate broker

Court relating to its finding that he is incompetent to stand trial. We affirm. HICKS, J. The defendant, Scott W. Veale, appeals orders of the Superior

Schulman on the brief and orally), for the defendant. Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R.

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney 2008-442 to press. Errors may be reported by E-mail at the following address: Opinion Issued: May 1, 2009

Nos. 2006-043 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 [the public defender] to take the stand and testify.” on the procedure for presenting . . . concerns to the Court.” to the court at that hearing that the defendant made no “specific demand to testify at the competency hearing; the defendant’s current counsel represented

instructed the defendant to contact either of his appointed counsel “for advice

public defenders could not recall whether the defendant ever requested to

public defenders concluded that he was unable to assist in his defense.

concluded that he suffered from a delusional disorder and was incompetent. and forensic psychologist, examined the defendant in March 2005 and for, and were granted funds for, a second opinion. Dr. Philip Kinsler, a clinical parties who have filed a pro se appearance . . . may be accepted.” The clerk Rule 15.” He noted that “[o]nly pleadings submitted by attorneys of record or defendant was present at the hearing but did not testify. At a later hearing, the refused these pleadings “under Superior Court Rule 5 for non-compliance with examination of Dr. Adams. The court also made limited inquiry. The defender conducted the direct examination of Dr. Kinsler and cross- 2

against him and his family. This severely impaired communication and the the defendant accused the public defenders of being part of the conspiracy insist that the public defenders seek funds for a property survey. Eventually,

paranoid disorder, he was competent to stand trial. Defense counsel moved Barry

such evaluation was unnecessary, and requesting new counsel. The clerk

examination of Dr. Adams and cross-examination of Dr. Kinsler. The public

merit. Both concluded that it did not. The defendant, however, continued to

and ultimately determined that, although the defendant suffered from a

disagreement over “the need for a mental evaluation,” requesting a finding that

2005, receiving testimony from each doctor. The State conducted the direct The Superior Court (, J.) held a competency hearing in September

with two real estate attorneys to determine whether the defendant’s claim had conspiracy to deprive him of property rights. The public defender conferred believed that local and State authorities prosecuted him as part of an ongoing Dr. James Adams, a psychiatrist, examined the defendant in November 2004

breakdown of communication with his appointed counsel, outlining their The defendant filed a pro se motion in July 2005 summarizing the

The defendant believed that he owned the timber and the property. He also In July 2004, defense counsel filed a motion to determine competency.

defense because of his familiarity with real estate issues.

The attorney-client relationship deteriorated over the following months.

defendant. A second public defender entered an appearance to assist in the the owner’s property. The court appointed a public defender to represent the p. 3 I, art. 15. “Law of the land in this article means due process of law.” but by the judgment of his peers, or the law of the land . . . .” N.H. CONST. pt. 3

fundamental fairness.”

Constitution and cite federal opinions for guidance only. the State Constitution. We first address this argument under the State

out of the protection of the law, exiled or deprived of his life, liberty, or estate,

Id. Our threshold determination in a procedural due process claim is “whether conduct conform to the community’s sense of justice, decency and fair play.” deprive the defendant of procedural due process. N.H. 315, 320 (2004). “Fundamental fairness requires that government was ethically bound to raise the competency issue and that such action did not Saviano v. Director, N.H. Div. of Motor Vehicles, 151 “The ultimate standard for judging a due process claim is the notion of

of Harvey, 108 N.H. 196, 198 (1967) (quotation and ellipsis omitted). the Fourteenth Amendment to the Federal Constitution and Part I, Article 15 of Petition

“No subject shall be . . . deprived of his property, immunities, or privileges, put Part I, Article 15 of the State Constitution provides, in relevant part:

