            IN THE MISSOURI COURT OF APPEALS
                    WESTERN DISTRICT

STATE OF MISSOURI,                              )
                                                )
                                Respondent,     )
                                                )    WD77257
v.                                              )
                                                )    OPINION FILED:
                                                )    July 21, 2015
AROOSTOOK METTE-NJULDNIR,                       )
                                                )
                                   Appellant.   )


               Appeal from the Circuit Court of Callaway County, Missouri
                         The Honorable Kevin M.J. Crane, Judge

             Before Special Division: Lisa White Hardwick, Presiding Judge, and
                     Karen King Mitchell and Cynthia L. Martin, Judges


       Aroostook Mette-Njuldnir appeals his conviction of second-degree assault, entered

following a jury trial, for which he was sentenced to three years’ imprisonment. Mette-Njuldnir

raises two points on appeal: (1) the trial court erred in failing to hold a hearing to determine

whether Mette-Njuldnir was competent to be tried and sentenced; and (2) the trial court erred in

failing to sua sponte declare a mistrial because Mette-Njuldnir’s testimony suggested that he

lacked mental fitness.   Because the record supported the trial court’s determination that

Mette-Njuldnir was competent to be tried and sentenced, we find no error and affirm.
                                                    Background

        On August 25, 2009, Mette-Njuldnir was a patient at the Biggs Unit in Fulton State

Hospital (FSH) in Callaway County. That afternoon, Mette-Njuldnir approached Alicia Simons

(a social worker employed by FSH and a member of Mette-Njuldnir’s treatment team) and

punched her in the face and abdomen, causing three fractures to her eye socket, which later

required surgery. The incident was captured on videotape, and Mette-Njuldnir later voluntarily

wrote a detailed letter to the Chief Operating Officer of FSH explaining his conduct, noting that

Simons “only received two of three punches thrown. Both medium paced. I’m getting old, I

guess so, the third, career ender, missed. At 45ish, I’m guessing she may recover and even

return to work.”1 As a result of his conduct, Mette-Njuldnir was charged on March 31, 2010, by

information, with one count of second-degree assault.

        Mette-Njuldnir had been a patient at FSH as a result of prior involuntary commitments,

under § 552.020,2 following criminal charges in both Buchanan and Jackson counties.3

Accordingly, on May 10, 2010, Mette-Njuldnir’s trial counsel filed a motion for an independent

mental examination to determine whether Mette-Njuldnir possessed the capacity to understand

the proceedings in Callaway County and assist in his own defense. The trial court granted the

request, and Dr. Michael Armour, a certified forensic examiner for the Department of Mental

Health (DMH), found that Mette-Njuldnir was afflicted with delusional disorder—persecutory

        1
            Mette-Njuldnir testified that he intended to put Simons out of work for 5,000 days.
        2
          All statutory citations are to the Revised Statutes of Missouri 2000, as updated through the 2008
Cumulative Supplement, unless otherwise noted.
        3
           The parties referred to these commitments as being based upon findings of “permanent” incompetence.
We find nothing in § 552.020 using this terminology. Presumably, the parties mean that, after the two permissible
six-month commitment periods, Mette-Njuldnir was deemed unlikely to regain mental fitness anytime in the
foreseeable future. But the record is very vague on the issue of his prior commitments. In any event, we see no
basis in the law for a determination that an accused in a criminal action is “permanently” incompetent. Thus, we do
not believe there is any conflict present in the fact that Mette-Njuldnir was ultimately declared competent in his
Callaway County case.


                                                           2
type, which constituted a mental disease or defect under Missouri law, and that, as a result of his

mental disease or defect, Mette-Njuldnir lacked mental fitness to proceed.4 Dr. Armour opined

that Mette-Njuldnir would not regain his mental fitness at anytime in the foreseeable future.

