IN THE SUPREME COURT OF FLORIDA
SUPREME COURT CASE: 06-41
LOWER CASE NO: CR93-9667 A
SONNY RAYMOND JEFFRIES,
STATE OF FLORIDA,
PETITION TO REVIEW NON-FINAL ORDER
IN POST-CONVICTION DEATH PENALTY CASE
PURSUANT TO Fla. R. App. P. 9.142
MARK S. GRUBER
Fla. Bar No. 109710
DAPHNEY E. GAYLORD
Fla. Bar No. 0136298
Office of the Capital Collateral
Regional Counsel Middle Region
3801 Corporex Park Drive, Suite 201
Tampa, Florida 33619
ATTORNEYS FOR APPELLANT
TABLE OF CONTENTS
JURISDICTIONAL STATEMENT ...................................................................... 1
DATE AND NATURE OF THE ORDER TO BE REVIEWED .............................. 1
NAME OF THE TRIBUNAL RENDERING THE ORDER ................................... 1
NAME, DISPOSITION AND DATES OF PRIOR PROCEEDINGS ...................... 1
FACTUAL STATEMENT ................................................................................... 5
ARGUMENT IN SUPPORT OF PETITION ...................................................... 13
CONCLUSION AND NATURE OF RELIEF SOUGHT ...................................... 48
REQUEST FOR STAY OF THE LOWER COURT PROCEEDINGS .................. 48
CERTIFICATE OF SERVICE ........................................................................... 49
CERTIFICATE OF COMPLIANCE................................................................... 50
The Appellant seeks to invoke the jurisdiction of this Court pursuant to Florida
Rules of Appellate Procedure 9.142(b).
DATE AND NATURE OF THE ORDER TO BE REVIEWED
The Appellant seeks review of the lower court=s Order rendered on December 15,
2005, finding the Appellant Competent to Proceed in his post-conviction proceedings
(Appendix; Tab 1).
NAME OF THE TRIBUNAL RENDERING THE ORDER
The Honorable Robert (Bob) Wattles, Circuit Court Judge of the Ninth Judicial
Circuit, in and for Orange County, Florida, rendered the Order under review.
NAME, DISPOSITION AND DATES OF PRIOR PROCEEDINGS
The Appellant, SONNY RAYMOND JEFFRIES, was indicted by the Grand Jury
for the 9th Judicial Circuit, Orange County Florida, on October 18, 1993, for premeditated
first-degree murder, armed robbery, and armed burglary of Wilma Martin on August 20th
or 21st, 1993. Defense Counsel F. Wesley Blanker and Leticia Marques represented the
Appellant during the guilt phase proceedings.
The trial court committed Appellant to the Department of Health and Rehabilitative
Services (HRS) on various several occasions pretrial due to his incompetency to be tried.
During his commitment, HRS received an order from the trial court to administer
psychotropic drugs involuntarily. Thus it was not until April 20 through April 23, 1998,
before the Appellant was tried by jury in Orange County, Florida. On April 23, 1998, the
jury found Appellant guilty of first-degree murder and armed robbery as charged and not
guilty of armed burglary.
On July 13, 1998, the circuit court, sua sponte, set a hearing on the Appellant=s
request to appoint new counsel. On August 14, 1998, the circuit court continued hearing
on the Appellant=s motion to proceed pro se. During this hearing Defense counsel
Marques presented the court with an affidavit signed by Dr. Brad Fisher questioning the
competency of the Appellant to waive counsel. On August 28, 1998, the Court held a
Faretta hearing and found the Appellant competent to waive his right to counsel for the
penalty phase hearing. The court appointed Blankner and Marques as stand-by counsel.
The Appellant represented himself at the penalty phase hearing which was held on
September 8 through 9, 1998, with the assistance of stand-by counsel. After the
presentation of all testimony and evidence, the defendant waived closing argument. The
jury recommended 11 to 1 that the court impose death for the first-degree murder of
Wilma Martin. After the jury=s recommendation, the trial court adjudicated the Appellant
guilty on counts 1 and 2 of the indictment and the Appellant requested that counsel be
reappointed. On October 15, 1998, the trial court denied the Appellant=s request to be
designated as co-counsel and held the Spencer Hearing. Defense counsel Marques
represented the Appellant at the Spencer hearing. On January 22, 1999, the trial court
reading from a prepared order sentenced the Appellant to death for the first degree
murder of Wilma Martin and to life in prison on count 2, armed robbery.
The Appellant appealed his conviction and sentence which was affirmed by this
Court at Jeffries v. State, 797 So.2d 573 (Fla. 2001). Upon issuance of Mandate on
October 9, 2001, this Court appointed the Office of Capital Collateral Regional Counsel-
Middle Region to represent Appellant in post-conviction proceedings.
On April 18, 2002, post-conviction counsel filed a motion in the circuit court to
determine the Appellant=s Competency to proceed in post-conviction proceedings
pursuant to Carter v. State, 706 So.2d 873 (Fla. 1997), and Fla. R. Crim. P. 3.851 (g)
(Appendix; Tab 16). On June 20, 2002, the Court appointed three independent experts,
Dr. Henry L. Dee, Dr. Harry McClaren, and Dr. Wade Cooper Myers to examine the
Appellant to determine whether he was competent to proceed in his post-conviction
proceedings (Appendix; Tab 15) In separate reports to the court, all three doctors
determined that the Appellant was presently incompetent to proceed due to a mental
illness which compromised his ability to consult with counsel within a reasonable degree
of rational understanding, as well as, manifest a rational and factual understanding of the
proceedings against him (Appendix; Tab 12, Exhibit A-C). On November 26, 2002, after
review of the reports submitted by the court appointed experts and without further
objections from the state, the circuit court accepted the reports of Dr. Dee, McClaren and
Myers and found the Appellant temporarily incompetent to proceed in his post-conviction
Subsequent to the circuit court's Order on November 26, 2002, the Appellant
refused all treatment alternatives available through the Department of Corrections (DOC),
which prompted the state to file a Motion for Commitment, Treatment and Periodic
Report on March 16, 2004 (Appendix; Tab 14). After hearing on the state's motion, the
circuit court signed an Order on October 5, 2004, committing the Appellant to the
Department of Children and Families (DCF) (Appendix; Tab 12). The circuit court set
forth the legal requirements that should be considered as specified in Fla.R.Crim P. 3.212
(c)(5), 3.211, and 3.851 (g)(8)(B) and (c) in providing treatment and compiling reports to
the court. At the request of post-conviction counsel, the circuit court also noted that the
court would prefer DCF to videotape the Appellant=s evaluations to maintain an accurate
Dr. Thornton and Bilak are mental health providers employed by DCF at the North
Florida Evaluation and Treatment Center in Gainesville, Florida. On January 26, 2005,
Dr. Thornton and Bilak conducted a dual 1 2 hour clinical interview with the Appellant
to assess his current treatment needs at Union Correctional Institution (UCI). On
February 8, 2005, Dr. Bilak and Thornton submitted reports to the circuit court asserting
that the Appellant was presently competent and thus no treatment program could be
provided by the Department of Children and Families (Appendix; Tab 10-11).
The circuit court conducted a bifurcated competency hearing on March 2, 2005*,1
April 8, 2005, and May 26, 2005 (Appendix; Tab 2-4). At the conclusion of the hearing,
post-conviction counsel and the state separately filed written closing and rebuttal
arguments in the circuit court (Appendix; Tab 5-8). On December 15, 2005, the circuit
court issued it=s Order finding the Appellant presently competent to proceed in his post-
conviction proceedings (Appendix; Tab 1).
The Appellant is paranoid schizophrenic with grandiose delusions and persecutorial
beliefs. It is not because the Appellant suffers from a mental illness which makes him
incompetent to proceed, but the Appellant demonstrates that he lacks sufficient present
ability to consult with counsel with a reasonable degree of rational understanding; as well
as, maintain a factual understanding of the proceedings against him. Appellant=s
persistent belief that he suffers from an incurable venereal disease, his often unpredictable
and inconsistent behaviors, and his lack of cooperation in signing standard release forms
based on a delusional thought process prompted post-conviction counsel to file a Motion
to Determine the Competency of the Appellant to proceed in post-conviction proceedings.
The motion also attached various correspondences that the Appellant had written to the
Pursuant to Fla. R. App. P. 9.220(b), asterisks (*) should be used to designate omissions in the
record and/or testimony.
