2008-702, State of New Hampshire v. Reno Demesmin

The defendant, Reno Demesmin, appeals his conviction of

brief, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

general, on the brief), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2008-702 editorial errors in order that corrections may be made before the opinion goes Belknap Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 had to re-indict him.

p. 2 prejudice. Moreover, the State argues that the defendant did not preserve this

Therefore, before the State could resume prosecuting the defendant, the State case against the defendant [has been] dismissed” (quotation omitted). defendant, “[p]roceedings under RSA 135:17-a, V do not commence unless the

competency, a prerequisite for there to be a dismissal of the case without

trial, a jury found the defendant guilty of first degree assault. Subsequently, the trial court found the defendant competent to stand trial. At granted the State’s motion and the defendant was re-evaluated for competency. that the State shall present an Indictment against the Defendant.” Defendant be found to have been restored to competency during the next year 2 without prejudice the original indictment by operation of law. According to the

and convincing evidence” that the defendant could not be restored to

competent to stand trial. Over the defendant’s objection, the trial court

of involuntary treatment. Finally, the agreement provided that “should the intellectual disability. dangerousness under RSA 135:17-a, V, the trial court impliedly dismissed indictment, because by ordering an evaluation of the defendant’s jurisdiction to order the re-assessment of his competency under the original

The State disagrees, contending that the trial court never found by “clear

the defendant malingered during his first evaluation and was, in fact,

the defendant is dangerous to himself in order to evaluate the appropriateness permits a court to order a person to remain in custody for a reasonable time if for civil commitment because he did not meet the diagnostic criteria for an in custody pursuant to RSA 135:17-a, V.” RSA 135:17-a, V (Supp. 2009) On appeal, the defendant first asserts that the trial court lacked

results, the State moved for a second competency assessment, contending that

psychologist, then examined the defendant and found that he was not eligible “[h]earing to be scheduled on whether the defendant should continue to remain appropriateness of involuntary commitment. Dr. Eric G. Mart, a licensed court found the defendant dangerous and ordered that he be evaluated for the defendant was dangerous to himself or others. See RSA 135:17-a, V. The trial In June 2007, the trial court held a hearing to determine whether the

evaluation. However, he expressed concern that the defendant was malingering during the

defendant “shall be found incompetent.” The agreement then called for a that while “there is a question as to whether the Defendant is malingering,” the the trial court, which it accepted with modifications. The agreement stated Based upon Dr. Adams’ findings, the parties submitted a stipulation to

there was “no evidence that th[e] defendant [was] competent to stand trial.” State of New Hampshire, examined the defendant. Dr. Adams concluded that system, or the secure psychiatric unit as the case may be . . . . p. 3 mental health services system, the state developmental services delivery

and completing the certificate for involuntary admission into the state V.

designated by the state for the purpose of evaluating appropriateness without prejudice and the court shall proceed as provided in paragraph submit to examinations by a physician, psychiatrist, or psychologist RSA 135-C:34 or RSA 171-B:2. The court may order the person to

twelve months, the case against the defendant shall be dismissed 3 evidence, that the defendant cannot be restored to competency within evaluated for the appropriateness of involuntary treatment pursuant to treatment within 12 months. If the court finds, by clear and convincing

custody for a reasonable period of time, not to exceed 90 days, to be convincing evidence[] that the defendant cannot be restored to competency” in the defendant can be restored to competency through appropriate himself or herself or others, the court shall order the person to remain in RSA 135:17-a, I, specifically requires the trial court to find by “clear and competency, and the court determines that he or she is dangerous to

statutory scheme.

clear and convincing evidence, that there is no reasonable likelihood that as expressed in the words of the statute considered as a whole. treatment for the restoration of competency unless it determines, by V. If the court has determined that the defendant has not regained that the defendant is not competent to stand trial, the court shall order . . . .

enacting them, and in light of the policy sought to be advanced by the entire

matters of statutory interpretation, we are the final arbiter of legislative intent I. If, after hearing, the district court or superior court determines