(2006). constitutional law, we review it de novo.” State v. Hall, 154 N.H. 180, 182 to vacate the finding of incompetence. The court noted that defense counsel N.H. 226, 231-33 (1983). “Because this issue poses a question of

process in the competency determination. He cites the Due Process Clauses of appeals only the denial of his motion to vacate, arguing that he was denied due and granted the appellate defender’s motion to withdraw. The defendant We appointed the defendant’s trial counsel to represent him on appeal

defendant on the ineffective assistance of counsel claim and denied his motion process. After a hearing, the Trial Court (McGuire, J.) ruled against the the competency finding. The motion alleged a denial of procedural due granted the defendant’s motion to dismiss the criminal charges. Counsel filed an amended ineffective assistance claim and a motion to vacate hearing on dangerousness, ruled that the defendant was not dangerous and On remand, the trial court appointed the defendant’s current counsel.

the first instance. See id. at 737. the ineffective assistance claim in order to allow the trial court to rule on it in alleged against the public defenders. Id. We stayed the appeal and remanded citing a conflict of interest due to an ineffective assistance of counsel claim to represent him on appeal. Id. The appellate defender moved to withdraw, State v. Veale, 154 N.H. 730, 731 (2007). We appointed the appellate defender The defendant filed a pro se notice of appeal raising several issues. See

ruled that he could not be restored to competency. The court later held a The court ultimately found the defendant incompetent to stand trial and p. 4 4

candidate for special protection . . . .”

consider his procedural due process challenge. affecting the exercise of various civil rights. It is through this lens that we tried if incompetent, they erroneously imposed upon him an “indelible stigma” “a right or status previously recognized by state law.”

kind of liberty or property interest contemplated by the constitution.” neither a liberty nor a property interest cognizable under the fourteenth was found not to be dangerous. context of qualified immunity, that “it is settled law that personal reputation is Chevrefils, 131 N.H. 227, 23 p. 4 4 (1988), we cited Paul and recognized, in the for procedural due process under the State Constitution. In Richardson v. the Fourteenth Amendment do not in terms single out reputation as a We, however, have never adopted the stigma-plus test as the touchstone

test. in addition to the stigma, a contemporaneous tangible loss. Gilley, 500 U.S. 226, 23 p. 4 4 (1991), the Court extended the doctrine by requiring, in Id. at 711. In Siegert v. that, while the competency proceedings may have protected his right not to be reputational stigma exists in addition to state action altering or extinguishing recognizing a cognizable right warranting due process protection where due process protection. Id. at 708. Instead, the Court read Wisconsin as incompetence,” rendering each “too speculative and remote to constitute the concluding that defamation alone could not constitute an interest triggering the two indictments, and resulted in no confinement because the defendant number of potential consequences that ‘may’ or ‘can’ flow from a finding of prior holding in Wisconsin v. Constantineau, 400 U.S. 433 (1971), by fails to trigger a due process analysis because he simply “speculates about a Paul, 424 U.S. at 701. It narrowed its

Cir. 2001). The Court noted that “[t]he words ‘liberty’ and ‘property’ as used in See, e.g., Hawkins v. Rhode Island Lottery Com’n, 238 F.3d 112, 115 (1st the Supreme Court coined what would later be known as the “stigma plus” Paul v. Davis, p. 4 424 U.S. 693 (1976), under our State Constitution. In Paul, The State would have a stronger argument if we had adopted the analysis attached to his reputation by virtue of the incompetency finding. He argues

this right. Indeed, the competency proceedings below resulted in a dismissal of The State contends that the defendant’s asserted reputational interest

2006). The defendant grounds his due process challenge on the stigma

(1985). The defendant’s due process challenge, however, does not implicate Zorzy, 136 N.H. 710, 71 p. 4 4 (1993); State v. Champagne, 127 N.H. 266, 270 defendants from standing trial if they are legally incompetent. See State v. Undoubtedly, the state constitutional right to due process protects

5 p. 4 45 U.S. 209, 221 (2005). McLellan, 146 N.H. 108, 113 (2001) (quotation omitted); Wilkinson v. Austin, the challenged procedures concern a legally protected interest.” State v. protected liberty.” p. 5 governmental determinations may amount to a deprivation of constitutionally

Due Process Clause.

future opportunities to practice his chosen profession.” implicate reputational interests to warrant the protection afforded by the State

federal interpretations.”