        Trial counsel filed a “Notice of Contest to Findings of 552.020 Evaluation, Request for

Hearing Pursuant to 552.020(7), Request that a Six[-]Person Jury be Impaneled, and Notice of

Hearing.” The notice specifically contested the following findings: (a) that Mette-Njuldnir

suffered from delusions; (b) that Mette-Njuldnir had any mental health disorder; (c) that any

alleged disorder constituted a mental disease or defect; (d) that Mette-Njuldnir lacked mental

fitness to proceed; (e) that Mette-Njuldnir’s ability to consult with counsel was impaired; (f) that

Mette-Njuldnir required hospitalization for psychiatric treatment; and (g) various other facts and

conclusions within the report. The notice sought a court determination that Mette-Njuldnir was,

in fact, competent to stand trial.

        At a subsequent pretrial hearing, trial counsel withdrew the notice—contrary to

Mette-Njuldnir’s wishes5—and asked the court to find Mette-Njuldnir incompetent to proceed, to


        4
            Dr. Armour identified the following delusions held by Mette-Njuldnir:

        He believes that he has been followed and monitored by the National Security Administration
        because of his inventing an energy mechanism that runs on gravity. He maintains that the Federal
        Protection Services agent who had delivered him to the Western Missouri Mental Health Center
        had lied about the allegations against him and that the Department of Mental Health has gone
        along with his different psychiatric commitments in order to protect the Federal Protective
        Services agent. Mr. Mette-Njuldnir then maintains that the Department of Mental Health works to
        keep him committed in order to protect itself because DMH had medicated him illegally.
        Mr. Mette-Njuldnir maintains that his public defender is working with the prosecutor and the
        Department of Mental Health to commit him to keep him from going to trial so that he cannot
        expose the wrongs done to him.
        5
           Trial counsel advised the court that he believed Mette-Njuldnir incompetent to make a decision as to
whether to contest Dr. Armour’s findings and that counsel believed a hearing was not in Mette-Njuldnir’s best
interests. Counsel believed that, under Rule 4-1.14, he was entitled to make that decision on his client’s behalf.
Rule 4-1.14(b) provides:

        When the lawyer reasonably believes that the client has diminished capacity; is at risk of
        substantial physical, financial or other harm unless action is taken; and cannot adequately act in
        the client’s own interest, the lawyer may take reasonably necessary protective action, including


                                                          3
order him committed to DMH with a six-month review for competency, and to appoint a

guardian for Mette-Njuldnir.              The court later entered an order finding Mette-Njuldnir

incompetent to proceed, suspending the proceedings against him, and committing him to the

custody of DMH.6

         Mette-Njuldnir was evaluated again pursuant to a six-month review, this time by

Dr. Kline, a licensed psychologist for DMH.                       Like Dr. Armour, Dr. Kline diagnosed

Mette-Njuldnir with delusional disorder. But unlike Dr. Armour, Dr. Kline concluded that

Mette-Njuldnir was competent to proceed with his criminal case, though he opined that

Mette-Njuldnir “could become psychiatrically unstable at some point in the future in the course

of the proceedings.”

         In response to Dr. Kline’s report, trial counsel filed a “Notice of Contest to Findings of

552.020 Evaluation, Request for Additional Examination, Request that Additional Examination

be Audio or Videotaped, Request that Defendant be Allowed to Retain Audiotape or Videotape

of Psychiatric Examination, and Notice of Hearing.”7 The trial court entered an order allowing

the defense to proceed with an independent mental evaluation and allowing Mette-Njuldnir to

record the interview. The court initially set the matter for a competency hearing on July 9, 2012,



         consulting with individuals or entities that have the ability to take action to protect the client and,
         in appropriate cases, seeking the appointment of a next friend, guardian ad litem, conservator or
         guardian.

Mette-Njuldnir, himself, advised the court that he disagreed with counsel’s decision and that he believed it was
improper for counsel to change strategic course without first consulting the client.
         6
           This order does not appear in the record on appeal. The only reference to it is within a motion to proceed
filed by DMH. This is a recurrent problem with the existing record in this case; many documents allegedly relied
upon are not contained within it. We advise the trial court and attorneys below to take the necessary steps to ensure
that all pleadings, motions, orders, and other papers are included within the record in future cases so as to avoid
confusion.
         7
           As with the court’s order committing Mette-Njuldnir to DMH custody, trial counsel’s “Notice of Contest”
is not included within the record. Thus, we cannot discern which aspects of Dr. Kline’s report trial counsel was
contesting.


