A Rehearing En Banc was granted in this case on October 11, 1996.

                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia


KEVIN JOHNSON
                                           MEMORANDUM OPINION * BY
v.             Record No. 2281-95-2     JUDGE JERE M. H. WILLIS, JR.
                                              AUGUST 20, 1996
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                         William L. Wellons, Judge

               Craig S. Cooley (Betty Layne DesPortes;
               Steven D. Benjamin and Associates, on
               briefs), for appellant.

               Thomas D. Bagwell, Senior Assistant Attorney
               General (James S. Gilmore, III, Attorney
               General, on brief), for appellee.



        On appeal from his conviction of injuring an employee of a

correctional facility while a prisoner, Kevin Johnson contends

that the trial court erred in finding him competent to stand

trial.      Specifically, Johnson contends that he was incapable of

assisting his attorney in his own defense.

        The indictment charged that on March 13, 1994, while a

prisoner in Mecklenburg Correctional Center, Johnson stabbed a

corrections officer with a shank that he had secreted in his

cell.       On October 7, 1994, Johnson was scheduled for trial but

refused to plead to the indictment.      On motion of defense

counsel, the trial court ordered a psychiatric evaluation and
        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appointed Dr. Evan Nelson, a licensed clinical psychologist, to

evaluate Johnson's sanity at the time of the offense and his

competency to stand trial.

     Because Johnson refused to cooperate, Dr. Nelson based his

findings on an extensive review of Johnson's prison, medical, and

court records.   At the competency hearing on July 31, 1995, Dr.

Nelson testified that before Johnson reached age nineteen, he had

been admitted twelve times to psychiatric facilities.   Dr. Nelson

gave two possible diagnoses for Johnson's behavior:   either

Johnson suffers from an anti-social personality disorder or he

suffers prodromal symptoms as a precursor to schizophrenia.     Dr.

Nelson testified, "it is my opinion that there is a strong

likelihood that Mr. Johnson has a mental illness, and that mental

illness would impair his capacity to assist his counsel in the

pursuit of his defense at this point in time."   However, Dr.

Nelson testified that other psychologists in the Department of

Corrections, who were familiar with Johnson had reported to him

that behavior such as Johnson's was frequently exhibited by

inmates acting not under impulse of mental illness, but rather

out of "meanness."   Dr. Nelson testified that these other

psychologists had concluded that Johnson was not mentally ill,

but was manipulative.
     During the competency hearing, Johnson told the court that

he wanted to represent himself.   The trial court advised him of

the dangers of proceeding pro se and allowed him to move to waive




                               - 2 -
the competency hearing.   Because Johnson was articulate and

responsive, the trial court found him competent to stand trial.

     At the trial, Johnson was nonresponsive and uncooperative

with both the court and his counsel.     Defense counsel renewed his

motion that Johnson be found to be incompetent.    The motion was

denied.

     The trial court's determination of the competency of a

defendant to stand trial is a question of fact.     Delp v.
Commonwealth, 172 Va. 564, 570-71, 200 S.E. 594, 596 (1939).     "A

factual finding made by the trial court is binding on appeal

unless plainly wrong."    Naulty v. Commonwealth, 2 Va. App. 523,

527, 346 S.E.2d 540, 542 (1986).

     At a hearing to determine competency, "the party alleging

that the defendant is incompetent shall bear the burden of

proving by a preponderance of the evidence the defendant's

incompetency."   Code § 19.2-169.1(E).   "[T]he standard for

competence to stand trial is whether the defendant has

'sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding' and has 'a rational

as well as factual understanding of the proceedings against

him.'"    Godinez v. Moran, 113 S. Ct. 2680, 2685 (1993) (quoting

Dusky v. United States, 362 U.S. 402, 402 (1960)).

     Although Dr. Nelson opined that Johnson suffered a mental

illness which would impair his capacity to assist his counsel,

the trial court also had before it, through Dr. Nelson's




                                - 3 -
testimony, the opinions of the Department of Corrections'

psychologists who had concluded that Johnson was not insane, but

acted out of hostility and in an attempt to manipulate the

Corrections system.   The trial court observed Johnson's demeanor

and, through dialogue, had occasion to assess his mental

capability.   This conflicting evidence supports the trial court's

determination that Johnson was competent.

     The judgment of the trial court is affirmed.

                                              Affirmed.




                               - 4 -
Benton, J., dissenting.



     "[T]he conviction of an accused person while he is legally

incompetent [to stand trial] violates due process."     Pate v.

Robinson, 383 U.S. 375, 378 (1966).     The trial judge's

determination of this due process question of competency to stand

trial, as mandated by Code § 19.2-169.1, is a mixed question of

law and fact.   See Drope v. Missouri, 420 U.S. 162, 175 (1975).

See also Leckie v. Lynchburg Trust & Sav. Bank, 191 Va. 360, 366,

60 S.E.2d 923, 926 (1950).   I believe that the evidence clearly

proved by a preponderance of the evidence that Kevin Johnson was

not competent to stand trial.    See Code § 19.2-169.1(E).

     The evidence proved that Johnson is psychotic and "has a

long mental health history."    He has been "admitted to Central

State Hospital eight times, Westbrook Hospital two times, and

Richmond Memorial Hospital two times."    In addition, he has been

given inpatient psychiatric treatment in prison.    In the year

immediately preceding the competency hearing his behavior had

greatly deteriorated.