governmental action seriously damages his standing and associations in the (Tenn. 1914) (“The enjoyment of private reputation unassailed is a right entitled

community . . . [or] impose a stigma upon the employee that will foreclose Accordingly, we hold that competency determinations sufficiently

constitute a deprivation of liberty deserving due process. our jurisprudence for the proposition that reputational stigma can, by itself,

federal document, we never have considered ourselves bound to adopt the received the doctrine well. followed and agreed with the federal treatment of parallel provisions of the

that “[t]he general rule is that a person’s liberty may be impaired when (quotation omitted). In Petition of Bagley, 128 N.H. 275, 284 (1986), we stated process). Accordingly, the issue remains open under the State Constitution. Clark, 113 N.H. at 274

conduct likely will . . . seriously damage his standing and associations in the accompany the reputational injury, the decision in to due process, in part, because he failed to show “that the governmental N.H. 270 (1973), we concluded that a probationary employee was not entitled

the stigma-plus doctrine, we are mindful that constitutional scholars have not “Although in interpreting the New Hampshire Constitution we have often

53; In re Tracy M., 137 N.H. at 124. often invoke the Due Process Clause. See Petition of Preisendorfer, 143 N.H. at the interest in the parent-child relationship for purposes of procedural due reputational interest to insignificance because the separate injury would, itself, narrowing of its predecessors. In our view, Paul effectively relegates the of procedural due process); Paul marked a drastic its progeny). By requiring that a separate liberty or property interest nn.3 & 5 (forthcoming 2009) (collecting scholarly articles criticizing Paul and Reputational Harm: Liberty as Self-Invention, 43 U.C. Davis L. Rev. ___, ___

Although we do not necessarily agree with all of the scholarly criticism of

that “liberty interest in . . . standing in the community” was coextensive with

registry of sex offenders was no greater than a professional interest for purpose (1998) (stating that asserted stigmatization from being placed upon a central attaches to a reputational right. See Petition of Preisendorfer, 143 N.H. 50, 53 the issue, they have merely assumed that state constitutional due process analysis. Richardson, 131 N.H. at 234. Although other cases have approached amendment.” We conducted no separate state constitutional due process p. 6 6 understanding of the proceedings against him.”

procedural requirement would entail. degree of rational understanding, and if he has a rational as well as a factual fiscal and administrative burdens that the additional or substitute

the trial proceeding.” State v. Cigic, 138 N.H. 313, 317 (1994), provide, in relevant part: Standards, which we have looked to when developing similar procedures, see defense counsel in certain circumstances. The American Bar Association (ABA) Raising the issue of competency is an ethical obligation incumbent upon

. . . elements [of competency] by a preponderance of the evidence.” Id. (quotations and brackets omitted). “The State bears the burden of proving both

has sufficient present ability to consult with his lawyer with a reasonable Government’s interest, including the function involved and the

absolute basic condition of a fair trial.” State v. Haycock, 14 p. 6 6 N.H. 5, 6 (2001) “The mental competence of a criminal defendant at the time of trial is an

against the difficulty of undoing harm once visited upon a person’s good name. outlining the process governing competency determinations. State v. Lavoie, 155 N.H. 477, 482 (2007) (quotation omitted). We begin by

additional or substitute procedural safeguards; and finally, the through the procedures used, and the probable value, if any, of such a determination. We have long recognized that some forms of second, the risk of an erroneous deprivation of such interest First, the private interest that will be affected by the official action;

we balance three factors: enjoying due process protection). Guaranteeing some minimal process guards required to protect that interest. See McLellan, 14 p. 6 6 N.H. at 114. In so doing, damage the protected interest in reputation, we consider what process is Having concluded that competency determinations can potentially

without proof of special damages under doctrine of libel per se). N.H. 582, 593 (2008) (discussing recovery of damages for harm to reputation

present one, a person may not immediately suffer the more tangible effects of Cf. Goldberg v. Kelly, 397 U.S. 254, 2 p. 6 63-64 (1970). In instances such as the

