State of New Hampshire v. Michael R. Smith

II. Whether the superior court sustainably exercised its discretion when it did not order a new competency inquiry based on the defendant’s conduct at trial, where he represented himself, demonstrating a clear understanding of the proceedings but also making questionable strategic decisions and engaging in behavior that was unusual, although largely consistent with his pretrial behavior.

III. Whether, even if this Court does find that the superior court unsustainably exercised its discretion in finding the defendant competent to stand trial, the superior court can use the voluminous available evidence about the defendant’s competence at and around the time of trial to hold a hearing to determine (1) whether a retrospective determination of Smith’s competency to stand trial is possible; and (2) if so, whether Smith was competent at the time of trial.

IV. Whether the superior court committed plain error or unsustainably exercised its discretion when it ordered the defendant to pay restitution based on bank account and credit union records that were admitted as exhibits at trial and reflected how much of the victim’s money the defendant stole.

Michael Smith was charged with two class A felony counts of theft by unauthorized taking and three class A felony counts of attempted theft by unauthorized taking. Following a five-day jury trial, the jury convicted Smith of all five charges. App. 123. For each of the five counts, the jury separately found that Mr. Smith intentionally took advantage of his elderly victim. App. 124-26.

The trial court (Howard, J.) sentenced the defendant to two concurrent stand committed state prison sentences of 10 – 20 years, three concurrent fully suspended sentences of 10 – 20 years consecutive to the stand committed sentences, and to pay restitution of $495, 043.53. App. 381-89.

This appeal followed.

In September 2017, Mary Kibbe’s health was deteriorating as she approached her 98th birthday. T 52, 98-99. 1 The defendant moved into Mary’s large house in Rochester to help care for Mary. T 66-67, 98-100. Shortly thereafter, Smith began sending forged letters to the financial institutions that held Mary’s accounts to get control of her assets. T 256-60. Smith also pushed away Mary’s other friends, Timothy Richards and Natalie Wensley, making it almost impossible for them to visit Mary. T 66-75, 98-102.

Northeast Credit Union (“NECU”) investigator Christopher Roux testified that Smith added himself to Kibbe’s NECU accounts in October of 2017. T 191. After adding himself to the accounts, Smith wrote himself two $7, 500 checks from the accounts and transferred the entire remaining balance of the account, $452, 392.51, to an account solely controlled by Smith, closing out Mary’s NECU accounts. T 209-11; Stat. App. 4, 8. Roux testified that he received a call from law enforcement informing him that an investigation was being conducted relating to Smith’s control of Mary’s assets, and that, as a result, NECU froze Smith’s account when there was approximately $182, 000 left in it. T 180-81.

At trial, the State introduced records from Citizens Bank. T 260-61; Stat. App. 3-11. Smith was added to Mary’s Citizens Bank account on October 24, 2017. T 269.

The statement for the second half of October and the first half of November showed $19, 839.89 in spending from Mary’s Citizens Bank account. T 274; Stat. App. 4. The November/December period showed $21, 156.97 in spending. T 276; Stat. App. 8. There was no more spending while Smith was in control of the account. T 273-79.

In November 2018, Smith’s defense counsel moved for an evaluation to determine Smith’s competency to stand trial, raising the following points: (1) that Smith appeared to have paranoid delusions regarding being under surveillance, the police breaking into his house to destroy exculpatory evidence, and his online accounts being hacked; (2) that Smith’s “paranoia made it impossible for him to focus on legal relevant issues”; (3) that Smith had filed incoherent pro se pleadings; and (4) Smith had a history of mental health diagnoses. S.App. 3-4. The superior court ordered an evaluation of Smith’s competence. S.App. 6-7. The Office of the Forensic Examiner (OFE) evaluated Smith and found him feigning incompetence, or “malingering, ” and competent to stand trial. S.App. 17. The OFE’s evaluation was filed with the superior court. S.App. 11-17. Defense moved for a second competency evaluation, and the superior court authorized it. S.S.App. 1-4. In its motion for a second determination, defense counsel stated its “concerns with the evaluation of” the OFE, noting that the OFE relied “on a video taken from 2017 as evidence that [Smith] is currently malingering, ” and that the “OFE evaluation does not comment at all on Mr. Smith’s diagnosis of Parkinson’s disease and its potential effect on his cognitive abilities.” S.S.App. 2. After the second competency evaluation, the parties had a status conference on July 3, 2019 to discuss competency. Attorney Betancourt, representing the defendant, stated: So Your Honor, our evaluator acquitted [sic] this competency evaluation. He also concurred that Mr. Smith is competent... so we’re not asking for a further hearing.... We’re assigned [sic] to a judicial finding that Mr. Smith is competent. So then I think the next step is just scheduling trial dates.

CONF 2-3. 2 The superior court indicated that it would, “do an order.” CONF 3. At that hearing, neither the defense, the State, nor the court indicated that they harbored any continuing doubts about Smith’s competency to stand trial. CONF 2-3.

Following the July 3 hearing, the superior court issued the following order: “The defendant does not contest competency after receiving his own expert report. Accordingly, the defendant is found competent.” S.App. 19. The superior court also issued a later order stating that, in its July 3, 2019 order, the superior court had “determined Mr. Smith to be competent to stand trial, ” and stating again later that Smith “has been determined by the court to be competent to stand trial.” S.App. 25-26.

Smith exercised his right to represent himself after colloquy with the superior court in a hearing on status of counsel on January 13, 2020. SOC 14. Smith represented himself at what was scheduled as a final pre-trial conference on February 21, 2020. FPT 2. Following that conference, the superior court entered an order directing an evaluation of both Smith’s competence to self-represent and his competence to stand trial. S.App. 20- 28. The order quoted the concerns raised by defense counsel in the November 2018 motion, explicitly adopted those concerns as its own, and indicated concern based on Smith’s pro se pleadings and his oral presentation that Smith would have difficulty with the tasks required to represent himself. S.App. 24-28.