                                                           4
but Mette-Njuldnir’s independent mental evaluation had not been completed by that date.

Sometime in late August or early September of 2012, the evaluation was finally completed, and

Dr. Petersen, the evaluating psychologist, found Mette-Njudnir competent to proceed.8

Accordingly, trial counsel requested a trial setting. Mette-Njuldnir personally asked the court

about a hearing and a six-person panel, and the court indicated that the hearing would occur only

if Dr. Kline’s findings were contested, and since Mette-Njuldnir’s independent evaluator reached

the same conclusions as Dr. Kline, there was no contest and no need for a hearing.

       Mette-Njuldnir filed a pro se motion for a “fairness hearing,” wherein he challenged trial

counsel’s decisions to withdraw the notice of contest to Dr. Armour’s report and to not further

challenge Dr. Kline’s report with a written report from Dr. Petersen. In discussing the motion

with the court, trial counsel represented that Mette-Njuldnir had no disagreement with

Dr. Kline’s ultimate conclusion that Mette-Njuldnir was competent; rather, he wished to

challenge other findings within the report. Mette-Njuldnir also personally expressed concerns

about proceeding without a written report from Dr. Petersen.

       The case proceeded to jury trial, where Mette-Njuldnir presented a self-defense claim,

arguing that his action of striking Simons was the result of mistreatment by DMH, including

forced medication, separation from legal papers, and refusal to sign and date legal papers when

provided to him, among other things. Mette-Njuldnir argued that he had taken all of the proper

procedural steps to address his issues through DMH, but nothing was done and none of his

problems were resolved; thus, he felt compelled to do something to stop the problems and defend

himself from further psychological harm, so he punched Simons in an effort to preclude her from




       8
           It appears that Dr. Petersen did not generate a report.


                                                            5
working at DMH and get her off his treatment team.9 Trial counsel requested that the jury be

instructed on self-defense, but the court denied the request. The jury found Mette-Njuldnir guilty

of second-degree assault and recommended punishment of three years’ imprisonment.

        Before the sentencing hearing, the trial court ordered a fourth mental evaluation on its

own motion. The order indicated that the court had “reasonable cause to believe the accused

lacks mental fitness to proceed.” Neither the transcript nor the order provides any information as

to the basis for the court’s belief.        This fourth examination was conducted by Dr. Kline.

Dr. Kline again diagnosed Mette-Njuldnir with delusional disorder and again found him to

be competent, despite the diagnosis. The report indicated that Mette-Njuldnir understood that his

claim of self-defense lacked a legal basis under the existing law, but it was his hope and belief

that he could persuade the jury to ignore the law in light of the circumstances of his case. The

report also opined that Mette-Njuldnir had been competent throughout his trial and remained

competent for sentencing.

        At the sentencing hearing, Mette-Njuldnir advised the court that he wished to contest

Dr. Kline’s findings, even though trial counsel did not.10 The court asked trial counsel to clarify,

and trial counsel advised the court as follows:

        MR. CARVER: Well, my understanding, Your Honor, if I can help explain that a
        little bit. Mr. Mette-Njuldnir agrees with the finding that he is competent.
        Mr. Mette-Njuldnir thinks he’s competent. He just disagrees about some of the
        particulars in the report and some of the statements made by Dr. Kline in reaching
        a conclusion.




        9
          When the trial court questioned the defense strategy, Mette-Njuldnir responded, “Your Honor, what is
wrong with a person defending themselves against people who are ganging up on him in an environment where the
person cannot leave and they won’t let him call the police?”

        10
            No written motion was filed contesting or otherwise challenging Dr. Kline’s pre-sentencing mental
evaluation report.


                                                      6
When the court directly addressed Mette-Njuldnir regarding the basis for his contest,

Mette-Njuldnir indicated:

        THE DEFENDANT: I’m contesting the findings of the report in general, Your
        Honor. The finding of competent, I have no problem with that. But I have a
        problem with other findings in the report, that detailed many things that Dr. Kline
        is actually wrong on, in terms of the medical establishment.
                He says his report is based on the DSM-IV. And yet it’s not based on the
        DSM-IV, according to the findings that he has in that report. And I’d like to be
        able to bring that in front of a panel, to evaluate whether the report is actually
        legitimate.

