                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2004-KA-00625-SCT

KEITH DURAN SANDERS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          11/11/2003
TRIAL JUDGE:                               HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                 NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    EDMUND J. PHILLIPS, JR.
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         MARK SHELDON DUNCAN
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED AND REMANDED - 5/28/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    Keith Duran Sanders was convicted of murder in the shooting death of Darryl

Baxstrum and sentenced to life imprisonment. After due consideration, we find that Sanders

was entitled to a competency hearing and reverse the conviction and sentence and remand

for a new trial in accordance with this opinion.

                             FACTS AND PROCEEDINGS

¶2.    On August 5, 2001, Sanders suffered a gunshot wound to the head. As a result of the

shooting, Sanders suffered brain damage and experienced temporary paralysis on the right

side of his body. Sanders ultimately regained use of his right leg, but continued to walk with
a limp, experienced trouble speaking, and suffered from anxiety, depression, and paranoia.

At the time of his release from treatment, Sanders was taking three prescription medications:

Zoloft, Nerantin,1 and Zyprexa. Sanders continued to take these medications until

approximately August 2002, when he lost his Medicaid benefits and could not afford the

medications.

¶3.    On April 19, 2003, Sanders shot Daryl Baxstrum.2 At least two individuals, Parrish

Anderson and Trenell Edwards, witnessed the incident. According to both Anderson and

Edwards, Sanders approached Baxstrum, pulled a handgun out of his pocket, and began

shooting. As Baxstrum ran away, Sanders continued shooting, ultimately emptying his gun

before getting into a truck and leaving the scene.

¶4.    Numerous officers were dispatched to the scene. Officer Charles Swain, the first

officer to arrive, found Baxstrum unresponsive. Officer Barry Truhett found seven .45-

caliber shell casings, which were recovered by another officer and later turned over to

Richard Sistrunk, Chief Investigator for the City of Philadelphia Police Department.

¶5.    A short time after the incident, Officer Sistrunk received a call from the dispatcher

advising him that Sanders, along with his mother, was at the jail turning himself over to

authorities. As Officer Sistrunk was getting out of his car at the jail, Sanders, who was still



       1
         Though identified in the transcript as “Nerantin,” no such medication exists. See
See Physician’s Desk Reference (62nd ed. 2008). Based on the uses described by Dr. Mark
C. Webb in his testimony, the more probable identification of the medication is “Neurontin,”
a well-known medication commonly used for the purposes described. Id. at 2462-64.
       2
          Baxstrum had an affair with Sanders’s wife, Rhoda Sanders, and this affair led to
the birth of a child. At the time of the shooting, Sanders had separated from his wife and had
moved in with his mother.

                                              2
outside the jail, stated “I shot him.” Officer Sistrunk advised Sanders not to say anything

else until he had advised him of his rights. When he had finished advising Sanders of his

rights, Officer Sistrunk asked him if he understood, and Sanders responded that he did

understand them. As they walked inside the jail, Sanders made another comment–“I have

been shot before. I wasn’t going to let Darryl shoot me first.”

¶6.    Baxstrum died as a result of the shooting,3 and Sanders was indicted for the murder

in violation of Mississippi Code Section 97-3-19(1)(a).4 Sanders pleaded not guilty.

¶7.    On July 3, 2003, Sanders filed a motion for psychiatric evaluation pursuant to Rule

9.06 of the Uniform Rules of Circuit and County Court Practice (URCCC), claiming that he

was “of insufficient soundness of mind” such that he was “not capable of making a rational

defense.” Attached to and in support of this motion was the affidavit of Sanders’s attorney,

Robert Brooks. The motion further stated that Sanders “has exhibited self-destructive

behavior, toward himself and others, subsequent to having been shot in the head,” “has been

treated with numerous psychotropic drugs,” and “has been previously committed to a

psychiatric ward.”

¶8.    On July 9, 2003, the trial judge granted Sanders’s motion for psychiatric evaluation.

The judge’s order instructed Dr. Mark C. Webb, a qualified psychiatrist, to examine Sanders


       3
         Dr. Stephen Hayne, who performed the autopsy on Baxstrum, concluded that
Baxstrum suffered three gunshot wounds, only one of which was lethal. According to Dr.
Hayne, the shot that killed Baxstrum struck the left buttock and went through the left femoral
artery.
       4
         “(1) The killing of a human being without the authority of law by any means or in
any manner shall be murder in the following cases: (a) When done with deliberate design
to effect the death of the person killed, or of any human being . . . .” Miss. Code Ann. § 97-
3-19(1)(a) (Rev. 2004).

