PRESENT: All the Justices 

LAM DANG 

 OPINION BY 

v. Record No. 130553 JUSTICE ELIZABETH A. McCLANAHAN 

 JANUARY 10, 2014 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 A jury convicted Lam Dang of one count each of murder and 

violation of a protective order. Relying on Code § 19.2-169.1, 

Dang argues on appeal that the circuit court erred in failing to 

order a second competency evaluation after his counsel 

discovered new information regarding Dang's life history and 

physical trauma he suffered as a child. We reject Dang's 

argument and will affirm his convictions. 

I. BACKGROUND 

A. Competency Evaluation Report 

 After Dang was charged with murder and felony protective 

order violation for the death of Nguyet Lu, the Fairfax County 

Juvenile and Domestic Relations Court granted Dang's motion for 

a competency evaluation pursuant to Code § 19.2-169.1. On 

January 12, 2011, Dr. Kristen A. Hudacek, a court-appointed 

psychologist, submitted an evaluation of competency report in 

which she found Dang competent to stand trial. Her evaluation 

was based on the background information provided to her by Dang 

and his counsel as well as her own clinical observations. 
2

Because Dang's preferred speaking language is Vietnamese, an 

interpreter assisted in translation during Dr. Hudacek's 

evaluation. Dang, who was 40 years old at the time of the 

evaluation, informed Dr. Hudacek that he was born in South 

Vietnam and moved to Philadelphia at the age of 17. He denied 

having any prior psychological problems or history of 

hospitalization for mental health related issues. Dr. Hudacek 

noted that despite her inability to gain additional information 

from collateral sources, she "believes the information is an 

accurate portrayal of [Dang's] current functioning as it relates 

to the question of competency to stand trial." 

 In evaluating whether Dang was competent to stand trial, 

Dr. Hudacek considered Dang's understanding of the legal 

process, appreciation of the legal process as it applied to his 

case, capacity to communicate with his counsel, and capacity to 

make decisions. According to Dr. Hudacek, Dang understood he 

was charged with "[m]urder, killing someone, second degree" and 

could receive "up to 40 years in jail."1

 He also understood the 

roles of the jury, the judge, his lawyer and the Commonwealth's 

Attorney. Dang understood his attorney was "working on his 

behalf" and "the importance of relaying information about the 

 

1

 Although the Commonwealth ultimately pursued a conviction 

for murder in the first degree, Dang gave the correct sentence 

for murder of the second degree. See Code § 18.2-32. 
3

facts of his case." Dang stated "he would speak to his attorney 

if he wanted to relay information about any concerns he had 

during a hearing or trial." Although "Dang was mostly able to 

provide a rational, logical, coherent explanation of facts that 

would aid his attorney in defending him," Dr. Hudacek noted that 

he "does become very focused on providing information that may 

paint him in a favorable light." According to Dr. Hudacek, Dang 

"was able to discuss his legal situation in a manner that 

demonstrated weighing his options and basing decisions upon the 

potential best outcome given the circumstances and after 

conferring with counsel." 

 Dr. Hudacek stated that while Dang's speech was coherent, 

"he frequently shifted topics to the time of the offense and 

facts related to his relationship with the alleged victim." For 

example, prior to the start of the interview, Dang "immediately 

began speaking about his case after [Dr. Hudacek] introduced 

herself" and "was asked three times to stop talking until his 

interpreter arrived." The information Dang related to Dr. 

Hudacek "included facts about the case that would have been best 

kept for discussion with his attorney or following full 

disclosure of the nature and purpose of the interview." Finding 

it necessary to repeatedly re-direct Dang to the questions 

posed, Dr. Hudacek noted Dang "seemed highly focused on 
4

providing 'his side of the story'" and/or "worried about his 

situation." 

 Dr. Hudacek reported that Dang "was highly concerned about 

going to trial, as he believed [his life] would be over." He 

presented "in a manner that appear[ed] related to anxiety about 

the alleged charges and potential sentence he is facing." Dr. 

Hudacek explained that his situational anxiety "does not suggest 

that [he] suffers from a major mental illness that would affect 

abilities relevant to competency to stand trial." Although she 

noted that Dang tended to "become anxious and excitable" in 

persisting to relay facts regarding his case, his impulse in 

this regard "is consistent with most defendants who face legal 

charges." 

 In determining that Dang was competent to stand trial, Dr. 

Hudacek stated that "it does not appear that [Dang] currently 

suffers from a mental illness and/or cognitive or intellectual 

impairment." Furthermore, Dr. Hudacek did not believe that 

"Dang's capacity to communicate with counsel is impaired by 

mental illness." Based on Dr. Hudacek's evaluation and the 

information available to her, she concluded that "Dang has 

sufficient, present ability to consult with his attorney with a 

reasonable degree of rational understanding," "possesses a 

rational as well as factual understanding of the proceedings 
5

against him," and "is able to assist in preparing for his own 

defense." 

B. Motion for Second Competency Evaluation Before Trial 

 Dang's counsel moved for a second competency evaluation on 

December 1, 2011, eleven months after the first evaluation and 

four days prior to his trial, which was scheduled to begin on 

December 5.2 According to the motion, on November 30, 2011, 

Dang's counsel learned "extensive information about Mr. Dang's 

history, family, and childhood which dramatically differs from 

the versions previously provided by Mr. Dang" giving counsel 

reason to believe that Dang "has over a 30 year history of 

suffering from developmental disabilities, cognitive functioning 

difficulties, effects of traumatic brain injury, and mental 

illness including but not limited to post-traumatic stress 

disorder." 