Florida Supreme Court and Assistant General Counsel, Judy Taylor Rush during his direct
appeal proceedings (Appendix; Tab 16). On June 20, 2002, after hearing on the motion
to determine competency, the circuit court found the motion legally sufficient and
appointed Dr. Henry Dee, Wade C. Myers, and Harry McClaren to evaluate the
competency of the Appellant as required by Fla. R. Crim. P. 3.851 (g) (Appendix; Tab
On October 27, 2002, Dr. Henry Dee conducted a seven hour evaluation of the
Appellant at Union Correctional Institution (UCI). Dr. Dee administered the Wechsler
Adult Intelligence Scale - Third edition and the Denman Neuropsychology Memory Scale
during his evaluation of the Appellant. In his report to the court, Dr. Dee summarized
Mr. Jeffries performance on the neuropsychological tests
strongly suggests that there is an abnormality of cerebral
function, in plain terms, brain damage. Concerns about
possible abnormality of central nervous system function is
mentioned periodically through historical records that I have
reviewed. There is no evidence of traumatic or neurological
disease that would explain these findings... (.)
In addition and perhaps more significantly for his competence
to proceed, Mr. Jeffries suffering a very serious psychotic
disorder. Indeed he shows a disorganization of thinking,
apparent ideas of reference, thinly veiled delusions of
grandeur (and persecution), along with an impairment in
reality testing that is quite profound. He has been diagnosed
with a delusional disorder while being treated at UCI and was
treated with a variety of antipsychotic medications, with at
least some success. Delusional disorders, are of course,
notoriously resistant to treatment in the sense that very often
the medical treatment will reduce the frequency and intensity
of hallucinations, but delusions may well remain intact even
during treatment. Some of his delusions...are quite
longstanding and appear to have begun in his middle teenage
years, even before he moved to Florida and certainly before
he was involved in the current crime and incarceration.
Because of his rather florid psychosis, I do not believe that
Mr. Jeffries is competent to proceed. It is not simply because
he is psychotic that he is incompetent to proceed, but it is
because of the nature of his illness that he is distrustful of
people, and is in addition, in very poor touch with reality. In
addition he seems to be unaware of the impact of his behavior
on others. His ideas of reference and delusions are a very
clear and dangerous bar to his forming an adequate
relationship with his attorney to enable him to assist in
planning his defense/appeals.
(Appendix; Tab 12, Exhibit A, 10).
Dr. Harry McClaren evaluated the Appellant on August 6 and 29, 2002, and noted
that the Appellant appeared Ato have either loosening of mental associations or flight
ideas;@ and at times, Ahis speech appeared irrelevant and rambling@ (Appendix; Tab 12,
Exhibit B, 3). The Appellant also Aexpressed ideation suggestive of delusions of grandeur
and persecution.@ Id. Dr. McClaren administered the Minnesota Multiphasic Personality
Inventory - 2 and the Million Clinical Multiaxial Inventory III. Dr. McClaren also listed
the voluminous documents he reviewed and spoke with at least one correctional officer
regarding his perception of the Appellant=s behavior. Upon conclusion of his evaluation,
Dr. McClaren opined that the Appellant was not competent to proceed.
Dr. McClaren reported to the court that the Appellant=s MMPI=s profile was
consistent with an individual who might be experiencing symptoms of paranoia,
disorganized thinking and hypomania...which is consistent with available past history.
One correctional officer described Mr. Jeffries behavior as cycling approximately every
three to six months between periods of good adjustment and bad adjustment, which is
consistent as noted by his psychology specialist. Dr. McClaren reported that the
Appellant had Adifficulty abstracting proverbs and likely his capacity for abstract though
was compromised by residual symptoms of psychosis.@ Id. at 4. The Appellant was
generally cooperative and attentive; however at times, he was evasive, guarded, and
defensive when talking about past symptoms and facts of his case. Id. at 5. The
Appellant also reported to Dr. McClaren in an unusual manner that he had a neurological
disease that involved magnetism that made him say and write things. Id. Dr. McClaren
reported a valid profile from the Million Clinical Multiaxial Inventory suggesting a bipolar
disorder as the most prominent finding. Id. at 6. Dr. McClaren notes that the Appellant
has been treated by a variety of antipsychotic medications and has clearly shown some
symptoms of mental illness at various intervals in the past. Dr. McClaren=s report
concludes that the Appellant is variable in his mental condition but appears to clinically
suffer from Schizoaffective Disorder, Personality Disorder with borderline and antisocial
features as well as Polysubstance dependence. Id.
Dr. Wade C. Myers evaluated the Appellant on October 21, 2002, for two-hours
and forty-five minutes and also listed the voluminous records he reviewed in preparing his
conclusions for the court. Dr. Myers detailed the Appellant=s psychiatric history from
August of 1986 to the present (Appendix; Tab 12, Exhibit C, 4-7). Dr. Myers noted that
during his interview, the Appellant answered questions with irrelevant answers, resisted
redirecting (Id. at 2), and spoke of multiple persecutory themes (Id. at 3). Most
specifically, the Appellant accused the federal government of being corrupt and
manipulating the crime scene in an attempt to Astage his illegal death.@ Id. Dr. Myers=
summary conclusion discusses the issues of the Appellant=s malingering capabilities as not
being mutually exclusive from his psychosis.
Thus, in spite of his malingering mental illness during a
significant portion of the evaluation process with us, it is
nevertheless our opinion that Mr. Jeffries has concurrent real
psychiatric illness symptoms and that these symptoms have
rendered him currently incompetent to proceed with post-
conviction proceedings. While he understands the adversary
nature of the legal process and the collateral proceedings, he
has significant impairment in his ability to assist his attorneys
in his defense (based primarily on paranoia and a disturbed
thought process). For example, Mr. Jeffries had marked
difficulty staying focused on issues other than his persecutory
beliefs and somatic preoccupations. We feel that his
disorganized thinking and persecutory beliefs (which also
incorporates his attorneys) presently prevent him from:
establishing and maintaining a collaborative relationship with
his attorneys; bringing relevant information to his attorney=s
attention; following testimony for contradictions and errors;
and testifying relevantly.
Id. at 10-11.
On November 26, 2002, the circuit court found the Appellant temporarily
incompetent to proceed in his post-conviction proceedings based upon the reports
submitted by the three court appointed experts and the state=s acquiescence to the validity
of the expert reports. The three appointed experts also recommended medication,
involuntarily if necessary to ensure compliance, to control the Appellant=s psychosis.
However, upon return to the Department of Corrections, the Appellant refused all
psychiatric evaluations to determine his treatment needs and NO psychiatric treatment
was ever provided to the Appellant.
On April 16, 2003,* in a periodic report to the court, Dr. Gloria Calderon,
psychiatrist with the Department of Corrections, summarized that the Appellant has
Apresented a complex picture of a person who at times has perscutory delusional thinking
and at other times appears to be rational. Malingering is obviously a consideration and is
difficult to rule out. However, during the different and short periods while he was on
anti-psychotic medication, he apparently was able to function somewhat better
behaviorally in that, disciplinary reports were much less. He has been non-compliant with
mental health interventions other than brief interactions, therefore, complete psychiatric
evaluation has not been done recently.@
At the May 5, 2003 hearing, the circuit court granted the state=s request to transfer
Appellant to the Transitional Care Unit (TCU) at UCI for evaluation and treatment.
While at TCU, the Appellant was neither evaluated nor treated for his mental illness as
recommended by the three competency experts. No further efforts were made by TCU
to facilitate treatment until the state filed its Motion for Commitment, Treatment, and
Periodic report to the court on March 16, 2004, to the Department of Children and
Families (DCF) (Appendix; Tab 14). On April 23, 2004, DCF filed a motion for leave to
intervene in the state=s request for Appellant to be committed to DCF. At hearing on May
18, 2004, DCF and DOC requested a period of time in which to establish a custodial plan
for the Appellant, whereas, DCF would provide treatment and DOC would maintain
custody of the Appellant=s person. A subsequent commitment hearing was held on
October 5, 2004, transferring care of the Appellant to DCF (Appendix; Tab 13).
An additional three and a half months elapsed, before Dr. Thornton and Bilak from
DCF evaluated the Appellant on January 26, 2005. It is clear from the record that Dr.