                                              3
“to determine his present ability to stand trial and assist his attorney in his defense; and

further examine him to determine his ability to know the difference between right and wrong

and to understand the nature and quality of his actions at the time of the alleged offense.” 5

Upon completion of the examination, Dr. Webb was to make a written report of his findings

and provide copies to the trial judge, the district attorney, the circuit clerk, and Sanders’s

attorney.6

¶9.    A trial was held on November 10-11, 2003. On the first day of trial, Sanders filed a

notice that he would rely on the defense of insanity at the time of the alleged crime. On

November 11, 2003, following a jury trial, Sanders was found guilty of murder and sentenced

to life imprisonment.

¶10.   Sanders’s post-trial motion for a new trial or other relief was denied by the trial court.

Sanders’s petition for appeal, in forma pauperis, was granted, as was Sanders’s motion to file

an out-of-time appeal. Sanders now appeals to this Court.

                                          DISCUSSION

¶11.   Sanders raises three issues on appeal: (1) whether he received effective assistance of

counsel; (2) whether the trial court erred in failing to conduct a competency hearing; and (3)

whether the trial court erred in refusing jury instruction D-8. This Court considers Sanders’s

second issue, the competency hearing, to be dispositive in this case. Since we reverse and



       5
         The order directing Sanders to undergo a psychiatric examination lists the District
Attorney as the moving party. This is apparently a scrivener’s error as the record clearly
shows the motion seeking the mental evaluation was signed and filed by counsel for Sanders,
the defendant, and no issue is made of this on appeal.
       6
           Dr. Webb testified at trial.

                                               4
remand for a new trial based on the competency issue, this Court need not address the other

two issues on appeal.

       Whether the Trial Court Erred in Failing to Conduct a Competency Hearing.

¶12.   Sanders asserts that he should have been provided an on-the-record competency

hearing pursuant to Rule 9.06.

¶13.   This Court has stated:

       The United States Supreme Court defines the standard for competency to stand
       trial as being "whether [a defendant] has sufficient present ability to consult
       with his lawyer with a reasonable degree of rational understanding . . . and
       whether he has a rational as well as factual understanding of the proceedings
       against him." Dusky v. United States., 362 U.S. 402, 402, 80 S. Ct. 788, 4 L.
       Ed. 2d 824; 362 U.S. 402, 80 S. Ct. 788, 788-89, 4 L. Ed. 2d 824; 362 U.S.
       402, 80 S. Ct. 788, 4 L. Ed. 2d 824, 825 (1960) (per curiam).

Hearn v. State, 3 So. 3d 722, 728 (Miss. 2008). In Pate v. Robinson, 383 U.S. 375, 86 S.

Ct. 836, 15 L. Ed. 2d 815 (1966), the United States Supreme Court held that when the

evidence raises a sufficient doubt as to a defendant’s mental ability to stand trial, that

defendant is deprived of due process of law when the trial court does not, on its own, conduct

a separate competency hearing. In other words, “trial courts are obligated to conduct a

competency hearing, either on the defendant’s motion or sua sponte, if there is sufficient

doubt about a defendant’s competence.” House v. State, 754 So. 2d 1147, 1151 (Miss. 1999)

(emphasis added) (citing Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed.

2d 103 (1975); Pate, 383 U.S. 375).7


       7
         The dissent correctly notes that House was a pre-Rule 9.06 case. Rule 9.06 was
adopted effective May 1, 1995. See Rule 9.06. House pled guilty to murder in 1989.
House, 754 So. 2d at 1149. However, the facts in House show that, before accepting his
guilty plea, the trial court ordered a medical examination to determine his competence and

                                              5
¶14.   In Pate, Robinson was convicted of murder and sentenced to life in prison. Pate, 383

U.S. at 376. At trial, Robinson’s attorney had argued that his client was insane and that he

was mentally incompetent to stand trial. Id. Although Robinson’s attorney did not request

a competency hearing, the United States Supreme Court reversed his conviction, finding that

he was constitutionally entitled to such a hearing. Id. at 376-77. The Supreme Court

explicitly rejected the State’s argument that the defendant had waived the defense of his

competence to stand trial by failing to ask for a hearing on the issue. Id. at 384. The

Supreme Court unambiguously stated that “it is contradictory to argue that a defendant may

be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court

determine his capacity to stand trial.” Id.