RSA 135:17-a, I, and V state, parties, or by the court may be raised at any time in the proceedings, including on appeal, by the Id. at 138. however, will address the merits of this argument. Subject matter jurisdiction 137-38. Our goal is to apply statutes in light of the legislature’s intent in statute and ascribe the plain and ordinary meanings to the words used. Id. at Shannon, 155 N.H. 135, 137 (2007). We first examine the language of the

The defendant’s argument requires us to interpret RSA 135:17-a. In

Troy, 149 N.H. 569, 575 (2003).

mentioned either in the notice of appeal or in any motion to add issue.” We, argument for appeal because “it was never made below, and was never fraud. We, therefore, look to the common law for guidance. p. 4 defendant has procured a finding of incompetence through malingering or

limitations period.

address specifically how a trial court should proceed if evidence exists that a

occur during the period of involuntary commitment and before expiration of the

135-C or RSA chapter 171-B. RSA 135:17-a, V. RSA 135:17-a does not retaining jurisdiction.” 21 Am. Jur. 2d jurisdiction once it has properly attached, and any doubt is resolved in favor of prosecuting him. “There is a presumption against divesting a court of its

involuntarily committed. According to the defendant, a re-evaluation may only 4 defendant has been found incompetent and dangerous but has not been court to order the re-assessment of a defendant’s competency where the disabled or mentally ill person involuntarily committed under RSA chapter to be held for up to ninety days for evaluation, and to order an intellectually abrogate the common law unless the statute clearly expresses that intent.” competency, to order a person determined “dangerous to himself . . . or others” defendant, and the State was not required to re-indict him to continue

evaluation. Specifically, he argues that RSA 135:17-a does not authorize a trial State v. Elementis Chem., 152 N.H. 794, 803 (2005) (quotation omitted). Here,

§ 15 (2000). Indeed, we have stated that “we will not interpret a statute to trial. It includes provisions to order treatment for the restoration of The trial court, therefore, never dismissed the original indictment against the courts as consistent with the common law.” 15A Am. Jur. 2d Common Law restored to competency.” RSA 135:17-a, I. Such a finding must be explicit. It is a basic principle that “statutory enactments should be construed by found by “clear and convincing evidence[] that the defendant cannot be

statutory authority under RSA 135:17-a by ordering a second competency

making an initial determination that the defendant is not competent to stand RSA 135:17-a lays out the procedures a trial court should follow after determining either the facts, the law, or both.” 21 Am. Jur. 2d 135:17-a, V. We will not infer from silence in the record that the trial court See RSA 135:17-a, VI (Supp. 2009).

Second, the defendant contends that the trial court exceeded its

434; see also People v. Davis, 619 N.E.2d 750, 754 (Ill. 1993).

so that a court may not lose jurisdiction because it makes a mistake in The agreement then called for a dangerousness hearing pursuant to RSA jurisdiction, no subsequent error or irregularity will remove that jurisdiction, found incompetent” as a result of “Dr. Adams’ lack of diagnosis of competency.” (Mich. 1993). Further, it is common practice that “[o]nce a court has acquired parties’ stipulation, which provided that “at this point, the Defendant shall be Adkins, 29 S.W.3d 793, 795 (Ky. 2000); People v. Veling, 504 N.W.2d 456, 460

Here, the trial court made no such finding. The trial court merely accepted the order for the case against the defendant to be dismissed without prejudice. crazy’” to be found mentally incompetent.

