                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2008-KA-01264-SCT

DOUGLAS JAY, JR.

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                             04/11/2005
TRIAL JUDGE:                                  HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                    NEWTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                      HENRY PALMER
                                              MARVIN E. WIGGINS, JR.
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                              BY: STEPHANIE B. WOOD
DISTRICT ATTORNEY:                            MARK SHELDON DUNCAN
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  REVERSED AND REMANDED - 10/29/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    Douglas E. Jay, Jr.,was tried in absentia and convicted on multiple counts of drug

possession. He appeals, claiming he was incompetent to stand trial.

                      BACKGROUND FACTS AND PROCEEDINGS

¶2.    After obtaining a search warrant, reading Jay his Miranda 1 rights, and searching him,

law enforcement officers found three bags on his person, one of which contained an off-white

substance. The second bag contained a leafy green substance, and the third contained pills.

These substances were later determined to be methamphetamine, marijuana, and alprazolam


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           Miranda v. Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).
(Xanax), respectively. During the search of Jay’s bedroom, marijuana was found in a night

stand and in a metal tube under a pillow.

¶3.       Deputy Sheriff Mark Spence testified that the officers prepared to take Jay and

Theresa Chapman – an adult female who was also at the residence at the time the search

warrant was executed – to jail. While transporting Jay and Chapman out of the home, Jay

said, “why are you taking [Chapman]?” Spence replied, “with everything we found here, she

was here, we’re going to take her in also,” to which Jay replied, “there’s no need for that .

. . everything that you found here was mine.”

¶4.       Jay was indicted as a second-time drug offender for four felonies: possession of

methamphetamine, possession of marijuana, possession of alprazolam, and possession of a

firearm by a convicted felon. Trial was set for April 11, 2005.

¶5.       While out on bond awaiting trial, Jay was attacked on his motorcycle and hit in the

head with a rifle stock. As a result of the attack, Jay was diagnosed with traumatic brain

injury.

¶6.       On April 4, 2005, Jay’s trial counsel filed a motion for continuance, claiming Jay was

incompetent to stand trial. In support of the motion, counsel provided the court a letter from

Dr. Stuart A. Yablon, the Director of the Brain Injury Program at Methodist Rehabilitation

Center in Jackson, Mississippi, which stated that Jay was “unable to participate in any court

proceedings at this time” due to his injuries.

¶7.       On April 6, 2005, the trial court ordered that psychiatrist Mark C. Webb conduct a

psychiatric examination of Jay the next day to determine his ability to stand trial and assist

his attorney in his defense. Although Dr. Webb’s report had not been received, Jay’s case


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was called to trial in the Circuit Court of Newton County on April 11, 2005. Prior to the

docket being called at 9 a.m., Jay was present at the courthouse. However, he could not be

located when his case was called. After Jay could not be located during a fifteen-minute

recess, the case proceeded to trial without him.

¶8.    Two days after the trial began, Dr. Webb filed his report with the trial court. The

report stated that Jay “admits that he had all of the drugs in his possession” at the time he was

arrested, and Jay “states to being intoxicated with methamphetamine and marijuana on the

day of his arrest.” The report further stated that, “Mr. Jay is very aware of the court

proceedings and is working with his attorney,” and that Dr. Webb had “made Mr. Jay

completely aware of the purpose and ramifications of this interview and [Jay] consent[ed]

to both.” The report concluded that Jay was “able to stand trial, assist his attorney in his

defense, able to know the difference between right and wrong, and understood the quality of

his actions at the time of the alleged offense.” In summary, the report stated, “Mr. Jay is

competent to stand trial and is not criminally insane.”

¶9.    At trial, the State presented numerous witnesses in its case-in-chief. When the State

rested, Jay’s attorney moved for a directed verdict. The motion was denied, and the trial

judge inquired into the amount of testimony the defense would present. Jay’s attorney

announced that he would have “none.”