Dr. Gregory DeClue evaluated Smith and concluded that Smith was competent to stand trial, although not competent to represent himself. S.App. 31-32. After Dr. DeClue’s report was submitted to the court, the superior court held another hearing to again solicit the parties’ views on competence where it interacted with and directly questioned Smith. SH 6. The court asked whether anyone was challenging the finding that Smith was not competent to represent himself. SH 6. Attorney Betancourt represented that the superior court should consult with Smith directly, which the court did, indicated that it planned to hold a hearing and then “make a determination about whether you can represent yourself.” SH 6. The defendant responded by taking issue with Dr. DeClue’s report and comparing DeClue’s methodology with that of the other examiners. SH 6- 7.

Responding to Smith, the superior court said that it would ask Attorney Betancourt to “work with Mr. Smith” to decide the legal question of whether there are separate standards for competence to stand trial and competence to represent yourself under New Hampshire law. SH 8. After Attorney Betancourt agreed, the court had another dialogue with Smith, in which Smith affirmatively agreed with a plan that would find him competent to stand trial. SH 6-9.

While Attorney Betancourt, in his role as standby counsel, had suggested the possibility of a competency hearing earlier in the hearing, neither Attorney Betancourt, the Defendant, nor the State indicated any opposition to the court’s proposed resolution of the questions of the defendant’s competence to stand trial and ability to represent himself. SH 8.

After legal briefing on the issue of competency to self-represent, the superior court once again entered an order finding Smith competent to stand trial. App. 16. The court also indicated that it would use the expert reports to continue to monitor Smith’s competency throughout the remainder of the litigation. App. 16.

At trial, Smith continued to represent himself. T 1. He delivered an opening statement in which he admitted that he had done “what [he] did” without clarifying what that was, T 42, and declared that he had had a “sexual relationship” with Mary, T 35. He cross-examined witnesses, attacking their credibility; T 79-81, 123-24, 528-30; undermining inferences the jury might draw from their testimony; T 485-95; and confronting them with discovery; T 507-11, 596-97. He called and examined witnesses of his own, focusing his presentation on the execution of a search warrant at Mary’s residence, where Smith was staying. See generally T 607-80. Smith emphasized that the State’s investigators had unplugged security cameras that Smith had set up, see, e.g., T 613-17, and that three days passed between when the evidence was seized from the residence and when it was logged into the evidence locker at the Attorney General’s Office, see, e.g., T 653-54, 678-80.

In the face of various evidence introduced by the State tending to show that Smith had forged documents, including a videotaped confession in which Smith admitted forging one of the documents; Ex. 3; T 131; see also T 153-54, 448-85, 496-506, 577-80; Smith admitted that he had forged at least one of the documents in question; T 83-84, 580-81. In his closing argument, Smith succinctly stated the essence of the charges against him, T 710, summarized witness testimony, T 716-18, pointed out holes in the evidence against him, T 706, and emphasized testimony that cast doubt both on the authorship of forged documents, T 723, and on the State’s explanation for unplugging his security cameras, T 719-20. The superior court did not order another competency evaluation based on Smith’s trial conduct.

Significant time and energy was spent evaluating Smith’s competency in the superior court. The superior court authorized three competency evaluations, all of which found the defendant competent to stand trial, and found the defendant competent to stand trial consistent with those evaluations.

II. The superior court again complied with due process and sustainably exercised its discretion when it decided not to order another competency inquiry based on Smith’s conduct at trial. While Smith undoubtedly made some ill-advised choices representing himself, those were largely consistent with previous behavior that had not rendered him incompetent to stand trial. Smith also repeatedly indicated his rational and factual understanding of the proceedings, and that he had the mental acuity to consult with an attorney about the case. III. Even if this Court finds that the superior court abused its discretion in its handling of Smith’s competency to stand trial, this Court should remand for the superior court to use the voluminous evidence available about Smith’s competence to determine whether a retrospective determination of Smith’s competency is possible and, if so, whether the Smith was competent to stand trial.

IV. The defendant failed to preserve his restitution argument, the superior court’s restitution order was more than supported by the record, and the superior court neither committed plain error nor abused its discretion when it ordered the department of corrections to monitor the status of money held in a frozen account in Smith’s name.

“The mental competence of a criminal defendant is an absolute basic condition of a fair trial, ” emanating from the due process guarantees of the State and Federal Constitutions. State v. Zorzy, 136 N.H. 710, 714 (1993) (internal quotation marks omitted); see also U.S. CONST. amend. XIV; N.H. CONST. pt. I, art. 15. “As the trial court is in the best position to evaluate a criminal defendant’s behavior, ” this Court reviews a trial court’s competency decisions “for an unsustainable exercise of discretion.” State v. Salimullah, 172 N.H. 739, 749 (2020).

A “defendant enjoys [a] fundamental substantive guarantee not to be tried if he is unable to ‘consult with his lawyer with a reasonable degree of rational understanding’ or he does not have ‘a rational as well as factual understanding of the proceedings against him.’” State v. Bertrand, 123 N.H. 719, 725 (1983) (quoting Dusky v. Untied States, 362 U.S. 402, 402 (1960)). That substantive guarantee is safeguarded by “the procedural advantage that if sufficient doubt exists of [the defendant’s] competency to stand trial the trial court must sua sponte inquire into his competency.” Id. (quoting Acosta v. Turner, 666 F.2d 949, 954 (5th Cir. Unit B 1982)). If a bona fide doubt about the defendant’s competency is raised, the trial court is required “to inquire as to the defendant’s competency, ” otherwise the court “deprives him ‘of his constitutional right to a fair trial.’” Id. (quoting Pate v. Robinson, 383 U.S. 375, 385 (1966)).