Constitution expressly recognizes reputation as a fundamental interest Welfare, p. 6 636 A.2d 142, 149 (Pa. 1994) (recognizing that Pennsylvania’s State the possession of life, liberty, or property.”); cf. R. v. Com., Dept. of Public to the protection of the law and of the Constitution as much as are the rights to as of right and obtain a review of the merits. p. 7 incompetency and the constitutional right not to be tried if incompetent. 7

defendant points to his “ability to conduct and control civil litigation,” the

degree of social stigma.

ability to restore competency if found incompetent. The defendant may appeal such evaluations. RSA 135:17, III (2005) requires specific findings as to the the competency determination: the stigma attached to a finding of legal of the parties. RSA 135:17, II(a)-(b) speak to the purpose and substance of

and adversely affect a variety of liberty and property interests. Specifically, the may harm the defendant’s own self-conception, see generally Mitnick, supra, the defendant received due process under the State Constitution. commitment proceedings and describing them as “substantial”). This stigma (recognizing “loss of liberty and social stigmatization” caused by civil counsel which raise the good faith doubt of competence. Cf. In re Richard A., 146 N.H. 295, 298 (2001) An official branding of legal incompetence unquestionably entails some

As discussed above, two substantial interests are particularly relevant in RSA 135:17, II (2005) permits separate competency evaluations upon request I. Private Interests

Against this backdrop, we balance the three factors to determine whether

“Mandatory appeal” and “Decision on the merits”). known to the court and to the prosecutor those facts known to

defendant is competent to stand trial.

“completed within 60 days after the date of the order.” RSA 135:17, I (2005). such order for a pre-trial psychiatric examination of such person” to be After the competency issue has been raised, the trial court “may make

(quotations omitted). trial, and any prior medical opinion on competency.” Zorzy, 136 N.H. at 715 should consider evidence of a defendant’s irrational behavior, his demeanor at over the client’s objection. In any event, counsel should make (1983). “In determining whether to order a competency hearing, the trial court to such a motion being made, counsel may move for evaluation faith doubt as to the defendant’s competence. If the client objects State v. Bertrand, 123 N.H. 719, 725 competency whenever a bona fide or legitimate doubt arises whether a criminal In addition, we require that the trial court sua sponte inquire into

Health Standards Standard 7-4.2(c), at 176 (1989). ABA Criminal Justice Standards Committee, ABA Criminal Justice Mental

competence to stand trial whenever the defense counsel has a good Defense counsel should move for evaluation of the defendant’s litigated in an adversarial proceeding. p. 8 of additional counsel and/or guardians to ensure the competency issue is fully deficient lack of adversarial testing. The process he seeks is the appointment 8

Although competency is ultimately governed by a legal standard, the

prohibition as a by-product of the ban against trials

finding while the State took virtually no position, resulting in a constitutionally

competency to be tried for the alleged crimes was the issue being adjudicated. U.S. at 224 (quotation and brackets omitted). Here, the defendant’s legal procedural protections as the particular situation demands.” Wilkinson, 545 employment termination); “[T]he requirements of due process are flexible and call for such

subjected to a trial. . . . Some have viewed the common-law reliably determining the competency issue equally protects both. counsel, and to assist in preparing his defense may not be nature and object of the proceedings against him, to consult with

The defendant argues that his attorneys pursued an incompetency

Justice Standards Committee, II. Risk of Erroneous Deprivation/Probable Value of Additional Process prohibition is fundamental to an adversary system of justice. himself. . . . For our purposes, it suffices to note that the Tracy M. the courtroom, is in reality afforded no opportunity to defend, 137 N.H. at 124.

opportunity to clear reputation was provided by virtue of process preceding v. Wille, 132 F.3d 679, 683 n.9 (11th Cir. 1998) (holding that procedural

The two interests at stake are not in tension; that is, one procedure for condition is such that he lacks the capacity to understand the Drope v. Missouri, 420 U.S. 162, 171-72 (1975) (quotation omitted).