¶10.   Jay’s attorney objected to the trial being conducted in his client’s absence and moved

for a continuance. In denying the motion, the trial judge stated:

       [T]his man voluntarily left this courthouse. . . . he has known . . . since
       December of last year, that his case was being tried today, and he was here
       Monday of last week. It was announced that the case would be tried today.


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        He was here Thursday on his motion. It was announced that the case would
        be tried today . . . . He was here this morning and he met with you, and . . . you
        told him to go on in the courtroom and that you’d come and get him. He left
        . . . We looked for him. We waited . . . if there’s any harm that comes from
        him not being here, he’s the one that caused it.

Jay’s attorney responded, “Can’t argue that fact, Your Honor.”

¶11.    The trial judge instructed the jury, and the attorneys made closing arguments. The

jury found Jay guilty on all three drug counts contained in the indictment. The fourth count

of the indictment, possession of a firearm by a convicted felon, was ordered nolle prosequi.

¶12.    A sentencing hearing was scheduled for April 12, 2005. Arguing that Jay could not

have known the time and date of the sentencing hearing, Jay’s attorney objected to the

hearing being held in Jay’s absence. The trial court deferred Jay’s sentencing until April 15,

2005.

¶13.    Although Jay did not appear on April 15, the trial court proceeded. Finding that the

State had met the burden of proof regarding Jay being a second-time drug offender, the trial

court sentenced Jay pursuant to Section 41-29-147 of the Mississippi Code, which provides

for enhanced sentencing. Miss. Code Ann. § 41-29-147 (Rev. 2005). For possession of

methamphetamine, Jay was sentenced to twenty-five years in prison and fined $10,000. For

possession of marijuana, he was sentenced to six years in prison to run consecutively with

the previous sentence. For possession of alprazolam, Jay was sentenced to two years in

prison, to run concurrently with the first two sentences.

¶14.    On April 22, 2005, Jay’s attorney filed several post-trial motions, including a motion

for a new trial, which was not ruled upon until June 2008. On October 13, 2005, Jay’s

attorney filed a motion to set aside judgment of conviction and sentence. A hearing was held


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on this motion on May 11, 2006, and the motion was overruled on May 24, 2006. Although

the trial court had not ruled on Jay’s motion for new trial, his attorney filed a motion for an

out-of-time appeal on June 2, 2006. This motion was overruled on August 4, 2006.

¶15.   Jay filed a notice of appeal on September 5, 2006, which Jay claims in his brief was

“the next business day following the three-day Labor Day weekend.” The State filed a

motion to dismiss the appeal pursuant to Rule 4 of the Mississippi Rules of Appellate

Procedure. The State argued that Jay’s appeal was not ripe because Jay’s motion for a new

trial had not been disposed of in the trial court before the notice of appeal was filed, and

therefore, Jay had not exhausted his remedies in the trial court. Finding this argument

persuasive, the Court of Appeals dismissed the appeal, because it was “not timely filed,”

concluding that “the Court has no jurisdiction to hear the appeal.”            A motion for

reconsideration was denied.

¶16.   On June 4, 2008, Jay requested that the trial court hold a hearing on his motion for a

new trial. The hearing was held on June 18, 2008, and the trial court denied the motion. On

June 19, 2008, the trial court amended its June 18 order. This amended order stated that

Jay’s motion for new trial was denied “for not being timely brought before the Court for a

decision thereon.”    Jay’s attorney now claims that this amendment was “unknown to

counsel” and that the issue of timeliness was “addressed inconclusively during the hearing.”

¶17.   Jay filed the current notice of appeal to this Court on July 3, 2008. Jay appeals from

the judgment of conviction entered April 21, 2005, the order overruling motion to set aside

judgment of conviction and sentence entered on May 27, 2006, the order denying motion for




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new trial entered on June 18, 2008, and the order amending previous order entered June 19,

2008.

¶18.    Jay raises eight issues. Because we find dispositive the issue of Jay’s right to a mental

competency hearing, the procedural issues, as well as the trial in Jay’s absence, are addressed

only briefly. The other issues Jay raises need not be addressed.