The court found Mette-Njuldnir competent to proceed, and sentenced him in accordance with the

jury’s recommendation to three years’ imprisonment. Mette-Njuldnir appeals.

                                                Analysis

        Mette-Njuldnir raises two points on appeal, both related to his mental fitness below.

First, he argues that the trial court erred in failing to hold a competency hearing. Second, he

argues that the trial court erred in failing to sua sponte declare a mistrial because

Mette-Njuldnir’s testimony demonstrated that he lacked competence. We disagree and affirm.

    A. Procedural Requirements for Competence Determinations

        “No person who as a result of mental disease or defect lacks capacity to understand the

proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for

the commission of an offense so long as the incapacity endures.” § 552.020.1.11 “Whenever any

judge has reasonable cause to believe that the accused lacks mental fitness to proceed, [the

judge] shall . . . appoint one or more private psychiatrists or psychologists . . . to examine the

accused.” § 552.020.2. The examination “shall be completed and filed with the court within

sixty days of the order unless the court for good cause orders otherwise.” Id. “One pretrial



        11
          All statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2008
Cumulative Supplement, unless otherwise noted.


                                                     7
evaluation shall be provided at no charge to the defendant by the department [of mental health].

All costs of subsequent evaluations shall be assessed to the party requesting the evaluation.” Id.

       Each report generated as a result of an evaluation must contain the following:

       (1) Detailed findings;

       (2) An opinion as to whether the accused has a mental disease or defect;

       (3) An opinion based upon a reasonable degree of medical or psychological
           certainty as to whether the accused, as a result of a mental disease or defect,
           lacks capacity to understand the proceedings against him or to assist in his
           own defense;

       (4) A recommendation as to whether the accused should be held in custody in a
           suitable hospital facility for treatment pending determination, by the court, of
           mental fitness to proceed; and

       (5) A recommendation as to whether the accused, if found by the court to be
           mentally fit to proceed, should be detained in such hospital facility pending
           further proceedings.

§ 552.020.3. After the report is filed, “both the defendant and the state shall, upon written

request, be entitled to an order granting them an examination of the accused by a psychiatrist or

psychologist . . . of their own choosing and at their own expense.” § 552.020.6.

       “If neither the state nor the accused nor his counsel requests a second examination

relative to fitness to proceed or contests the findings of the [mental evaluation] report,” the court

has the discretion to either “make a determination and finding on the basis of the report filed

or . . . hold a hearing on its own motion.” § 552.020.7. If, however, the opinion is contested,

“the court shall hold a hearing on the issue . . . of mental fitness to proceed and may impanel a

jury of six persons to assist in making the determination.” Id. (emphasis added). At the hearing,

the party contesting the opinion has the rights to summon and cross-examine the person issuing

the opinion and to offer evidence on the issue. Id. The accused is presumed competent, and the




                                                 8
challenging party bears the burden of proving otherwise under a preponderance-of-the-evidence

standard. § 552.020.8.

       If the court deems the accused mentally unfit to proceed, the court must suspend the

criminal proceedings and commit the accused to the custody of DMH, where the accused will

then be subject to a review of his competence after six months. § 552.020.9, .11(1). If the

six-month review concludes that the accused remains mentally unfit to proceed, the report must

contain an opinion “as to whether there is a substantial probability that the accused will attain the

mental fitness to proceed in the foreseeable future.” § 552.020.11(1). After the report is filed,

both parties again have the option of seeking an additional examination at their own expense.

§ 552.020.11(2).    “If neither the state nor the accused nor his counsel requests a second

examination,” the court again has the discretion to render a decision on the report alone or to

hold a hearing on the matter. § 552.020.11(3). If the opinion is contested, however, the court is

required to hold a hearing, with the same rights and burdens as identified in § 552.020.8. Id.