¶15.   In Mississippi, when a defendant’s present mental competency is in question, Rule

9.06 applies and states in pertinent part:

       If before or during trial the court, of its own motion or upon motion of an
       attorney, has reasonable ground to believe that the defendant is incompetent
       to stand trial, the court shall order the defendant to submit to a mental
       examination by some competent psychiatrist selected by the court in
       accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.

       After the examination the court shall conduct a hearing to determine if the
       defendant is competent to stand trial. After hearing all the evidence, the court
       shall weigh the evidence and make a determination of whether the defendant
       is competent to stand trial. If the court finds that the defendant is competent to




competence to stand trial. Id. at 1151. Dr. Margie Lancaster stated in her report, in part, that
“In our opinion, [House] has a rational as well as factual understanding of the charges
against him and is capable of assisting his attorney in preparing a defense.” Id.
Furthermore, the trial court thoroughly questioned House concerning whether he understood
his guilty plea. Id. at 1152. The point being, that in House, unlike here, at a minimum, there
was a medical report in the record on appeal concerning House’s competency.

                                               6
       stand trial, then the court shall make the finding a matter of record and the
       case will then proceed to trial.
URCCC 9.06 (emphasis added).

¶16.   Rule 9.06 requires an on-the-record hearing to determine competency once the court

has reasonable ground to believe that the defendant is incompetent. The rule clearly uses the

directive “shall” and not the permissive “may” language. The rule requires that the trial court

first, “shall conduct a hearing to determine if the defendant is competent” and, second, “shall

make the finding a matter of record.” URCCC 9.06. In the face of this plain language, it is

evident that it would be error not to hold a competency hearing once a trial court orders a

psychiatric evaluation to determine competency to stand trial.

¶17.   In the instant case, Sanders moved for a psychiatric examination, and the trial court

granted the motion and ordered the report to be provided to the defense, the State, and the

trial court.8 Sanders was examined by Dr. Webb, a psychiatrist, who prepared a written

report which was filed with the court on September 23, 2003, according to the docket.9

Thereafter, the record does not reflects that an on-the-record hearing regarding Sanders’s

competency was ever held by the trial court. Further, the record does not contain an explicit

finding by the trial court that Sanders was competent to stand trial for murder.




       8
          The Neshoba County Circuit Court docket pages, contained in the appellate court
papers, indicate that a “medical report filed by Dr. Mark Webb (marked private &
confidential)” was entered on September 23, 2003. While the docket indicates receipt of the
report, there is nothing in the record to demonstrate that “copies” of the report were provided
to the trial court, defense counsel, or the district attorney’s office, as the dissent asserts.
       9
         Dr. Webb’s report was never transmitted to this Court as part of the appellate
record. Thus, this Court did not have the benefit of the report for our appellate review.

                                              7
¶18.   By finding that Sanders’s motion for psychiatric examination was well taken and

granting it, the trial court necessarily determined that some, if not all, of the assertions in

Sanders’s motion were sufficient to order a psychiatric examination of Sanders. In the

motion, counsel for Sanders asserted that Sanders “is at this time of insufficient soundness

of mind, and because thereof not capable of making a rational defense.” The motion also

asserted that Sanders “has exhibited self destructive behavior, toward himself and others,

subsequent to having been shot in the head. The Defendant has been treated with numerous

psychotropic drugs. Further he has been previously committed to a psychiatric ward.” The

motion was accompanied by an affidavit asserting that trial counsel believed Sanders “is of

insufficient soundness of mind to make a rational defense.”

¶19.   This Court’s recent decision in Hearn addressed the issue of competency and Rule

9.06. Hearn, 3 So. 3d at 728-32. There this Court found that “the trial court failed to

comply in the strictest technical sense with Rule 9.06 which mandates that a competency

hearing be conducted following a court-ordered mental examination.” Id. at 730 (citing Rule

9.06). This Court, however, determined that strict compliance with Rule 9.06 was not

required in order for Hearn to be heard regarding claims of mental incompetency. Id.