Thornton and Bilak were not provided with complete DOC records, the competency
reports of Dr. Dee, McClaren, and Myers, the motion to determine competency,
transcripts of prior proceedings, prior psychiatric commitments, etc. With no reference
point other than a partial review of DOC records, Dr. Thornton and Bilak interviewed the
Appellant for approximately an hour and a half. Dr. Thornton and Bilak compiled their
reports on February 8, 2005, with both doctors indicating that the Appellant did not
require treatment for restoration of competency. This conclusion is questionable
considering the Appellant had never received the recommended treatment as offered in
the opinions of Dr. Dee, McClaren and Myers. Additionally even the state conceded at
the May 18, 2004 hearing that the Appellant is the one death row inmate whose case he
feels is really going to need treatment to be sure that he is competent (May 18, 2004, 1*)
The circuit court subsequently conducted a bifurcated competency hearing on
March 2, April 8, and May 26, 2005, in which testimony from Dr. Thornton, Bilak, Bob
Berland, and Brad Fisher was presented to the court. The circuit court also viewed
videotape recording of an interview with the Appellant conducted by Dr. Berland on April
5, 2005. Closing and rebuttal arguments were submitted by the state and post-conviction
counsel prior to the circuit court=s order on December 15, 2005, finding the Appellant
competent to proceed.
ARGUMENT IN SUPPORT OF PETITION
A trial court's decision regarding competency will stand absent a showing of abuse
of discretion. See, e.g., Hardy v. State, 716 So.2d 761, 764 (1998); Hunter v. State, 660
So.2d 244, 247 (Fla.1995); Watts v. State, 593 So.2d 198, 202 (Fla.1992). Thus, the
issue to be addressed by this Court is whether the circuit court abused its discretion in
finding the Appellant competent to proceed in his post-conviction proceedings.
Forcing a death row inmate to go forward with proceedings when he lacks
"sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding" and "a rational as well as factual understanding of the proceedings against
him," Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960);
Scott v. State, 420 So.2d 595 (1982), poses an unacceptable risk that he will be deprived
of life in violation of the due process clause of the Fourteenth Amendment.
The Appellant has the right to be competent during his post-conviction proceedings
and therefore, he must have the "capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in preparing his defense,"
Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
Post-conviction proceedings require that the Appellant make numerous decisions and
undertake various tasks, including "assist[ing] counsel in raising new issues and
developing a factual foundation for appellate review," Dusky, 362 U.S. at 402 (1960). n
Carter v. State, the Florida Supreme Court adopted the "Dusky" standard to
post-conviction competency and determined that in order to arrive at a workable
"standard" for competency in the context of a capital post-conviction proceeding, it is
necessary to take into consideration the role of the defendant in these proceedings. 706
So.2d 873, 875 (Fla.1997). First and most obvious, a defendant must be able to
effectively communicate with his counsel with a reasonable degree of rational
understanding and have a rational, as well as a factual understanding of the pending
proceeding. See Fla.R.Crim.P. 3.211 (a)(1). "A defendant's right to the effective
assistance of counsel is impaired when he cannot cooperate in an active manner with his
lawyer . . . The defendant must be able to provide needed information to his lawyer, and
to participate in the making of decisions on his own behalf." Riggins v. Nevada, 112
S.Ct. 1810, 1820 (1992) (Kennedy, J., concurring in judgment). The defendant's input
and active participation is essential for a meaningful attorney-client relationship during the
pendency of post-conviction proceedings and to ensure a proper investigation of the case.
In the post-conviction setting, collateral counsel was not present at the trial, nor privy to
any decision-making sessions regarding trial strategy, if such occurred. The client's
recollection of the trial, the relationship with trial counsel, and any discussions that took
place about trial strategies is critical to providing effective assistance in a post-conviction
proceeding. If there were witnesses available at trial that would have provided helpful
testimony and the client wanted that testimony presented at trial, collateral counsel must
be able to obtain that information from the client in order to conduct the necessary
investigation. If a defendant does not have the capacity to remember the trial, or any
witnesses who testified at the trial, or other essential aspects of the trial or the
investigation, or provide any information about potential avenues of investigation, then the
defendant cannot be said to have the capacity to consult with counsel with a reasonable
degree of rational understanding. Secondly, the Carter court went on to state that an
individual seeking post-conviction relief in a capital case must also have the capacity to be
present at and participate in an evidentiary hearing, listen to the testimony, and consult
with counsel with a reasonable degree of rational and factual understanding about the
testimony being presented. A defendant does not lose his right to due process when
seeking post-conviction relief. Fundamental constitutional rights to which a defendant is
entitled at trial also attach at a post-conviction evidentiary hearing. Thirdly, a defendant
must also be able to manifest appropriate courtroom behavior during a hearing, similar to
the pre-trial standard. A client's input during an evidentiary hearing is essential, as many
of the matters about which testimony is elicited concern alleged events between the client
and trial counsel and other witnesses, including alleged decisions and strategies made after
consultation with the defendant. If the defendant lacks the capacity to participate at a
hearing, or is hallucinating during the hearing, for example, or engaging in some other
activity in response to internal stimuli consistent with his mental illness, the defendant
cannot be competent to proceed.
The circuit court abused it=s discretion in finding the Appellant had been restored to
competency. Although the lower court=s order does state the Appellant suffers from an
ongoing mental illness, the lower court is incorrect in finding that the defense did not
indicate how the Appellant=s delusions and hallucinations prevented him from effectively
communicating with counsel, understanding and participating in the hearing, consulting
with counsel about testimony being presented or manifesting appropriate courtroom
behavior (Appendix; Tab 1, 3-4). The Appellant has a longstanding history of paranoid
delusional schizophrenia. His thought processes are disturbed. Without treatment, the
Appellant will remain unstable and unpredictable. The circuit court relying on the reports
of three competent court appointed experts agreed that the Appellant needed some form
of treatment to restore him to competency; however this treatment was never received
and miraculously the Appellant was restored to competency based upon an hour interview
by two DCF personnel who only conducted a cursory interview with the Appellant and
did not review the Appellant=s complete medical history, prior court proceedings, or
administer any psychological validity test. Without a historical perspective of the
Appellant= condition, coupled with lack of any psychological testing, it is difficult to assess
the true nature of the Appellant=s mental illness and competency. Additionally, key
aspects of the Appellant=s statements, demeanor, and attitude are overlooked by the
evaluators because there is no point of reference in which to review the Appellant=s
statements, behavior, and question his thought processes. Although Dr. Bilak conceded
that a review of the most recent current reports by the court appointed examiners, or the
reasons for their findings, would be helpful to use for followup during an interview with
the Appellant (Appendix; Tab 2, 59) and are in fact expected standards of practice
(Appendix; Tab 2, 60), the circuit court ignored Dr. Bilak and Thornton=s failure to
adhere to expected standards of practice in the psychiatric field and relied on their
testimony in finding that the Appellant had been restored to competency.
Dr. Thornton and Bilak interviewed the Appellant for approximately an hour and a
half, of which approximately 15 minutes was spent trying to get Appellant to submit to the
interview because he wanted an original signed order from the court. In fact, Dr.
Thornton and Bilak had to elicit the assistant of Lisa Wiley from UCI to vouch for their
identity prior to the Appellant submitting to the interview. This distrustful and guarded
disposition is the same posture as noted by the competency experts in their reports to the
court. See, e.g., Appendix; Tab 12B, 5. However because Dr. Thornton and Bilak were
not provided with the three competency expert reports (March 2, 2005, 23; Appendix;
Tab 2, 9) and did not have a complete DOC file on the Appellant, they overlooked this
key evidence in the Appellant=s behavior. This guarded and distrustful disposition alone
does not suggest incompetency, but it is this type of distrustful behavior which makes the
Appellant incapable of forming a relationship with the counsel in preparation of his post-
conviction pleadings (Appendix; Tab 12, A-10, C-11).
The cursory view of the records made by Dr. Thornton should shock this Court.