In November 2017, defense counsel raised a bona fide doubt regarding the defendant’s competency. The superior court therefore “inquire[d] as to the defendant’s competency, ” Bertrand, 123 N.H. at 725, by ordering an evaluation of Smith’s competency. The OFE evaluation revealed that Smith was malingering and competent to stand trial, and was filed with the superior court. When defense counsel expressed concern about that evaluation, the superior court approved funds for another evaluation to be conducted by an expert chosen by the defendant. And, once the results of that second evaluation had been received, the superior court held a hearing to solicit the parties’ views on competency. There, then-defense counsel Attorney Betancourt stated the following: So Your Honor, our evaluator acquitted [sic] this competency evaluation. He also concurred that Mr. Smith is competent... so we’re not asking for a further hearing.... We’re assigned [sic] to a judicial finding that Mr. Smith is competent. So then I think the next step is just scheduling trial dates.

CONF 2-3. In other words, the second evaluation conducted by the defendant’s chosen expert concluded that the defendant was competent to stand trial. None of Attorney Betancourt, counsel for the State, or the superior court itself indicated that it continued to harbor doubts about Smith’s competency. CONF 2-3. Following the hearing, the superior court entered an order finding the defendant competent. S.App. 19.

At that point, there was no longer a bona fide doubt as to Smith’s competency to stand trial. Whether a bona fide doubt as to the defendant’s competency exists “is an objective test to determine whether the facts before the trial judge create a reasonable doubt in his mind as to a defendant’s competency to stand trial, ” and only requires that the trial judge “act reasonably on the objective facts put before him.” United States ex rel. Mireles v. Greer, 736 F.2d 1160, 1166 (7th Cir. 1984) (internal quotation marks omitted) (quoting Reese v. Wainwright, 600 F.2d 1085, 1092 (5th Cir.) cert. denied 444 U.S. 983 (1979)). Whether a bona fide doubt exists may vary based on the evidence in front of the trial court at the time. See id. (“We know of no reason why a doubt as to competency once raised in the mind of the trial court cannot be subsequently erased upon receipt of new evidence.”). Thus, “the necessity for a competency hearing varies in each case, depending on a number of factors concerning defendant’s behavior and inferences which might be drawn from psychiatrists’ reports.” United States v. Nichols, 56 F.3d 403, 414 (2d Cir. 1995) (quoting Greer, 736 F.2d at 1165).

Bertrtand did not hold otherwise. While this Court emphasized in that case that “[t]rial judges must not be permitted to abdicate to psychiatrists their judicial responsibility to determine whether a criminal defendant is competent to stand trial, ” and spoke of the need for “an evidentiary hearing, ” Bertrand was focused on the process necessary when the defendant’s conduct during trial raised a bona fide doubt about his competency. See 123 N.H. at 725-26. Bertrand did not address, and had no occasion to address, whether and under what circumstances pretrial doubts about competency might be resolved. In Bertrand, the trial court failed to comply with its sua sponte obligation to inquire into the defendant’s competency when his trial conduct raised a bona fide doubt about his competency and defense counsel requested a hearing, indicating that counsel did not believe the defendant was competent. Id. In contrast, here, the bona fide doubt occurred before trial, and by the time the superior court found Smith competent it had received one expert evaluation finding Smith competent, learned that another expert had found him competent, and learned that defense counsel, who had raised the doubts in first place, now agreed that Smith was competent to stand trial. Bertrand simply does not address what process, if any, is necessary under those circumstances. Bertrand did explain why an evidentiary hearing was necessary: to give the defendant an “opportunity to challenge the basis for [expert] opinions” about his competency. 123 N.H. at 726. Here, the superior court did not deny Smith that opportunity. It allowed Smith to obtain a second expert opinion to try to challenge the OFE’s expert report. Defense counsel obtained the report and represented that it found the defendant competent, consistent with the OFE’s report. Smith, through counsel, then represented to the court that the defense had no intention of challenging the expert opinions finding Smith competent, and were resigned to a judicial finding of competence. Smith therefore had the opportunity that Bertrand protects.

This case closely tracks the facts, not of Bertrand, but of Greer. There “the trial judge initially had a bona fide doubt concerning [the defendant’s] competence to stand trial but subsequently changed his mind.” 736 F.2d at 1166. The evidence that relieved the doubts about competency included two competency evaluations finding the defendant competent to stand trial and defense counsel’s specific representation that there was no need for further inquiry. See id. The Seventh Circuit specifically rejected the defendant’s argument that, once a bona fide doubt as to competency is raised, it cannot be erased, finding nothing in “the requirements of due process that renders an initial doubt irrevocable” and observing that “[a]ny other approach would be based upon a mechanical determination of the existence of a bona fide doubt.” Id.; see also United States v. Clark, 617 F.2d 180, 184 (9th Cir. 1980) (affirming a defendant’s conviction where the defendant had initially been found unfit to stand trial and committed to an institution and then re-examined by a team of psychiatrists who found him competent, even though there was no competency hearing held after the defendant’s release from the institution).