¶20.   While instructive, Hearn is distinguishable from our case today. In Hearn, a court-

appointed psychiatrist “testified at trial as to Hearn’s competency and was subjected to cross-

examination.” Hearn, 3 So. 3d at 730. Specifically, during trial testimony, one of the

examining physicians testified that he and two other medical experts “unanimously

concluded that Hearn was competent to stand trial.” Id. at 729. Since “Hearn was afforded




                                              8
the opportunity to present competing evidence” this Court determined that the purpose of

Rule 9.06 was satisfied by this Court. Id. at 730.

¶21.   Here, Dr. Webb testified regarding Sanders’s sanity at the time of the offense.

However, competency to stand trial is an entirely different issue from an insanity defense

because the latter concerns the defendant’s present mental capacity while the former relates

to a past mental state. Martin v. State, 871 So. 2d 693, 697-98 (Miss. 2004).

¶22.   The record reveals that Dr. Webb knew the parameters of what was required by the

court-ordered psychiatric evaluation. At trial, the State questioned Dr. Webb, as follows:

       Q.     As it applies to this particular case, what were you asked to do?

       A.     I was asked to evaluate Mr. Sanders, which I did, and then to along in
              the course of my evaluation find if there is an illness or not, and also to
              ask or answer two other questions about his ability to stand trial, can
              he cooperate with his attorney, and then what they call the McNaghten
              Rule, looking to see if he knew the difference between right and wrong,
              and knew the nature and quality of his actions at the time of the
              incident.

(Emphasis added). Based on his description of the purpose of Sanders’s evaluation, Dr.

Webb knew that a component of the evaluation was to give his opinion on whether Sanders

was competent to stand trial.

¶23.   Further, Dr. Webb was questioned three times on direct examination and one time on

rebuttal concerning Sanders’s mental state. However, the testimony elicited gave an opinion

as to Sanders’s mental state at the time of the murder, it did not address Sanders’s

competence to stand trial. The record contains the following excerpts on direct examination:

       Q.     Now, based upon that evaluation on September the 8 th , did you reach
              an opinion as to Mr. Sanders’ mental state as the time he is said to have
              committed the act that resulted in the death of Mr. Baxstrum?


                                               9
A.   He was very evasive in talking about what happened, so I really
     couldn’t gather what was going on at the time, but in my evaluation of
     him at my visit, he knew the nature and quality of his actions, knew the
     difference between right and wrong, and was not criminally insane.

*    *         *

Q.   Now, you have been able to sit out in the audience during the course of
     the trial here today; have you not?

A.   I have.

Q.   Heard the testimony of witnesses who described how this happened?

A.   I have.

Q.   Has that helped you, you know, further your opinion about Mr.
     Sanders’ mental state at the time surrounding the shooting which
     resulted in the death of Mr. Baxstrum?

A.   It has. It’s greatly cleared it up, and I felt agreed with my impression
     that I saw in September, which is that Mr. Sanders was functioning
     normally. The investigator said he was acting normally, just as he had
     known him for years. That night he was at a club doing something.
     We heard from one person, Trennell, who said he was talking to Mr.
     Sanders prior to the shooting, and everything appeared normal. This
     was not a crazy person wandering around town or something like that.
     This was a person just like you and me. He was going through normal
     actions, purposeful actions we will call it, going through his life, and
     these witnesses have all described that, have talked about he was acting
     normally. Nobody saw any abnormal behavior.

*    *         *

Q.   Finally, Dr. Webb, based upon your evaluation on September the 8 th
     and the things you have learned today about the case and watching the
     testimony, can you give us an opinion as to the Defendant’s mental
     state at the time this act was committed?

A.   That he was not criminally insane. He knew the nature and quality of
     his actions at the time and also knew the difference between right and
     wrong at the time of the incident.



                                    10
(Emphasis added).

¶24.   On rebuttal, the State questioned Dr. Webb as follows:

       Q.     Dr. Webb, you testified yesterday in the case?

       A.     Sure did.

       Q.     And yesterday you gave the jury your opinion at the time that the
              Defendant shot and killed Darryl Baxstrum, it was your opinion that he
              knew the difference between right and wrong.