right to have the court determine his capacity to stand trial.”); ABA Criminal

the mentally incompetent defendant, though physically present in

finally the “right to purchase, possess, and sell firearms in some jurisdictions.” to engage in commercial transactions,” the ability to travel internationally, and It has long been accepted that a person whose mental

defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his Robinson, 383 U.S. 375, 384 (1966) (“[I]t is contradictory to argue that a incompetent, a right that is probably not subject to waiver. See Pate v. Competency determinations also concern the right not to be tried if

manner of professional licensing,” employment decisions, “willingness of others potential estoppel effect of the incompetency finding in other proceedings, “all appellate review with appointed counsel. p. 9 competency.” And, the trial court’s competency decision was subject to of treatment which is reasonably likely to restore the defendant to

outcome of the competency hearing might very well have been different.”

was required to “include the examiner’s findings as to whether there is a course

“functionally precluded” from testifying and offering evidence, then “the

entered. Pursuant to RSA 135:17, III, any expert conclusion of incompetency

determination.

care.” sole concern . . . is whether the child needs and can benefit from institutional competency issue minimal. The defendant contends that if he had not been examinations by an independent team of mental health professionals whose and a hearing was held on the record before any finding of incompetency was written findings and rulings; notice was given to all parties of the proceeding, expert medical testimony with the assistance of counsel and issued detailed protect the defendant’s reputational interest by ensuring a reliable competency decisionmaking”). We hold that these procedures, taken together, sufficiently provided by the “decisionmaker” also help “guard[] against arbitrary

they have personally examined.”

Likewise, we find the value of additional process in deciding the because “[n]o child is admitted without at least one and often more psychiatric

legal standard for competency; an impartial judicial fact finder evaluated the

evaluating witness credibility and veracity. (subsequent review of a determination and “a short statement of reasons”

unbiased medical reports by physician specialists, concerning a subject whom

mentally ill children in the absence of an adjudicative hearing primarily

personally examined him and determined whether, in their opinion, he met the of the defendant’s competency consisted of the following: two medical experts probative worth of written medical reports,” and the reduced importance of After the public defenders raised the issue, the procedural determination

adversarial testing because they usually turned “upon routine, standard, and

640, 649-50 (1979), the Court upheld voluntary admission procedures for In Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S.

citation omitted). It noted previous holdings recognizing the “reliability and

the Court determined that disability benefit determinations did not require full evaluating such testimony. In Mathews v. Eldridge, 424 U.S. 319, 344 (1976), Full adversarial testing is not always the most desirable method of

evaluation). has inherent authority to order a defendant to submit to psychiatric RSA 135:17; State v. Briand, 130 N.H. 650, 653 (1988) (recognizing that court determination is largely based upon medical observation and testimony. See would fall to the guardian. On these facts, and in consideration of the

p. 10 of asserting and demonstrating incompetency in the adversarial procedure

appointing separate counsel because, assuming the State’s neutrality, the task

contemplated within the comprehensive comments to ABA Standard 7-4.2. the court”). Furthermore, nowhere is the defendant’s desired procedure concerns inherent in such circumstances . . . in favor of counsel’s obligation to

have a good faith doubt as to the defendant’s competency.

We also note that appointing a guardian ad litem is tantamount to

demonstrate competency, id. at 177.

may constitute substantial evidence supportive of an adverse finding). 181 (recognizing that Standard 7-4.2(c) “resolves the difficult conflict of hearing and, despite its hearsay character and absence of cross-examination, to be tried if incompetent that should first be protected by counsel. See id. at Justice Standards Committee, supra at 176. In such a case, it is the right not

If the competency issue is serious enough to flag, defense counsel will

appointed to protect the defendant in case he was in fact incompetent. competency issue and then contest that issue, with a guardian ad litem appointed counsel would, over his client’s objection, simply “flag[]” the both medical experts. These interviews provided him with a forum to We find little value in the defendant’s proposed procedure whereby his

his 2006 and who set forth in his report his medical findings is admissible in disability counsel and/or the trial court instead of raising the issue for the first time in U.S. 389, 402 (1971) (written report by a physician who examined claimant counsel. Had the defendant wished to testify, he should have informed his experts later testified at the competency hearing, cf. Richardson v. Perales, 402 stigmatizing injury is an opportunity to refute the charge), and the medical Codd v. Velger, 429 U.S. 624, 627 (1977) (holding that only process due a

afforded him that right. In addition, we note that the defendant was personally interviewed by

denied any such right.