     Dr. Evan Nelson, a licensed clinical psychologist, was the

only expert who testified concerning Johnson's illness.      He

testified that Johnson was so mentally ill that he was not

competent to stand trial.    Although Dr. Nelson candidly informed

the trial judge that two psychologists in the Department of

Corrections had expressed views that Johnson was manipulative and

had the capacity to cooperate, neither of those psychologists


                                - 5 -
testified or filed reports in the trial court.

     Noting that Johnson "has been repeatedly assaultive while in

prison and has earned a reputation with the . . . staff to the

point where it may be difficult for them to be objective about

his current functioning," Dr. Nelson reported the following

description of Johnson's decline and current condition:
          [T]here is some evidence that Mr. Johnson's
          behavior has declined during the past 12
          months. He has maintained distance from
          others through use of flinging his feces and
          urine against the door, refusing to
          communicate on numerous occasions, and even
          stopped writing letters to prison
          administrators. Mr. Johnson has begun hiding
          himself from view by hanging a sheet on his
          bars or putting a mattress up. An undated
          letter from [Johnson] to his counsel
          contained bizarre ideas about black and white
          men, the CIA, and the end of the world. The
          content of the letter strongly suggested
          psychosis. . . . [H]is previous Public
          Defender, was contacted to learn about his
          behavior with her. She described
          inappropriate behavior and also provided a
          copy of a writing sample from June, 1994.
          The letter was bizarre and filled with
          hyperreligious statements which might be
          indicative of psychosis.
                 *    *    *    *      *   *     *

          Psychotic Disorders typically develop in the
          early twenties and it is possible that, in
          retrospect, what the staff observed in 1990
          as peculiar thinking may have been the
          precursors of true psychosis. It is a
          reasonable hypothesis that the change in
          [Johnson's] behavior indicates that he is now
          experiencing psychotic thinking in addition
          to a primitive and regressed personality.

             Based upon the data available, in the
          opinion of the undersigned [, Johnson] would
          have substantial difficulties assisting his
          counsel in his own defense. . . . Johnson has



                               - 6 -
          had no social contact with any DOC member in
          a period of six months, he refuses to talk to
          his own defense counsel, refused to talk to
          the undersigned and is so regressed that he
          even behaves in a manner causing him to have
          no food for periods of four to five days
          consecutively. It is questionable whether he
          has the capacity at this point in time to
          engage in a rational discussion with [his
          defense counsel] regarding his charges and
          the consequences. While some portion of his
          refusal to cooperate is volitional, the
          undersigned respectfully opines that
          [Johnson] is mentally ill and cannot
          rationally assess his options at this point
          in time.

     At trial, Dr. Nelson also indicated that Dr. Fisher, one of

the Department's psychologists, "only had passing contact with

[Johnson] . . . [and] made me aware that there are instances of

inmates who behave this way and it might not be mental illness."

Dr. George, the other psychologist, was apparently aware of

Johnson's behavior because she supervised the staff at the

facility where Johnson was held.   In further explaining that

persons may mistakenly view Johnson's condition, Dr. Nelson

testified as follows:
          Q    If an individual is of the condition
          that you described Mr. Johnson, and that is
          unable to appreciate his surroundings, unable
          to assist counsel in preparing for his
          defense, is it usual for those kind of mental
          illness cases for that person to be on
          medication?

          A    Not always, it depends on whether or not
          people identify the behavior as an indication
          of mental illness. If they don't and they
          see it as aggressive or manipulative
          behavior, then they will discount any
          symptoms of mental illness that might be
          there.




                              - 7 -
Q    Your conclusion is that Mr. Johnson
appreciated what he was doing on the offense
date, but as we sit here, that Mr. Johnson
may be in such a mental condition that he
cannot fully assist in his defense?

A    Correct.

Q    And further that you would say that
given appropriate treatment, that there may
be some point in time in the future that he
could be declared competent?

A    May I say that somewhat differently?

Q    All right.
A    What I'm saying here is that one cannot
give a clear, unequivocal opinion to the
Court that this is mental illness or this is
manipulative behavior. I'm saying that
there's a high probability in my opinion that
this is mental illness. And if that is the
case, then a period of treatment would have a
high probability of making him -- or excuse
me, restoring him to competen[cy] at sometime
in the future.

Q    Did you see anything in this man's
record as well as with your interviews which
would indicate that his condition today is
any different than what it would have been
during the time he's been incarcerated?

A    Yes. There was a distinct pattern of
decline in his functioning over the past 12,
18 months. The letters that he wrote in his
first few years in the department of
corrections were logical; they were coherent;
they had a goal direction; they had a
purpose. And although he was in trouble for
assaultive behavior, it seemed to accelerate
at the end of 1993, the beginning of 1994.

   Since then, he's been in segregation
almost continuously; he has incurred most of
the problems that he's had with corrections
staff of assault and disobeying orders. And
that's also in his pattern of his throwing
feces and urine again. So my opinion is that
he has declined over the past 12, 18 months.



                    - 8 -
(Emphasis added).


     At the hearing, Johnson made various statements on his own

behalf.   In part, his statement was consistent with Dr. Nelson's

observation that Johnson was "of at least average intelligence

and has an excellent vocabulary and ability to communicate."   The

trial judge's perception that Johnson was "articulate" and

"responsive" does not indicate that Johnson was not psychotic,

primitive and regressive, and not competent to stand trial.

Johnson's opening remark that "I would like to represent myself

on the same accounts of my sister" was a precursor to his

unintelligible, unresponsive rambling at the trial and the

physical assault upon his trial counsel.
     I dissent from the holding that the evidence did not

preponderate in proving Johnson was not competent to be tried.




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