McCORMACK, J.
Jeffrey A. Hessler filed a motion for postconviction relief from his current incarceration and sentence to death for crimes relating to the rape and murder of Heather Guerrero. The district court granted an evidentiary hearing on the limited issue of whether trial counsel was
Hessler was convicted for first degree murder, kidnapping, first degree sexual assault on a child, and use of a firearm to commit a felony in relation to the murder of 15-year-old Guerrero. The facts leading to the convictions are set forth in more detail in our opinion in State v. Hessler (Hessler I).
After his convictions in December 2004, Hessler filed three pro se motions to waive his right to be present at the aggravation hearing. The court excused Hessler's presence, and trial counsel represented Hessler at the aggravation hearing. After the hearing, the jury found three statutory aggravating circumstances.
On March 31, 2005, Hessler sought to remove counsel, waive his right to counsel, and proceed pro se at the sentencing hearing. Hessler filed a pro se "Motion to Invoke My Sixth-Amendment Right and to Expurgate the Advocate of the State and to Delineate Myself." This motion is set forth in detail in Hessler I.
At the hearing on the motion, the court presented numerous questions to Hessler in order to determine if his waiver of counsel was made knowingly, voluntarily, and intelligently. Hessler's responses to the questions were generally appropriate. Hessler was asked to explain what "`Expurgate the Advocate of the State'" in his pro se motion meant. He responded that it was "[t]o remove [his] advocate." He told the court that he wished to discharge counsel because they "refuse[d] to comply with my wishes." Hessler further explained to the court that given the change of strategy, a scheduled presentencing hearing challenging the constitutionality of the death penalty statute did not "need to happen."
Hessler informed the court he had been prescribed "antipsychotics" and "antihypnotic" drugs, but he had not taken them that day. When asked about his ability to represent himself, Hessler said he had God on his side, stating, "I just go by what God tells me." The court responded that while it would not dissuade Hessler from "following God," he would have to represent himself in a way that complied with court rules. Hessler indicated that he understood this and could do so. The trial court determined that Hessler had knowingly, intelligently, and voluntarily decided to represent himself. Given the gravity of the possible punishment, the court instructed counsel to prepare for the sentencing hearing and be there on standby.
At the sentencing hearing conducted on May 16, 2005, Hessler was again questioned about his desire to proceed pro se. Hessler responded to the questions appropriately, and the court again determined that Hessler knowingly, intelligently, and voluntarily waived his right to counsel.
Hessler declined to make any opening or closing statement at the sentencing hearing. As evidence, Hessler offered a 9-page "Interlocutory Statement of the Defendant." Because indicating each spelling mistake or grammatical error in Hessler's statement and other documentation would be distracting, we reproduce Hessler's written materials in their original form. Hessler began: "As God cicerones me through this ascription to show true face I, Jeffrey Alan Hessler, now brings to light my ascription now before all." Hessler then explained that he wished to be put to death, under the doctrine of "`an Eye for an Eye.'" Hessler expressed remorse and noted that he suffered "from certain Mental Conditions that may or may not truelly explain My actions in this here Nightmare that I have caused."
Hessler explained why he had to discharge his counsel: "GOD has shown me to move into HIS LIGHT and that is why I had to finially expuregate my council of Attorney's from continuing from representing Me in this case. They refused to follow GOD's and My wishes." More specifically, Hessler described a recent encounter with a "Brother of Christ" at the prison who was awoken from his sleep and led to Hessler's cell to "bring GOD back into My Life and understanding." When he took this man's hand, he "felt this powerful Energy to start to flow through my whole body.... GOD was speaking through him to Me ... I saw a single tear... and ... His eyes ... were flaming at me."
Hessler wished for "nothing to be inveighed on Mybehalf that might change the mind set of the Judges or of the People of this society within this Matrix." He asked that his "vermiculate tabernacle be sent to the Reaper's Nirvana and for My vermiculate tabernacle to be gibbeted as soon as possible and there should be no dialectic or extrospection towards or against GOD's Purpose and My destiny."