Similarly, here, the superior court’s bona fide doubts about Smith’s competence were not irrevocable. Between the initial bona fide doubts and the court’s order finding Smith competent, Smith had received two competency evaluations, both of which had found him competent, and his counsel had informed the court that there was no need for a further competency hearing. When the court issued its order finding Smith competent, any bona fide doubt about competency was gone, and no evidentiary hearing was necessary. “In deciding that an evidentiary hearing is unnecessary, a court may rely not only on psychiatrists’ reports indicating competency but also on its own observations of the defendant.” Nichols, 56 F.3d at 414 (citing Greer, 736 F.2d at 1165). To decide that an evidentiary hearing was unnecessary, the superior court had available the OFE’s report indicating competency, as in Nichols, defense counsel’s representation that a second expert report found the defendant competent, and a representation from defense counsel that he and his client were resigned to a judicial finding of competence. See id.; United States v. Collins, 949 F.2d 921, 926 (7th Cir. 1991) (finding the trial court “entitled to rely on [defense] counsel’s and [the defendant’s] own statements, that he was competent” and “entitled to draw inferences from the psychiatric evaluations”). The superior court did not err in relying on this information to enter a finding of competency without a competency hearing. In short, Smith received two forensic evaluations, both of which found him competent to stand trial. The trial court did not err in accepting this evidence and defense counsel’s representations and entering a finding that Smith was competent to stand trial.

After Smith represented himself at the final pretrial conference on February 21, 2020, the superior court ordered another competency evaluation. The order focused primarily on Smith’s competency to represent himself, but did also order a third evaluation of Smith’s competence to stand trial. Dr. DeClue evaluated the defendant and determined that Smith was competent to stand trial, but not competent to represent himself.

At the hearing, the court indicated that it planned to hold a hearing on competence and then “make a determination about whether you can represent yourself.” SH 6. The superior court explained:

Hampshire says we don’t have two separate standards, then I will make a finding that you are competent to represent yourself. I will also recommend that you at least have standby counsel who can give you advice if you need it. Does that make sense to you, Mr. Smith? THE DEFENDANT: That is what we was supposed to do in the first place.

THE COURT: Okay.

THE DEFENDANT: And that’s – THE COURT: So I’m THE DEFENDANT: -- that’s the avenue I thought we was going at.

SH 8.

While Smith took issue with Dr. DeClue’s report, SH 6-7, Smith’s dispute was with the finding that he was not competent to represent himself, not with the finding that he was competent to stand trial. That is clear from the hearing’s focus on Smith’s ability to represent himself and from Smith’s affirmative agreement to a plan that would find him competent to stand trial. The superior court also had the ability to, and did, directly question and interact with Smith and observe his responses. In those responses Smith ably pointed out the differences between the approaches of the various competency examiners, indicating his factual and rational understanding of the nature of the proceedings: I disagree with [Dr. DeClue’s] report itself. I didn’t — you know, the video —the video chat that me and the forensic psychologist had, it was impossible. ...

Then, in fact, the only person —the doctor out of Massachusetts, he spent over three hours with me and we talked and we did a lot of things. The State forensic was showing me these flashcards, and that was it. You know, it’s crazy how on —very different fo rensic examiner, how can you determine somebody’s capability when you got three different, you know, individuals doing it and they all have their own system. SH 6-7.

The superior court then entered the following order finding Smith competent to stand trial and competent to represent himself:

memoranda filed by the State and standby counsel, the court finds and rules that, because the defendant has been found by the court to be competent to stand trial, he is therefore competent to represent himself at this time. The court greatly appreciates the professional analyses of the Office of Forensic Examiner and Dr. DeClue. Their reports will provide effective guidance in monitoring the issue of competence as the litigation and trial develop.

App. 16. While the phrase, “because the defendant has been found competent by the court to stand trial, ” might conceivably be read to refer to the court’s previous finding, it is better read as the superior court finding Smith competent to stand trial in the moment. The order explicitly references consideration of the forensic evaluation performed by Dr. DeClue, a reference that would not make sense if the trial court was simply noting its previous competency finding. App. 16. The order also specifically notes that the reports of the OFE and Dr. DeClue will “provide effective guidance in monitoring the issue of competence as the litigation and trial develop.” App. 16. That indicates that the superior court was aware of and complying with its obligation to continually monitor the defendant’s competence to stand trial, not simply relying on an earlier determination.

As was the case with the superior court’s first determination, the court did not deny Smith the opportunity that Bertrand recognized “to challenge the basis for [expert] opinions” about his competency. 123 N.H. at 726. At the time of its second order finding Smith competent, the superior court had two expert evaluations finding Smith competent to stand trial and knew that defense counsel had a third expert evaluation finding the same. Smith also indicated that his issues with the third competency determination were related to the finding that Smith was not competent to represent himself (not with the finding that he was competent to stand trial) and Smith agreed to a plan that assumed his competence to stand trial. That objective evidence erased any bona fide doubt about Smith’s competency by the time the superior court issued its second order finding him competent, just as evidence erased doubts in Greer, Nichols, and Clark, discussed above. Smith received ample due process protection in accordance with Bertrand. The trial court’s competency determinations should therefore be affirmed.

The superior court properly exercised its discretion when it declined to order another competency inquiry based on Smith’s conduct at trial for three reasons: (1) at trial, Smith repeatedly demonstrated a factual and rational understanding of the proceedings; (2) some of the behaviors the defendant identifies as evidence of incompetence in his brief in this Court have rational explanations; and (3) the superior court closely monitored the competence issue, specifically indicating prior to trial that it would continue to monitor competence, and Smith’s trial conduct largely mirrored his pretrial conduct.

“As the trial court is in the best position to evaluate a criminal defendant’s behavior, [this Court] review[s] its decision for an unsustainable exercise of discretion.” Salimullah, 172 N.H. at 749. To be competent to stand trial a defendant must (1) “have a sufficient present ability to consult with and assist his lawyer with a reasonable degree of rational understanding” and (2) “have a factual as well as rational understanding of the proceedings against him.” Id. at 748 (citing State v. Kincaid, 158 N.H. 90, 93 (2008)); see also Dusky, 362 U.S. at 402 (setting forth the same test under the 14th Amendment to the U.S. Constitution); Hart v. Warden, N.H. State Prison, 171 N.H. 709, 724 (2019) (applying test in the context of a defendant who exercised his right to represent himself). “In determining whether to order a competency hearing, the trial court should consider evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competency.” Zorzy, 136 N.H. at 715 (internal quotation marks omitted) (quoting Bertrand, 123 N.H. at 725).