Dr. Thornton testified that he spent approximately 1 2 hours reviewing 3 volumes of
records provided by UCI as compared to approximately 8 hours by Dr. Bilak (Appendix;
Tab 2, 60). The limited review of the records performed by Dr. Thornton and Bilak does
not begin to compare with the extensive review of records conducted by the competency
experts and defense experts presented during the competency hearing. Nor does their
efforts in conducting a comprehensive forensic examination of the Appellant compare to
the competency and defense experts. More importantly than the amount of time spent
reviewing records, are the key documents that existed in the Appellant=s DOC records that
are overlooked by Dr. Thornton and Bilak. For example:
A. Evidence of mental illness symptoms in TCU summary reports:
Dr. Thornton and Bilak testified that Appellant=s mental illness symptoms had been
benign since his transfer to the TCU unit in May or June of 2003. (March 2, 2005, 7;
Appendix; Tab 2, 27). Dr. Thornton also specifically relied on a TCU summary report
dated in May of 2002 to testify that Appellant=s psychiatric symptoms had been benign.
(March 2, 2005, 7). May of 2002, is the same month the circuit court initially ordered
the competency evaluation because of the evidence presented by counsel in its motion to
determine competency and concerns expressed by the circuit court during the May 18,
2002, hearing. It is during this hearing that the Court comments on the Appellant=s
contrastingly different physical appearance and his bizarre behavior during the hearing.
This 2002 TCU summary report which Dr. Thornton uses to support his opinion predates
the examinations by Dr. Dee, Myers, and McClaren, who all agreed that Appellant was
suffering from mental illness and complained of those symptoms during their evaluations.
B. Evidence of mental illness symptoms in TCU nursing summaries.
Defense composite exhibit K which was introduced into evidence during the
competency hearing. This composite exhibit contains weekly nursing summaries from
TCU dated from October through December 2004 which is just prior to Dr. Thornton
and Bilak's interview. Defense expert Berland testified that "every one of these nursing
summaries indicate that the inmate is experiencing delusions. And on almost all of them,
the word grandiose is on the line below that, describing some aspect of the nature of those
delusions" (Appendix; Tab 2, 148). These nursing summaries were apparently
overlooked by Dr. Thornton and Bilak as well because they too show that the Appellant=s
mental illness symptoms have not been benign since 2002.
C. Evidence of mental illness symptoms in case management meetings.
At the competency hearing, the defense introduced composite exhibit L, which was
identified by Dr. Berland as DOC records dated December 16, 2004 - Individualized
Service Plan Review (ISPR), with attached notes; psychosocial assessment dated July 20,
2004; weekly SOAP (Subjective Objective Assessment); UCI Risk Assessment dated
October 27, 2004; and an Inpatient Case Manager Health Record Review Summary
(Appendix; Tab 2, 151). These composite records also evidence that during 2004,
Appellant demonstrated paranoid or prosecutory delusions. These behaviors were
chronic and ongoing. This report also shows evidence of chronic auditory hallucinations
(Appendix; Tab 2, 152).
D. Letter dated April 16, 2003, to the court from Dr. Gloria Calderon, M.D.
Defense exhibit N is a letter that was addressed to the court from Dr. Calderon,
who is a psychiatrist with the DOC. In this letter, Dr. Calderon describes varying
psychiatric symptoms that Appellant was experiencing dating from 2001 until the time of
her letter. Additionally, the letter reports that when placed on psychiatric medications, the
Appellant was able to function better behaviorally. (Appendix; Tab 2, 154).
E. Evidence of mental illness symptoms Dr. Knabb and Balza DOC report.
Defense Exhibit B was introduced during the evidentiary hearing. This mental
health evaluation was prepared by Dr. Daniel Knabb and T. Balza with DOC on April 9,
2004, and was also overlooked by Dr. Thornton and Bilak. Dr. Thornton testified at the
competency hearing that he does not recall seeing this report and did not have this report
marked in his notes (March 2, 2005, 37). In this report, Dr. Knabb indicates that
Appellant suffers from a delusional disorder and demonstrated several specific delusional
belief patterns (developed a cure for AIDS, perfected an algorithm to produce winning
LOTTO numbers, placed on death row as a part of a plot by Jeb and George Bush to
silence him, and has gonorrhea since age 16, which has gone untreated). This report goes
on to state that DOC mental health records show these "delusional themes are persistent
across time with cyclical exacerbation."
Dr. Thornton and Bilak did not provide the lower court with accurate information
with regards to Appellant=s psychiatric symptoms since the time period in which the
Appellant was adjudged incompetent to proceed. The aforementioned records introduced
by defense counsel are not refuted and corroborate the behaviors and competency
deficiences observed by Dr. Dee, Myers and McClaren when they evaluated the
Appellant for competency in 2002, and Dr. Berland and Fisher in their evaluations in
The circuit court=s reliance on the inaccurate testimony of Dr. Thornton and Bilak
was an abuse of the lower court=s discretion in determining the facts as presented during
the competency hearing. No reasonable person could conclude that their inaccurate and
unsubstantiated testimony would support a finding of competency. See, e.g., Scott v.
State, supra, 717 So.2d at 911 (trial court's decision does not constitute an abuse of
discretion "unless no reasonable person would take the view adopted by the trial court").
Additionally, the lower court fails to consider the voluminous testimony presented during
the competency hearing which establishes that the Appellant does not have sufficient
present ability to consult with counsel with a reasonable degree of rational understanding
as well as have a rational and factual understanding of the pending proceedings. The
lower court=s assessment of the competency standards in its Order falls short of the
meaning and interpretation of Carter and Dusky.
Dr. Thornton and Bilak's assessment criteria during their interview with Appellant
on January 26, 2005, is inconsistent with Carter and Dusky. Carter requires more than a
showing that the Appellant is capable of sitting in a chair for an hour and a half with his
hands cuffed behind his back and answer simple questions about the names of the
personnel involved in his case and their roles in the proceedings, as noted in the court=s
order. Carter explains that post-conviction proceedings are complex proceedings,
because it requires the Appellant to recall facts, testimony, evidence, communications
with trial counsel, background information, etc. and communicate that information to
post-conviction counsel for the development of his appeal. Dr. Thornton and Bilak never
asked the Appellant any questions from the trial proceedings to establish his factual and
rational understanding of the proceedings against him or use that information to assess his
ability to communicate rational and factual facts to post-conviction counsel. The only
question Dr. Thornton asked the Appellant about post-conviction appeals explored
whether he understood he had the option to pursue an appeal (March 2, 2005 at 68). In
fact, Dr. Thornton and Bilak note in their reports that the Appellant cited several DOC
rules and statutes (Appendix; Tab 11, 2); however, they testified that they never
attempted to determine if the information was factually correct or relevant to the
Appellant=s proceedings because there was intention to go back and verify the accuracy of
rules or statutes (May 2, 2005 at 48). Dr. Thornton and Bilak further testified that it did
not matter if the information being relayed was factual correct which is also clearly
inconsistent with Carter and Dusky. If in fact the Appellant relayed false information
than he cannot be said to have a rational as well as a factual understanding of the
proceedings against him.
The factors this Court should review when assessing whether the lower court
abused its discretion in determining that Appellant had regained competency to proceed in
post-conviction proceedings are reflected in Rule 3.211(a), Fla. R. Crim. P. (2005).
Because many factual elements presented in the following argument can be assessed
under various competency criteria under Rule 3.211, the Appellant fully incorporates all
facts and arguments as to each analysis.
(1) The experts shall first consider factors related to the issue of whether the
defendant meets the criteria for competence to proceed; that is, whether the
defendant has sufficient present ability to consult with counsel with a
reasonable degree of rational understanding and whether the defendant has
a rational, as well as factual, understanding of the pending proceedings.
The Appellant=s mental illness prevents him from effectively communicating with
counsel with a reasonable degree of rational and factual understanding. Appellant can
speak floridly about his delusional thought system and would appear at a quick glance to
be rational in his thought process. However, the more you question his belief system, the
more profound his delusions become. For example, drawing from Appellant=s belief
system, which many doctors consider to be delusional, Appellant has repeatedly stated
that he has the cure for AIDS and it is because of his years of study and letters to the
Governor in reference to his studies that the "Bushes" are basically out to get him for
financial gain and claim credit for his research discovery (Appendix; Tab4, 112-115).
This delusional belief system is reference repeatedly in the court record, the Appellant=s
DOC medical file, in the reports of the three competency experts and in the testimony of
Dr. Berland and Fisher. The Appellant=s delusional belief regarding a cure for AIDS is
coupled with the belief that Governor Jeb Bush and President George Bush are directly
responsible for his commitment on death row, harassing treatment and threats against his
life. The Appellant also firmly believes that George and Jeb Bush conspired to have him
held at TCU, under the guise of a competency evaluation, so that he would not have
access to the media to expose their illegal activity. The Appellant also repeatedly referred
to himself as a political prisoner being housed illegally in DOC. These are just some of
the many convoluted delusions that clouds Appellant=s ability to consult with counsel with
a reasonable degree of rational and factual understanding.