       If the court determines that the accused lacks mental fitness to proceed, but that there is a

substantial probability that the accused will attain mental fitness in the reasonably foreseeable

future, the court may order one additional period of commitment lasting no more than six

months. § 552.020.11(5). If, however, the court determines that the accused lacks mental fitness

and there is no substantial probability that mental fitness will be attained in the reasonably

foreseeable future, the court must dismiss the criminal charges without prejudice, “but only if

proper proceedings have been filed under chapter 632 or chapter 475.” § 552.020.11(6).

       If the question regarding the accused’s competence does not arise until after a jury is

impaneled to determine guilt and “the court determines that the accused lacks the mental fitness




                                                 9
to proceed or orders the accused committed for an examination . . . , the court may declare a

mistrial.” § 552.020.12 (emphasis added).

   B. Standard of Review

       “A trial court’s finding that a defendant is competent to stand trial is a factual finding that

will not be overturned unless there is no substantial evidence to support it.” State v. Wallace,

399 S.W.3d 921, 923-24 (Mo. App. E.D. 2013). “We accept as true all evidence and reasonable

inferences tending to support the trial court’s findings.” Id. at 924. “The accused has the burden

to prove incompetence.” Id.

       Here, neither of Mette-Njuldnir’s claims is preserved for review. As to his first claim,

regarding the lack of a competency hearing, Mette-Njuldnir failed to include this claim of error

in his motion for new trial. See Rule 29.11(d) (“In jury-tried cases, allegations of error to be

preserved for appellate review must be included in a motion for new trial . . . .”); see also State v.

Kinder, 942 S.W.2d 313, 323 (Mo. banc 1996) (finding the defendant’s claim of error regarding

the trial court’s failure to hold a competency hearing not preserved where the defendant failed to

raise the issue both at trial and in his motion for new trial). Thus, it is not preserved for review.

       As to his second claim, regarding the court’s failure to declare a mistrial, Mette-Njuldnir

acknowledges that he never sought a mistrial below. Thus, this claim is not preserved either.

See State v. Burgess, 800 S.W.2d 743, 746 (Mo. banc 1990) (holding that, in order to preserve a

claim of error in the failure to grant a mistrial, a defendant must both request a mistrial when the

alleged error occurs and raise the issue in the motion for new trial).

       Because neither claim is preserved, we may review them for, at most, plain error.

Rule 30.20 (“[P]lain errors affecting substantial rights may be considered in the discretion of the

court when the court finds that manifest injustice or miscarriage of justice has resulted




                                                  10
therefrom.”). “In plain error review, we undertake a two-step process.” State v. Wilkerson, 330

S.W.3d 851, 854 (Mo. App. W.D. 2011). “We first evaluate whether the trial court committed

‘evident, obvious and clear error that affected substantial rights.’” Id. (quoting Riddell v. Bell,

262 S.W.3d 301, 304 (Mo. App. W.D. 2008)). “We then must determine whether such ‘evident,

obvious and clear error’ created a manifest injustice or a miscarriage of justice.” Id. (quoting

Riddell, 262 S.W.3d at 304).

    C. The trial court did not err in failing to hold a competency hearing because
       Mette-Njuldnir did not “contest” any of the mental evaluation reports.

         “The fact an examination has been ordered under § 552.020 does not automatically . . .

require a court to sua sponte hold a hearing to determine such competency.” State v. Lee, 660

S.W.2d 394, 397 (Mo. App. S.D. 1983). Rather, “a hearing on competency is required [only]

when the psychiatric report is contested.”12 State v. Mayfield, 562 S.W.2d 404, 407 (Mo. App.

1978). And “there is no error in failing to have a competency hearing when a report is not

‘contested.’” State v. Vansandts, 540 S.W.2d 192, 201 (Mo. App. 1976). “As the court has no

alternative but to hold a hearing if a contest has in fact been made, the issue reduces itself here to

whether the actions taken by [Mette-Njuldnir] constituted a contest.” State v. Grant, 560 S.W.2d

384, 387-88 (Mo. App. 1977).