In Hart, this Court explained how to apply the Dusky standard when dealing with a defendant’s ability to consult with counsel where a defendant exercises his right to represent himself, stating that “the focus of the Dusky formulation is on a particular degree of mental functioning that the ability to consult with counsel helps identify.” 171 N.H. at 723.

During trial, Smith repeatedly demonstrated that he had that particular degree of mental functioning necessary to consult with counsel, as well as “a factual as well as rational understanding of the proceedings against him.” Salimullah, 172 N.H. at 748.

First, Smith clearly and succinctly stated the thrust of the conduct he was accused of. See T 710 (“In the case, I’m accused or the Defendant is accused of forgery and stealing.”). Second, he argued that Tim Richards and Natalie Wensley, witnesses the State had called as friends of the victim, Mary Kibbe, may not have been as close to Mary as they had testified to being. See, e.g., T 79-81 (emphasizing the Richards was not as close to Mary as he had testified); T 123-24 (noting that Natalie Wensley did not go to Mary’s funeral, visit Mary’s grave, or send flowers). Third, Smith attempted to undermine the credibility of State witness Shannon Swett, who testified that she saw Smith and others forging documents, by pointing out that Swett was using illegal drugs at the time of the activities about which she was testifying, T 528-30, and that Swett may have participated in any forgery, pointing out Swett’s signature on some of the documents, T 531. Next, Smith correctly realized that Officer Geoff Moore had testified that a security sweep of the house that the officers had conducted prior to the search warrant execution had largely eliminated the possibility of danger in the house, and Smith emphasized that Moore’s testimony cast doubt on Investigator Calice Ducey’s explanation that she had ordered Smith’s camera system to be turned off based, in part, on security concerns. See T 719-20. In his closing Smith also accurately summarized witness testimony, T 716-18, and pointed out holes in the State’s evidence that Smith’s conduct was unauthorized, albeit in his idiosyncratic speech pattern, T 706 (“At no time in the video that they showed of Mr. Smith going into the bank under disguise, in a hurry, or to take something with[out] a permission.”).

At different points throughout the trial, Smith’s cross-examination questions indicated that he had not only received and read the discovery materials produced by the State, but that, when a witness had given multiple statements, Smith had compared those statements, understood the differences between them, and tried, albeit unsuccessfully, to question the witness about those differences. T 507-11, 596-97. Each of those actions demonstrated that Smith understood the charges against him, understood the relevance and purpose of the respective points in the trial, and could not only consult with, but could play the role of his own advocate in attempting to undermine the State’s evidence against Smith. That Smith ultimately did not perform to the same standard as an attorney in that role is unsurprising, but is not evidence of Smith’s incompetence. See Hart, 171 N.H. at 719 (acknowledging that a defendant’s “choice [to represent himself] may ultimately be to his own detriment.” (cleaned up)).

Smith’s competency was perhaps most clearly demonstrated in his cross-examination of Matthew Pickering, the State’s expert witness in computer forensics. On direct, Pickering had testified that he had analyzed laptops and hard drives that had been seized from the defendant’s residence, analyzed them, and found Microsoft Word versions of some of the forged documents with metadata indicating that the documents were created under a computer profile in Smith’s name after Mary Kibbe’s death. T 448-85. On cross, Smith made a series of relevant points: that Pickering could not know that the person who holds the license was actually using the computer when the document was created; that it is possible to manipulate metadata; that it is possible to remotely control a computer; and that it is possible to hack into a computer and then manipulate it. T 485-95. Smith recapped the cross in his closing argument. T 723. That cross-examination of Pickering demonstrated that Smith had “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” State v. Champagne, 127 N.H. 266, 270 (1985) (quoting Dusky, 362 U.S. at 402). Smith understood Pickering’s testimony, understood how it related to the charges against him, understood that the jury was likely to take the inference from Pickering’s testimony that Smith had personally drafted the allegedly forged documents, and correctly identified several ways to cast doubt on the validity of that inference.

While Smith’s trial strategy was ultimately ineffective, and his obsessive focus on the circumstances of the search warrant execution was unproductive, Smith’s general strategic decisions were not irrational. First, it was not irrational for Smith to admit to forging some documents. The State presented overwhelming evidence that at least some documents were forged, including: (1) testimony from the purported author of some of the forged documents that he did not, in fact, write them, T 577- 80; (2) testimony from the notary who purportedly notarized some of the forged documents that she did not, in fact, notarize them, T 153-54; (3) testimony from a justice of the peace whose crimper was used on some of the forged documents that he did not authenticate the documents and that his crimper had been stolen, T 496-506; (4) testimony from a witness who had seen Smith and others signing documents purporting to “witness” Mary Kibbe’s signature well after she had died, T 522-26; (5) Pickering’s testimony that Microsoft Word versions of the forged documents had been found on Smith’s computer, authored by Smith’s computer profile, with creation dates after Mary Kibbe’s death, T 448-84; and (6) a videotaped confession in which Smith admitted forging one of the documents in question, Ex. 3, T 131. In the face of that evidence, it was not irrational for Smith to admit forging at least some documents and to rely on other arguments for a not guilty verdict. Certainly, given the overwhelming nature of the State’s evidence that Smith forged documents, Smith’s decision to admit some forgery is not, by itself, evidence of Smith’s incompetence to stand trial.

The appellant’s brief characterizes Smith’s opening statement as “an apparent mea culpa, ” noting that Smith stated, “The prosecution wants everybody to think I did what I did. Well, God knows, and God forgave me for everything.” T 42. But, while Smith does seem to be admitting something, it is far from clear what, exactly, he is admitting. See T 581 (Smith emphasizing that he had only apologized for forging one letter, not others). As noted above, admitting to forging at least some of the documents in question would have been rational, and it is not clear that Smith did anything more than that.