Despite Hessler's failure to present evidence of mitigation, the three-judge sentencing panel considered possible statutory mitigators, particularly, the absence of Hessler's prior criminal history and his relative age. The panel found no nonstatutory mitigating circumstances. It found that the aggravating circumstances outweighed the mitigating circumstances. Accordingly, the panel sentenced Hessler to the death penalty.
For Hessler's automatic direct appeal, we appointed Hessler's trial counsel to represent him. Counsel assigned as error the trial court's grant of Hessler's request to proceed pro se at the sentencing hearing and the trial court's failure to conduct a competency hearing before allowing Hessler to proceed pro se. Hessler filed a pro se brief in which he expressed his continuing wish to be put to death.
We held that the trial court did not err when it failed to conduct a competency hearing.
Furthermore, we stated that "the court had observed Hessler over many months prior to trial and at trial."
After we affirmed Hessler's convictions and sentences on direct appeal, Hessler changed his mind about wanting to be put to death. He filed a motion for postconviction relief and obtained appointed counsel. In his amended postconviction motion, Hessler presented several allegations, including the allegation that trial counsel was ineffective in failing to investigate Hessler's mental state and failing to object to going forward with the sentencing hearing without a formal competency investigation and hearing. After a preliminary hearing to narrow the issues, the postconviction court concluded that Hessler was entitled to an evidentiary hearing on the limited issue of whether trial counsel was ineffective for failing to raise issues of competency after Hessler's convictions but prior to mitigation and sentencing. In addition to the entire trial record, the following evidence was accepted into evidence at the postconviction evidentiary hearing.
Hessler explained in his deposition testimony that he had informed trial counsel of his intention to terminate their representation of him on the day they were going to argue a motion alleging electrocution was unconstitutional, March 31, 2005. Hessler explained that his motivation for terminating counsel was because he wanted the death penalty and counsel refused to advocate for the death penalty.
When asked about the unusual wording of his pro se motions before the trial court, Hessler said that he came up with the words used in those motions from his thoughts and "through certain books I came across." He no longer could recall the meaning of many of the words he used. When Hessler was asked, "Was there a point in your life where you were speaking like this?" Hessler answered, "Never."
A neuropsychological evaluation was conducted at counsel's request by Dr. Robert G. Arias in March 2003, and a 16-page report was made of this evaluation. Arias noted that Hessler claimed he "must have been chosen to pass on an evil message" and that killing Guerrero was completely out of his control. Hessler reported a history of heavy drug use and questioned whether his brain had been "`fried'" by drugs. Hessler expressed some concern that he was a "Mafia target" because he had associated with local drug dealers.
Arias' "Diagnostic Impressions" of Hessler included "Hallucin[o]gen Persisting Perceptual Disorder" and "Depressive Disorder Not Otherwise Specified." However, Arias considered the results of the three principal psychological tests conducted on Hessler to be invalid due to "an organized attempt to portray himself in an overly negative light." Specifically: "[Hessler] clearly attempted to answer in a psychotic fashion, but validity scales revealed this to be an intentional attempt to manipulate his presentation in a negative fashion." Arias further stated that the results "reflected a broad tendency to magnify his level of experienced illness or a characterological inclination to complain or be self-pitying.... A similar pattern of overendorsement of depressive symptomatology was seen...."
In his conclusions, Arias stated that Hessler was an individual with "a longstanding antisocial, narcissistic personality disorder." He stated that Hessler was somewhat depressed, which would be expected under the circumstances, and at moderate to high risk for suicide during his incarceration. But again, "Valid assessment of his emotional functioning on objective measures was not obtained ... given the patient's clear and organized attempt to portray himself in an overly negative light, particularly with regard to psychotic symptoms to explain his behavior."
In May 2003, trial counsel asked that a psychologist, Dr. Daniel L. Scharf, provide Hessler with treatment for depression. Scharf provided Hessler with treatment through the summer of 2003. In a letter written to trial counsel on September 3, 2003, Scharf explained that while he had not conducted a forensic examination, it was his impression that Hessler suffered from bipolar mood disorder. He also thought Hessler probably suffered from a "delusion disorder, persecutory type." Scharf was skeptical of whether Hessler had a mixed antisocial and narcissistic personality disorder and thought that he might instead experience "narcissism/grandiosity" as a component of the bipolar mood disorder.