testimony from another inmate that the defendant told him he “planned ‘to act

determinations of mental competence. 1 M. Hale,

at 230-31. The Fifth Circuit subsequently upheld the trial court’s application care”). from the defendant’s treating doctor that he had malingered. Greer, 1 p. 5 58 F.3d Greer, the trial court held a second competency hearing after receiving a report trial court then held a second competency hearing. Id. at 1275. Similarly, in

court ordered the psychiatric re-evaluation of the defendant after hearing v. Greer, 1 p. 5 58 F.3d 228 (5th Cir. 1998). For example, in Izquierdo, the trial e.g. in his seventeenth century treatise, warned that “there may be great fraud” in, United States v. Izquierdo, 448 F.3d 1269 (11th Cir. 2006); United States examination of a defendant and hold a subsequent competency hearing. phenomenon. For example, Sir Matthew Hale, a Lord Chief Justice of England, See, Upon detecting evidence of malingering, trial courts often order the re-

feign incompetence successfully for a period of time while under professional (observing that it would be “unusual for even the most artful malingerer to and permit their trial. See Cooper v. Oklahoma p. 5 517 U.S. 348, 365 (1996) Courts presume that the legal process will eventually catch those who malinger to stand trial. also defendant, King v. Dyson, 73 Car. & P. 305, n. (a), 173 Eng. Rep. 135-36, n. (a) (1831).

in intellectual disability or mental illness to avoid trial is not a recent Concern that a defendant is fabricating or exaggerating the symptoms of

an intention to rely on that testimony at trial.” malingering is an issue of first impression in New Hampshire. order a second evaluation and competency hearing when there is evidence of Briand, 130 N.H. at 6 p. 5 52-53. Whether a trial court has inherent authority to ascertainment of truth and to insure the orderliness of judicial proceedings,”

State v. Gagne, 129 N.H. 93, 96-97 (1986), and “to promote the

psychiatric or psychological evaluation of a defendant to determine competency possess this inherent authority to protect the constitutional rights of the

require her to submit to an examination by the State’s expert “because there Briand, we rejected the defendant’s argument that the State could not competency evaluations upon request of the parties). In reaching our holding 6 p. 5 53 (1988); see also RSA 135:17, II (Supp. 2009) (permitting separate

psychological or psychiatric examination by defense experts, and has indicated evaluation upon request of the State where “the defendant has submitted to 3320 (U.S. 2009). A court also has the authority to order a second competency

See State v. Veale, 1 p. 5 58 N.H. 632, 640, cert. denied, 78 U.S.L.W.

Trial courts have the inherent authority and obligation to order an initial

governing malingering. RSA 13 p. 5 5:17-a does not state a clear intent to abrogate the common law p. 6 6

malingerer. proceedings and that RSA 135:17-a provides no safe harbor for the artful

concurred.

Accordingly, we hold that the trial court did not err by conducting such

BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ., malingering is consistent with a plain and ordinary reading of RSA 135:17-a. Affirmed.

necessary proceedings to determine whether a defendant is malingering. subsequent proceeding.” conclude that RSA 135:17-a does not preclude a trial court from conducting constitution and laws, or the laws or political institutions of the state.”). We part of the law of the state must not be inconsistent with the Federal See 15A Am. Jur. 2d Common Law § 12 (2000) (noting that “common law, to be

hearing when there is evidence of malingering. The common law governing possess the inherent authority to order a second evaluation and competency We agree with the above-cited federal common law that trial courts found incompetent by feigning mental illness.” to trial. See W.R. LaFave, Criminal Law § 1.2(e) at 13 (4th ed. 2003). in ensuring that courts carefully scrutinize a claim of incompetency to proceed

incompetent when he is in fact malingering . . . is subject to correction in a convincing evidence partially because “a conclusion that the defendant is statutory requirement that a defendant prove his incompetence by clear and Cooper, 517 U.S. at 3 p. 6 65-66. The Court held unconstitutional Oklahoma’s practice of a second competency hearing in the face of evidence of malingering. In Cooper, the United States Supreme Court implicitly embraced the

create a doubt as to his competency or to increase the chances that he will be fide doubt exists as to his competency, he surely does not have the right to defendant possesses a constitutional right to a competency hearing if a bona feigning incompetence. Id. at 234-38. The court reasoned, “[W]hile a criminal of an obstruction of justice enhancement to the defendant’s sentence for