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State v. McCarthy

Supreme Court of Washington, En Banc

August 8, 2019

MATTHEW SEAN McCARTHY, Respondent. In the Matter of the Personal Restraint of MATTHEW SEAN McCARTHY, Petitioner.

          JOHNSON, J.

         This 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[1] 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[2] 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.[3]


         On 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.

         Prior 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, [4] and 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.

         McCarthy 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 restoration period.

         After 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.

         A 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.

         Dr. 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.

         At 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 separate question.
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.

         In 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.

         At a 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 offense.

         At this 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 ...

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