County Criminal Court: CRIMINAL LAW Ė Competency Ė The trial court did not abuse its discretion in finding that Appellant was competent to proceed to trial. Affirmed.Skelly v. State, No. CRC1000742CFAWS, (Fla. 6th Cir.App.Ct. December 6, 2010).










††††††††††††††††††† Appellant,

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN:††††††††††† 512010CF000742A000WS

v. ††††††††††††††††††††††††††††††††††††††††††††††††††††††† Case No: †††† CRC1000742CFAWS

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Lower No: †† 09-6095XCFTWS


STATE OF FLORIDA,††††††††††††††††††††††††††††††††††††††††††††††

††††††††††††††††††† Appellee.†††††††††††††††††††††††††††††††††††††††††††††


Appeal from Pasco County Court

County Judge Marc H. Salton


Kimberly Nolen Hopkins, Esq.

for Appellant


Chris Sprowls, A.S.A.

for Appellee






††††††††† Appellant claims that the trial court committed reversible error by rejecting the opinions of two expert psychologists and finding that Appellant was competent to proceed to trial.Since the trial court had a superior vantage point to judge the credibility of witnesses and to accept or reject the expertsí testimony, this appellate court must defer to the trial courtís factual findings.This Court affirms the trial courtís order.







Appellant was charged with one count of DUI, two counts of DUI with property damage, and one count of leaving a crash scene with damage.Prior to trial, Appellant filed a Motion to Determine Competence to Proceed.At the hearing on the motion, two expert psychologists testified as to whether Appellant was competent to proceed.

The first expert witness, Dr. Fred Farzanegan, testified that he evaluated Appellant in his office for about an hour.When Appellant arrived, he appeared disheveled, lethargic, depressed, and slow to respond.Appellant never said that he would not answer questions, but Dr. Farzanegan had to frequently prompt Appellant to respond. Dr. Farzanegan testified that it was difficult to give Appellant a true diagnosis.Based on his evaluation, he would classify Appellant as having a schizo-effective disorder, meaning that Appellant is both depressed and schizophrenic.Appellant appeared depressed, but not in a manic state.Appellantís secondary diagnosis would be that he has a bipolar disorder.Appellant indicated that he was currently being prescribed an anti-psychotic called Risperdol, as well as Wellbutrin, Zoloft and Ambien.Dr. Farzanegan testified that he should be able to function while taking those medications.Appellant was not forthcoming with his mental health history.

Dr. Farzanegan testified that Appellant did not appear to have the capacity to appreciate the charges against him.Appellant could not state the charges against him and only asserted that he had a traffic ticket.Dr. Farzanegan believed that Appellant did not appreciate that he was charged for a crime or the nature of the possible penalties.Appellant stated that he did not know what a trial was.Appellant believed that he had a lawyer and understood his role, but claimed to not understand the role of judge or jury.He did not think that Appellant had the capacity to disclose facts to his attorney pertinent to his case based upon inability to tell him what had happened.Therefore, Dr. Farzanegan believed that, although Appellant could manifest appropriate courtroom behavior, he could not testify relevantly and was not yet competent to proceed or stand trial.He recommended a community-based restoration program, where Appellant could likely be restored to competency within a six-month to one-year period.Dr. Farzanegan based his opinion on Appellantís competency to proceed on what Appellant told him in his evaluation.††††

On cross-examination, Dr. Farzanegan testified that it was hard to tell whether Appellant was being completely cooperative or malingering.Dr. Farzanegan did not administer the Miller Forensic Assessment of Symptoms Test because he did not feel it was appropriate in Appellantís case.Appellantís unwillingness to answer questions was not an indicator of a mental disorder, but a lack of effort.Dr. Farzanegan did not believe that Appellant was being totally honest with all of his responses.

Upon the trial courtís inquiry, Dr. Farzanegan admitted that in retrospect Appellant was not always totally candid.He performed a McGarry trial competency instrument to evaluate his ability to understand the charges and a six-item cognitive impairment test to determine Appellantís cognitive ability.Dr. Farzanegan could not rule out the possibility that Appellant was malingering.Had he performed the test to determine if Appellant was malingering, the results would have likely been invalid because Appellant would not have responded. The trial judge commented that Appellant had a garment over his face and his head in his hands, but he could not recall Appellant ever acting like that at any other time.Dr. Farzanegan agreed that if someone was at a competency hearing and acting unusually for the first time, it might indicate that they are malingering.Dr. Farzanegan had not had a prior opportunity to observe Appellant in court, but noticed Appellant did not have anything over his head in the hall before the hearing.Dr. Farzanegan admitted that it is hard to tell if someone is malingering because he sees them in a vacuum without all the information.Dr. Farzanegan indicated that he now believed that Appellant was trying to present himself in a manner that would be consistent with not being competent.

Dr. Joel Epstein testified as the second expert witness in the field of psychology.When he met Appellant at his office, he appeared somewhat disheveled and unable to make appropriate introductory remarks.Appellant did nothing overtly that was not cooperative, but it was difficult to engage in conversation, to keep him focused, or to make eye contact.Appellant brought his prescriptions with him: Prozac, Wellbutrin, Risperdol, and Ambien.Dr. Epstein diagnosed Appellant with a depressive disorder and a cognitive disorder that could have stemmed from depression or dementia or not giving a significant effort.Dr. Epstein could not rule out malingering.††

Dr. Epstein was not able to get relevant answers from Appellant.He did not appear to appreciate the charges against him, denied that there were any charges beyond a simple traffic citation, and refused to hear otherwise. Appellant would not listen and avoided engaging in efforts to educate himself.Appellant stated that he did not understand why he was there.In his report, Dr. Epstein indicated that Appellant did not appreciate the charges against him, the nature of the possible penalties, or understand the legal process.