                                         DISCUSSION

        Post-Trial Motions

¶19.    Jay first argues that the trial court erred in not granting his multiple post-trial motions,

including his motion for a new trial. This Court has stated that “[i]n reviewing the decision

of the trial court on a motion for a new trial, this Court views all of the evidence in the light

most consistent with the jury verdict.” Daniels v. State, 742 So. 2d 1140, 1143 (Miss. 1999)

(citing Strong v. State, 600 So. 2d 199, 204 (Miss. 1992)).              While this issue is not

dispositive, the denial of the motion for a new trial is addressed solely regarding the

procedural issues involved with perfecting the current appeal.

¶20.    Jay’s trial counsel filed a motion for a new trial on April 26, 2005, days after the

judgment and sentence were filed. This motion contained nine assignments of error. The

trial court neither denied the motion nor held a hearing until June 18, 2008.

¶21.    Rule 4 of the Mississippi Rules for Appellate Procedure – which governs when an

appeal as of right can be taken – requires that “the notice of appeal required by Rule 3 shall

be filed with the clerk of the trial court within 30 days after the date of entry of the judgment

or order appealed from.” However, Rule 4(a) excepts from this thirty-day requirement cases

in which motions have been filed pursuant to Rule 4(e). Rule 4(e) provides that the thirty-

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day time period for an appeal in a case in which the defendant has made a timely motion for

a new trial shall begin to run from the date of the denial of such motion. The comments to

Rule 4 read, in pertinent part:

         Rule[] . . . 4(e) now provide[s] that a notice of appeal filed before the
         disposition of a specified post trial motion will become effective upon
         disposition of the motion. A notice filed before the filing of one of the
         specified motions or after the filing of a motion but before its disposition is,
         in effect, suspended until the motion’s disposition, whereupon the previously
         filed notice effectively places jurisdiction in the Supreme Court.

Miss. R. App. P. 4 cmt.

¶22.     Rule 10.05 of the Uniform Circuit and County Court Rules, which governs motions

for new trials, provides that “[t]he trial judge may hear and determine a motion for a new trial

at any time.” (Emphasis added.) The rule requires that a motion for a new trial must be filed

“within ten days of the entry of judgment.” Miss. Unif. Cir. & Cty. R. 10.5. Jay’s judgment

was filed on April 21, 2005, and his motion for a new trial was filed on April 26, 2005.

Clearly, Jay filed his motion for a new trial within the time prescribed by the rule. Therefore,

the trial judge – who had the discretion under the Rules to hear this motion at any time –

waited more than three years to do so, after which, the current notice of appeal was timely

filed.

¶23.     The trial court issued a sua sponte order on June 19, 2008, which amended the June

18 order denying the motion for a new trial. The reason stated in the amended order for the

denial was that the motion was not “timely presented to the Court for a decision thereon.”

Neither Mississippi Rule of Appellate Procedure 4(e) nor Uniform Circuit and County Court

Rule 10.05 requires a motion for new trial (which has been filed) to be “timely presented”



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by the defendant to the trial court. Therefore, under the facts of this case, the thirty-day time

period to file a notice of appeal began to run on June 18, 2008. Jay filed the current notice

of appeal on July 3, 2008, which was within the thirty-day requirement.

       Mental Competency Hearing

¶24.   Jay’s second issue is the trial court’s failure to conduct a mental competency hearing

to determine his ability to stand trial. The United States Supreme Court has defined

competency to stand trial as “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, 825 (1960) (per curiam).

¶25.    In order to be deemed competent to stand trial, a defendant must be one:

       (1) who is able to perceive and understand the nature of the proceedings; (2)
       who is able to rationally communicate with his attorney about the case; (3)
       who is able to recall relevant facts; (4) who is able to testify in his own defense
       if appropriate; and (5) whose ability to satisfy the foregoing criteria is
       commensurate with the severity of the case.