 At the hearing on the motion, counsel stated that the new 

information regarding Dang's history was discovered when plans 

were being made for Dang's family to travel from Pennsylvania 

for the trial. In particular, Mrs. Hoa Pham, who identified 

 

2

 The motion was filed on Thursday and noticed for hearing 

on the Friday before the trial's commencement on the ensuing 

Monday. The motion also included a request for a second 

evaluation of sanity at the time of the offense. The request 

for the evaluation of sanity at the time of the offense is not 

before us on appeal. 
6

herself as Dang's biological mother, told defense counsel that 

beginning at the approximate age of 6 years, Dang was subjected 

to repeated physical assaults from teenagers and young adults as 

a result of "his appearance as someone who was American."3 Mrs. 

Pham said she found Dang "beaten in the head with rocks," and 

"there were times when she was afraid his brain was going to 

come through his skull." By Mrs. Pham's account, the beatings 

continued until Dang was in sixth or seventh grade at which 

point he stopped going to school. She believed the history of 

physical trauma to Dang adversely affected his mental health and 

potentially caused traumatic brain injury impairing his 

cognitive functioning. Counsel also informed the court that 

Dang's sister "confirmed that she saw Mr. Dang exhibiting 

symptoms of mental illness or similar trauma as well." 

 

3

 Defense counsel explained that Dang had informed counsel 

he lived with an adoptive family and had never met his 

biological mother. While he had been reluctant to share names 

and contact information of any family members, he eventually 

provided counsel with the name of a family member from whom 

counsel obtained contact information for Mrs. Pham. Counsel 

initially relied upon a family member to relay information from 

Mrs. Pham, who resides in Philadelphia and speaks only 

Vietnamese. However, when the defense team sentencing advocate 

spoke directly to Mrs. Pham, by telephone through an 

interpreter, she provided new information. According to Mrs. 

Pham, Dang's father was an American serviceman, and when Dang 

began attending school, he "began to appear to be more American 

physically." 
7

 As a result of the information learned from Mrs. Pham and 

Dang's sister, counsel spoke with the mental health professional 

who conducted the evaluation of Dang's sanity at the time of the 

offense. According to counsel, this individual indicated that 

such trauma could support a potential diagnosis of posttraumatic stress disorder and, in a severe case, it would not be 

uncommon for the patient to develop delusions of his life to 

replace the actual traumatic life history. Counsel also 

informed the court that communications with Dang had been 

difficult during the three months defense counsel had been 

working with him, that Dang was repeatedly confused and unable 

to recall recent discussions, and unable to focus conversations 

on issues that are relevant. Based on the newly reported 

history of head trauma and counsel's concern that Dang might be 

"operating under some delusion," counsel asked for an evaluation 

to determine "whether [Dang] is able to effectively communicate 

with us and assist us in preparing his defense." 

 Finding no probable cause to believe that Dang "lacks 

substantial capacity to understand the proceedings against him 

or to assist his attorney in his own defense," the circuit court 

denied the motion. The court explained that the report of the 

competency evaluation previously conducted indicated that Dang 

understood the proceedings against him and was able to assist 

his attorney in his own defense. According to the court, while 
8

there appeared to be "an element of a lack of candor," it found 

no basis in the record to grant the motion. 

C. Plea Colloquy4

 On the morning of trial, the circuit court conducted a plea 

colloquy with Dang, in which Dang pled not guilty to the charges 

of murder and violation of a protective order.5 During the 

colloquy, Dang provided his name and date of birth, denied being 

under the influence of alcohol or drugs, stated that he 

understood the charges against him and had discussed these 

charges with his counsel. Dang told the court he had given his 

attorneys the names of any witnesses who could testify on his 

behalf, that he was satisfied with the services provided by his 

attorneys, and that he voluntarily made the decision to plead 

not guilty. 

 Dang also stated that he understood he had a right not to 

testify on his own behalf or to testify if he so chose, and that 

his counsel had discussed with and advised him regarding the 

question of whether he should testify or not. In response to 

the court's inquiry as to his decision to have his case tried by 

a jury or judge, Dang expressed his desire to be tried by a 

 

4

 Interpreters were present throughout the trial 

proceedings. 

5

 Prior to conducting the plea colloquy, defense counsel 

renewed the motion for a competency evaluation, which the 

circuit court denied for the reasons given at the hearing. 
9

jury. Dang acknowledged that if the jury found him guilty, the 

jury would also determine the appropriate punishment. Dang 

confirmed that he understood all of the questions from the court 

and had no questions of his own for the court. 

 During the plea colloquy, there were instances in which 

Dang responded to the court's questions by providing facts or 

explanation regarding the murder. For example, when asked if 

Dang had given his counsel the names of witnesses, Dang 

initially replied that he had and that he "was drunk." The 

court interrupted Dang and explained that Dang was not being 

asked for his defense but whether he had given the names of 

witnesses to his counsel and whether they were present. A 

discussion then ensued between the court and Dang as to the 

witnesses that might testify on Dang's behalf. Additionally, in 

response to the court's inquiry as to whether Dang's plea of not 

guilty was voluntarily made, Dang stated that he saw "the 

video," referring to a security camera recording of the murder. 

He added, "I don't believe that I killed her," "I did not intend 

[to kill her]," and "She hit me." Upon being redirected by the 

court to the question asked, Dang responded appropriately. 

THE COURT: Mr. Dang, that's not what I'm asking 

you. The question I'm asking you is this: You 

are pleading not guilty; is that correct? 

THE DEFENDANT: Yes. 
10

THE COURT: Are you pleading not guilty because 

you think that's what you ought to do and it's a 

voluntary decision on your part? 

THE DEFENDANT: Yes. 

 Following the colloquy, the circuit court accepted Dang's 

plea of not guilty, finding it had been made freely and 

voluntarily. Because Dang told the court there was information 

he still would like to share with his counsel, the circuit court 

took a recess at the conclusion of the colloquy to afford Dang 

an opportunity to meet with counsel and "see if there's anything 

else he wants to tell you." 