         12
            State v. Mayfield, 562 S.W.2d 404, 407 (Mo. App. 1978), cited a second occasion purportedly requiring a
hearing: “where the circumstances at a criminal trial create a ‘bona fide doubt’ of an accused’s fitness to proceed.”
In making this assertion, the Mayfield court relied upon the United States Supreme Court’s decision in Pate v.
Robinson, 383 U.S. 375, 385 (1966). But the cited reference in the Pate decision was describing the requirements
under Illinois law for dealing with mentally incompetent defendants; it did not mandate a competency hearing every
time a court held a “bona fide doubt” regarding the accused’s mental fitness. Drope v. Missouri, 420 U.S. 162,
172 (1975) (In Pate, “[t]he Court did not hold that the procedure prescribed by Ill. Rev. Stat. c. 38, § 104-2 (1963),
was constitutionally mandated, although central to its discussion was the conclusion that the statutory procedure, if
followed, was constitutionally adequate.”). Rather, as the Missouri Supreme Court pointed out in Harkins v. State,
494 S.W.2d 7, 14 (Mo. 1973), Pate requires a trial judge only “to resolve a pretrial question of competence . . .
‘where the evidence raises a “bona fide doubt” as to a defendant’s competence.’” (emphasis added) (quoting Pate,
383 U.S. at 385). It does not necessarily require a hearing in which to do so. And under § 552.020, a hearing is
required only when a party contests the conclusion of the mental evaluation, a procedure that has been deemed
constitutionally adequate by the United States Supreme Court. Drope, 420 U.S. at 173 (“Such a procedure is, on its
face, constitutionally adequate to protect a defendant’s right not to be tried while legally incompetent.”).


                                                         11
        “To ‘contest’ is ‘(t)o strive, to win or hold; to controvert, litigate, call in question,

challenge . . . .’” Id. at 388 (quoting BLACK’S LAW DICTIONARY 391 (Revised 4th ed. 1968)). In

order to “contest” a mental evaluation report, a party must first controvert the report’s ultimate

conclusion regarding mental competence by challenging “either the competency of the examiner

or the validity of the procedures used.” Id.; see also § 552.020.7, .8 (identifying the issue for

determination in a competency hearing as “the mental fitness to proceed”). According to the

plain language of § 552.020.7, a proper “contest” may come from either the state, the accused, or

his counsel. Thus, we must evaluate the purported contests made not only by trial counsel but

also by Mette-Njuldnir himself to discern whether any of them are truly “contests” under

§ 552.020.7 that required a hearing.

        The record reflects four potential “contests”: two from trial counsel and two from

Mette-Njuldnir.      The first “contest” was counsel’s “Notice of Contest” in response to

Dr. Armour’s report opining that Mette-Njuldnir was incompetent to proceed. This contest

specifically challenged not only Dr. Armour’s conclusion of incompetence but also his findings

that: (a) Mette-Njuldnir suffered from delusions; (b) Mette-Njuldnir had any mental health

disorder; (c) any alleged disorder constituted a mental disease or defect; (d) Mette-Njuldnir’s

ability to consult with counsel was impaired; and (e) Mette-Njuldnir required hospitalization for

psychiatric treatment. This “contest” was proper under § 552.020.7 and would have mandated a

hearing. But it was withdrawn.13 “Failure to contest a psychiatric report as allowed under

§ 552.020[.7] constitutes a waiver of that right.” State v. Caudill, 789 S.W.2d 213, 214 (Mo.

App. W.D. 1990). Accordingly, Mette-Njuldnir waived the right to a hearing on his contest to

Dr. Armour’s report.


        13
          Mette-Njuldnir does not challenge counsel’s decision to withdraw the contest against Mette-Njuldnir’s
wishes. And Mette-Njuldnir did not file any contests of his own regarding Dr. Armour’s report.