Martin v. State, 871 So. 2d 693, 697 (Miss. 2004) (quoting Howard v. State, 701 So. 2d 274,

280 (Miss. 1997) (overruled on other grounds)). When a trial court determines that a

defendant is competent to stand trial, we will not overturn such finding unless it was

“manifestly against the overwhelming weight of the evidence.” Martin, 871 So. 2d at 698

(quoting Emanuel v. State, 412 So. 2d 1187, 1189 (Miss. 1982)).

¶26.   Jay filed a motion for extension of time on April 4, 2005, one week before the trial

was scheduled to begin. The motion claimed Jay had sustained a severe traumatic brain

injury in September 2004. Attached to that motion was a letter from Dr. Yablon, which

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stated that “[d]ue to the severity of [Jay’s] injury, he continues to suffer from cognitive,

motor, functional and sensory deficits and is at increased risk for seizures and [deep-vein

thrombosis]. He is therefore, unable to make competent medical decisions and unable to

participate in any court proceedings at this time.”

¶27.   The trial judge ordered Jay to undergo a psychiatric examination by Dr. Webb in order

to determine Jay’s ability to stand trial and assist his attorney in his defense. Dr. Webb’s

report was filed in the court file on April 13, 2005 -- two days after the trial. There is no

indication in the record that the trial judge ever read or considered it. Dr. Webb’s report

concluded that Jay was “competent to stand trial.” Thus, the court file contained conflicting

opinions as to whether Jay was competent to stand trial. We have no way of knowing

whether the trial judge considered the two opinions and found Dr. Webb’s opinion more

persuasive, or simply failed to hold a hearing to consider the matter.

¶28.   Rule 9.06 of the Uniform Circuit and County Court Rules governs cases in which

competence to stand trial is at issue. The rule reads, in relevant 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 stand trial, then the court shall make the finding a matter of
       record and the case will then proceed to trial.

Miss. Unif. Cir. & Cty. R. 9.06 (emphasis added).



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¶29.   The rule requires a mental examination be conducted when the trial court has

reasonable grounds to believe the defendant is incompetent to stand trial. Here, the trial court

clearly had reasonable grounds to believe Jay was incompetent to stand trial, as evidenced

by the order for a psychiatric evaluation.

¶30.   The rule further requires that, following such examination, the court shall hold a

competency hearing to determine whether the defendant is competent to stand trial. Id.

Furthermore, the rule requires the court to make its finding a matter of record before the case

proceeds to trial. Nothing in the record indicates that the trial court ever held a competency

hearing or made findings as to Jay’s competency to stand trial.

¶31.   The State argues that – because the record does not reflect whether or not the trial

judge actually received the report before trial or whether he ever spoke with Dr. Webb

concerning the defendant – this Court “must assume that the trial court objectively

considered all the facts and circumstances, including those which are not available to this

Court, which bore upon the defendant’s competence to stand trial.” To support its argument,

the State cites Conner v. State, 632 So. 2d 1239, 1251 (Miss. 1993) (overruled on other

grounds)). However, the Conner case references the type of evidence the trial judge, and

not the appellate courts, can see first-hand: namely, the defendant’s demeanor and behavior.

See Conner, 632 So. 2d at 1248-1251. Conner gives no support whatsoever to the State’s

argument.

¶32.   More recently, in Hearn v. State, 3 So. 3d 722,730 (Miss. 2008), this Court found

that, because no mental competency hearing was held prior to trial:




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       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. . . . However, [the evaluating psychiatrist]
       testified at trial as to [the defendant]'s competency and was subjected to
       cross-examination. Because [the defendant] was afforded the opportunity to
       present competing evidence, the purposes of Rule 9.06 were satisfied.

Id. There are currently two views on this Court regarding mental competency hearings, that

of the majority in Hearn, and that as expressed in Sanders v. State, 9 So. 3d 1132, 1141

(Miss. 2009) (Kitchens, J., concurring in result only, joined by Dickinson, J.).