pro se notice of appeal. Accordingly, we cannot say that he was

prior to the competency hearing, his motion effectively only requested new never requested as much. While the defendant moved pro se for certain relief hearing). On the record before us, however, it appears that the defendant should be afforded opportunity to testify and call witnesses at competency 1993); cf. 18 U.S.C. §§ 4241(c), 4247(d) (2000) (stating that federal defendant

call other witnesses at the competency hearing, due process may well have Wilkinson, 545 U.S. at 226. Thus, had the defendant requested to testify or procedural mechanisms for purposes of avoiding erroneous deprivations.” “[A] fair opportunity for rebuttal” is “among the most important resources,”

p. 11 appointment of additional counsel . . . .”),

of additional process is minimal. 11

process does not appear to require “the expenditure of substantial State

believes that he or she is competent . . . [, d]ue process does not require the

criminal counsel. adjudication reliably guard the defendant’s reputational interest and the value

In re Richard A., 146 N.H. at 300, we note that it requires

upon the government. While we agree with the defendant that his desired defendant argues that his desired procedure would be an “insignificant” burden The State does not address the cost of any additional procedures. The counsel believes that the defendant is not competent, while the defendant State . . . due process provision[] does not come into play.” III. Government’s Interest defense counsel moved for a competency evaluation over the client’s wishes),

Due Process Clause expands upon the constitutional right to appointed offend “fundamental fairness.” We therefore conclude that the procedures attending the competency

2005).

(Or. Ct. App.) (“Where a criminal defendant is at odds with counsel because determination of guilt or innocence, the full range of protections afforded by the cert. denied, 525 U.S. 1083 (1999); State v. Cunningham, 105 P.3d 929, 943

additional or substitute counsel was necessary to satisfy due process where Boigegrain, 155 F.3d 1181, 1188 (10th Cir. 1998) (rejecting argument that not to be tried if incompetent. We have cast doubt upon the notion that the Saviano, 151 N.H. at 320; see United States v. evaluating the expert testimony—both tasks undertaken in vindicating his right Thus, declining to appoint counsel solely to vindicate that interest does not Article 15 of the State Constitution in raising the competency issue and infringement upon the reputational interest does not rise to a similar level. Scarpelli, 411 U.S. 778 (1973)), whereas here any loss of liberty flowing from after the proceedings, Duval, 114 N.H. at 424, 426 (discussing Gagnon v. controlling here. Duval rested primarily upon the potential for incarceration hearing[s],” Duval v. Duval, 114 N.H. 422, 427 (1974), we do not find Duval process right to counsel might attach in “complicated nonsupport contempt is the mental condition and dangerousness of the person . . . rather than Gibbons, 135 N.H. 320, 323 (1992). Although we have recognized that a due

The defendant received the assistance of counsel guaranteed by Part I,

146 N.H. at 298 (quotation and brackets omitted).

We have clearly said that where “the primary focus of a[] . . . proceeding

appointed counsel under the Due Process Clause. authorities discussed below, we decline to recognize a right to separate p. 12 12

Federal Constitution.

Constitution.

the additional process the defendant seeks. context than its federal counterpart, we reach the same result under the

conclude that due process does not require additional process under the State value of additional procedural safeguards; and the Government’s interest, we deprivation of that interest through the procedures used, and the probable BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

defendant’s competency. Accordingly, if anything, this factor counsels against Because we hold that the State Constitution is more protective in this motion practice and judicial resources than the model used to determine the proceeding with two sets of appointed counsel entails decidedly more discovery,

After balancing the private interest here at issue; the risk of an erroneous

IV. Conclusion

somewhat infrequent, fully litigating the competency issue in an adversarial significantly more than he asserts. Although competency hearings are