D. Renewed Motion for Competency Evaluation and Second 

Colloquy 

Upon returning from the recess, Dang's counsel renewed, 

again, the motion for an evaluation of Dang's competency to 

stand trial. According to counsel, Dang expressed feeling that 

"he is not normal right now," is "forgetting things," and "only 

understands a little bit about what is happening." In addition, 

counsel told the court that Dang expressed "for the first time 

ever in our communications with him that he believes he is 

facing capital punishment." Counsel believed that Dang's 

"mental status is deteriorating, which is not unusual for people 

who suffer from mental illness." Counsel stated that "as of 

just a few minutes ago – during this recess – in counsel's 

opinion, there's probable cause to believe that Mr. Dang both 
11

does not understand the nature of the proceedings against him 

and is unable to effectively communicate with counsel in order 

to assist in his defense and is, in fact, unable to participate 

in his defense in several critical ways." 

In response to counsel's motion, the circuit court stated: 

But I also have the advantage of additional 

information now [than at the hearing], and that 

is that I've done the not-guilty colloquy with 

your client, and what strikes me is that he 

certainly was able to understand my questions – 

in some cases I had to explain them, but that's 

not unusual – and his responses were intelligent. 

And, it is true, he wanted to tell me more than I 

was asking him, but that's also not unusual. 

 

So, I also have the benefit of having now 

heard from your client directly for the first 

time, and what strikes me is that he came across 

to me as entirely rational. There was something 

he wanted to tell you, which I gave him the 

opportunity to do, so you could talk with him. 

 At defense counsel's request,6

 the circuit court conducted 

an additional colloquy with Dang: 

THE COURT: Do you understand who I am? 

THE DEFENDANT: Why? 

THE COURT: No. Do you understand who the judge 

is? 

 

6

 Before the circuit court conducted the colloquy, it 

expressed concern to Dang's counsel regarding the risk that 

statements made by Dang could be used by the Commonwealth during 

trial. While acknowledging that risk, Dang's counsel confirmed 

the request for an inquiry "into Mr. Dang's appropriateness for 

an evaluation of his competency to stand trial." 
12

THE DEFENDANT: Yes, I do. 

THE COURT: And what role does the judge play in 

the case? 

THE DEFENDANT: To listen to the case. 

THE COURT: And what do I do after I listen to 

the case? 

THE DEFENDANT: I don't know. 

THE COURT: Do you understand that you're on 

trial today? 

THE DEFENDANT: Yes, I know. 

THE COURT: Do you know what you're charged with? 

THE DEFENDANT: Yes. Murder. 

THE COURT: And do you know what else you're 

charged with? 

THE DEFENDANT: No. 

THE COURT: Do you know what the sentence is that 

if you're found guilty that a jury might impose 

in this case or might decide was the appropriate 

sentence for murder? 

THE DEFENDANT: Yes, but it was not my intention 

– 

THE COURT: No, but I'm asking you, what is the 

most sentence that a jury could impose in this 

case? Do you know? 

THE DEFENDANT: Yes. My lawyer did mention to me 

that maybe thirty years. 

THE COURT: Who are your lawyers? 

THE DEFENDANT: Right here next to me. 

THE COURT: Do you know their names? 
13

THE DEFENDANT: Sarah. 

THE COURT: And what about the other attorney? 

THE DEFENDANT: Robert.7

THE COURT: Okay. And do you know that there is 

also a prosecutor in the courtroom who is 

involved in the case? 

THE DEFENDANT: I have never heard the word 

"prosecutor." 

THE COURT: What about the Commonwealth Attorney? 

Have you ever heard that phrase? 

THE DEFENDANT: No. 

THE COURT: Now, how are you feeling today? 

THE DEFENDANT: I feel okay, but since I've been 

here I haven't been normal. I feel kind of 

weird. I feel sometimes I'm okay, but I'm not 

crazy. But my mind sometimes is not here in some 

situations. It doesn't seem right to me. 

 I just want you to know that I do kind of 

understand, but I just don't feel okay today. 

I've never known about the law or anything. I 

just know I go to work, I go home to my family 

and take care of myself. Other than that, I 

never, like, know anything about the law. 

THE COURT: Do you know that the maximum penalty 

for murder is life in prison if the Commonwealth 

is not seeking the death penalty? 

THE DEFENDANT: I don't know. I don't know why I 

even kill people. 

THE COURT: You don't know what? 

 

7

 Dang's trial attorneys were Lysandra Pachuta and Robert 

Frank. 
14

THE DEFENDANT: I don't know why I even kill. I 

don't know why. 

THE COURT: Do you know that you're also charged 

with violating a protective order? 

THE DEFENDANT: I don't know. I didn't know. 

THE COURT: Well, when I asked you questions a 

little while ago, you said you were aware of the 

fact that you were charged with violating a 

protective order. You pled not guilty to it. 

THE DEFENDANT: I know I killed someone, but I 

plead not guilty because it was not my intention 

– because they hit me, they attacked me, and I 

couldn't take it no more. And I have evidence – 

I have the work from the doctor, that I had stab 

wounds. 

 And I was drunk, and then I had a knife and 

I just went after her. And I stabbed and I threw 

the knife away. I put the knife down, and I 

don't know what else happened. And then the 

police took me to the hospital, and then the next 

day is when I realized that I killed someone. 

THE COURT: Okay. Have a seat. 

 Following the colloquy, the circuit court denied the 

renewed motion for a second competency evaluation, explaining, 

certainly the answers the Defendant gave were not 

by any means a showing of perfect clarity, but I 

believe he understands why he's here today and he 

understands what we're doing. 

 He certainly has a – he articulates a 

defense to the offenses – the principal offense 

with which he's charged, which is the firstdegree murder. In the colloquy he both pled not 

guilty and confirmed that he was the person 

charged with that event. 

 And when I combine everything I've heard 

today from the Defendant, I do not see a basis to 
15

order the competency exam – in other words, to 

change the decision that I made last Friday – and 

that will remain my decision. 

