April 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
RAMANAND DURGA, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FO-18-319-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 9, 2008
Before Judges Axelrad and Messano.
We granted the State's motion for leave to appeal from the October 10, 2007, order of the trial judge that required "the State to pay the cost of defendant's psychiatric evaluation in order to ascertain [defendant's] competency to stand trial." Because N.J.S.A. 2C:4-5 provides the exclusive method by which the court may order that a defendant be examined for purposes of determining his competency to stand trial, and because those provisions do not require the State to pay for the examination, we reverse and remand the matter for further proceedings consistent with this opinion.
The procedural history and the facts giving rise to the appeal are essentially undisputed. On May 15, 2007, defendant Ramanand Durga was charged in a warrant complaint with one count of contempt of a prior domestic violence order, N.J.S.A. 2C:29-9(b). On May 24, 2007, a second warrant complaint was issued charging him with a subsequent violation of the same statute.
On June 21 and again on June 28, 2007, hearings were scheduled on the complaints, but on both occasions they were adjourned. Subsequent proceedings, held on August 9, 2007, revealed that defendant had been admitted as an inpatient to Carrier Clinic and received treatment for what his attorney characterized at a sidebar conference with the judge as "alcoholism and this psychosis." Defense counsel advised the judge that he needed a further continuance, noting that defendant claimed to be "hearing voices," and was having "pyscho[tic] or schizophrenic events" presently in the courtroom. Defense counsel believed defendant was incompetent to stand trial on the complaints.
The judge concluded that she would order a "Richard Hall Mental Health Center evaluation," and that it would be incumbent upon defense counsel to schedule the appointment. In open court, the judge placed her instructions on the record and advised defendant of the requirement to attend the evaluation. She told him, "Your attorney is going to set up a psychiatric evaluation for you . . . . You must go. If you don't go I may find you in contempt of this Court's order . . . and that could lead to you being jailed." Defendant acknowledged the instructions.
Defendant next appeared in court on September 27, 2007, once again represented by counsel but before a different judge. Defense counsel indicated that "Richard Hall" was contacted but that it would not perform the psychiatric evaluation because it "doesn't do psych eval's." Defense counsel told the judge that the prior judge's staff had advised him to have defendant arrange for his own evaluation, but that his client "doesn't have the financial wherewithal to do it on his own." The judge then addressed defendant and told him, "You can get a psychiatric evaluation or I can lock you up and the State will pay for your psychiatric examination."*fn1
The judge then discussed future calendaring of the case, and addressed the prosecutor as follows:
Well help me out here, [prosecutor]. It seems by way of interpreting this situation, the defendant has advanced willingly or otherwise his competence to stand trial as an issue. Competence to stand trial being raised, whose obligation is it to go forward?
Does the State have the obligation to go forward and establish that he's competent to stand trial?
The prosecutor argued that defendant had not been evaluated and that an examination should be completed "so we can see if he was competent." The judge took a short recess during which time he examined "[N.J.S.A.] 2C:4-4." When the proceedings resumed, the judge inquired of defense counsel, "based upon your contact and conversation with [defendant], is there a bonafide basis to believe there is an issue in regard to his competency to stand trial?" Defense counsel responded affirmatively.
Citing N.J.S.A. 2C:4-5(a), the judge then noted that the prior judge, on her own motion, had ordered a psychiatric evaluation, though she "did not appoint a psychologist or psychiatrist to engage in that [examination]." He continued,
As this is a criminal matter, the onus is not upon the defendant to prove his incompetency to stand trial . . . .
[R]ather, a fair reading of our [statutes] shows that once a bonafide dispute as to competency has been raised the burden is upon the State to establish competency to stand trial by a preponderance of the credible evidence.
Citing State v. Otero, 238 N.J. Super. 649 (Law Div. 1989), the judge concluded that since the State had the burden of proof, "the State will have the defendant examined." He agreed to stay his order if the State filed an interlocutory appeal, which it did by motion for leave to appeal which we granted.
The judge correctly noted that N.J.S.A. 2C:4-4(a) provides that "[n]o person who lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures." And, the judge correctly concluded that when competency is a disputed issue, the State must prove, by a preponderance of the evidence, that a defendant is competent to stand trial. State v. M.J.K., 369 N.J. Super. 532, 547 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). However, the proceedings had not progressed to the point requiring either the State to bear the burden of proof or the judge to determine the issue of defendant's competency to stand trial.