In his brief in this Court, the defendant attempts to analogize his admission to forgery to the defendant’s admission in Bertrand that he set the fire. See App. Br. 31. But Smith’s admission is different for two reasons. First, unlike in Bertrand, where the only evidence that the defendant acted intentionally in setting the fire was the defendant’s own testimony, overwhelming evidence showed that Smith forged at least some of the documents in question. 123 N.H. at 723. Second, in Bertrand this Court emphasized the “unexpected” nature of the defendant’s admission, while, here, Smith’s behavior at trial was largely consistent with the pretrial behavior. Id. at 725-26. Smith’s admission is closer to Salimullah, where the defendant made the “volitional decision... to rip up the sentence review form in open court, ” which this Court understood as an indication that the defendant was upset with his sentence and therefore possessed a factual and rational understanding of the proceedings against him. 172 N.H. at 750. Similarly, Smith’s admission to forging documents constitutes evidence that he understood the strength and import of the State’s evidence.

Second, while Smith’s obsessive focus on the circumstances of the search warrant execution was undoubtedly ill-advised, some level of focus on those circumstances was likely rational. The investigators and police officers conducting the search shut off Smith’s system of security cameras, T 305-06, 613-16, and three days passed from when the evidence was seized and when it was logged into evidence at the Attorney General’s Office, T 433, 653, 679. The witnesses had explanations for those facts which the jury could have, and apparently did, find persuasive, but the defendant’s decision to use those facts to try to cast doubt both on the authenticity of the evidence collected during the search and on the motives and intentions of the State more broadly, was likely rational on its own terms.

In Zorzy, the defendant had been charged with perjury. 136 N.H. at 714. At a bail hearing, the State presented evidence that the defendant had contacted the foreman of the grand jury that had indicted the defendant on the perjury charge to support the State’s request to increase the defendant’s bail. Id. at 712. The State’s evidence indicated that the defendant had contacted the foreman at the foreman’s home. Id. at 715. At the hearing, the defendant spent time arguing that he had not realized he was contacting the foreman at the foreman’s home, but this Court observed that, while that defense was “irrelevant” to the substance of the State’s bail argument, it was nonetheless “not irrational.” Id. If the defendant’s argument in Zorzy about whether he realized that his illegal contact with the grand jury foreman occurred at the foreman’s home was not irrational, then Smith’s argument that the State’s search warrant execution cast doubt on the evidence collected during the search and the State’s broader motives was certainly not irrational either.

Even Smith’s assertions, in his opening argument and in his cross- examinations of Tim Richards and Natalie Wensley, that he had a “sexual” relationship with the victim, T 35, are neither obviously irrational nor evidence of incompetence. Any defense Smith offered would have to rely, in some part, on the idea that Mary Kibbe wanted Smith to have her estate, and emphasizing the closeness of their relationship was a rational way to try to make that point.

The superior court closely monitored competence. It ordered three competency evaluations, including one sua sponte, in which the court issued a thoughtful order discussing much of the relevant precedent on competency. S.App. 20-28. The superior court’s final order finding Smith competent to stand trial also included the following language: The court greatly appreciates the professional analyses of the Office of Forensic Examiner and Dr. DeClue. Their reports will provide effective guidance in monitoring the issue of competence as the litigation and trial develop.

App. 16.

In United States v. Vachon, the First Circuit upheld a district court’s refusal to order a new competency hearing based on the defendant’s trial conduct where: [T]he district court not only observed the appellant first hand... but also paid close attention to the competency issue. It ordered the competency hearing sua sponte. And the judge remained alert to the possibility that later events, at trial, could lead it to change its mind. 869 F.2d 653, 655 (1st Cir. 1989). The First Circuit went on to hold that the defendant’s “behavior was not so radically different from his pretrial behavior as to undermine the court’s earlier determination that the behavior was willful or to require the court sua sponte to order additional competency hearings.” Id. Similarly, here, the superior court ordered three competency evaluations, including one sua sponte, and “remained alert, ” affirmatively indicating it would utilize those evaluations to continue to monitor the defendant’s competency.

Also, like in Vachon, Smith’s trial behavior “was not so radically different from his pretrial behavior.” Id.; cf. Taylor v. Nutting, 133 N.H. 451, 454 (1990) (explaining that the law of the case doctrine prevents reexamining the same appellate issue more than once). Smith’s religious references are completely consistent with Smith’s pretrial behavior. S. App. 27. Next, Smith’s opening mentions of Kibbe’s vehicles and his nephew’s theft charges are consistent with issues that Smith focused on before trial. App. 33 (including South Carolina witnesses who might have knowledge about Kibbe’s vehicles and his nephew’s charges on Smith’s witness list). The same was true of Smith’s statements that someone had hacked his computer system and downloaded documents to or from his security video. S.App. 3.

Accordingly, the superior court’s finding that Smith’s trial conduct did not require another competency evaluation was not error.

New Hampshire allows retrospective competency determinations. See State v. Haycock, 146 N.H. 5, 9 (2001) (finding that the trial court did not apply the correct standard in determining competency and remanding for the trial court to consider “whether a retrospective determination [of competency] based on the application of the correct standard can be made”); State v. Stiles, 123 N.H. 680, 685 (1983) (same). Other than finding that such retrospective determinations are possible where “there is a record of a pretrial competency hearing, ” Haycock, 146 N.H. at 8, this Court has not addressed under what circumstances those retrospective determinations can be made.