       A.     He did. That is correct.

       Q.     And also understood the nature and quality of his acts.

       A.     That is correct.

(Emphasis added).

¶25.   The record excerpts reveal that Dr. Webb’s testimony concerned Sanders’s state of

mind at the time of the April 19, 2003, shooting. While this information is relevant, it did

not answer the question of whether Sanders was competent to stand trial on November 11-12,

2003. The record lacks any testimony that relates to Sanders’s competency to stand trial.

The docket indicates that Dr. Webb did file a report with the trial court. However, the report

was not entered into evidence and was not part of the record on appeal. Therefore, this Court

is unable to review the report and Dr. Webb’s opinion, if any, as to Sanders’s competency

to stand trial. One may argue or speculate that the appellate record before us today was

sufficient to assume that Sanders was competent to stand trial. However, we reiterate the fact

that the appellate record before us contains no evidence that Sanders was found to be

competent to stand trial. At a minimum, there was no definitive testimony or report that

determined Sanders competent to stand trial. Thus, we are bound by the record before us.


                                             11
Without any evidence concerning Sanders’s competency to stand trial, to hold that testimony

regarding sanity at the time of the offense is sufficient to demonstrate competency to stand

trial would disregard and blur the well-established distinction between the two legal

concepts. Accordingly, this Court reverses and remands for a new trial.

                                      CONCLUSION

¶26.   For the above reasons, we reverse Sanders’s conviction and sentence, and we remand

this case for a new trial consistent with this opinion.

¶27.    REVERSED AND REMANDED.

     CARLSON, P.J., DICKINSON AND LAMAR, JJ., CONCUR. KITCHENS, J.,
CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED
BY DICKINSON, J. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY RANDOLPH AND CHANDLER, JJ. GRAVES, P.J., NOT
PARTICIPATING.


       KITCHENS, JUSTICE, CONCURRING IN RESULT ONLY:

¶28.   While I agree that Sanders was entitled to a competency hearing, I respectfully

disagree with this Court’s recent holding in Hearn v. State, 3 So. 3d 722 (Miss. 2008), that

a defendant’s mental competency to stand trial may be decided during the trial on the merits

when the trial court, before trial, had reasonable ground to believe the accused lacked the

requisite mental competence to go to trial.

¶29.   Over four decades ago, the United States Supreme Court held in Pate v. Robinson,

383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966), that when the evidence raises

sufficient doubt as to a defendant’s mental ability to stand trial, that defendant is deprived

of due process of law when the trial court does not conduct a separate competency hearing.



                                              12
This rule is no less viable today, and this Court has attempted to safeguard this right in the

form of Rule 9.06 of the Uniform Rules of Circuit and County Court Practice. Rule 9.06

sets forth a clear procedure to be followed when a defendant’s present mental competency

is in question:

       If before or during trial the court, of its own motion or upon motion of an
       attorney, has reasonable ground to believe that the defendant is incompetent
       to stand trial, the court shall order the defendant to submit to a mental
       examination by some competent psychiatrist selected by the court in
       accordance with § 99-13-11 of the Mississippi Code Annotated of 1972.

       After the examination the court shall conduct a hearing to determine if the
       defendant is competent to stand trial. After hearing all the evidence, the court
       shall weigh the evidence and make a determination of whether the defendant
       is competent to stand trial. If the court finds that the defendant is competent
       to stand trial, then the court shall make the finding a matter of record and the
       case will then proceed to trial.

(Emphasis added.)

¶30.   This concept is hardly new. Long before Pate was decided, this Court recognized the

need for a separate pretrial hearing on the issue of competency. In Williams v. State, 205

Miss. 515, 524-25, 39 So. 2d 3, 4 (1949), this Court held

       The trial of a defendant, when his mind is so clouded that he cannot remember
       and intelligently relate what occurred at the time of the commission of the
       alleged offense, is a denial of due process and contrary to public policy, and
       when it appears to the trial court that there is a probability that defendant is
       incapable of making a rational defense, the trial should not proceed until
       defendant’s mental condition has been investigated and it appears he is
       sufficiently rational to make defense. We urge upon the trial courts to observe
       this constitutional right of defendants, with meticulous care, and submit to the
       jury, preliminarily, the issue of the defendant’s sanity in all cases where there
       is a probability that defendant is incapable of making a rational defense.