As Dr. Berland explained to this Court, it is easier for one to fake content
disturbance or delusions than it is for one to fake thought process disturbances where
their thoughts don't flow in a logical sequence (Appendix; Tab 2, 125). The following is
an example of the Appellant=s through process disturbance that effects his ability to
communicate with counsel. The Appellant believes that AIDS is nothing more than a
common cold which needs to be treated with antibiotics and the removal of fluid from the
lungs which incubate the cold virus. Until you get the fluid out, your body deteriorates
and doesn't allow your body to rebuild naturally (Appendix; Tab 9, 19). Dr. Berland
testified that during his interview with Appellant, he would attempt to discuss issues
related to his case, specifically regarding the competency hearing and what his attorney
should do after the hearing. However, Appellant would always quickly start talking about
delusional content related to those issues not related to reality (Appendix; Tab 2, 160).
This type of behavior was observed during his February 2005 interview as well as during
the taped interview with Appellant in April of 2005 (Appendix; Tab 2, 164).
The Appellant also speaks in "word salad" and goes off on tangents which affects
his ability to communicate with counsel with a rational degree of understanding. There is
no logical consistency to the flow of his thinking (Appendix; Tab 2, 126). This
disorganized thought process has not improved since Dr. McClaren, Dee, and Myers saw
Appellant in 2002. Dr. Berland testified that in Dr. McClaren's report (Appendix; Tab
12B-3), he describes Appellant speech as irrelevant and rambling. He also reported
loosening of mental associations which means a thought process disturbance (Appendix;
Tab 2, 127). Dr. Berland also observed that Appellant does not want to be considered
mentally ill and would stop mid-sentence and decline to respond to questions that may
make him appear insane. These are similar observations which were reported to the
lower court by Dr. McClaren in his November 2002 competency report. Dr. Thornton
and Bilak dismissed this evasive behavior because they did not understand the Appellant=s
psychological history and had not reviewed the reports of the three court appointed
experts. Additionally, Dr. Berland testified that Dr. Dee's report notes that Appellant=s
thinking is disorganized with veiled delusions of grandeur (Appendix; Tab 2, 128). Again,
these are similar behaviors as observed by Dr. Berland in his April of 2005 taped
interview. For example, in Appellant=s taped interview in April of 2005, the Appellant
suggests that he was some key figure in the ongoing process of the world or the universe
(Appendix; Tab 2, 128). Dr. Berland also pointed out that in Dr. Myer's report
(Appendix; Tab 12C-9), Appellant thought processes was sometimes tangential, irrelevant
and with loosening of associations (Appendix; Tab 2, 128). Again Dr. Berland indicated
this is consistent with his observations (Appendix; Tab 2, 129).
The following is an example from the Appellant=s taped interview with Dr. Berland
which clearly demonstrates his inability to convey a factual and rational thought process;
as well as, belies Dr. Thornton and Bilak=s statement that the Appellant does not believe
he possesses special powers.
DR. BERLAND: And who writes the numbers in the magazines?
MR. JEFFRIES: Oh, I don't know. I just -- magazines. I don't know the
names of who --
DR. BERLAND: Well, so do they know that you can predict --
MR. JEFFRIES: A lot of this stuff is my own original, though.
DR. BERLAND: Well, that's what I was trying to figure out.
MR. JEFFRIES: I can figure ideas out there, is what I do.
DR. BERLAND: And so they don't even know what they're producing
when they write the numbers?
MR. JEFFRIES: Well, in most cases, I don't -- I don't -- I can't speak for
them. But I do, because I've studied a lot of, um, I call leftology. That
keeps, I feel, to the words --
MS. GAYLORD: Leftology?
MR. JEFFRIES: I call it leftology.
MS. GAYLORD: Okay.
MR. JEFFRIES: Keeps the concordance of where, in other words, if there
is an unbalance, you ain't got to hear some negative or something, just
have-- hypothetically speaking, you know, so. So a lot of what I do is I
practice the -- a left balance instead of going to the right.
DR. BERLAND: And can you predict world events on this -- in this world
MR. JEFFRIES: Well, I guess sometimes it depends on what you do and
how far your studies go. You could, if you -- if you have actual number
charts to whatever sequences and stuff. And I want to go into radiation,
studying radiation, because that's a lot of what -- this protects the stepsmen
of the world. There is more of an impact where -- where there is a higher
radiation effect. And if you could balance that some, and it would protect
more, and it would make it easier and smooth and more safer, you know.
(Appendix; Tab 9, 13-15).
Dr. Fisher similarly testified at the competency hearing that when he attempted to
discuss the physical evidence of finger and shoe prints that were introduced during the
trial, the Appellant=s responses were intricate and hard to follow, but basically amounted
to "word salad" (Appendix; Tab 4, 24-5). This rambling unintelligible dialog is typical of
Appellant communication which impairs his ability to effectively communicate with
counsel with a reasonable degree of rational and factual understanding regarding the
The Appellant does not have a rational, as well as, a factual understanding of the
proceedings against him. Dr. Berland provided the lower court with several indications
which reflect that Appellant has an impairment in his rational appreciation of the nature of
the proceedings against him due to his delusional beliefs. Dr. Berland testified that
Appellant believes that he was purposefully sent from death row to the medical unit and
stuck in a prolonged competency assessment process by Governor Bush. Dr. Berland
opined that this amounted to a delusional interpretation of why he was found
incompetent. Appellant would not accept the realistic meaning of why he was found
incompetent or the basis for the lower court finding him incompetent. Dr. Berland
testified that when he confronted Appellant with the factual basis surrounding the lower
court reasoning, he would not accept that rational and responded that they (meaning the
doctors) were wrong (Appendix; Tab 2, 131; Tab 9, 44-5). Additionally, Dr. Berland
testified that "any conversation about with Appellant regarding his post-conviction
proceedings or even the competency matter, resulted in a discussion by Appellant of
delusional material. It is because of that inability to accept the rational of what, at least
some of us seem to believe are the real reasons he was found incompetent, precludes a
rational appreciation of the nature of the proceedings against him" (Appendix; Tab 2,
Appellant also reported that the governor is making a lot of money and is trying to
keep him from the press. Appellant believes that the authorities are providing other
inmates with false information about him so that they can harass him as a part of their
pattern of mistreatment. He also believes that if he could be found competent, he could
be returned to death row, which would grant him access to the press and he could
thereafter publicize his AIDS discovery. It is because of his knowledge that he believes
the competency assessment process was prolonged by the Governor to deny him access
to the press (Appendix; Tab 2, 132). Additionally, Dr. Berland testified that Appellant=s
prosecutorial theme involving Jeb Bush not only includes the manipulation of his housing
at TCU, but Jeb Bush desires to have him at some point put to death to prevent him from
publicizing his discoveries (Appendix; Tab 2, 162), which is further evidence of the
Appellant=s mental illness effecting his factual and rational ability to understand the nature
of proceedings against him.
(2) In considering the issue of competence to proceed, the examining experts
shall consider and include in their report:
A: the defendant=s capacity to:
(i) appreciate the charges or allegations;
The Appellant does not appreciate the charges or allegations against him. During
the April 5, 2005 interview with Dr. Berland, the Appellant elaborated on his belief
regarding his conviction for the present offense.
DR. BERLAND: So what you're saying is the way it looked back then, it
looked like you were guilty, but now you say there is new information about
how you two ended up being led together that means it wasn't something
that you did?
MR. JEFFRIES: It was a crime that I committed, but I'll -- I showed -- I
can show where it was motivated. Okay. Motivated means entrapment set
of programs where, like I said earlier, that led into this understanding, which
this is another way of -- a terminology of they're doing this thing which I
know to society is totally unacceptable. Okay, because that's ludicrous.
Where they say, well, you're responsible for doing this. (Inaudible) I'm just
saying sci-fi. You're responsible for screwing up things like this in another
world, blah, blah, blah, screw-up. Well, okay, back then. This only
occurred one (inaudible). Yeah. But I said, well, how are you going to
come back and do it again when this in effects is one time. This is twice
time over. And because people are cast into bondage for their knowledge
and what they -- I have actually found through my research that entire
families, husbands, wives, and even children, have been murdered for stuff
as simple as birth dates and Christmas, which are birth dates, secret codes
where they remain in power with, which is ludicrous.