                                                      12
       The second “contest” filed by counsel was in response to Dr. Kline’s report finding

Mette-Njuldnir competent to proceed. This “contest,” however, was not included in the record

on appeal, which makes it difficult, at best, to discern the nature of the contest. Nevertheless, in

light of the surrounding circumstances, we presume that, at a minimum, the contest challenged

Dr. Kline’s finding of competence. Unlike the first contest to Dr. Armour’s report, the contest to

Dr. Kline’s report sought both to have an additional mental evaluation done at Mette-Njuldnir’s

expense and to have a hearing based upon the contest. Both requests were granted, but the

hearing was never held because Mette-Njuldnir’s evaluator, Dr. Petersen, concurred with

Dr. Kline’s assessment and also found Mette-Njuldnir competent. As the trial court explained,

the purpose of Dr. Petersen’s evaluation was to contest Dr. Kline’s determination. But when

Dr. Petersen concurred with, rather than contradicted, Dr. Kline’s determination, there was no

longer any challenge to Dr. Kline’s assessment for which a hearing would have been required.

Further, by requesting a trial setting rather than a competency hearing, Mette-Njuldnir waived

his right to a hearing on the basis of his contest to Dr. Kline’s report.

       As for the two pro se “contests,” the first potential contest was Mette-Njuldnir’s “Motion

for Fairness Hearing.” This motion challenged trial counsel’s decisions outlined above to both

withdraw the contest to Dr. Armour’s report and to proceed to trial without a report from

Dr. Petersen in response to Dr. Kline’s report. This motion, however, raised no direct challenges

to either report insofar as the motion did not identify any flaws in either the competence of the

examiners or their methodology for conducting the evaluations. Additionally, the only challenge

Mette-Njuldnir had to Dr. Kline’s report had nothing to do with the ultimate conclusion that

Mette-Njuldnir was competent. On the contrary, Mette-Njuldnir wholeheartedly agreed with




                                                  13
Dr. Kline’s conclusion in that regard. Thus, his “Motion for Fairness Hearing” did not constitute

a contest under § 552.020.7, and no hearing was required.

       The final pro se “contest” was the oral assertion made before sentencing by

Mette-Njuldnir wherein he indicated that he wished to contest Dr. Kline’s second, post-trial,

mental evaluation report, even though trial counsel did not wish to do so. In making this

“contest,” Mette-Njuldnir stated:

       I’m contesting the findings of the report in general, Your Honor. The finding of
       competent, I have no problem with that. But I have a problem with other findings
       in the report, that detailed many things that Dr. Kline is actually wrong on, in
       terms of the medical establishment.
               He says his report is based on the DSM-IV. And yet it’s not based on the
       DSM-IV, according to the findings that he has in that report. And I’d like to be
       able to bring that in front of a panel, to evaluate whether the report is actually
       legitimate.

Even though Mette-Njuldnir appeared to attack Dr. Kline’s methodology, he had “no problem”

with Dr. Kline’s ultimate conclusion that Mette-Njuldnir was competent. Thus, this did not

constitute a true “contest” under § 552.020.7. Accordingly, it did not entitle Mette-Njuldnir to a

hearing.

       In sum, an accused is entitled to a competency hearing under § 552.020 only if he

contests a court-ordered mental evaluation report by challenging the ultimate conclusion

regarding mental fitness through attacks on either the competence of the evaluator or the

methodology used. Here, because Mette-Njuldnir either did not contest the ultimate findings of

the reports or withdrew valid contests to the reports, he was not entitled to a hearing, and the trial

court committed no error, plain or otherwise.

       Point I is denied.




                                                 14
   D. The trial court did not err in failing to sua sponte declare a mistrial because the
      evidence before the court supported a determination that Mette-Njuldnir was
      competent.

       In his second point, Mette-Njuldnir claims that the trial court erred in failing to

sua sponte declare a mistrial under § 552.020.12 due to Mette-Njuldnir’s alleged lack of

competence displayed during trial. We disagree.

       Under § 552.020.12, “[i]f the question of the accused’s mental fitness to proceed was

raised after a jury was impaneled to try the issues raised by a plea of not guilty and the court

determines that the accused lacks the mental fitness to proceed or orders the accused committed

for an examination . . . , the court may declare a mistrial.” (Emphasis added.)

       Here, to the extent Mette-Njuldnir’s mental fitness was called into question during trial,

the trial court satisfied its concerns by ordering another mental evaluation before sentencing to

determine the issue. That evaluation determined not only that Mette-Njuldnir was competent to

proceed with sentencing but also that he had been competent throughout his trial. Accordingly,

the court found that Mette-Njuldnir was mentally fit to proceed with sentencing. Because of this

finding, Mette-Njuldnir has failed to demonstrate one of the prerequisites to the court’s

discretionary decision to grant a mistrial under § 552.020.12: that “the court determines that the

accused lacks the mental fitness to proceed or orders the accused committed.” The court did

neither.

