COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank Argued at Norfolk, Virginia
CATHERINE ROTHWELL, S/K/A CATHERINE C. ROTHWELL MEMORANDUM OPINION * BY v. Record No. 1342-98-1 JUDGE ROBERT P. FRANK JANUARY 4, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Joseph A. Leafe, Judge
Michael J. Woods for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Catherine C. Rothwell (appellant) appeals her convictions of
two counts of child endangerment pursuant to Code § 40.1-103 and
four counts of child cruelty pursuant to Code § 18.2-371.1 1 after
a bench trial. On appeal, she contends that the trial court erred
in denying her a continuance for a second psychological
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 1 The Court notes that the final sentencing order entered by the trial court erroneously reflects that the appellant was found guilty of six counts of child endangerment pursuant to Code § 40.1-103. Accordingly, this case is remanded to the trial court for the sole purpose of amending the final order to reflect that the appellant was found guilty of two counts of child endangerment pursuant to Code § 40.1-103 and four counts of child cruelty pursuant to Code § 18.2-371.1. evaluation, denying her due process. We disagree and affirm
appellant's convictions.
FACTS
A licensed clinical psychologist, Dr. David Keenan, evaluated
appellant's competency to stand trial in September 1997. Keenan
concluded appellant understood the charges against her. He also
found appellant possessed an adequate understanding of courtroom
terms and procedures and that she had the capacity to understand
the roles of the various courtroom personnel. Although concerned
that appellant's condition might deteriorate under stress, Keenan
concluded: "[G]iven the present positive relationship with her
attorney, I would says [sic] that she presently meets competency
to stand trial criteria at the most basic of levels."
The trial court appointed a new attorney for appellant on
January 23, 1998. On May 29, 1998, counsel for appellant asked
for a psychological re-evaluation to determine appellant's
competency to stand trial. Counsel proffered that when he spoke
with appellant briefly she seemed fine. After meeting with
appellant for a longer period of time, he stated, "But on my last
visit, I talked with her for about two hours and I found her train
of thought to be somewhat erratic. I don't think she understands
the seriousness of these charges."
Counsel proffered that appellant represented that she had
evidence that would assist in her defense, but when he asked her
for it, she said her sister had it and that the sister would
- 2 - present it at trial. Counsel represented that appellant gave him
the names of six witnesses, but that all of the witnesses were
unfavorable, some of them witnesses for the Commonwealth.
Appellant told counsel that "her case [was] in God's hands, and
that God's going to look out for her." Counsel concluded:
I just feel, from my perspective, Your Honor, as her counsel, that I feel that . . . I need a second opinion on her evaluation since I am new to this case . . . . I just feel, as a safety precaution for myself and [appellant], that she should be reevaluated by another psychologist who can see if they come to the same conclusion.
The trial court denied the appellant's motion for a "second
opinion" at a hearing on May 29, 1998. Then, at trial, appellant
renewed her motion and requested a continuance to obtain the
"second opinion." The trial court denied the motion for a
continuance and tried the case on that date.
ANALYSIS
"Whether to grant or deny a continuance of a trial is a
matter that lies within the sound discretion of a trial court, and
its ruling will not be reversed on appeal unless it is plainly
wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450 S.E.2d
146, 151 (1994) (citing Lomax v. Commonwealth, 228 Va. 168, 172,
319 S.E.2d 763, 765 (1984); Parish v. Commonwealth, 206 Va. 627,
631-32, 145 S.E.2d 192, 195 (1965)).
Code § 19.2-169.1(A) provides in part:
If . . . the court finds, upon hearing evidence or representations of counsel for
- 3 - the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed.
At a hearing to determine competency to stand trial "the
party alleging that the defendant is incompetent shall bear the
burden of proving by a preponderance of the evidence the
defendant's incompetency." Code § 19.2-169.1(E). "[T]he standard
for competence to stand trial is whether the defendant has
'sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding' and has 'a rational
as well as factual understanding of the proceedings against him.'"
Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v.
