case concerns two issues:' whether under RCW
10.77.060(1)(a) the trial court erred, during trial, in not
ordering a third competency hearing after a jury had
previously found the defendant competent to stand trial, and
what deference, if any, is given to the trial court when it
does not sua sponte order a competency hearing. Matthew
McCarthy's appellate counsel contends that McCarthy's
mental health deteriorated and that the trial court erred in
not sua sponte ordering another competency evaluation either
before or during McCarthy's third strike burglary trial.
A jury found McCarthy guilty of first degree burglary, and he
was sentenced to life in prison as a most persistent
offender. The Court of Appeals engaged in what the parties
characterize as an independent review of the record, held that the
trial court should have ordered another evaluation, and
vacated the conviction. The State petitioned for review. We
reverse the Court of Appeals. The proper standard of review
is abuse of discretion, and the trial court did not abuse its
discretion when it did not sua sponte order a competency
evaluation based on the evidence presented during the
criminal proceedings. We reverse and remand to the Court of
Appeals for consideration of the remaining issues raised in
McCarthy's personal restraint petition.
AND PROCEDURAL HISTORY
September 21, 2014, McCarthy approached a stranger's home
under a mistaken belief that he would find his ex-wife within
the home. He forced his way into the home and pushed the
occupant against the wall. He returned twice the next
evening: the first time once again looking for his ex-wife
and the second time looking for his cell phone. Out of these
events, the State charged McCarthy with first degree burglary
predicated on assault. The State notified him that this was a
most serious offense and that he was facing life in prison
without parole due to his criminal history.
to McCarthy's arraignment, his public defender, Kari
Reardon, expressed to the court that she had reason to doubt
McCarthy's competency to stand trial. The trial court
ordered a competency evaluation and stayed the proceedings.
McCarthy objected to the initiation of competency proceedings
against his will because he believed himself to be competent.
Dr. Daniel Lord-Flynn conducted an evaluation and diagnosed
McCarthy with bipolar disorder with nonbizarre delusions,
various substance abuse disorders. Dr. Lord-Flynn initially
found McCarthy had a detailed understanding of the legal
proceedings against him and the ability to assist in his own
defense, and he tentatively believed McCarthy was competent
to stand trial. After receiving more information from
attorney Reardon, Dr. Lord-Flynn changed his opinion and
concluded that McCarthy was incompetent to stand trial as he
could not assist in his own defense. Based on Dr.
Lord-Flynn's opinion, the trial court ordered a 90-day
competency restoration period.
maintained he was competent and requested a second opinion,
which resulted in the appointment of Dr. Debra Brown. Dr.
Brown evaluated McCarthy and found him incompetent to stand
trial because of his inability to work with Reardon. After
the first 90-day restoration treatment, Dr. Lord-Flynn
changed his conclusion and found McCarthy capable of
assisting in his own defense but only with another attorney.
The trial court held another hearing and, based on the
conflicting evidence, ordered a second 90-day competency
the second restoration treatment, Dr. Lord-Flynn, with Dr.
Brown observing, evaluated McCarthy again. At this interview,
McCarthy spoke about the case and his defense, indicated he
understood the charges and what the prosecutor needed to
prove, and again expressed that he did not trust Reardon to
be his attorney. Dr. Lord-Flynn added a diagnosis of
antisocial personality disorder but concluded McCarthy was
competent to stand trial. The trial court then ordered a jury
trial to determine if McCarthy was competent.
different judge presided over the competency trial. During
that trial, McCarthy testified that he believed he was
competent but agreed there may have been reasons to doubt
competency earlier in the case. Both experts testified about
their opinions, including that they both found McCarthy
suffered from bipolar disorder with paranoid, nonbizarre
delusions and irrational thought, but they differed as to
whether he was competent. Dr. Brown discussed McCarthy's
conspiracy theories and inability to trust his attorney. She
opined that because McCarthy's version of the facts did
not make sense, that he thought others were out to get him,
and that his asserted defense was not viable, he could not
assist his attorney in his own defense and, thus, was not
competent. She also testified that while testifying that day,
McCarthy still exhibited signs of paranoia and delusions.
Lord-Flynn disagreed, testifying that McCarthy was calm when
he testified and his behavior was dramatically different from
previous interactions. Dr. Lord-Flynn explained that
McCarthy's bipolar disorder was being treated, he was
taking his medications, and Dr. Lord-Flynn had found him
competent. He testified McCarthy was intelligent and at the
time was able to understand the consequences of his different
legal options and could assist in his defense. The jury found
McCarthy competent to stand trial. At his arraignment
following the verdict, McCarthy pleaded not guilty. The court
then allowed Reardon to withdraw as counsel and agreed to
appoint another public defender.
McCarthy's next hearing, in front of the same judge as
the competency trial, the court heard McCarthy's motion
to proceed pro se with the potential to have Dennis Dressier
as standby counsel. McCarthy indicated he wanted to proceed
pro se because of governmental misconduct and harassment
within the jail. The trial court inquired into McCarthy's
education, familiarity with the law, and his understanding of
the consequences. The court asked if Dressier had any input.
Dressier indicated that he had read McCarthy's filings
with the court and stated that he had "seen a lot
worse" from lawyers and that McCarthy had been diligent
in learning how to handle the matters. 4 Verbatim Report of
Proceedings (VRP) (May 13, 2016) at 709. The trial court
granted McCarthy's request, finding McCarthy knowingly,
voluntarily, and intelligently waived his right to an
attorney, and Dressier was appointed in limited scope as
standby counsel. The State raised concerns about delusions
resurfacing based on McCarthy's beliefs that his ex-wife
was working in the county jail mail room and that his jailers
were out to get him. The judge stated,
I understand the State's concern. We went through a whole
competency trial. You were found to be competent. In
listening to you today, you don't sound a whole lot
different than you did at the competency trial. You seem to
understand the process, the procedure, where you are in this
case, and it seems that you have some defense. Whether or not
it's a defense that other people would choose is a
I think what we'll do is have you come back to check on
you, though, to make sure you're doing okay. If there
does appear to be issues of competency, then we might have to
start this whole thing over again.
4 VRP (May 13, 2016) at 716.
subsequent proceedings, in front of different judges,
McCarthy continued to express delusional beliefs and file
corresponding motions. Although McCarthy indicated that the
court was to monitor his mental health, no one questioned
McCarthy's competency. In a petition for a writ of habeas
corpus, McCarthy alleged his jailers were harming him with
toxic fumes, prohibiting him from reviewing his discovery.
The court held a later hearing with jail staff testifying to
address McCarthy's allegations within the jail but twice
delayed ruling on the petition for writ of habeas corpus. The
record does not contain a subsequent hearing on these
allegations of the toxic fumes.
pretrial hearing, the parties discussed the witnesses
McCarthy wanted to call and why, among other pretrial issues.
McCarthy continued to allege that there was a conspiracy
between his ex-wife and the burglary victim and that there
had been governmental misconduct. He also had rejected the
State's plea deal, which would have allowed him to avoid
persistent offender status by pleading guilty to a nonstrike
point, the State again alerted the court that there may be
"slippage" due to McCarthy's delusions about
the toxic fumes and other governmental misconduct. VRP (July
15, 2016) at 96. The trial court expressed concerns about
McCarthy's ability to represent himself, and McCarthy
then agreed to allow Dressier to be his counsel for ...