2012-083, State of New Hampshire v. William Decato

stand trial. We affirm. evidence, s ee RSA 641:6 (2007), on the ground that he was incompet ent to RSA 633:1 (2007), burglary, see RSA 635:1 (2007), and falsifying physical aggravated felonious sexual assault, see id.; RSA 629:1 (2007), kidnapping, see sexual assault, see RSA 632 - A:2, I (2007) (amended 2012), attempted following a jury trial in Superior Court (Brown, J.), for aggravated felonious HICKS, J. The defendant, William Decato, appeals his convictions,

the brief and orally, for the defendant. Stephanie Hausman, senior assistant appellate defender, of Concord, on

general, on the brief and orally), for the State. Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney

No. 2012 - 083 Hillsborough - northern judicial district

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Dr. Comiskey’s opinion, the defendant was competent to stand trial. understanding and rational understanding of the proceedings against him.” In further stated that the defendant, “in general [,] had a very good, factual thought or mood disorder at any time during the interview. Dr. Comiskey functioning” or “cognitive problems” and showed no signs of experiencing a Dr. Comiskey testified that the defendant showed no “impairment in his

“consumption of a large amount of alcohol.” most likely e xplanation for the defendant’s periods of amnesia was drinking a considerable amount of alcohol. Dr. Comi sk e y concluded that the The defendant reported one previous “blackout” he had experienced after between 10:00 p.m. and 3:00 a.m. the next day, when he was foun d by police. on the night of the charged offenses, and that he had no memory of events related that he had consumed eleven beers between 6:00 p.m. and 10:00 p.m. At t he competency hearing, Dr. Comi skey testified that the defendant

relevant to possible defenses to his counsel. charged offenses took place, and, therefore, he could not communicate facts trial on the ground that he had no memory of the period during which the Thereafter, t he defendant sought a ruling that he was incompetent to stand New Hampshire Department of Corre ctions’ chief forensic examiner. Before trial, the defendant was evaluated by Dr. Daniel W. Comiskey, the

in various places in the neighborhood. bed and other blood - stained items from the bathroom, which he then discarded of the crime. When the defe ndant left, he took the bedding from the victim’s found. In addition, the defendant left h is glasses and baseball cap at the scene reasonable degree of scientific certainty, to be the primary source of th e DNA bedroom were tested for DNA and the defendant was determine d, to a outside the house. Samples taken from the bathroom, living room, and room, bathroom, and bedroom. The defendant’s wound left blood inside and hours, assault ing and attempt ing to assault her numerous times in the living The defendant remained in the victim’s home for app roximately two

while the victim stab bed the defendant in the neck. two struggled, and the defendant slapped and punched the victim in the face, hers. While the defendant was distracted, the victim grabbed the knife. The never seen before. She also saw, on a table by the sofa, a knife that was not the cloth fell from her face and she clearly saw the defendant, a man she had cloth over he r face and began to sexually assault her. As the victim struggled, window and encountered the victim asleep on her living room sofa. He put a around 10:00 p.m., the defendant broke into the victim’s home through a The jury could have found the following facts. On August p. 2 25, 2009, at p. 3 3

quoting the Ohio Supreme Court: right to a competency hearing.” Kincaid, 158 N.H. at 94. We also noted, not automatically raise a bona fide or legitim ate doubt triggering a due process 158 N.H. 90 (2008), where we observed that a claim of amnesia “alone . . . does We addressed amnesia in the competency context in State v. Kincaid,

necessary to construct a defense.” Id. at 78. “He must be sufficiently coherent to provide his counsel with the i nformation choices regarding trial strategy.” Gourlay, 148 N.H. at 77 (quotation omitted). communicate meaningfully with his attorney so as to be able to make informed competency test. To satisfy that prong, “the defendant must be able to The defendant’s challenge relates only to the first prong of the

794 (quotation omitted); see Dusky, p. 3 362 U.S. at 402. rational understanding of the proceedings against him.” Mon c a d a, 161 N.H. at a reasonable degree of rational understanding; and (2) a factual as well as have: “(1) a sufficient present ability to consult with and assist his lawyer with Champagne, 127 N.H. 266, 270 (198 5). Th at test requires that a defendant Supreme Court in Dusky v. United States, 362 U.S. 402 (1960). See State v. adopted the two - pronged test for competency set forth by the United States defe ndant is competent to stand trial.” Monc a d a, 161 N.H. at 795. We have bears the burden to prove, by a preponderance of the evidence, that a legally incompetent.” State v. Gourlay, 148 N.H. 75, 77 (2002). “The State “A criminal defendant has a constitutional right not to be tried if he is

did.” State v. Mon c a d a, 161 N.H. 791, 798 (2011). we “conclude that no reasonable fact finder could have found as the trial court to stand trial. We defer to the trial court’s determination of competence unless On appeal, the defendant challenges the finding that he was competent

two counts of falsifying physical evidence. felonious sexual assault, one count of kidnapping, on e count of burglary, and aggravated felonious sexual assault, four counts of attempted aggravated The defendant was t ried before a jury and found guilty on nine counts of