Hessler introduced into evidence at the postconviction hearing approximately 450 pages of prison psychological and medical records and related correspondence from the time period of 2003 to 2010. The records contain numerous prescriptions at different points in time. Hessler did not present expert testimony regarding those records, nor did he otherwise attempt to explain their contents as the records pertained to his competency at sentencing.
The records demonstrate that Hessler was engaged in a dispute with prison staff over his treatment and medications around the time of the sentencing hearing. Hessler made numerous written communications to prison staff on this point. Hessler was demanding a prescription or treatment plan. On April 8, 2005, Hessler wrote to the prison mental health staff "asking you if you would please advise me on what is being done to correct and restructure my treatment medication plan." On April 12, Hessler refused the treatment of a psychiatrist and refused one of his medications. On April 15, Hessler wrote to the mental health staff:
Similarly worded inmate interview requests were made on April 21 and 29, and a letter to the leading psychiatrist was sent on April 21, asking that a treatment plan recommended previously by another doctor be implemented.
A segregation mental status review on April 8, 2005, stated that Hessler's thought patterns were appropriate, on track, relevant, and consistent with reality, although his mood was irritable. A psychiatric consultation note on May 6 described that Hessler was writing to the staff psychiatrist and others concerning disputes about what medication he should be on. The staff psychiatrist did not think Hessler's current medication was properly treating his anxiety. Accordingly, the psychiatrist discontinued certain medications and prescribed others. The psychiatrist did not note any other mental or emotional disturbances requiring treatment.
On May 10, 2005, 6 days before his sentencing hearing, Hessler requested authorization for a specific cold medication that he had used in the past and found effective. The cold medicine which was available without authorization was not working to relieve his symptoms. He stated: "I have used the cold tabs on the Unit and they are hard to get when you really need one and plus they do not help relieve fully My congestion and seasonial type allergies." Many similar minor complaints are found throughout the prison records.
On May 18, 2005, Hessler filled out a health services request form to "please schedule myself for an appointment soon to fully discuss my medical/mental conditions and the treatment medications that I am currently prescribed by several doctors," and Hessler's disagreement with prison medical and psychiatric staff continued. An intake assessment dated May 19, 2005, stated that no mental health program involvement was recommended.
The deposition testimonies of Hessler's trial counsel, James Mowbray and Jeffrey Pickens, were introduced. Both testified that their decision not to bring the issue of competency to the trial court's attention was not a strategic one. Rather, they explained they had no doubt that Hessler met the legal test of competency. In light of this, Mowbray and Pickens were concerned that calling for a competency hearing would result in divulging confidential attorney-client communications and would violate their client's wishes.
Pickens testified that Hessler "seemed to me to be a bright person and he seemed to understand everything that ... I told him." On March 23, 2005, Pickens discussed with Hessler the upcoming hearing on a motion for new trial and challenging the constitutionality of electrocution, as well as the upcoming sentencing hearing. Hessler expressed that he wanted the death penalty. Hessler also told Pickens that Hessler felt he had "lost his mind over the case." He told Pickens he was "hearing voices," or "thoughts which resemble voices," which gave him messages relating to what he perceived as his destiny. Hessler conveyed that he thought these messages were coming from God. In particular, God was telling Hessler not to fight the death penalty. This was God's "command," and Hessler told Pickens he had no choice.
Pickens told Hessler they could not ethically pursue a strategy seeking the death penalty. Hessler informed Pickens that, accordingly, he was thinking about firing Mowbray and Pickens and representing himself.
When Pickens asked Hessler if he believed he was competent, Hessler refused to answer. Hessler also refused to be seen by another psychologist in order to evaluate his competency. Upon further questioning by Pickens, however, Hessler assured Pickens that he understood the nature of the upcoming sentencing proceedings and that he was able to help with the defense of his case. Pickens explained he was trying to determine Hessler's competency under the standard set forth in State v. Guatney.