(Emphasis added.) (Internal citations omitted.) See also Jaquith v. Beckwith, 248 Miss. 491,

500, 157 So. 2d 403, 407 (1963) (“Assuming a properly authorized psychiatric examination

                                              13
has been made under the statute, the court and the jury may then consider the doctors’

findings in determining, as a question prior to trial on the merits, the issue of present

insanity.”) (emphasis added) (citing Robinson v. State, 223 Miss. 70, 81, 77 So. 2d 265

(1955)). As indicated in Jaquith v. Beckwith, competency to stand trial, or the lack thereof,

was determined by juries, in separate competency trials, prior to our providing by rule that

such determinations be made by trial judges.

¶31.   In Hearn v. State, 3 So. 3d 722, this Court abandoned our longstanding practice that

mental competency be decided in advance of trial on the merits. Instead, the Court found

that the trial court’s finding of competency to stand trial was proper when evidence on this

subject was elicited during the trial.10 Had I been a member of this Court, I would have

disagreed and dissented. The procedures of Rule 9.06 are in place to protect the due process

rights of defendants whose competency to stand trial is in doubt. They are not technical

requirements that may be sidestepped. By requiring a pretrial evidentiary hearing on the

issue of competency, outside the presence of the jury, the accused is given a fair opportunity

to be heard that is not otherwise available if the issue is presented during trial, as was

approved in Hearn.

¶32.   For example, the defendant’s own testimony may be relevant, perhaps indispensable,

to the question of whether he is competent to stand trial. In a separate, pretrial hearing

devoted solely to the issue of competency, the defense attorney could call his or her client




       10
         I note that unlike Hearn, in Sanders’s case, there was never an on-the-record finding
by the trial court that the defendant was mentally competent to stand trial, as Rule 9.06
mandates.

                                             14
as a witness without dread of cross-examination on issues of guilt or innocence. However,

if the issue of competency is tried during the a jury trial on the merits, the defendant would

be less likely to take the stand for various reasons, including a reticence about being

subjected to cross-examination. In such case, a chilling effect at best, and an outright denial

at worst, would be placed upon the defendant’s opportunity of personally presenting

testimony on the issue of his own competency. Such a result offends basic tenets of due

process.

¶33.   In addition, evidence that would be relevant to an accused’s competency to stand trial

could be highly prejudicial if presented to a jury assigned the task of determining guilt or

innocence. It is not at all unlikely that if a defendant lacks the mental competency to stand

trial and assist his counsel in presenting a rational defense, his mental impairment will have

caused him to have engaged in bizarre, socially unacceptable, and even criminal conduct.

For example, a mentally incompetent person might enter a retail store, see something he likes

and place it in his pocket without understanding the necessity of paying for the item. For a

sane person, such conduct would constitute the crime of shoplifting. Though relevant and

probative of mental incompetency, such evidence could be quite harmful to a defendant if

adduced before a jury charged with judging whether he or she was guilty of the charge being

tried. This is one of the reasons that a separate competency hearing mandated by URCCC

9.06 is the wise and fair way to proceed, and is consistent with state and federal due process

requirements.

¶34.   Trying the issue of competency before the trial jury is also problematic because

competency to stand trial is decided by the trial judge, under the Mississippi procedure now


                                              15
prescribed by Rule 9.06, while issues of guilt or innocence are, in most cases, decided by a

jury. Rule 9.06 provides that “the court shall weigh the evidence and make a determination

of whether the defendant is competent to stand trial.” There is simply no need to expose the

trial jury to evidence of a defendant’s competency to stand trial and risk confusing the issues

as well as prejudicing the defendant when our rules provide a just and rational procedure for

resolving such matters.

¶35.   It is readily foreseeable that the most knowledgeable witness on the question of

whether an accused person is mentally competent to confer with his or her attorney and

meaningfully assist in asserting a rational defense could be the defense attorney. This

attorney’s testimony could be easily adduced during a separate competency hearing, but not

during the trial on the merits, with the jury present. By logical deduction, Hearn seems to

contemplate that it could.

¶36.   Of course, Rule 9.06 does make provision for a competency hearing during trial,

should the need arise. Clearly, though, such a proceeding should be conducted outside the

presence of the jury.