of the proceedings or the rationality of his discussions with counsel.” defendant’s amnesia, it is not so severe as to affect his requisite understanding understanding.’” The court concluded that “[w]hatever the extent of the present ability to consult with his lawyer with a reasonable degree of rat ional factual understanding of the proceedings against him, as well as a ‘sufficient preponderance of the evidence that the defendant has a rational as well as question.” The court found, nevertheless, “that the State established by a J.) “accept[ed] that the defendant has amnesia with respect to the events in For purposes of the competency determination, th e Trial C ourt (Tucker, p. 4 4

consent defense.” We disagree. We first note that the circumstantial evidence challenging the victim’s version of events, or “from raisi ng a mental state or The defendant nevertheless argues that his amnesia prevented him from

attorn ey and client as to tactical decis ions concerning the trial”). observing that “[a] mnesia does not inhibit dialogue and discussion between consequences attending a conviction for having committed the charge” and of the charge, the facts required to be proved to sustain the charge, and the 1982) (stating the “view [that] the understanding required is [that of] the nature led to his arrest.” Kincaid, 158 N.H. at 9 p. 4 4; cf. Morrow, 443 A.2 d 108, 1 13 (Md. without necessarily remembering the details or circumstances of an event that assist his trial counsel with a reasonable degree of rational understanding observed in Kincaid, “[t]here are many w ays a defendant can consult with and Dr. Comiskey’s conclusions are not inconsistent with our law. As we

He appears to be able to exercise those abilities well. of import, and the allegations against you, he has those abilities. conversations and discussions with them, and wh at information is to think intelligently, and ask relevant questions, based on your your attorneys, to communicate with them [,] to retain information, are abilities which I believe are relevant to being able to work with rationally. He is able to learn and retain new information. Those He is able to communicate rationally. He is able to think

assist his attorneys, Dr. Comiske y testifi ed: consideration of incompetence to be.” As to whether the defendant was able to competence. And certainly well above what I consider a threshold for proceedings against him, better tha n most individuals referred for evaluation of the defendant had “a good rational and factual understanding of the Here, t he defendant meet s the Dusky test. Dr. Comisk e y testified that

met whenever a defendant claims incompetency due to a mnesia. however, to adopt a specific factors test or, indeed, a ny rigid test that must be He then cites a litany of such factors considered by other courts. We decline, determining whether a loss of memory rendered the defendant incompetent. all relevant factors, identified by caselaw from other jurisdictions,” in The defendant contend s that the trial court erred in failing to “consider[ ]

Id. at 9 p. 4 4 - 95 (quoting State v. Brooks, 495 N.E.2d 407, 413 (Ohio 1986)).

circumstances of the crime with which he is charged.” possess es that ability only if he is able to remember the that the cases without exception reject the notion that an accused constitutes the ability to assist in one’s own d efense, . . . it is clear “A lthough there are no definitive judicial explanations of what p. 5 5

intoxication affected the defendant’s “ability to form the requisite mental state.” argu me nt at closing, and the jury was instructed th at it could consider whether state to commit the charged crimes. The defendant vigorously advanced that the same as that underlying his argument that he lacked the requisite mental giving rise to the defendant’ s claim of amnesia, namely, severe intoxication, is impaired his ability to raise a mental state defense. The very circumstance The defendant fares no better on his argument that his memory loss

defense. totality of this evidence corroborate s the victim’s story and belie s a co nsent injury – n amely, that he fell – which the physician found implausible. The the explanation given by the defendant to his examining physician for his neck assault; the removal of items from the victim’s home following the assault; and injuries to the victim; the victim’s demeanor at the hospital fo llowing the by police in the early morning following the assault; the documented facial to the defendant’s neck that was still bleeding when the defendant was stopped evidence of: forced entry into the vict im’s home; the documented stab wound the [victim’s] version [of events].” The circumstantial evidence included offenses “prevented him from raising a . . . consent defense” or “challeng[ing] we reject hi s argument that his inability to recall the time period of the charged Given the strength of the circumstantial evidence against the defendant,

Rinchack, 820 F. 2d at 1 p. 5 570.

explanation. incriminating circumstantial evidence in this case has an innocent exculpatory information. There is no . . . suggestion that . . . the appear to be any real possibility the amnesia is “locking in” able to remember if he did not suffer from amnesia, there does not [W]hile we can never know for sure what [the defendant] might be

1 p. 5 557 (11 th Cir 1987): issue could supply. As the court stated in United States v. Rinchack, 820 F. 2d presence in the victim’s home that an intact recollection of the time period at defendant does not, however, suggest any plausible explanation for his evidence of the charged offenses consisted of the victim’s testimony. T he evidence as to the charged offenses.” Rather, he asserts, the State’s only established his presence at the scene of the crime, “there was no forensic The defendant argues, however, that although forensic evidence

United States v. Andrews, 4 p. 6 69 F.3d 1113, 1121, 1120 (7th Cir. 2006). against the defendant was “both overwhelming and scientific in nature.” defendant] from raising any tenable defense” have failed where the evidence of the crime, was very strong. Claims that “amnesia has prevented [th e against the defendant, including his DNA and person al effects left at the scene 6

DALIANIS, C.J.