 At trial, the evidence proved Dang entered into a 

restaurant in Fairfax County where Nguyet Lu was eating with her 

boyfriend and another individual. Dang approached Lu and 

stabbed her with a knife. Lu died from stab wounds to her neck 

and abdomen, and was pronounced dead at the scene. Upon 

completion of the three-day trial, the jury found Dang guilty of 

first-degree murder and violation of the protective order. In 

accordance with the verdict, the circuit court imposed sentences 

of life and five years' imprisonment on the two convictions. 

Dang appealed his convictions to the Court of Appeals, which 

denied his petition for appeal by per curiam order and again by 

a three-judge panel. 

II. ANALYSIS 

 On appeal, Dang argues the Court of Appeals erred in 

denying his appeal because there was probable cause to believe 

he was incompetent to stand trial under Code § 19.2-169.1(A). 

A. Code § 19.2-169.1(A) 

 "It is well established that the Due Process Clause of the 

Fourteenth Amendment prohibits the criminal prosecution of a 

defendant who is not competent to stand trial." Medina v. 

California, 505 U.S. 437, 439 (1992); see also Drope v. 

Missouri, 420 U.S. 162, 171-72 (1975); Pate v. Robinson, 383 
16

U.S. 375, 385(1966). Therefore, due process requires that 

states provide criminal defendants "access to procedures for 

making a competency evaluation." Medina, 505 U.S. at 449.8

 The General Assembly has provided criminal defendants 

access to such procedures in Code § 19.2-169.1. Pursuant to 

this statute, "the court shall order that a competency 

evaluation" of the defendant be performed by a mental health 

expert if "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." Code 

§ 19.2-169.1(A). This language reflects the standard for 

competency articulated by the Supreme Court of the United 

States, which 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, 402 (1960)). See Orndorff v. Commonwealth, 271 

 

8

 The Supreme Court of the United States has held that a 

state procedure requiring a hearing on competency where the 

evidence raises a "bona fide doubt" as to the defendant's 

competency is constitutionally adequate, as is a state procedure 

requiring an examination where there is "reasonable cause" to 

believe that the defendant is incompetent. Drope, 420 U.S. at 

172-73. 
17

Va. 486, 500, 628 S.E.2d 344, 351 (2006) (discussing ultimate 

determination of whether defendant is competent pursuant to Code 

§ 19.2-169.1(E) in light of constitutional standard of 

competency). 

 When the defendant has already been afforded a competency 

evaluation in which he is found competent, the circuit court 

need not order a second evaluation unless it is presented with a 

substantial change in circumstances. See Drope, 420 U.S. at 181 

(trial court required to order competency examination when there 

were "circumstances suggesting a change that would render the 

accused unable to meet the standards of competence to stand 

trial"); Senna v. Patrissi, 5 F.3d 18, 20 (2d Cir. 1993) (no 

constitutional requirement for additional competency hearing 

where there is "no substantial change" in defendant's 

condition); People v. Kelly, 822 P.2d 385, 412 (Cal. 1992) 

(where defendant has already been found competent, it is 

unnecessary to conduct a second hearing on competency unless the 

court is presented with a "substantial change of circumstances" 

or new evidence "casting a serious doubt on the validity of that 

finding"); State v. Lafferty, 20 P.3d 342, 360 (Utah 2001) 

(same); State v. Sanders, 549 S.E.2d 40, 52 (W. Va. 2001)(same). 

B. Standard of Review 

 The statutory mandate, that an evaluation be ordered if 

there is "probable cause to believe" that the defendant is 
18

incompetent to stand trial, Code § 19.2-169.1(A), involves the 

exercise of discretion by the circuit court in weighing the 

facts presented on the question of competency. See Orndorff, 

271 Va. at 500, 628 S.E.2d at 351 (determination of competency 

is a question of fact that will not be disturbed on appeal 

unless plainly wrong); see also Johnson v. Commonwealth, 53 Va. 

App. 79, 93, 669 S.E.2d 368, 375 (2008) ("We review a circuit 

court's decision not to order a competency evaluation only for 

abuse of discretion."). This is so because the circuit court 

"will often prove best able to make more fine-tuned mental 

capacity decisions, tailored to the individualized circumstances 

of a particular defendant." Indiana v. Edwards, 554 U.S. 164, 

177 (2008); see also United States v. Mason, 52 F.3d 1286, 1289 

(4th Cir. 1995) (whether "reasonable cause" to believe a 

defendant may be incompetent exists under 18 U.S.C. § 4241(a) is 

a question left to the discretion of the trial court).9

 

9

 See also Denes v. State, 508 N.E.2d 6, 9-10 (Ind. 1987) 

(decision of whether to order competency hearing reviewed for 

abuse of discretion); State v. Barnes, 262 P.3d 297, 309 (Kan. 

2011) (decision of whether to order competency evaluation 

reviewed for abuse of discretion); State v. Hewett, 538 A.2d 

268, 269 (Me. 1988) (decision of whether to order competency 

hearing reviewed for abuse of discretion); Morales v. State, 992 

P.2d 252, 254 (Nev. 2000) (decision of whether to order 

competency evaluation reviewed for abuse of discretion); People 

v. Morgan, 662 N.E.2d 260, 261 (N.Y. 1995) (same); State v. 

Drayton, 243 S.E.2d 458, 459 (S.C. 1978) (same); Garza v. State, 

522 S.W.2d 693, 694 (Tex. Crim. App. 1975) (decision of whether 

to order competency hearing reviewed for abuse of discretion); 
19

 We have held that a circuit court abuses its discretion 

"when a relevant factor that should have been given significant 

weight is not considered; when an irrelevant or improper factor 

is considered and given significant weight; and when all proper 

factors, and no improper ones, are considered, but the court, in 

weighing those factors, commits a clear error of judgment." 

Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 

352, 717 S.E.2d 134, 137 (2011) (quoting Kern v. TXO Production 

Corp., 738 F.2d 968, 970 (8th Cir. 1984)); see also Drope, 420 

U.S. at 179 (reviewing whether state courts failed "to give 

proper weight" to evidence regarding competency to stand 

trial).10

C. Circuit Court's Finding of No Probable Cause 

 

In re Fleming, 16 P.3d 610, 615 (Wash. 2001) (decision of 

whether to order competency evaluation reviewed for abuse of 

discretion); United States v. Davis, 61 F.3d 291, 304 (5th Cir. 

1995) (decision of whether to order competency hearing under 18 

U.S.C. § 4241 reviewed for abuse of discretion); Zapata v. 

Estelle, 588 F.2d 1017, 1020-21 (5th Cir. 1979) (decision by 

state court of whether to order competency hearing reviewed for 

abuse of discretion); United States v. Andrews, 469 F.3d 1113, 

1121 (7th Cir. 2006) (decision to hold hearing or order 

examination under 18 U.S.C. § 4241 reviewed for abuse of 

discretion). 

10 Although the dissent agrees that a circuit court's 

finding that probable cause did not exist to order a competency 

evaluation should be reviewed for an abuse of discretion, it 

seems to review the circuit court's decision here de novo. Under 

an abuse of discretion standard of review, it is neither our 

function to “consider” the evidence, nor to determine that “the 

facts here are sufficient to meet the probable cause standard 

fixed by Code § 19.2-169.1(A).” 
20

 Applying these principles, we do not believe the circuit 

court abused its discretion in finding that there was no 

probable cause to believe that Dang "lack[ed] substantial 

capacity to understand the proceedings against him or to assist 

his attorney in his own defense." Code § 19.2-169.1(A). 

1. Family Information and Past Trauma 

 First, Dang argues that the circuit court failed to give 

due weight to the information regarding Dang's family history 

that came to light shortly before trial. 

 According to Dang, "[t]he most significant factor in this 

case that established probable cause for a competency evaluation 

was that Mr. Dang appeared to have constructed a completely 

false life history, or at least one that significantly deviated 

from his mother's recollection as expressed to defense counsel." 

Because Dang failed to disclose the history of serious head 

trauma suffered during his childhood in Vietnam and the 

existence of his biological family in Philadelphia, defense 

counsel suggests Dang may have constructed "an entire delusion 

about his past life to replace his real, traumatic life." 

Relying on defense counsel's conversation with the evaluator who 

performed Dang's sanity at the time of the offense evaluation, 

Dang contends that such a delusion would not be unusual if he 

had suffered post-traumatic stress disorder, and the trauma 
21

reportedly experienced by him could support such a potential 

diagnosis. 

 Furthermore, citing treatises discussing the relationship 

between traumatic brain injury and violent criminal behavior, 

Dang argues this information may have "substantiated an 

evaluation" of Dang for traumatic brain injury or another form 

of organic brain injury. Thus, according to Dang, while his 

failure to communicate about his life history could have been 

characterized as a lack of candor, it could also have been "a 

symptom of an underlying mental illness or organic brain injury 

that was affecting his competence." 

 We disagree that the circuit court failed to give proper 

weight to the information learned by defense counsel from Mrs. 

Pham and Dang's sister. In response to defense counsel's 

argument that Dr. Hudacek made note of the fact that she did not 

have access to collateral sources, the circuit court pointed to 

Dr. Hudacek's conclusion that despite her inability to gain 

additional information from collateral sources, she "believes 

the information is an accurate portrayal of [Dang's] current 

functioning as it relates to the question of competency to stand 

trial." As the circuit court explained at the hearing, it 

reviewed Dr. Hudacek's report, noting that the evaluation was 

"thorough" and the report "goes into great detail as to the 
22

defendant's understanding of the proceedings against him and his 

ability to assist his attorney in his own defense." 

 As the circuit court properly recognized, the issue before 

it was Dang's present ability to understand the proceedings and 

assist his counsel as was addressed in Dr. Hudacek's report. A 

history of mental illness does not necessarily render a 

defendant incompetent to stand trial. See Bramblett v. 

Commonwealth, 257 Va. 263, 273, 513 S.E.2d 400, 407 

(1999)(defendant diagnosed as presently suffering from 

delusional disorder competent to stand trial). As the Fourth 

Circuit Court of Appeals has explained, "neither low 

intelligence, mental deficiency, nor bizarre, volatile, and 

irrational behavior can be equated with mental incompetence to 

stand trial." Walton v. Angelone, 321 F.3d 442, 460 (4th Cir. 

2003) (citation omitted). Rather, as noted above, the legal 

test for competency 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, 509 U.S. at 396 (quoting Dusky, 362 U.S. at 402) 

(emphasis added). Therefore, the evidence supporting probable 

cause must be directed to the question of defendant's competency 

at the time of trial. 
23

 Thus, even if Dang's failure to disclose an accurate history 

to his counsel and his evaluator was, as he posits, an 

indication of an underlying mental illness or brain injury, 

there was no information before the circuit court to relate any 

possible mental illness or injury to Dang's present competence. 

In light of Dr. Hudacek's opinion that was addressed to Dang's 

"current functioning," the circuit court appropriately inquired: 

Focusing on his competency today, is it not fair 

to say that what you're identifying is that your 

client has not been candid with you, which does 

not seem to me to be a competency issue, and then 

beyond that, you're just speculating about what 

effect it could – it might have? 

(Emphasis added.) 

 The circuit court was properly focused on the issue of 

Dang's present competence. The information gained from Mrs. 

Pham related to injuries reportedly sustained by Dang decades 

prior to the murder and did not provide evidence of a 

substantial change in Dang's competence. With nothing more than 

counsel's speculation that the information from Mrs. Pham and 

Dang's sister could potentially change Dr. Hudacek's opinion or 

otherwise bear on Dang's present ability to understand the 

proceedings or assist in his defense, we do not believe the 

circuit court failed to give proper weight to such information. 

