No. 94-419

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

ALBERT D. BARTLETT,

Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and for the County of Silver Bow,

The Honorable James E. Purcell, Judge presidi.ng

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender, Helena,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, and

Jennifer Anders, Assistant Attorney General,

Helena, Montana

Robert McCarthy, County Attorney, and Brad

Newman, Deputy County Attorney, Butte, Montana

Filed:

Submitted on Briefs: May 19, 1995

Decided: June 20, 1995
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Albert D. Bartlett was charged with criminal possession of

dangerous drugs with intent to sell. Prior to trial, the District

Court for the Second Judicial District, Silver Bow County, denied

the motion of Bartlett's standby counsel that Bartlett undergo a

mental examination. Bartlett proceeded to trial and was convicted.

He appeals. We reverse.

The dispositive issue is whether the District Court erred when

it denied the motion for mental examination.

In November 1993 two men, Smith and Patterson, were detained

by Butte, Montana police officers minutes after they were seen

breaking into a 1971 Ford Maverick and taking two duffle bags from

it. Marijuana was found in the possession of the two men.

Patterson told the officers that the marijuana had been inside a

duffle bag taken from the Maverick.

The Maverick belonged to Albert D. Bartlett. When the police

officers interviewed him about the incident, they found his

response suspicious and uncooperative. Based upon Bartlett's

behavior and the recovery of the marijuana, they arrested him and

obtained a warrant to search the car. They found six bundles of

marijuana taped under the rear seat. The bundles contained a total

of 6.79 pounds of marijuana.

Prior to trial, Bartlett had several changes of counsel. His

initial court-appointed attorney withdrew by mutual agreement.

Bartlett's subsequent efforts to locate privately-retained counsel
were unsuccessful. A second court-appointed attorney moved to be

allowed to withdraw due to a conflict of interest.

On February 28, 1994, the District Court held a hearing to

determine Bartlett's competence to waive his right to counsel.

Following the hearing, the court ordered that Bartlett would be

allowed to proceed pro se. It later allowed Bartlett's second

attorney to withdraw and appointed a third attorney, Deirdre

Caughlan, as standby counsel for Bartlett.

At the next pretrial hearing, on March 28, 1994, Caughlan

submitted a written motion and orally moved for a mental examination of Bartlett. She stated her belief, pursuant to § 46-14-202,

MCA, "that a question exists that Defendant is fit to proceed in

that it is believed that he may suffer from a mental condition,

disease or defect which may affect his ability to assist in his own

defense" and that he may have been unable to form a particular

state of mind which is an essential element of the offense charged.

Caughlan represented that it was "vital to the defense of Defendant

that such an examination and accessment [sic] be conducted,

particularly to determine if the Defendant is capable in assisting

in his own defense."

Following Caughlan's oral motion at the hearing, Bartlett

immediately stated, "She's fired, period. Her word is without

merit, as far as I'm concerned. She works for the Court, for the

Police Department." He also declared that Caughlan had failed to

file motions he had asked her to file for him.

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The prosecutor opposed the motion for a mental examination.

He argued that while Bartlett was "difficult" to deal with, he was

competent and it was "time to move this case toward some kind of a

disposition."

The District Court denied the motion for a mental examination.

It reasoned:

The Court notes that Defendant and the State opposed such

motion. The Court finds that Defendant has appeared

competent, and aware of the charges and consequences of

this action, in all of his previous appearances before

the Court. Defendant has appeared capable of acting with

purpose or knowledge and has exhibited the ability to act

in his own defense.

The court did not relieve Caughlan of her duties as standby

counsel.

The case eventually proceeded to jury trial, with Bartlett

conducting his own defense and Caughlan assisting him. He was

convicted and sentenced to the maximum term of twenty years'

imprisonment.

Did the District Court err when it denied the motion for

mental examination?

The statutory procedures for determining one's competency to

stand trial include the right of an accused to be examined for

determination of his fitness to proceed.