DR. BERLAND: "They" again being the Bushes?
MR. JEFFRIES: No. No. Powers beyond which I'll keep anonymous and
say no names. They know who they are. And I make that issue now to
say, "Well, hey, what do you want to do, do you want to back off me or do
you want to persist me, because I don't mind catching you, fellows. I
don't mind a bit."
DR. BERLAND: Do you think anyone would believe you if you did
announce it --
MR. JEFFRIES: Well, it's all for what they believe, what they studied,
what they know. Because everybody wants to understand their situation,
what's happening to them and their families, you know. And they just want
things to be fair and coordinated to all people. They want a balance to
where everybody's able to get along without this (inaudible) and this rape
going on between each other and to be able to be happy and care even if
they have their own separate sects of cult or whatever you want to call it.
Sects as in S-E-C-T-S. Plus they don't like the ones across the seat from
them or next door to them. But they still have an understanding where they
are able to look out and clarize, you know. The stars are brighter, you
(Appendix; Tab 9, 49-52). This statement by Appellant establishes a disassociation from
his ability to understand the charges against him. The Appellant expresses an ideology
that certain super powers have manipulated the universe to cause the victim=s death. The
lower court abused it=s discretion in overlooking this evidence which was presented during
the competency hearing. If the Appellant contributes the victim=s death due to causal
factors beyond his control, clearly this questions his understanding of the charges against
(ii) appreciate the range and nature of possible penalties, if applicable, that
may be imposed in the proceedings against the defendant;
Due to Appellant=s delusional belief system, there is evidence that he does not
appreciate the range and nature of the possible penalties. The Appellant understands that
he is on death row for murder; however, when asked what should happen to him after the
competency hearing during the April 5, 2005 interview, the Appellant stated that he
should be transferred to a hospital for care and then be released subsequent to treatment
(Appendix; Tab 2, 168). Dr. Berland also testified that Appellant does not believe that his
Acare@ at a hospital would be related to his mental illness, which he denies. But he would
enter treatment based upon his inability to communicate properly with others because of
the abuse he received since childhood (Appendix; Tab 9, 44-4).
(iii) D: understand the adversary nature of the legal process;
Dr. Berland testified that Appellant believes that if he is found competent, his case
would be presented to the governor for disposition. Dr. Berland testified that although
one could provide Appellant with the proper factual appreciation of the adversarial
proceedings against him, his delusional belief about the process would prevent him for
acquiring new information. Appellant also expressed a belief that if he gets a successful
habeas corpus, he could cross-examine Jeb Bush in the Florida Supreme Court and
expose the governor's illegal mistreatment of him for financial gain (Appendix; Tab 2,
133). During one of the defendant's many outbursts, Appellant objected to Dr. Berland's
testimony that others believe his study which pronounces a cause and cure for AIDS is
delusional. Appellant responded that no one has produced concrete proof that indicates
his study is delusional. Appellant the claimed that Dr. Berland is also involved in the
government's coverup (Appendix; Tab 2, 134), which relates back to the reports of the
competency experts that Appellant=s paranoia prevents him from forming trusting
relationships to assist counsel in his appeal.
(iv) disclose to counsel facts pertinent to the proceedings at issue;
Dr. Berland testified (Appendix; Tab 2, 164-8) to several indications of why he
believes that Appellant is incapable of disclosing pertinent facts to counsel due to his
delusional thought processes. Referring to the transcribed transcript of Appellant
interview (Appendix; Tab 9, 30-4), Appellant discusses how he and the victim are joined
at the head and were programmed by chips for an eventual meeting. Appellant later
discusses in an unintelligible manner how the autopsy may have been manipulated:
MR. JEFFRIES: And one station I found was numbers, I'm connected to
the back of the grandmother's head. Her and my head is connected. Okay.
And the programming was given that station.
DR. BERLAND: Who is the grandmother?
MR. JEFFRIES: It's -- the victim's name is number one.
DR. BERLAND: Oh, in that image, you were connected to the back of her
MR. JEFFRIES: In that piece of artwork.
DR. BERLAND: Okay. And what is the meaning of being connected to
the back of her head?
MR. JEFFRIES: Well, the ring -- the double-breasted ring was in there,
which is used for the computer chip input program, which will lead you and
that person together at some point in life and then the crime occurred.
Okay. In another station, which there was a lot of powers in the station, the
third one I found was a sleigh with one of these powers driving B (inaudible)
appeared to be driving the sleigh where -- was me almost on the front of
him with a lot of other powers throughout. A lot of photographs of other
people in that specific image.
DR. BERLAND: I'm going to ask you a question before you get too far
ahead of me. You said that forces led you to come together, you and the
MR. JEFFRIES: Yes. I --
DR. BERLAND: Forces that you had outside of you.
MR. JEFFRIES: By their -- but what I'm saying is by their capabilities of
programming. And some people would misconceive it as what they call -- I
don't read and/or study the bible. I have read it when I was younger. It
was several times. But it makes a statement in there about that you were
brought to an understanding. And I said this is someone's way of being
ludicrous to bring it to this kind of understanding, you know, as far as this
kind of stuff.
DR. BERLAND: So you were brought together by outside forces, but then
you said and then -- I don't remember your exact words, her death
occurred. Was that under the control of outside forces?
MR. JEFFRIES: Well, what I believe and what I will state, through my
studies, yes, it was. Because I've located three stations that show the
actuality of the heart and the input that -- that that was done.
Dr. Berland further testified that Appellant was asked how counsel could be used
to assist in uncovering the secrecy and using that as a claim to show that he was sort of
set up in his conviction? Appellant responded by stating that he would have to draw up
the stations to assist counsel. Dr. Berland then asked if counsel could proceed in some
other manner before he redid the numbers? At first Appellant indicated yes, but then
stated it would only take a few days to redo the drawings. Dr. Berland interpreted this to
mean that Appellant would provide direction to counsel after he did his numerical analysis
(Appendix; Tab 2, 165; Tab 3, 200). But Appellant would have to generate additional
numbers and that maybe counsel would not be able to proceed until he recreated those
drawings with the various stations (Appendix; Tab 2, 165; Tab 9, 40-2).
On cross-examination, Dr. Berland reiterated that Appellant acknowledged that
initially his sentence appeared legal when it first happened. However, the Appellant was
not knowledgeable of the fact that both he and the victim had been programmed through
chips in their heads. The Appellant has since obtained subsequent information to show
his conviction was not legal nor his fault because the outside powers had forced it to
happen, forced it on him, and forced it on the poor victim (Appendix; Tab 3, 194). Dr.
Berland concluded that although Appellant appears to have some memory as to the
physical events that transpired at trial, his delusional thinking is not a volitional act but is a
by-product of biological malfunctioning in his brain (Appendix; Tab 3, 195). This
malfunctioning causes Appellant to be incapable of disclosing pertinent facts to counsel
regarding the proceedings at issue.
Dr. Fisher provides further evidence of Appellant=s inability to provide pertinent
facts to counsel. Dr. Fisher visited with the Appellant on May 25, 2005, the evening prior
to his appearance in court. Appellant was asked about the circumstances surrounding his
trial. Appellant described a number of bizarre delusional beliefs regarding the facts of his
case. Dr. Fisher testified that Appellant stated that he was hypnotized in his trial and was
not the perpetrator (Appendix; Tab 4, 23, 55). When asked about the autopsy, Appellant
stated that the victim's face had been changed and that it may well not have been the
victim (Appendix; Tab 4, 24, 31, 55). When Appellant was asked how this was possible,
he related to Dr. Fisher that Yanni had this special ability to make these transformations
The Appellant remained guarded in his interview with Dr. Fisher. When Dr. Fisher
would attempt to ask specific questions regarding the Appellant=s bizarre statements, the
Appellant responded that he knew of certain things because of Ahis source@. However
when Appellant was asked if he could reveal his source so that counsel could investigate
further, he was unwilling because only he was privy to the information and was dealing
with large-scale important figures (Appendix; Tab 4, 27-8).
Lastly, Dr. Fisher testified that the correspondences that Appellant forwards to the
court and counsel are consistent and always involve number sequences and codes. Dr.
Fisher testified that when he spoke with Appellant about the letters, Appellant stated that
the codes contained in the letters either relate to codes that have particular powers, or
were codes to contact radio signals. (Appendix; Tab 4, 28).