¶33.   Justice Kitchens, advocating strict compliance with Rule 9.06's pretrial competency

hearing outside of the jury’s presence, stated that “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 side-stepped.” Id.

¶34.   Regardless of which view one takes generally, there was no competency hearing prior

to or during trial. Dr. Webb did not testify at trial, and there is, therefore, no argument that

the “purposes” of Rule 9.06 were satisfied, as required in Hearn. Hearn, 3 So. 3d at 730.

¶35.   The United States Supreme Court has held that a criminal defendant’s “constitutional

rights were abridged by his failure to receive an adequate hearing on his competence to stand

trial” when “the evidence raises a ‘bona fide doubt’ as to a defendant's competence to stand

trial.” Pate v. Robinson, 383 U.S. 375, 385-386, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).

Therefore, the trial court’s failure to hold a competency hearing was a violation of Jay’s

constitutional rights and, therefore, requires reversal.




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          Trial in absentia

¶36.      Jay argues that the trial court acted arbitrarily by conducting the trial in his absence.

He complains that the court allowed only a fifteen-minute delay to locate him before the trial

was commenced. This issue is controlled by Section 99-17-9 of the Mississippi Code, which

states:

          In criminal cases the presence of the prisoner may be waived (a) if the
          defendant is in custody and consenting thereto, or (b) is on recognizance or
          bail, has been arrested and escaped, or has been notified in writing by the
          proper officer of the pendency of the indictment against him, and resisted or
          fled, or refused to be taken, or is in any way in default for nonappearance, the
          trial may progress at the discretion of the court, and judgment made final and
          sentence awarded as though such defendant were personally present in court.

Miss. Code Ann. § 99-17-9 (Rev. 2007).

¶37.      Jay argues that this Court in Sandoval v. State, 631 So. 2d 159 (Miss. 1994), and its

progeny, has held that felony causes should not be tried in absentia of the defendant.

However, as the Court of Appeals pointed out in Sessom v. State, 942 So. 2d 234, 237 (Miss.

Ct. App. 2006), the Mississippi Legislature has effectively overruled Sandoval. The Court

of Appeals explained that:

          Pursuant to Sandoval, the circuit court had no authority to try [a felony
          defendant] in his absence and the trial judge did not have the option to proceed
          with trial . . . . The Legislature did not amend Section 99-17-9 of the
          Mississippi Code until July 1, 2005. That amendment effectively overruled
          Sandoval as it relates to trial of a felony offender in his absence.

Sessom, 942 So. 2d at 237.

¶38.      Even if this were not so, Jefferson v. State, 807 So. 2d 1222, 1227 (Miss. 2002),

“carve[d] out an exception [to the Sandoval rule] based on willful, voluntary and deliberate




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actions by a defendant in avoiding trial.” Jay argues that his brain damage mitigates his

absence, whereas there was no evidence of brain damage in the Jefferson case.

¶39.   This issue turns on Jay’s mental competency hearing. Had Jay been found mentally

competent, the Jefferson exception to the Sandoval rule would apply, allowing Jay to be

tried in absentia, based on his willful, voluntary, and deliberate absence from trial. However,

had he been found incompetent to stand trial, the issue would be moot.

                                      CONCLUSION

¶40.   The trial court’s failure to conduct a mental competency hearing violated Rule 9.06

as well as Jay’s constitutional right to have his competency determined. Whether or not

Jay’s absence at trial was a result of willful, voluntary, and deliberate actions turned on

whether or not he was mentally competent at the time of trial. Because the trial court failed

to conduct a competency hearing, this question cannot be answered. This matter is reversed

and remanded for a new trial subject to a competency hearing, and provided the trial judge

determines in the course of the Rule 9.06 hearing that Jay is competent to stand trial.

¶41.   REVERSED AND REMANDED.

    WALLER, C.J., CARLSON AND GRAVES, P.JJ., RANDOLPH, LAMAR,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.




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