46-14-202. Examinationof defendant. (1) If the defendant

o r the defendant's counsel files a written motion

requesting an examination or if the issue of the defendant's fitness to proceed is raised by the district

court, prosecution, or defense counsel, the district

court shall appoint at least one qualified psychiatrist

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or licensed clinical psychologist or shall request the

superintendent of the Montana state hospital to designate

at least one qualified psychiatrist or licensed clinical

psychologist, which designation may be or include the

superintendent, to examine and report upon the defendant's mental condition.

As originally enacted, the statute provided that when "there is

reason to doubt [the defendant's] fitness to proceed . the

court shall appoint . . . " See § 95505, R.C.M. (1947). The

statute was amended in 1981 to provide that the defendant or his

counsel could raise the matter of the defendant's fitness to be

tried. In 1991, it was further amended to allow the court or the

prosecution, as well as the defense, to raise the issue.

Section 46-14-202, MCA, does not require that the defendant

must agree to a mental examination. If one of the listed persons

files a written motion, or if the issue of the defendant's fitness

to proceed is raised by one of the listed persons, the court

"shall" arrange for such an examination. The word "shall" is

compulsory. However, the statute does not directly answer the

question of whether standby counsel's motion for a mental examination of the defendant must be granted.

A criminal defendant may not be tried unless he is competent.

Godinez v. Moran (1993), _ U.S. -, 113 S.Ct. 2680, 125 L.Ed.2d

321. The State argues that Bartlett had been ruled competent to

represent himself and that therefore he had the right to refuse a

mental examination. However, courts have a continuing duty to

review the issue of competency in criminal proceedings.

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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.

Drope v. Missouri (1975), 420 U.S. 162, 181, 95 S.Ct. 896, 908, 43

L.Ed.2d 103, 119.

The State further contends that allowing standby counsel to

force a mental examination would deprive Bartlett of his Sixth

Amendment right to self-representation, citing Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.

The right to self-representation imposes some limitations on

standby counsel's unsolicited participation. McKaskle v. Wiggins

(1984), 465 U.S. 168, 104 s.ct. 944, 79 L.Ed.Zd 122. In proceedings held in the presence of the jury, the pro se defendant must be

allowed to preserve actual control over the case he chooses to

present to the jury, and standby counsel must not make or substantially interfere with any significant tactical decisions, control

the questioning of witnesses, or speak instead of the defendant on

any matter of importance. McKaskle, 465 U.S. at 178. For

proceedings outside the jury's presence:

Faretta rights are adequateiy vindicated . if the m

e defendant is allowed to address the court freely on

his own behalf and if disagreements between counsel and

the pro se defendant are resolved in the defendant's

favor whenever the matter is one that would normally be

left to the discretion of counsel.

McKaskle, 465 U.S. at 179.

As set forth above, under § 46-14-202, MCA, either the

prosecution or the defense in a criminal case, or the court itself,

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may initiate a mental examination of the defendant. As further

noted above, the statute requires that if one of the entities

listed raises the issue, the court shall order an examination.

Therefore, we conclude that this is not a decision which would

normally be left to the discretion of defense counsel. We further

conclude that granting such a request does not infringe upon the

defendant's ability to present his case to the jury.

In this instance, we are faced with sometimes competing

constitutional rights of a criminal defendant to represent himself

if he competently so chooses, and not to be tried if he is

incompetent to stand trial. Standby counsel for a pro se criminal

defendant will commonly have greater exposure to and knowledge of

the mental state of the defendant than wil 1 either the prosecution

or the court. We conclude that the issue of defendant's competence to stand trial, when raised by standby counsel, must be

treated with as much deference as if the issue were raised by the

prosecution or the court itself. We therefore hold that a motion

by standby counsel for mental examination under 5 46-14-202, MCA,

must be granted as a matter of right.

Having thus concluded that the District Court violated § 46

14-202, MCA, we reverse Bartlett's conviction and remand for

further proceedings consistent with this Opinion.
We concur:

P..