2. Dang's Responses at Trial 
24

 Dang also contends the circuit court neglected to afford 

due weight to the answers given by him during the colloquies 

conducted by the court on the morning of trial. According to 

Dang, throughout the plea colloquy and the subsequent colloquy 

conducted by the court at defense counsel's request, Dang gave 

nonresponsive answers indicating his lack of comprehension of 

the criminal proceedings against him. 

 While many of Dang's responses to the circuit court's 

questions were indeed nonresponsive, as the circuit court 

recognized, Dang's tendency to shift focus to the facts 

regarding the murder and explain "his side of the story" was 

addressed extensively by Dr. Hudacek in her report. According 

to Dr. Hudacek, Dang's behavior in this regard was "related to 

anxiety about the alleged charges and potential sentence he is 

facing," "does not suggest that [he] suffers from a major mental 

illness that would affect abilities relevant to competency to 

stand trial," and "is consistent with most defendants who face 

legal charges." In other words, the responses Dang gave to the 

circuit court were consistent with the behavior he exhibited 

during his evaluation. Despite this behavior, Dr. Hudacek 

concluded that "Dang has sufficient, present ability to consult 

with his attorney with a reasonable degree of rational 

understanding," "possesses a rational as well as factual 
25

understanding of the proceedings against him," and "is able to 

assist in preparing for his own defense." 

 During the plea colloquy, Dang certainly gave appropriate 

and rational answers to the court's initial inquiry regarding 

his understanding of the charges against him, the role of 

defense counsel, his discussions with counsel regarding possible 

witnesses on his behalf, his right to testify and be tried by a 

jury, and the voluntariness of his plea. Although Dang 

attempted to interpose his explanation for the murder, when 

redirected to the question, he gave appropriate responses. 

 During the subsequent colloquy, Dang's propensity to 

interject and explain his actions became more pronounced. This 

was entirely in accord with Dr. Hudacek's opinion that Dang's 

inclination toward nonresponsive answers reflected apprehension 

"about going to trial" and the "potential sentence he is 

facing." As Dang told the court during the second colloquy, "I 

feel okay, but since I've been here I haven't been normal." 

Dang also stated, "I just want you to know that I do kind of 

understand, but I just don't feel okay today." Dang's increase 

in anxiety after the plea colloquy was evidenced by defense 

counsel's observation that Dang's mental status had deteriorated 

"as of just a few minutes ago – during this recess." It was 

reasonable, therefore, to conclude that Dang's responses during 

the second colloquy were a reflection of heightened apprehension 
26

of going to trial, rather than a sudden deterioration in his 

understanding of the nature of the proceedings on the morning of 

trial.11 In fact, as the circuit court remarked, Dang was 

sufficiently competent to "articulate[] a defense" to the murder 

charge. 

 Recognizing that circuit courts "are in the best position 

to make competency determinations, which at bottom rely not only 

on a defendant's behavioral history and relevant medical 

opinions, but also on the [circuit] court's first-hand 

interactions with, and observations of, the defendant and the 

attorneys at bar, we appropriately afford them wide latitude." 

United States v. Bernard, 708 F.3d 583, 593 (4th Cir. 2013). In 

light of Dr. Hudacek's opinion that Dang's inclination to shift 

focus represented situational anxiety regarding the proceedings 

and potential punishment, we do not believe the circuit court 

 

11 Given Dang's difficulty with the English language, it is 

not surprising that he referred to his counsel, Lysandra 

Pachuta, as "Sarah." Likewise, we do not find it remarkable 

that Dang was unable to articulate the charge of violation of a 

protective order or was unfamiliar with the terms "prosecutor" 

and "Commonwealth Attorney." Based on Dang's responses during 

the plea colloquy, he knew he was charged with murder and 

violation of a protective order, understood he was in court to 

be tried for those charges, and was well aware that he faced 

substantial punishment if found guilty by the jury. It is also 

evident from the record that Dang knew his defense counsel and 

their role in assisting him with his defense. 
27

failed to properly consider and weigh Dang's responses to the 

court. 

3. Defense Counsel's Concerns 

 Dang also argues that the circuit court failed to give 

sufficient weight to defense counsel's concerns regarding his 

competency. 

 As the Supreme Court of the United States has recognized, 

due process does not require courts to "accept without 

question[ing] a lawyer's representations concerning the 

competence of his client." Drope, 420 U.S. at 177 n.13. "[A]n 

expressed doubt" by defense counsel "is unquestionably a factor 

which should be considered." Id. While "counsel's 

representations deserve serious consideration" by the circuit 

court, they "cannot, however, assume an importance not merited 

by their content, particularly in those situations in which the 

[circuit] court has had an opportunity to make its own 

observations." People v. Morino, 743 P.2d 49, 52 (Colo. App. 

1987). "We must also bear in mind the [circuit] court's 

institutional advantage over [this Court] in evaluating the 

demeanor of the defendant and the statements of counsel about 

the defendant's mental state." United States v. Rickert, 685 

F.3d 760, 767 (8th Cir. 2012). 

 Based on our review of the record, we believe the circuit 

court gave defense counsel's concerns serious consideration. 
28

During the hearing on the motion for a second evaluation, 

defense counsel told the court that communications with Dang had 

been "extremely difficult," that Dang was "repeatedly confused," 

and was "unable to focus conversations on the issues that are 

relevant at the moment." After hearing argument, the circuit 

court acknowledged its consideration of the "representations 

made by [defense counsel]," but noted it did not have "any 

evidence" or "any testimony" before it to find probable cause in 

light of Dr. Hudacek's report that "goes into great detail as to 

the defendant's understanding of the proceedings against him and 

his ability to assist his attorney in his own defense." 