United States, 362 U.S. 402 (1960)). A trial court's
determination of a defendant's competency to stand trial is a
question of fact. See Delp v. Commonwealth, 172 Va. 564, 570-71,
200 S.E. 594, 596 (1939). "[A] factual finding made by the trial
court is binding on appeal unless plainly wrong." Naulty v.
Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986)
(citing McFadden v. Commonwealth, 225 Va. 103, 108, 300 S.E.2d
924, 926 (1983)).
Appellant's counsel argued the following as the basis for his
concern. First, appellant said her sister had evidence to assist
with appellant's defense but her sister did not contact counsel.
Second, appellant gave counsel the names of witnesses who were
- 4 - adverse to appellant's case. Third, appellant indicated the case
was in God's hands. Counsel further expressed concern that
appellant's train of thought was somewhat erratic, and he did not
think appellant understood the seriousness of the charges.
During the court's colloquy with appellant, it was clear that
appellant was competent to stand trial. She understood the
court's questions and properly responded to the questions. She
was cogent and responsive. During the trial, appellant's
testimony was detailed. She clearly remembered names, dates, and
information in detail. She fully participated in the trial. The
trial judge had the opportunity to observe and evaluate appellant
during the trial. Appellant's counsel made no additional comments
on his client's competency once the trial began.
Appellant did not assert to the trial court that her mental
state had deteriorated since the September 1997 evaluation, but
rather argued that she wanted a second opinion.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank Argued at Norfolk, Virginia
CATHERINE ROTHWELL, S/K/A CATHERINE C. ROTHWELL MEMORANDUM OPINION * BY v. Record No. 1342-98-1 JUDGE ROBERT P. FRANK JANUARY 4, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Joseph A. Leafe, Judge
Michael J. Woods for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Catherine C. Rothwell (appellant) appeals her convictions of
two counts of child endangerment pursuant to Code § 40.1-103 and
four counts of child cruelty pursuant to Code § 18.2-371.1 1 after
a bench trial. On appeal, she contends that the trial court erred
in denying her a continuance for a second psychological
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 1 The Court notes that the final sentencing order entered by the trial court erroneously reflects that the appellant was found guilty of six counts of child endangerment pursuant to Code § 40.1-103. Accordingly, this case is remanded to the trial court for the sole purpose of amending the final order to reflect that the appellant was found guilty of two counts of child endangerment pursuant to Code § 40.1-103 and four counts of child cruelty pursuant to Code § 18.2-371.1. evaluation, denying her due process. We disagree and affirm
appellant's convictions.
FACTS
A licensed clinical psychologist, Dr. David Keenan, evaluated
appellant's competency to stand trial in September 1997. Keenan
concluded appellant understood the charges against her. He also
found appellant possessed an adequate understanding of courtroom
terms and procedures and that she had the capacity to understand
the roles of the various courtroom personnel. Although concerned
that appellant's condition might deteriorate under stress, Keenan
concluded: "[G]iven the present positive relationship with her
attorney, I would says [sic] that she presently meets competency
to stand trial criteria at the most basic of levels."
The trial court appointed a new attorney for appellant on
January 23, 1998. On May 29, 1998, counsel for appellant asked
for a psychological re-evaluation to determine appellant's
competency to stand trial. Counsel proffered that when he spoke
with appellant briefly she seemed fine. After meeting with
appellant for a longer period of time, he stated, "But on my last
visit, I talked with her for about two hours and I found her train
of thought to be somewhat erratic. I don't think she understands
the seriousness of these charges."
Counsel proffered that appellant represented that she had
evidence that would assist in her defense, but when he asked her
for it, she said her sister had it and that the sister would
- 2 - present it at trial. Counsel represented that appellant gave him
the names of six witnesses, but that all of the witnesses were
unfavorable, some of them witnesses for the Commonwealth.
Appellant told counsel that "her case [was] in God's hands, and
that God's going to look out for her." Counsel concluded:
I just feel, from my perspective, Your Honor, as her counsel, that I feel that . . . I need a second opinion on her evaluation since I am new to this case . . . . I just feel, as a safety precaution for myself and [appellant], that she should be reevaluated by another psychologist who can see if they come to the same conclusion.
