THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case Nos. 2014-0145 and 2014-0146, State of New
Hampshire v. Robert Tarlue, the court on May 14, 2015, issued
the following order:
The defendant, Robert Tarlue, appeals his conviction of failure to report
as a registered sex offender, see RSA 651-B:4 (Supp. 2014), and the imposition
of previously suspended sentences for simple assault, see RSA 631:2-a (2007),
and resisting arrest, see RSA 642:2 (Supp. 2014). He argues that the trial
court erred in finding him competent to stand trial and in denying his request
for a new competency evaluation. We affirm.
Relying upon both the State and Federal Constitutions, the defendant
first argues that the trial court erred in finding him competent to stand trial.
We first consider his argument under the State Constitution, using federal
cases only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).
“A criminal defendant has a constitutional right not to be tried if he is legally
incompetent.” State v. Decato, 165 N.H. 294, 296 (2013) (quotation omitted).
The State bears the burden to prove, by a preponderance of the evidence, that
a defendant is competent to stand trial. State v. Moncada, 161 N.H. 791, 795
(2011). We have adopted the two-pronged test for competency set forth by the
United States Supreme Court in Dusky v. United States, 362 U.S. 402 (1960).
See State v. Champagne, 127 N.H. 266, 270 (1985). This test requires that a
defendant have: “(1) a sufficient present ability to consult with and assist his
lawyer with a reasonable degree of rational understanding; and (2) a factual as
well as rational understanding of the proceedings against him.” Moncada, 161
N.H. at 794 (quotation omitted). “We defer to the trial court’s determination of
competence unless we conclude that no reasonable fact finder could have
found as the trial court did.” Decato, 165 N.H. at 296 (quotation omitted).
The defendant first argues that because competency “is not a fixed state,”
the court erred in its May 14, 2013 order by equating past competency with
present competency. We reject the defendant’s characterization of the court’s
order. In its order, the court stated that its decision was based not only upon
the August 16, 2010 plea colloquy demonstrating the defendant’s past
competency, but also upon the May 2013 testimony of the psychologists who
had recently examined him. The court specifically noted that the defendant’s
expert, Philip J. Kinsler, Ph.D., FACFE, DABPS, opined that the defendant was
not competent to stand trial, based upon his January 2, 2013 examination.
Dr. Kinsler testified that the defendant suffered from generalized anxiety
disorder which, together with his inability to accept the reality that the court
could impose his suspended sentences, and his erroneous understanding of
legal concepts, rendered him unable to assist his attorney with his defense or
to understand the proceedings against him. However, the court afforded
greater weight to the opinion of the State’s expert, Steven J. Rubenzer, Ph.D.,
who opined that the defendant was competent to stand trial. The weight to be
given testimony is for the trial court to determine. Moncada, 161 N.H. at 795.
Moreover, the trial court was not required to delineate its reasons for giving
more weight to Dr. Rubenzer’s opinion. See id. at 798 (trial court not required
to provide reasons unless rejecting uncontroverted evidence of incompetence).
Unless we find that no reasonable person could have come to the same
conclusion as to the weight to be given to conflicting testimony, we will defer to
the trial court. Id. at 795.
The defendant argues that it was unreasonable for the court to credit
Dr. Rubenzer’s opinion because it was based upon the defendant’s competency
in 2010. However, the record shows that Dr. Rubenzer properly based his
opinion upon the defendant’s present competency. Dr. Rubenzer testified that
given the defendant’s “significant contact with the criminal justice system,” he
“would not expect [the defendant] to show the sorts of ignorance that he
displayed and inability to learn that he displayed during this evaluation.” Dr.
Rubenzer testified that he found the defendant’s “performance, when asked
about the court system to be erratic, that he would sometimes claim not to
know some very basic issues, and at other times he would provide fairly
sophisticated answers and very articulate ones.” When asked to explain the
defendant’s inconsistent responses, Dr. Rubenzer testified that, in his opinion,
“when defendants are placed in a situation where there is an advantage to
appearing ignorant or incompetent, many of them respond in such a way as to
bring about that result.” Consequently, Dr. Rubenzer opined, the defendant
“did not present to the best of his ability” in matters involving his knowledge of
the court system.
Given the evidence of the defendant’s competency, we cannot conclude
that no reasonable fact finder could have found as the trial court did. See
Moncada, 161 N.H. at 798. Because the State Constitution provides at least as
much protection as the Federal Constitution under these circumstances, see
id. at 794-95; Dusky v. United States, 362 U.S. 402 (1960), we reach the same
result under the Federal Constitution as we do under the State Constitution.
The defendant next argues that the trial court erred in denying his
request for a new competency evaluation after he was unable to complete the
June 14, 2013 plea colloquy. We first consider his argument under the State
Constitution. Ball, 124 N.H. at 231-33. A trial court, to comply with due
process, must order an evidentiary hearing on the issue of competency
“whenever a bona fide or legitimate doubt arises whether a criminal defendant
is competent to stand trial.” State v. Kincaid, 158 N.H. 90, 93 (2008)
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(quotation omitted). “As the trial court is in the best position to evaluate a
criminal defendant’s behavior, we grant deference to its decision regarding the
need for a competency hearing.” Id. (brackets and quotation omitted). In its
October 2, 2013 order, the trial court found that the defendant “demonstrated
a clear understanding of the charges against him and the issue of guilt or
innocence” at the plea colloquy, although the court acknowledged that the
defendant “had more difficulty grasping the nuances of the sentencing and
parole process.” The court suspended the plea hearing to a later date
“[b]ecause the defendant was demonstrating fatigue during the colloquy.” The
defendant subsequently withdrew his notice of intent to plead guilty, and the
case was restored to the trial docket. In its order denying the defendant’s
motion for a new evaluation, the court noted that the defendant “is a native of
Liberia and his native language is Kron.” The court found that “with patient
questioning and the use of an interpreter, he appears to understand the guilty
plea colloquy as demonstrated by the transcript of his prior guilty plea.” The
defendant argues that the court again erred in relying upon evidence of the
defendant’s competency in 2010. However, the court expressly stated that its
decision to deny the motion for a third competency evaluation was based not
only upon the evidence of the defendant’s earlier competency but “upon the
totality of information presently before this court.”
Based upon this record, the trial court, in the exercise of its discretion,
could reasonably have concluded that no bona fide or legitimate doubt arose as
to the defendant’s competency evaluation based upon his inability to complete
the June 14, 2013 plea colloquy. See id. at 95. Accordingly, we cannot
conclude that the trial court erred in denying his request for a new competency
evaluation. See id. Because the State Constitution provides at least as much
protection as the Federal Constitution under these circumstances, see id.;
Drope v. Missouri, 420 U.S. 162, 180 (1975), we reach the same result under
the Federal Constitution as we do under the State Constitution.
Affirmed.
DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.
Eileen Fox,
Clerk
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