       In any event, “‘[a]ppellate courts are wary of claims that a trial court erred in failing to

declare a mistrial sua sponte in a criminal case.’” State v. Sprofera, 427 S.W.3d 828, 837 (Mo.

App. W.D. 2014) (quoting State v. Hitchcock, 329 S.W.3d 741, 749 (Mo. App. S.D. 2011)).

“‘Granting a mistrial is a drastic remedy and should be exercised only in extraordinary

circumstances where the prejudice to the defendant cannot be removed any other way.’” Id.




                                                15
(quoting State v. Garvey, 328 S.W.3d 408, 416 (Mo. App. E.D. 2010)). “‘Trial judges are not

expected to assist counsel in trying cases, and trial judges should act sua sponte only in

exceptional circumstances.’” Id. (quoting State v. Barker, 410 S.W.3d 225, 235 (Mo. App. W.D.

2013)). “Thus, ‘a trial court’s decision not to grant a mistrial sua sponte will not be reversed as

plain error absent a clear showing of a manifest abuse of discretion, which resulted in manifest

injustice or a miscarriage of justice.’” Id. (quoting Barker, 410 S.W.3d at 235).

         Here, there is no manifest injustice present. The trial court ordered four separate mental

evaluations during the pendency of the case.                    Three of the four declared Mette-Njuldnir

competent.      The only evaluation declaring him incompetent was the very first evaluation,

conducted over three years before the sentencing proceeding.                         Every evaluation after that

declared him to be competent. Mette-Njuldnir, himself, asserted his competence, as did his trial

counsel. Accordingly, the trial court did not commit plain error in not exercising its discretion to

declare a mistrial on the basis of Mette-Njuldnir’s alleged incompetence.14

         Point II is denied.




         14
             Mette-Njuldnir argues that his trial strategy and the court’s decision to order a post-trial mental
evaluation reflect the need for a mistrial. We disagree. First, Mette-Njuldnir identifies his trial strategy decisions of
admitting the offense, denying remorse, and requesting the maximum sentence, as reflecting incompetence. But
many of these decisions were consistent with his claim of self-defense; for that claim to be successful, he necessarily
had to admit the offense and claim justification, which could easily involve a lack of remorse. A criminal
defendant’s “alleged mistakes in trial tactics [do] not demonstrate that [he] lacked understanding of the proceedings
against him or that he was unable to assist in his defense.” State v. Wise, 879 S.W.2d 494, 508-09 (Mo. banc 1994),
overruled on other grounds by Joy v. Morrison, 254 S.W.3d 885 (Mo. banc 2008). And second, the court’s decision
to order a post-trial evaluation likewise has no bearing: “[t]he fact an examination has been ordered under
§ 552.020 does not automatically establish a bona fide doubt of the defendant’s competency to stand trial.” State v.
Lee, 660 S.W.2d 394, 397 (Mo. App. S.D. 1983).
         Mette-Njuldnir further argues that his multiple requests to end trial counsel’s representation demonstrated
an inability to consult with counsel. Were disagreement between an indigent criminal defendant and his appointed
public defender, without more, a basis for a finding of incompetence, courts would be inundated with claims of
allegedly incompetent defendants. The record here reflects that, despite their disagreements, Mette-Njuldnir and
counsel were still able to communicate sufficiently to present a defense that, though unsuccessful in avoiding
conviction, appeared successful in mitigating punishment.


                                                          16
                                         Conclusion

       The trial court did not err, plainly or otherwise, in not granting Mette-Njuldnir a

competency hearing or in not sua sponte declaring a mistrial due to Mette-Njuldnir’s alleged

incompetence. Mette-Njuldnir’s conviction and sentence are affirmed.




                                           Karen King Mitchell, Judge

Lisa White Hardwick, Presiding Judge,
and Cynthia L. Martin, Judge, concur.




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