The trial court denied the appellant's motion for a "second
opinion" at a hearing on May 29, 1998. Then, at trial, appellant
renewed her motion and requested a continuance to obtain the
"second opinion." The trial court denied the motion for a
continuance and tried the case on that date.
ANALYSIS
"Whether to grant or deny a continuance of a trial is a
matter that lies within the sound discretion of a trial court, and
its ruling will not be reversed on appeal unless it is plainly
wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450 S.E.2d
146, 151 (1994) (citing Lomax v. Commonwealth, 228 Va. 168, 172,
319 S.E.2d 763, 765 (1984); Parish v. Commonwealth, 206 Va. 627,
631-32, 145 S.E.2d 192, 195 (1965)).
Code § 19.2-169.1(A) provides in part:
If . . . the court finds, upon hearing evidence or representations of counsel for
- 3 - the defendant or the attorney for the Commonwealth, that there is probable cause to believe that the defendant lacks substantial capacity to understand the proceedings against him or to assist his attorney in his own defense, the court shall order that a competency evaluation be performed.
At a hearing to determine competency to stand trial "the
party alleging that the defendant is incompetent shall bear the
burden of proving by a preponderance of the evidence the
defendant's incompetency." Code § 19.2-169.1(E). "[T]he standard
for competence to stand trial is whether the defendant has
'sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding' and has 'a rational
as well as factual understanding of the proceedings against him.'"
Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v.
United States, 362 U.S. 402 (1960)). A trial court's
determination of a defendant's competency to stand trial is a
question of fact. See Delp v. Commonwealth, 172 Va. 564, 570-71,
200 S.E. 594, 596 (1939). "[A] factual finding made by the trial
court is binding on appeal unless plainly wrong." Naulty v.
Commonwealth, 2 Va. App. 523, 527, 346 S.E.2d 540, 542 (1986)
(citing McFadden v. Commonwealth, 225 Va. 103, 108, 300 S.E.2d
924, 926 (1983)).
Appellant's counsel argued the following as the basis for his
concern. First, appellant said her sister had evidence to assist
with appellant's defense but her sister did not contact counsel.
Second, appellant gave counsel the names of witnesses who were
- 4 - adverse to appellant's case. Third, appellant indicated the case
was in God's hands. Counsel further expressed concern that
appellant's train of thought was somewhat erratic, and he did not
think appellant understood the seriousness of the charges.
During the court's colloquy with appellant, it was clear that
appellant was competent to stand trial. She understood the
court's questions and properly responded to the questions. She
was cogent and responsive. During the trial, appellant's
testimony was detailed. She clearly remembered names, dates, and
information in detail. She fully participated in the trial. The
trial judge had the opportunity to observe and evaluate appellant
during the trial. Appellant's counsel made no additional comments
on his client's competency once the trial began.
Appellant did not assert to the trial court that her mental
state had deteriorated since the September 1997 evaluation, but
rather argued that she wanted a second opinion. There was no
evidence that appellant's mental condition had changed since
Keenan's evaluation.
Appellant did not satisfy the requirement of Code
§ 19.2-169.1 because she did not show probable cause that she
lacked substantial capacity to understand the proceedings or to
assist counsel in her defense.
"'Probable cause, as the very name implies, deals with
probabilities. These are not technical; they are the factual and
practical considerations in every day life on which reasonable and
- 5 - prudent men, not legal technicians, act.'" Derr v. Commonwealth,
242 Va. 413, 421, 410 S.E.2d 662, 666 (1991) (quoting Saunders v.
Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977)).
Probable cause is "determined by objective facts," not the
"subjective opinion" of a police officer. Klinger v. United
States, 409 F.2d 299, 304 (8th Cir. 1969). Therefore, it follows
that probable cause cannot be based on the subjective conclusions
of counsel.
We cannot say, as a matter of law, that the trial court's
finding that there was no probable cause to believe that appellant
was incompetent to stand trial was plainly wrong.
The record supports the trial court's ruling to deny
appellant's motion for a second psychiatric opinion. Accordingly,
the trial court did not abuse its discretion when it denied
appellant's motion for a continuance.
For these reasons, we affirm the appellant's convictions.
Affirmed and remanded.
- 6 -