In contrast, to Dr. Berland and Fisher, Dr. Thornton and Bilak did not ask the
Appellant specific questions regarding his post-conviction proceedings. Dr. Thornton
testified that he assessed the Appellant=s ability to disclose pertinent facts pertinent to the
postconviction proceeding by the Appellant=s ability to describe facts in a chronological
manner. Dr. Thornton further stated that he can=t say that the Appellant=s responses were
accurate other than the facts that he described for the prison setting, things that he had
common knowledge, the facts that he described within the prison (May 2, 2005 at 60).
Additionally, Dr. Bilak testified that he does not recall asking the Appellant about any
facts that would be disclosed during postconviction proceedings (Appendix; Tab 2, 67).
Thus, Dr. Thornton and Bilak never examined the Appellant as to this criteria which is
one of the most important aspects of assessing the competency of a post-appeal client.
The lower court abused it=s discretion in overlooking this compelling testimony.
(v) manifest appropriate courtroom behavior:
The Appellant=s courtroom behavior is abhorrent. Dr. Berland testified that despite
the fact that Appellant can be quiet much of the time, his ability to manifest appropriate
courtroom behavior is impaired during times when things he doesn't like are being said.
AAnd I think that his ability to control his outbursts, if something that provokes him has
been said by a witness, is impaired by his mental illness@ (Appendix; Tab 2, 176).
Dr. Fisher testified that he has observed and reviewed the Appellant=s courtroom
behavior through court transcripts and in most instances while Appellant is present in
court there is a digression into one or the other of his delusional symptoms, themes, or
conspiracies and this is not appropriate courtroom behavior (Appendix; Tab 4, 35).
Additionally during these digressions into his delusional processes, Appellant is not
effectively communicating with his attorneys or having the same understanding of what is
going on that the rest of the people do (Appendix; Tab 4, 36).
The record is replete with various examples of the Appellant acting inappropriate
during the court proceedings. The Appellant would have numerous outbursts during the
proceedings which interrupted questioning of the witness. The trial court chose to appease
the Appellant on some occasions by telling him he would provide him with an opportunity
to speak after the witness has testified. During each witnesses testimony, the Appellant
repeatedly interrupted the court proceedings. Dr. Thornton concedes that there is no
dispute about how the Appellant=s past behavior has been and he further testified that he
cannot predict how behavior will be in the future. Thus, Dr. Thornton competency
assessment is time specific and cannot be expounded beyond the confines of that time
period. Neither Dr. Thornton or Bilak reviewed the prior court proceedings to question
Appellant regarding his court behavior and statements. When reviewing the record, which
is replete with numerous outbursts, it is apparent that Appellant has not been able to
demonstrate that he has the ability to manifest appropriate courtroom behavior. Even Dr.
Bilak in his testimony indicated that Appellant behavior is inappropriate. The lower=s
court determination of this fact was clearly an abuse of discretion. If the Appellant had
conducted himself as he did in any court proceedings in the state of Florida, the Judge
would have had him removed from the proceedings.
(vi) testify relevantly;
The Appellant=s mental illness prevents him from testifying relevantly in the post-
conviction proceedings. During the May 18, 2004* hearing, the Appellant stated the
following to the court, in part:
The Defendant: I=ve been brought to this building against my will
with no conditions or property. I=ve been found competent by three state
psychiatrists who told Tallahassee I should be back, and now I=m being held
in that building against my will. And they=ve tried to murder me twice and I
have documentation to prove it. And you=re just sitting here to allow this to
continue...(.) (May 18, 2004, 7).
I=ve been messed up since a child, by the same God you bow down to
whose messed me up and - - because of what I do and the power of things I
can do with it. There is a lot of people out there that disapprove of what
people are doing to me and they just continue, they just continue the rains
for 60 days, they said if you don=t life up when I come to court they=ll bring
the rains back. They brought the rains back for two days. They said, if
you don=t do it this time, stop what you=re doing to me, they=ll destroy your
world. And these people are very powerful. I=m not playing crazy. We=re
all angels in here like me, as I can see you all have stars in your eyes. (Id.
They=ve got no right and you=ve got no right to keep me in the Department
of Corrections where they can threaten my life and do what they are doing.
It=s not even a treatment center.... [Y]ou cannot contineu to permit these
people to try to kill me legally and get away with it. I=m going to tell you,
the courtroom, and everybody in here straight, I=m the one who got the
reward, okay, who got the reward on the trade center for Mr. Bush who
was the one behind the act. I want to speak to the media and I want to tell
my story. It appears a tape of Bin Ladin was recreated on video. Ever
since I got the article in the newspaper and my property in the property
room Mr. Bush=s first piece, Mr. Counts there got me blocked from even
my property.... (Id. at 8-9).
The state is trying to fuck me with 30 more days to kill me. That=s wrong.
I=m going before the media and tell my story, even if I have to waive my
appeals to do so.... They=ve got me in a freezing cold cell. They froze the
black inmate to death, the inmate in the cell across from me just to try to
scare me. It=s pretty far when they take a man and freeze him to death and
I=ve got to watch this man die through the night on the floor just to scare
me, and said we=re giving you a warning to back off the politics. (Id. at 10).
They=re using inmates to threaten me, to back off what I=m saying with
Bush and got me in DOC, they=re putting me in situations where I can=t get
no evaluations, these people know, Mr. Macgruder=s chick here, she knows
that.... [Y]ou know it=s political but to give them another 30 days to kill me
illegally down there is wrong, Judg Wattles. The powers took your rains
and told me to come to the courtroom to let you know they want the rains
back as soon as I came into Orlando. Two weeks ago they gave three and
a half. (Id. at 12).
I don=t want no part of the court world. I=m telling you I=m competent to
proceed. I don=t want air injected into my veins and thrust into some other
authority. (Id. at 13).
I=m going to file a writ of habeas corpus and bring charges against all you
bastards for doing what you=re doing to me. (Id.).
And there ain=t no angels in this courtroom. You=ve all got fake stars in
your fucking eyes. (Id.).
Dr. Berland testified from the competency hearing transcript dated October 5,
2004 (Appendix; Tab 13) in support of his opinion that Appellant has failed to
demonstrate that he has the ability to testify relevantly based upon the following
statements by the Appellant during the hearing:
The Defendant: Okay. I=m a political prisoner because Mr. Bush
was found guilty of doing the Trade Center. One of those photographs has
seven slugs in his fact. Okay. When they closed the White House down
last year for th bomb threat - - I=m all right. 2 I=m not going to do nothing
silly. You don=t need to get - - do all that. When they closed the White
House down for the bomb threat last year, they weren in there and did the
job. The photographs I brought with me - - it=s in my property at the Jail.
Seven officials viewed the photos and said - - and I was told to deliver the
message the job was taken care for the ones who done it. (Tab 13, 11).
Now, Mr. Wattles, I know you=re connected to Jeb. All right. And
one of these ladies who lied under oath....
She just lied under oath, and you=re going to tell me you ain=t going to
straighten that. You=re going to tell me they can put their fucking hands on
me. I=m through with you. (Tab 13, 12).
I don=t want to talk no more, Judge. Oh, I know that. You=re trying
to fucking kill me illegally, you fucking bastards.
I don=t want to hear nothing else you got to say. You=re a fucking
asshole. You=re a piece of God-loving shit.
I=m going to tell you this and I=m gong to make it clear. My friend
told me to sen you a message. And all that I=m doing is delivering the
message. You will get seven slugs across your forehead just like George
Bush did and Jeb Bush is going to and has gotten the same thing. (Tab 13,
The remaining transcript of this proceeding shows a degradation in the Appellant=s
behavior which is clearly not appropriate in the court proceedings. It is not only because
the Appellant used expletives to the court but the Appellant=s inability to follow the
During the hearing, the Appellant was becoming increasingly angry and agitated. This comment was
made by the Appellant because the court deputies were placing latex gloves over their hands and came
to stand directly behind the Appellant in the event that he needed to be removed or secured during the
proceedings in court and comment on those proceedings. The Appellant repeatedly
interjects his delusional thought processes in the proceedings. His behavior becomes irate
that the court deputies are preparing to remove him from the proceedings. Dr. Thornton
and Bilak never reviewed these transcripts from the prior court proceedings and therefore
relied solely on their meeting with the Appellant to assess his ability in a non-
confrontational environment. However, Dr. Bilak does testify on cross examination that
if he were made aware of the Appellant=s persecutorial and delusional thoughts prior to his
interview, he would have addressed those issues with the Appellant.