¶37.   Because I would explicitly overrule Hearn, and the majority, though reaching the

correct result, stops short of doing so, I respectfully concur in result only.

       DICKINSON, J., JOINS THIS OPINION.

       WALLER, CHIEF JUSTICE, DISSENTING:

¶38.   Because I find the assignment of error was not properly preserved for appeal and that

Sanders has advanced nothing to support an inference of incompetence, I respectfully dissent.




                                              16
¶39.   The trial court granted a psychiatric evaluation on motion of Sanders’s counsel

pursuant to Rule 9.06 of the Uniform Rules of Circuit and County Court Practice. The exam

was performed and a report was filed with the clerk’s office. According to the docket, copies

were provided to the trial court and counsel for Sanders and the District attorney. The report

was never offered into evidence or even marked for identification and its contents are

unknown to this Court. The case proceeded to trial with no one requesting the required

hearing. Sanders himself took the stand and was subject to cross-examination on his insanity

defense. Still, no motion or request to set a hearing date for a competency hearing.

¶40.   The affirmative duty is upon the party seeking action by the court upon any motion

or pleading to pursue that relief to a hearing and decision:

       Rule 2.04. Duties of Movant

       It is the duty of the movant, when a motion or other pleading is filed, including
       motions for a new trial, to pursue said motion to hearing and decision by the
       court. Failure to pursue a pretrial motion to hearing and decision before trial
       is deemed an abandonment of that motion; however, said motion may be heard
       after the commencement of trial in the discretion of the court.

See, e.g., for non-binding persuasive discussion of movant’s obligation to pursue relief, Potts

v. State, 755 So. 2d 521, 524 (Miss. Ct. App. 1999).

¶41.   Sanders initiated matters by requesting a psychiatric examination but did not fulfill

the remaining affirmative obligations by pursuing the matter through hearing and conclusion.

Rather, he raises the issue of a competency hearing for the first time on appeal. We have

consistently held that issues raised for the first time on appeal will not be addressed:

       Under Mississippi law, if an appellant raises for review an issue not raised in
       the pleadings, transcript, or rulings, the appellant must have preserved the
       issue by raising it in a motion for new trial. Miss. Code Ann. § 9-13-31;

                                              17
       Jackson v. State, 423 So. 2d 129, 131-32 (Miss. 1982)(citing Colson v. Sims,
       220 So. 2d 345, 346 n. 1 (Miss. 1969) . . . The rationale for this rule is based
       on the policy of giving the trial judge, prior to appellate review, the
       opportunity to consider the alleged error.

Ross v. State, 603 So. 2d 857, 860-61 (Miss. 1992). The issue of whether an error occurred

in the trial court in failing to hold a competency hearing has not been preserved for appellate

review.

¶42.   Additionally, I respectfully submit the majority’s reliance upon Pate v. Robinson, 383

U.S. 375 (1966) is not apropos of the case at bar. In Pate, the defendant, Robinson, was

denied any psychiatric examination to determine either his competency to stand trial or his

sanity at the time he committed murder. At the time of his trial and conviction, Illinois had

a statute which required the State to conduct a sanity hearing if there existed a “bona fide

doubt” as to the defendant’s mental status. Id. at 385. Here, Sanders was not denied access

to professional evaluation. Sanders got his requested evaluation and left the matter there.

Under these facts, Pate does not apply.

¶43.   Similarly, I do not find House v. State, 754 So. 2d 1147 (Miss. 1999), to be on point.

The decision in House occurred before the current amendment to Rule 9.06. In the wake of

Pate and Drope v. Missouri, 420 U.S. 162 (1975), this Court recognized the necessity to

impose an obligation upon trial courts to hold such hearings “where there is sufficient doubt

about a defendant’s competence.” House, 754 So. 2d at 1151. Sufficient doubt in the

court’s mind was the cornerstone of the rule we then created. In the absence of such doubt,

the obligation to sua sponte order a competency hearing simply does not arise. There is

nothing in the record to support a finding that Sanders was incompetent, not even his own



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assertion. On these facts, I find no obligation for the trial court to have ordered a competency

hearing.

¶44.    For these reasons, I respectfully dissent.

       RANDOLPH AND CHANDLER, JJ., JOIN THIS OPINION.




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