Mowbray testified that from the beginning, Hessler went back and forth on whether he wanted to be put to death or sentenced to life imprisonment. Later, Hessler became more religious and ultimately insisted on the death penalty. Mowbray said that although they were not sure what was driving Hessler "in terms of his decision-making," "[t]here wasn't any question in our mind from a legal standpoint that he understood" the nature of the upcoming hearings and the penalties he was facing.
When asked whether he had noticed any change in Hessler's understanding of the proceedings from the beginning of their representation to the time they were discharged, Mowbray said, "No, I think he always understood what was going on. There was a change in at least what he was communicating as to who was making his decisions. But he certainly understood what we were telling him."
The district court denied postconviction relief. The court concluded that the record affirmatively showed Hessler was competent at the time of the sentencing hearing; therefore, counsel could not have
Hessler assigns that the postconviction court erred by failing to find that trial counsel was ineffective in failing to raise and preserve the issue of competence.
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.
On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous.
Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that we review independently of the lower court's decision.
In this appeal from the denial of postconviction relief, the question is whether trial counsel was ineffective by failing to ask for a competency hearing before the court allowed Hessler to proceed pro se at sentencing. Hessler argues that an inquiry during a competency hearing might have revealed he was not competent to stand trial. Even if competent to stand trial, he argues he may not have been competent to represent himself. Hessler acknowledges that it is traditionally the burden of the petitioner to more affirmatively demonstrate prejudice, but he argues he was unable to do so in this case because counsel's failure to request a competency hearing left him with an insufficient record on which to prove a postconviction claim.
We first address whether Hessler's postconviction motion is procedurally barred. A motion for postconviction relief cannot be used to secure review of issues that were known to the defendant and could have been litigated on direct review.
Postconviction relief is a very narrow category of relief available only to remedy prejudicial constitutional violations.
In order to demonstrate prejudice from counsel's failure to investigate competency and for failure to seek a competency hearing, the defendant must demonstrate that there is a reasonable probability that he or she was, in fact, incompetent and that the trial court would have found the defendant incompetent had a competency hearing been conducted.
The issue of prejudice in this case is necessarily bound up in the law of competency, and we will turn to that now.
An individual has a constitutional right not to be put to trial when lacking "mental competency."
A criminal defendant also has a constitutional right to waive the assistance of counsel and conduct his or her own defense.
The defendant in Godinez was evaluated by two psychiatrists prior to trial. Both concluded that despite a suicide attempt after the crimes, the defendant was able to understand the pending proceedings and assist counsel in his defense. Two months after pleading not guilty, the defendant sought to discharge his attorneys, plead guilty, and represent himself at sentencing so he could prevent the presentation of mitigating evidence and be sentenced to death. The court found the defendant to be competent and accepted his plea as freely and voluntarily given and his waiver of counsel as knowingly and intelligently made.
After being sentenced to death, the defendant asked for post-conviction relief, asserting that the trial court erred in allowing him to represent himself and in accepting his plea. The Ninth Circuit Court of Appeals granted the motion, reasoning that competency to waive constitutional rights required a higher level of the "capacity for `reasoned choice'"
The Court reiterated that "a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation."
Subsequently, in State v. Dunster (Dunster I)
After sentencing, the defendant filed a motion for new trial based on previously undisclosed medical records indicating an acute psychotic episode and undiagnosed depression. The trial court stated that the defendant's mental condition had "`ebbed and flowed'" during the sentencing hearing, but that he was legally competent, and the motion for new trial was denied.
Later, in the case of State v. Gunther,
There are no fixed or immutable
Hearing voices representing messages from God does not, without evidence of how the messages affect the defendant's ability to comprehend the trial proceedings and make a rational defense, demonstrate incompetence.
The fundamental question is whether the defendant's mental disorder or condition prevents the defendant from having the capacity to understand the nature and object of the proceedings, to comprehend the defendant's own condition in reference to such proceedings, and to make a rational defense.
In the hundreds of pages of medical records, Hessler's correspondence, and psychological reports and evaluations, and in the testimony of Hessler's trial counsel and of Hessler himself, there is no indication that Hessler was incompetent to stand trial. Neither did Hessler's actions before the sentencing panel indicate he was unable to maneuver through those proceedings.