As Dr. Berland points out, the Appellant=s mental illness does not allow him to
remain quite when he feels contention with the testimony being presented. Further, the
Appellant loses period of time during the hearing and focuses on only one aspect of the
hearing. For example in the October 5, 2004 hearing, the Appellant insists that Ms.
Debelius, Assistant General Counsel with DOC introduced herself as another person
during the previous hearing. Regardless of Ms. Debelius identifying herself correctly on
the record, the Appellant could not be dissuaded from that belief (Tab 13, 9). Thus, he
continues to become increasingly more agitated and the culmination of his degrading
mental processes are evidenced in the statements as outlined above.
Dr. Fisher provided similar testimony to this Court with regards to Appellant=s
delusional thought processes which compromise his ability to testify relevantly. These
include his cure for AIDS, conspiracies by Jeb Bush and President Bush trying to get him,
he has an algorithm system that can predict lottery numbers, he can read people through
vibrations or digitally analyze anyone, his daughter has been killed, he was hypnotized
into committing the crime, the evidence has somehow been altered, and the victim may
not be the victim. (Appendix; Tab 4, 13, 26).
B. Any other factors deemed relevant by the experts.
There exists a question that lingers in the minds of those who have conducted
psychological assessments of Appellant because of his prior admissions to malingering.
However, as Dr. Bilak, Berland, and Fisher explained to this court, one can malinger and
still manifest true psychiatric symptoms, as well as, speak coherently or sensibly and still
have delusional content. All three court appointed experts who interviewed Appellant for
competency administered some formalized testing with Appellant to weed out the
possibility of malingering. And all three found that the Appellant was not malingering
psychosis. However, Dr. Thornton and Bilak failed to conduct any testing to determine if
the Appellant was malingering or establish a psychological profile. Dr. Berland indicated
that the value in giving an MMPI-2 is that it is "not only a very well-established
internationally used test that gives you information about symptoms of mental illness, the
test also gives objective information about test-taking attitude, whether they're being
honest about their symptoms, whether they're exaggerating their problems or whether
they're trying to hide their problems" (Appendix; Tab 2, 118-9). Additionally you can
sometimes detect problems with the MMPI that you will not detect with an interview
(Appendix; Tab 2, 119). The notable points about Appellant=s MMPI in 1998 (Defense
Exhibit J) and his MMPI in 2005 (Defense Exhibit I) is that on elevations of two scales
which measure attempts to suppress or hide mental illness, Appellant was making a
concerted effort to try to hide or minimize the seriousness of his mental illness (Appendix;
Tab 2, 120). Also on scale 9, which is one of the clinical scale scores, Appellant scored
beyond the normal range on this mania scale (Appendix; Tab 2, 120). Dr. Berland
interprets this score to mean that "despite demonstrable efforts by Appellant to hide or
minimize his problems, he felt so much pressure from his energy and his mania, that he
couldn't resist responding t those items" (Appendix; Tab 2, 121). Dr. Berland further
explained that the validity scales in Appellant tests both give you a clue, and, in fact, are
associated with symptoms of psychosis" and delusional paranoid thinking (Appendix; Tab
2, 122). Dr. Berland also testified that Appellant 1998 and 2005 MMPI's both say that
Appellant was not malingering, he is not faking, he is the "real thing" (Appendix; Tab 2,
122-3). Although Dr. Berland testified that he has been conducting competency
evaluations for over 27 years and actually ran and establish a competency evaluation
procedure at Chattahoochee State hospital, he still gives an MMPI to each client he
evaluates because he realizes the importance in obtaining an accurate psychological
Dr. Fisher provided testimony that Appellant is capable of "malingering to make
changes in his situation at the jail, for example from one housing unit to another, and will
use things he thinks can do that. But he's not malingering as far as faking symptoms.
The psychosis that he presents is not conjured up, it is very real. AI'm not sure any of the
doctors would debate that his symptoms are real. It would be hard to do it at this point,
since they've been there for 20 years and really haven't changed at all, so - - but he does -
- it's a separate issue to say that he tries to change the circumstances where he's housed,
for example, through malingering, through attempts to - - maneuver that placement"
(Appendix; Tab 4, 9). To determine if one is malingering or attempting to fake
symptoms, you can look at their behavior over time, you can also look to see if they are
exaggerating symptoms. Dr. Fisher found as did Dr. Berland that Appellant does the
opposite: he attempts to retreat from those symptoms (Appendix; Tab 4, 10-11).
The decision not to conduct testing and rely solely on the information provided by
Appellant with no attempts to corroborate his statements is hardly an indication that
Appellant was malingering his past symptoms. As Dr. Bilak admitted, the choice is
obvious, it is either the Appellant was malingering symptoms when being evaluated by the
three competency and two defense experts or he was malingering during his interview
with Dr. Thornton and Bilak. Dr. Dee, McClaren, Myers, Berland, and Fisher have
validity scale tests to support their opinion, where as Dr. Bilak and Thornton rely only on
their observations and limited discussion with Appellant to support their conclusions.
CONCLUSION AND NATURE OF RELIEF SOUGHT
The lower court abused its discretion in deciding the competency of the Appellant
to proceed in post-conviction proceedings. The Appellant established that under Carter
and Rule 3.211, he does not meet the criteria to proceed in his post-conviction
proceedings. The Appellant=s Fourteenth Amendment rights under the Due Process
Clause have been violated. The Appellant has the right to the effective assistance of
counsel during his collateral appeals and a fundamental right to be competent in these
proceedings. The record establishes that the Appellant suffers from a true mental illness
that impairs his ability to participate in meaningful post-conviction proceedings. The
lower court fails to articulate sound reasoning for its decision and offers no additional
record cites to support its finding. The Appellant requests that this Court review the
lower court=s order and findings and remand this cause to the lower court to establish a
treatment plan to restore the Appellant to competency.
REQUEST FOR STAY OF THE LOWER COURT PROCEEDINGS
Pursuant to Rule 9.142(b)(9), Fla. R. App. P., the Appellant requests this Court
issue a stay of the lower court proceedings while this Court decides this petition. To deny
a stay in these proceedings will comprise the Appellant=s Fourteenth Amendment rights to
due process under the United State Constitution. Under Rule 3.851(g)(11), Fla. R. Crim.
P., the Appellant has 60 days from a determination of restoration of competency in which
to file an Amended motion. The Appellant has a fundamental right to be competent
during his post-conviction proceedings and until this issue has been resolved by this
Court, under full review, the Appellant should not be forced to proceed in post-conviction
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Petition to Review Non-
final Order in Post-Conviction Death Penalty Case Pursuant to Fla. R. App. P. 9.142 has
been furnished by U.S. Mail to all counsel of record on this 17th day of January, 2006.
/s/ Mark S. Gruber
Mark S. Gruber
Florida Bar No.0330541
/s/ Daphney E. Gaylord
Daphney E. Gaylord
Florida Bar No.: 0136298
CAPITAL COLLATERAL REGIONAL
3801 Corporex Park Drive, Suite 210
Tampa, Florida 33619-1136
Attorneys for Appellant
Copies furnished to:
Honorable Robert C. Wattles 425 N. Orange Avenue
Circuit Court Judge Orlando, FL 32801-1515
Orange County Courthouse
Chris Lerner, Esq. Stephen D. Ake, Esq.
Assistant State Attorney Assistant Attorney General
415 North Orange Avenue Capital Appeals
Orlando, Florida 32801 Office of the Attorney General
3507 E. Frontage Road, Suite 200
Tampa, Florida 33607
Sonny R. Jeffries
Union Correctional Institution
7819 N.W. 228th Street
Raiford, FL 32026-446
CERTIFICATE OF COMPLIANCE
I hereby certify that a true copy of the foregoing Petition to Review Non-
final Order in Post-Conviction Death Penalty Case Pursuant to Fla. R. App. P. 9.142 was
generated in a Times New Roman, 14 point font, as required by Fla. R. App. P. 9.210.
/s/ Daphney E. Gaylord
Daphney E. Gaylord
Florida Bar No.: 0136298
CAPITAL COLLATERAL REGIONAL
3801 Corporex Park Drive, Suite 210
Tampa, Florida 33619-1136