While they are generally disfavored, courts in other jurisdictions allow retrospective competency determinations in appropriate circumstances. See, e.g., Commonwealth v. Simpson, 428 Mass. 646, 653- 54 (Mass. 1999) (noting that a “retrospective determination of competence is not generally favored” but allowing a retrospective competency hearing to proceed based on the fact that the trial judge observed the defendant and the defendant’s own words were in the trial transcript); United States v. Giron-Reyes, 234 F.3d 78, 83 (1st Cir. 2000) (remanding for the district court to determine whether a “meaningful retrospective hearing can be held” and, if such a hearing can be held and the defendant is “found to have been competent, ” allowing the district court to reinstate the defendant’s conviction); Acosta, 666 F.2d at 956 (remanding for the district court to determine “whether an adequate and meaningful” retrospective competency determination can be made, and, if so, to determine whether the defendant was competent); Pate v. Smith, 637 F.2d 1068 (6th Cir. 1981) (“It is firmly established in this circuit that a retrospective determination may satisfy the requirements of due process if it is based on evidence related to observations made or knowledge possessed at the time of the trial.”). When remanding for a retrospective competency determination, appellate courts generally instruct trial courts to engage in a two-part inquiry, first determining whether a retrospective competency determination is possible, and, then, if so, determining whether the defendant was competent at the time of trial. See, e.g., Acosta, 666 F.2d at 956 (remanding for the district court to “first determine whether an adequate and meaningful” retrospective determination can be made, and then, if so, to determine the defendant’s competency at the time of trial). The Eighth Circuit has explained that “[a] ‘meaningful’ determination is possible where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant’s condition at the time of the [trial].” Reynolds v. Norris, 86 F.3d 796, 802 (8th Cir. 1996). It also enunciated the kinds of evidence that help make that determination: When determining whether a meaningful hearing may be held, we look to the existence of contemporaneous medical evidence, the recollections of non-experts who had the opportunity to interact with the defendant during the relevant period, statements by the d efendant in the trial transcript, and the existence of medical records.

Id. at 803.

Although courts vary in their wording and specifics, to determine whether a retrospective competency determination is possible, courts focus on the available potential evidence, including the medical evaluations of the defendant’s competence; other people’s opportunities to observe the defendant, including the trial judge, defense counsel, and counsel for the state; statements by the defendant in the trial transcript; the passage of time; and any other medical evidence. See Martin v. Estelle, 583 F.2d 1373, 1374 (5th Cir. 1978) (ordering the district court to focus its retrospective competency inquiry on “medical evidence, such as expert testimony from psychiatrists who have examined the defendant near the time of trial, ” “testimony of laymen who have interacted with the defendant contemporaneous with trial, ” and “the transcript of the trial itself”); Stokes v. United States, 538 F. Supp. 298, 307 (N.D. Ind. 1982), aff’d 703 F.2d 572 (7th Cir. 1983) (listing relevant evidence as “(1) the observations of the trial judge, (2) observations and opinion of trial counsel, (3) observations and opinion of prosecuting attorney, (4) psychiatric examinations conducted at or near the time of trial, (5) the trial record (especially where the defendant has testified on any issues), and (6) observations and opinions of other individuals who interacted with the defendant at or near the time of trial”).

It has been less than two years since Smith’s trial and this case has overwhelming evidence of Smith’s retrospective competency, specifically: (1) three competency evaluations of Smith; (2) reports from two evaluations in the record; (3) three different superior court judges who had the opportunity to interact with Smith; (4) the robust record of Smith’s statements at trial in his own defense; (5) additional transcripts of pre-trial hearings and the sentencing hearing where Smith represented himself; (6) Smith’s pretrial and post-trial pro se pleadings; (7) the observations of Attorney Betancourt, who served as defense counsel and then stand by counsel, counsel for the State, and other laypeople who had the opportunity to observe Smith during trial.

While this Court declined to allow a retrospective competency determination in Bertrand, this case has significantly more evidence to inform a retrospective competency determination, including the large volume of statements made by Smith on the record in his pro se pleadings, in his own defense at pre- and post-trial hearings, and in his own defense at trial. 123 N.H. at 727.

Because of the voluminous evidence in the record about Smith’s competency to stand trial, if this Court determines that the superior court unsustainably exercised its discretion in its handling of Smith’s competency, this Court should remand for the superior court to hold a hearing to determine: (1) whether a retrospective determination of Smith’s competency is possible; and, if so, (2) whether Smith was competent to stand trial at the time of trial.

This Court should affirm the superior court’s restitution order. The defendant did not preserve his restitution arguments and the superior court neither committed plain error nor abused its discretion because the record supports the restitution order.

The defendant failed to make his restitution argument to the superior court, and therefore did not preserve it for this court’s review. See State v. Batista-Salva, 171 N.H. 818, 822 (2019) (“Generally, we do not consider issues raised on appeal that were not presented to the trial court.”). Despite receiving the State’s proposed restitution figure in the State’s Sentencing Memorandum, App. 352, and listening to discussion of the issue of restitution at the sentencing hearing, the defendant did not address the issue of restitution at all in his sentencing memorandum or at the sentencing hearing. See App. 364-80; ST 37 (“THE COURT: Mr. Smith, do you wish to comment at all on that particular issue [of restitution]? MR. SMITH: No, Your Honor.”). Smith raised the issue of restitution for the first December 3, 2022, App. 400-04, more than seven weeks after the superior court’s sentencing order, which included the restitution award, was entered. See N.H. R. CRIM. PRO. 43 (requiring motions to reconsider to be filed within ten days of the order of decision).