Otero, supra, only concerned itself with the quantum of proof necessary for the State to sustain its burden. It did not address, however, the issue presented here which is limited solely to the procedural mechanism set forth by statute to obtain a qualified report that can be used to determine whether a defendant is or is not competent to stand trial. In that regard, N.J.S.A. 2C:4-5 provides a roadmap for assembling the necessary information to reach the determination as to competency, and it sets forth the responsibilities borne by the parties, or the court, as the case may be.
The statute provides that "[w]henever there is reason to doubt the defendant's fitness to proceed, the court may on motion by the prosecutor, the defendant or on its own motion, appoint at least one qualified psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant." N.J.S.A. 2C:4-5(a)(emphasis added). Here, the first judge determined there was reason to doubt defendant's competency, and, on her own motion ordered the evaluation. However, it was incumbent upon the judge to "appoint" the professional either,
[f]rom a list agreed to by the court, the prosecutor and the defendant; or [a]greed to by the court, prosecutor and defendant. [N.J.S.A. 2C:4-5(a)(1) and (2)].
The statute expressly provides that in the alternative, "the court may order examination of a defendant for fitness to proceed by the Department of Human Services." Ibid. An examination conducted by the Department does not require commitment of the defendant because the statute provides for the examination to take place "at a jail, prison or psychiatric hospital," without admission, unless the professional "determines that hospitalization is clinically necessary to perform the examination." Ibid. The logical underpinnings of the procedure, the subject of a 1998 amendment to the statute, are found in its ability to "assure [the court] that there is always one non-partisan expert witness." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:4-5 (2007).
We need not go further in any detailed discussion of the balance of the statute. It suffices to say that it sets forth procedures for the contents of the evaluative report, N.J.S.A. 2C:4-5(b), for subsequent court orders in the event the defendant refuses to cooperate with the evaluation, N.J.S.A. 2C:4-5(c), and for circulation of the report. N.J.S.A. 2C:4-5(d).
The importance of having a disinterested report is made clear by N.J.S.A. 2C:4-6(a). It provides that the issue of competency "shall be determined by the court," and "the report filed pursuant to "[N.J.S.A.] 2C:4-5" "may" be the "basis" for the court's determination of the issue, "[i]f neither the prosecutor nor counsel for the defendant contests" it. N.J.S.A. 2C:4-6(a). Thus, when the statutory procedures for an examination as to competency are initiated, whether the issue is first raised by motion of the State, the defendant, or the court, the same end product should result, i.e., an evaluative report prepared by a professional that is not retained by either side.
We do not intend to imply that in any particular case the determination as to competency may be raised or resolved in a different fashion. For example, if a defendant in fact prepared an evaluation report in the first instance, and if the prosecutor accepted its conclusions and decided not to conduct any further evaluation, the judge could conduct the competency hearing required by N.J.S.A. 2C:4-6 utilizing such a report. If the judge was satisfied with the professional's qualifications and the contents of the report, he could then determine whether defendant was incompetent and unable to not proceed. We find nothing in the statutes or case law that would prohibit such a procedure. Under those circumstances, the report would be akin to one prepared pursuant to N.J.S.A. 2C:4-5(a)(2), that is a report authored by a professional "[a]greed to by the court, prosecutor and defendant."
But, such was not the case in this instance. The State never sought a determination as to defendant's competency, defendant never offered any medical reports on the issue, instead relying upon defense counsel's representations, which we assume were honest and well-intentioned, but were clearly not sufficient to replace a professional's report. Having decided on its own initiative to initiate the competency evaluation, the court was required to follow the statutory procedures we have discussed, and it was error for the judge to order the prosecutor to have defendant evaluated at the State's expense when the statute provides for an examination to be conducted by the Department of Human Services upon the court's order.
We therefore find it necessary to reverse the order under review. In recognition of the amount of time that has since passed, we leave the final resolution of the issue to the sound discretion of the trial judge. On remand, the judge should determine whether "there is reason to" still "doubt  defendant's fitness to proceed." N.J.S.A. 2C:4-5(a). If so, he should appoint a "psychiatrist or licensed psychologist" to conduct an evaluation and furnish a report to the court as to defendant's competency, thereafter employing the necessary statutory procedures to finally determine the issue. Ibid.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.