 On the morning of trial, when counsel requested that the 

court conduct a colloquy with Dang to inquire into his 

competency, the circuit court did not dismiss counsel's concerns 

but granted counsel's request. In fact, seeking direction as to 

counsel's specific concerns, the circuit court inquired of 

counsel as to "what questions you want [the court] to ask him," 

commenting that "[i]t may strike you as obvious, but it doesn't 

strike me as obvious." After defense counsel supplied the court 

with suggested questions, the court conducted the colloquy in 

accord with defense counsel's suggestions. 

 Furthermore, the concerns advanced by defense counsel at 

the hearing and trial were the same concerns dating back to 

previous counsel's representation and were, therefore, present 
29

when Dr. Hudacek performed her evaluation. In Dang's initial 

motion for a competency evaluation, which was granted, defense 

counsel asserted that Dang spoke and understood "limited 

English" and communicated to defense counsel with assistance of 

an interpreter. According to the motion, Dang "was unable to 

express an understanding of important aspects of the proceedings 

against him and his rights related thereto, notwithstanding 

defense counsel's efforts to inform him." Dr. Hudacek's report 

addressed Dang's tendency to shift focus and give nonresponsive 

answers, but concluded his behavior was a symptom of situational 

anxiety not incompetence. 

 In sum, the record reflects that the circuit court 

carefully considered the representations made by counsel both at 

the hearing and at trial. However, the circuit court also had 

the benefit of Dr. Hudacek's report addressing the issues of 

concern to counsel and the opportunity to observe Dang and his 

interaction with defense counsel. We cannot conclude that the 

circuit court committed an abuse of discretion in weighing the 

significance of these factors. 

4. Timing of Dang's Motion 

 Finally, Dang argues that the circuit court erred in 

placing significant weight on the timing of the motion for the 

second competency evaluation. 
30

 At the December 2 hearing, when defense counsel explained 

that the new information from Mrs. Pham was gained when counsel 

used an interpreter to speak with her rather than relying on 

family, the circuit court asked whether an interpreter could 

have been used earlier. Specifically, the circuit court stated: 

"[T]his matter has been continued several times and here we are, 

literally on the eve of trial – trial is set for Monday – and 

you're bringing things to my attention that there's just no 

reason that I can see why they weren't raised in September or 

October." Again, the circuit court asked, "If you had problems 

communicating with your client back in October or September, why 

were you not back in court then seeking a new competency 

evaluation? Why now?" In response to the court's comments, 

defense counsel explained that while it might have been possible 

to discover the information earlier, counsel had not, and the 

information learned from Mrs. Pham indicated potential causes 

for counsel's concerns regarding Dang's mental health. This 

discussion between the circuit court and counsel continued 

intermittently throughout the hearing. 

 After defense counsel concluded argument in support of the 

motion for a second competency evaluation, the circuit court 

noted that it had "focused considerably on the fact that this is 

occurring on the eve of trial" and "whether the information that 

was brought to my attention yesterday could have been available 
31

months ago." Nevertheless, the circuit court acknowledged that 

defense counsel was "correct that the focus is on whether or not 

there's probable cause at this time, regardless of whether it 

could have been produced to the [c]ourt at an earlier point in 

time."(Emphasis added.) The circuit court then proceeded to 

discuss the standard set forth in Code § 19.2-169.1 and, in 

particular, whether there was probable cause to conclude that 

Dang lacked substantial capacity to understand the proceedings 

or assist his counsel. 

 It is clear, then, that while the circuit court was 

understandably concerned about the timing of the motion and why 

counsel had not obtained the information at an earlier time if 

communications had, in fact, been difficult, it was properly 

focused on the question of Dang's competency as of the date of 

trial. Furthermore, the circuit court made no comment regarding 

the timing of the motion when it was renewed at trial. 

Therefore, we reject Dang's underlying premise that the circuit 

court placed significant weight on the timing of his motion. 

III. CONCLUSION 

 In sum, we conclude the circuit court did not abuse its 

discretion in finding there was no probable cause to order a 

second competency evaluation. Accordingly, we will affirm the 

judgment of the Court of Appeals. 

Affirmed. 
32

JUSTICE MIMS, dissenting. 

The majority determines that the circuit court did not 

abuse its discretion when it failed to order a second competency 

evaluation for a defendant with possible organic brain injury 

who displayed signs of confusion and incoherence at trial. In 

my view, that conclusion does not comport with the evidence in 

the record and the controlling precedent in Drope v. Missouri, 

420 U.S. 162 (1975). I therefore must dissent. 

A court is required to order a competency evaluation if it 

finds “at any time after the attorney for the defendant has been 

retained or appointed and before the end of trial . . . 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.” Code § 19.2-

169.1(A) (emphasis added).*

 

*

 The statutory mandate coincides with defendants’ Fourteenth 

Amendment due process rights. See Medina v. California, 505 

U.S. 437, 439 (1992); compare Code § 19.2-169.1(A) with Godinez 

v. Moran, 509 U.S. 389, 396 (1993) (stating the inquiry for 

competency “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 a factual 

understanding of the proceedings against him.”) (internal 

quotation marks omitted). 
33

We review a trial court’s ruling whether such probable 

cause exists for abuse of discretion. Johnson v. Commonwealth, 

53 Va. App. 79, 93, 669 S.E.2d 368, 375 (2008). A court abuses 

its discretion in three principal ways: “when a relevant factor 

that should have been given significant weight is not 

considered; when an irrelevant or improper factor is considered 

and given significant weight; and when all proper factors, and 

no improper ones, are considered, but the court, in weighing 

those factors, commits a clear error of judgment.” Lawlor v. 

Commonwealth, 285 Va. 187, 213, 738 S.E.2d 847, 861 (2013) 

(quoting Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 

346, 352, 717 S.E.2d 134, 137 (2011)), cert. denied ___ U.S. 