An argument not preserved for this Court’s review can only be reviewed for plain error. See State v. Pinault, 168 N.H. 28, 33 (2015); SUPREME CT. R. 16-A. For this Court to find plain error: “(1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights.” State v. Mueller, 166 N.H. 65, 68 (2014) (quotation omitted). If all three of these conditions are met, this Court “may then exercise [its] discretion to correct a forfeited error only if the error meets a fourth criterion: the error must seriously affect the fairness, integrity or public reputation of judicial proceedings.” Mueller, 166 N.H. at 68 (quotation omitted). The plain error rule “is used sparingly, however, and is limited to those circumstances in which a miscarriage of justice would otherwise result.” Id. (quotation omitted).

The superior court did not abuse its discretion, and certainly did not commit plain error, when it ordered restitution. “Determining the appropriate restitution amount is within the discretion of the trial court.” State v. Gedney, 174 N.H. 508, 510 (2021) (citing State v. Schwartz, 160 N.H. 68, 71 (2010)). Where there is a dispute about the factual basis of restitution, “the State must prove by a preponderance of the evidence that the victim’s loss or damage is causally connected to the offense and bears a significant relationship to the offense.” State v. Moore, 173 N.H. 386, 390 (2020). “In reviewing the trial court’s ruling, [this Court] accept[s] its factual findings unless they lack support in the record or are clearly erroneous. Id.

The trial court did not abuse its discretion by ordering Smith to pay $495, 043.53 in restitution to Mary Kibbe’s estate. As the State explained at the sentencing hearing, that amount was based on: (1) the amounts that Smith spent out of Mary Kibbe’s Citizens Bank account, over which Smith gained control; (2) amounts that Smith spent for his own purposes out of Kibbe’s NECU account; and (3) amounts that Smith transferred from Kibbe’s NECU accounts to an account solely controlled by Smith. ST 35- 36.

Smith controlled Kibbe’s Citizens Bank account for two periods that reflected withdrawals and spending: the October-November period and the November-December period. Records for October-November showed $19, 839 in spending and records for November-December showed $21, 156 in spending, for a total of $40, 995 in spending out of Mary Kibbe’s account while Smith was in control of it. Stat. App. 4, 8. 3 Smith wrote two $7, 500 checks to himself out of Mary Kibbe’s NECU account on November 18, 2017. T 208-09; Stat. App. 18. On the same day, Smith transferred a total of $452, 390.51 from Kibbe’s NECU accounts to an account that was under Smith’s sole control. T 210-11; Stat. App. 16.

In total, that reflects $40, 955 plus $15, 000 plus $452, 390.51 equals $508, 345.51, more than the court’s $495, 043.53 order. These amounts are supported by the bank records admitted as exhibits at trial. See Stat. App. 4, 8, 16, 18. Although the record does not reflect the precise calculation, presumably the reduction from the amount of spending performed by Smith, $508, 345.51, to the ultimate restitution amount, $495, 043.53, reflects giving Smith credit for spending $13, 301.98 that was or could have been related to his care for Mary.

It's certainly true that the defendant must “have a meaningful opportunity to point to... deficiencies” in the evidence used at sentencing. State v. Naughton, 139 N.H. 73, 78 (1994). But Smith did have that opportunity to “point to... deficiencies” in the State’s evidence about restitution. he filed a sentencing memorandum and made an argument at the sentencing hearing, but at no point in either did Smith dispute the State’s restitution calculation or present an alternate calculation. See App. 364-80; ST 21-34.

Furthermore, Naughton’s general principle allowing the defendant to contest the State’s sentencing evidence does not mean that there is no role for the department of corrections (“DOC”) to play in determining the restitution amount that a defendant owes at any one time. New Hampshire law specifically tasks the DOC with enforcing restitution orders, a process which necessarily requires the DOC to maintain records of how much money has been paid towards the restitution amount. See RSA 651:64, I (“The time and method of restitution payments or performance of restitution services shall be specified by the [DOC].”). This Court has upheld a trial court sentence that ordered the defendant “to pay restitution to the victim in the future up to a maximum of $10, 000 for counseling costs, ” leaving the actual amount of the counseling costs to be determined later. State v. Oakes, 161 N.H. 270, 286 (2023). Similarly, here, the superior court found that the total amount of restitution that Smith was required to pay was $495, 043.53, and let the DOC determine how much of that total Smith would be required to pay based on which amounts, if any, were being credited to the victim’s estate.

It appears from the record that the confusion results from the approximately $182, 000 that Christopher Roux testified was frozen in the defendant’s account at NECU. T 180-81. A pleading from the civil dispute over Mary Kibbe’s estate stated that the estate was able to attach $184, 800.22, pending resolution of the criminal proceedings against Smith, an amount that comports with Roux’s recollection of “approximately $182, 000.” App. 313-14.

It was entirely appropriate, then, for the superior court both to include the frozen assets in the restitution award, and to direct the DOC to monitor those amounts. The court’s sentencing order requiring Smith to pay that frozen money to Mary Kibbe’s estate will allow NECU to unfreeze the assets and release the funds to Kibbe’s estate. Effectively, if and when that money is transferred from the account in Smith’s name to the estate, Smith will be paying restitution. But the transfer will likely happen without any involvement from Smith and may happen without his awareness, so the DOC could have failed to credit Smith for that payment. This Court should uphold the superior court’s restitution award, which is more than supported by the record, and in any event does not reflect an error that, is plain, affects substantial rights, and reflects a miscarriage of justice. See Mueller, 166 N.H. at 68.

For the foregoing reasons, the State respectfully requests that this Honorable Court affirm the judgment below.

The State requests a fifteen-minute oral argument.

I, Kevin P.J. Scura, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 9, 498 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.

November 28, 2023 /s/ Kevin P.J. Scura Kevin P.J. Scura

I, Kevin P.J. Scura, hereby certify that a copy of the State’s brief shall be served on, counsel for the defendant, through the New Hampshire Supreme Court’s electronic filing system.

November 28, 2023 /s/ Kevin P.J. Scura Kevin P.J. Scura