Dr. Epstein attempted to perform a test for malingering, which all but the most demented individuals are able to perform fairly well.On the Rey test, Appellant got five out of the fifteen items; only someone who is severely demented will get less than nine items.Appellantís score was impaired, indicating that he was either malingering or unable to sustain sufficient effort.Appellant did not give full effort.Dr. Epstein testified that his inability to sustain sufficient effort could be a symptom of depression, dementia, or malingering.Dr. Epstein indicated that Appellant did not appear to have any anxiety issues that would account for his lack of effort.Based on his one-hour evaluation, Dr. Epstein did not believe that Appellant was competent to proceed, but could attain legal competence with treatment in a community-based competency restoration program.

On cross-examination, Dr. Epstein made many references to Appellantís lack of effort.He thought Appellantís lack of effort was inconsistent with his ability to come to his office or function in the community; someone who did as poorly in the evaluations as Appellant would not be expected to function as well as Appellant.Appellantís ability to get to his office and return home indicated that Appellant was not so depressed to do as poorly as he did.The validity of the results was in question due to his lack of effort.The only way to assess a personís level of functioning is by what they give, and if they choose not to respond, an accurate determination cannot be made.One of the reasons Dr. Epstein suggested treatment was to provide a better sample of behavior.

The trial court sought clarification as to Appellantís competency.The test result indicated Appellant was highly demented, yet his responses to questions indicated that he was not highly demented.Dr. Epsteinís report stated that Appellantís thinking was concrete but not disorganized.When engaged in discussions, his thinking was rational and linear.Dr. Epstein testified that would indicate Appellant was not highly demented.Appellant accomplished what a severely demented individual could not: living alone; watching his grandchildren; buying food; taking care of himself; and knowing how much his rent costs, how much he is paid, how he spends his time, and where he grew up. Appellant did not present himself as actively psychotic.Given the trial courtís hypothetical that if a person were able on numerous occasions to be with his lawyer in a normal manner in the courtroom, but on a hearing to determine competency exhibited the type of behavior that Appellant was now exhibiting, Dr. Epstein would be very concerned that person was not giving an honest presentation of his capabilities.Dr. Epstein agreed that malingering was part of Appellantís presentation.



††††††††† The criteria for determining competence to proceed is whether the defendant "has sufficient present ability to consult with counsel with a reasonable degree of rational understandingóand whether he has a rational as well as a factual understanding of the pending collateral proceedings." Hardy v. State, 716 So. 2d 761, 763 (Fla. 1998) (quoting Dusky v. United States, 362 U.S. 402 (1960).The opinions of experts are ďmerely advisory to the [trial court], which itself retains the responsibility of the decision.Ē Hunter v. State, 660 So. 2d 244, 247 (Fla. 1995) (quoting Muhammad v. State, 494 So. 2d 969, 973 (Fla. 1986)). It is the trial court's responsibility to consider all the relevant evidence and resolve such factual disputes. Hardy, 716 So. 2d at 764 (citing Hunter, 660 So. 2d at 247).

††††††††† When sufficient evidence is presented to support a trial courtís conclusion, an appellate court may not substitute its judgment.Mason v. State, 597 So. 2d 776, 779. Absent a showing of an abuse of discretion, a trial court's decision regarding competency should not be reversed. Carter v. State, 576 So. 2d 1291, 1292 (Fla. 1989). A trial court's decision does not constitute an abuse of discretion "unless no reasonable person would take the view adopted by the trial court." Scott v. State, 717 So. 2d 908, 911 (Fla. 1998).Thus, the issue to be addressed by this Court is whether the trial court abused its discretion in finding Appellant competent to proceed to trial.

In determining Appellant's competence to proceed, the trial court found that neither of the expert psychologists could give a valid opinion as to Appellantís competency with any degree of reasonable scientific certainty based on his lack of cooperation and what appeared to be malingering.Dr. Epstein indicated that Appellant was more likely than not malingering, and Dr. Farzanegan could not rule out that possibility either.The trial court opined that there was a reasonable likelihood that Appellant malingered during the examinations to appear not competent.Therefore, the trial court found Appellant competent to proceed.

As the trier of fact, the trial court had a superior point to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses. Stephens v. State, 748 So. 2d 1028, 1032 (Fla. 1999).Neither of the experts who examined Appellant testified within a reasonable degree of medical probability that Appellant was incompetent.While Appellant asserts that the trial court ignored the uncontested opinions of both experts, the record suggests otherwise.Given the sufficient evidence to support the trial courtís determination that Appellant was competent to proceed, we find that the trial court did not abuse its discretion.The trial courtís order should be affirmed.Therefore, it is†††

ORDERED that the order adjudging Appellant competent to proceed to trial is hereby AFFIRMED.


DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 6th day of December 2010.


Original order entered on December 6, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.