The "Interlocutory Statement of the Defendant" was unusually worded. It was thus difficult, but not impossible, to understand. The sentiment conveyed in the statement was reportedly guided by Hessler's religious experiences and beliefs. The vocabulary was apparently derived from religious books Hessler was reading. This does not demonstrate a reasonable probability that Hessler was incompetent at the time of sentencing. Hessler testified that he never spoke in such an unusual manner. Pickens did not observe any form of incoherent or unusual speech when he met with Hessler shortly before the sentencing hearing. Hessler's written communications on other matters to prison staff reflects a completely different tone and content which were appropriate to Hessler's age and education and the topic at hand.
The only other possible evidence presented by Hessler relating to incompetence
As already discussed, we will not assume that hearing messages from God and following God's perceived commands, without more, demonstrate incompetence. Hessler provided no evidence that the alleged "voices" made him incompetent. Similarly, the evidence that Hessler was prescribed psychiatric medications which he may or may not have been taking at the time of sentencing does not demonstrate incompetence, absent some expert testimony connecting the medications to his ability to understand the proceedings and assist in his defense.
Mowbray and Pickens testified that at the time of sentencing, there was no doubt Hessler was competent under the standards set forth in Guatney.
Hessler's profession that he was under God's control was not new. Similar sentiments had been shared with Arias, who concluded that Hessler demonstrated a "clear and organized attempt to portray himself in an overly negative light, particularly with regard to psychotic symptoms to explain his behavior." Prison psychological records similarly report a tendency of "exaggerating" symptoms. A report near the time of sentencing stated that Hessler was displaying appropriate thought patterns consistent with reality and on track. As noted by the district court, rather than meeting his burden of affirmatively demonstrating incompetence, the record developed at the evidentiary hearing affirmatively shows that Hessler met the legal standard of competency required to waive counsel and proceed pro se at sentencing.
In fact, Hessler ultimately concedes he failed to demonstrate a reasonable probability that he would have been found incompetent had trial counsel demanded a competency hearing prior to the sentencing hearing. Thus, he failed to show prejudice in the traditional sense required at postconviction. Hessler instead argues the prejudice lies in the absence of a meaningful record with which he could prove such incompetency.
We have already discussed the substantial record developed at trial and during the evidentiary hearing on the issue of competency. What Hessler is truly arguing is that trial counsel's failure to call for a competency hearing resulted in the possible loss of vital additions to that evidence. Because competency changes over time, Hessler argues he can never obtain the evidence that trial counsel failed to obtain at the time of the sentencing hearing and he can never know what that evidence would or would not have been.
Recognizing that the law does not consider this to be proof of prejudice, Hessler suggests we adopt a special prejudice rule for death penalty cases. Under the proposed rule, counsel is put on "inquiry notice"
We decline to adopt such a rule. Counsel is not required to move for a competency hearing at every alleged sign of mental illness. Counsel is not required "to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel."
At Hessler's disposal was a large medical file, several witnesses to Hessler's behavior, numerous exemplars of Hessler's written communications, and several psychological assessments and reports. Yet, Hessler did not present any testimony or opinion which even attempted a retrospective evaluation of the probability that Hessler was incompetent at the time of the sentencing hearing. Perhaps most notably, Hessler did not present the testimony of the prison psychiatrist who was treating Hessler at the time of the sentencing hearing and who presumably would have some insight into his competency.
Hessler was granted an evidentiary hearing and was granted the appointment of counsel at the evidentiary hearing. He was given an opportunity to present evidence demonstrating that had counsel called for a competency hearing, he would have been found incompetent to stand trial and waive counsel. He failed to make such a showing. Accordingly, the district court properly denied postconviction relief.
Hessler failed to demonstrate that a constitutional violation occurred when trial counsel did not move for a competency hearing before the sentencing hearing. We affirm the judgment of the district court denying postconviction relief.
AFFIRMED.
HEAVICAN, C.J., and WRIGHT, J., not participating.