___, 134 S. Ct. 427 (2013). 

In Drope, the Supreme Court of the United States set forth 

the factors relevant to a court’s consideration of whether an 

inquiry into a defendant’s competency is necessary. They 

include “evidence of [his] irrational behavior, his demeanor at 

trial, and any prior medical opinion on competence to stand 

trial.” 420 U.S. at 180. “[E]ven one of these factors standing 

alone may, in some circumstances, be sufficient.” Id. The 

Court also made clear that when the signs of incompetency 

manifest themselves is not an appropriate factor for 
34

consideration. See id. at 181 (“Even when a defendant is 

competent at the commencement of his trial, a trial court must 

always be alert to circumstances suggesting a change that would 

render the accused unable to meet the standards of competence to 

stand trial.”). 

The majority determines that the circuit court did not 

abuse its discretion when it declined to order a second 

competency evaluation because the report following the first 

evaluation concluded that Dang was competent. It holds that a 

new evaluation was necessary only if there was a substantial 

change in circumstances after the initial evaluation. In my 

view, there was a substantial change in circumstances and the 

circuit court therefore abused its discretion in its application 

of the Drope factors. 

 On the surface, the circuit court’s consideration of the 

report corresponds to the third Drope factor. However, the 

value of the report was substantially undermined by the 

subsequent revelation that Lang had endured physical abuse 

during childhood, which may have resulted in organic brain 

injury. This information was not known at the time of the 

evaluation. Thus, the report could not take it into account. 

Moreover, the fact that Dang was unable or unwilling to disclose 
35

it to the evaluator may itself have been symptomatic of an 

underlying disorder impacting his competence to stand trial. 

Similarly, the discovery that Dang had misrepresented his family 

history and relationships may have been clinically significant. 

Courts commonly have no mental health training and 

consequently are ill-prepared to reach competency conclusions 

without the assistance of professional mental health clinicians. 

Code § 19.2-169.1(A) requires a competency evaluation precisely 

for the purpose of providing such assistance. In sum, we simply 

do not know the clinical relevance of this new information. 

However, the record establishes that Dang’s possible brain 

injury and his failure to disclose both it and his true family 

history and relationships were sufficient to give at least one 

mental health practitioner pause. 

Accordingly, in my view, these new facts amounted to a 

substantial change in circumstances by calling into question the 

accuracy of the conclusions in the competency evaluation report. 

Therefore, the value of the report’s conclusions to satisfy the 

third Drope factor was diminished. 

Dang’s failure to disclose his possible brain injury and 

his family history and relationships also may constitute 

evidence of irrational behavior under the first Drope factor. 
36

We again do not know whether the behavior was symptomatic of an 

underlying disorder and, if so, whether that disorder may have 

affected his competency to stand trial. 

Perhaps most compelling, however, is Dang’s behavior during 

the circuit court’s colloquy, which goes to the second Drope

factor. As the majority emphasizes, the competency inquiry 

turns on the defendant’s “present ability to consult with his 

lawyer with a reasonable degree of rational understanding.” 

Godinez v. Moran, 509 U.S. 389, 396 (1993) (emphasis added) 

(internal quotation marks omitted). Dang’s behavior during the 

colloquy is possibly the best indicator of his “present 

ability.” Yet, in addition to being generally nonresponsive 

when his answers did not correspond to the court’s questions, 

his answers revealed that he did not understand the charges 

against him, did not understand the potential sentences that 

would follow from conviction, did not understand what a 

prosecutor was, and did not know the names of his attorneys. 

Dang’s failure to understand this information during the 

colloquy calls into question his competency at that time. 

The circuit court and the majority dismiss this behavior as 

being consistent with the evaluation report’s findings. But, 

again, that report was predicated on incomplete and inaccurate 
37

information. In the absence of professional guidance, neither 

we nor the circuit court can ascertain whether the report’s 

conclusions would have been the same if the evaluator had known 

all the relevant facts. Similarly, we cannot know whether 

Dang’s behavior during the colloquy was consistent with what the 

report described as anxiety, or whether it was consistent with, 

for example, an irrational panic or some other underlying mental 

disturbance which may or may not have affected his legal 

competence. 

In short, the majority considers the first report in 

isolation, without considering the information Dang failed, for 

whatever reason, to disclose. It similarly considers Dang’s 

behavior during the colloquy to be consistent with the flawed 

report. But under Drope, neither the report nor Dang’s behavior 

can be considered in isolation. Rather, the circuit court, and 

this Court on review, is obligated to consider all the facts to 

determine whether probable cause existed to justify a second 

competency evaluation. In my view, the facts here are 

sufficient to meet the probable cause standard fixed by Code § 

19.2-169.1(A). 

Finally, the circuit court was improperly influenced by the 

fact that the deficiencies in the report were not known until 
38

“the eve of trial.” Although the majority attempts to minimize 

the effect of this influence, the court itself admitted that it 

“focused considerably on the fact that this is occurring on the 

eve of trial . . . and whether the information that was brought 

to my attention yesterday could have been available months ago.” 

Both Drope and Code § 19.2-169.1(A) make clear that information 

calling the defendant’s competence into question is to be 

considered without regard to when or how the information is made 

known to the trial court. The question was not whether the 

information could have been presented earlier, or even whether 

it was withheld for tactical advantage (an assertion made by 

neither the Commonwealth nor the circuit court). The 

defendant’s constitutional right to due process and the 

statutory procedure that safeguards it are preeminent. Rather, 

the question is whether the information, whenever made known to 

the trial court, calls into doubt the defendant’s competence at 

that time. 

I therefore must conclude that the circuit court abused its 

discretion. It gave improper weight to the flawed competency 

report, the third Drope factor. It failed to consider possible 

evidence of Dang’s irrational behavior, namely his failure to 

disclose possible brain injury and his family history and 
39

relationships during the competency evaluation, the first Drope

factor. It failed to consider the possible deficiencies in the 

competency report when it concluded that Dang’s behavior during 

the colloquy was consistent with the report, the second Drope

factor. It improperly considered the timing of the information 

raising new questions about Dang’s competence. Accordingly, I 

must dissent from the majority’s opinion affirming its judgment.