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IN THE SUPREME COURT OF FLORIDA SUPREME COURT CASE LOWER

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IN THE SUPREME COURT OF FLORIDA SUPREME COURT CASE LOWER Powered By Docstoc
					   IN THE SUPREME COURT OF FLORIDA
       SUPREME COURT CASE: 06-41
       LOWER CASE NO: CR93-9667 A



      SONNY RAYMOND JEFFRIES,

               Appellant,

                   v.

          STATE OF FLORIDA,

               Appellee.




  PETITION TO REVIEW NON-FINAL ORDER
IN POST-CONVICTION DEATH PENALTY CASE
     PURSUANT TO Fla. R. App. P. 9.142


                                        MARK S. GRUBER
                                  Assistant CCRC-MIDDLE
                                         Fla. Bar No. 109710

                                  DAPHNEY E. GAYLORD
                                 Assistant CCRC-MIDDLE
                                        Fla. Bar No. 0136298
                             Office of the Capital Collateral
                           Regional Counsel Middle Region
                        3801 Corporex Park Drive, Suite 201
                                       Tampa, Florida 33619
                                                813-740-3544
                                    (Facsimile) 813-740-3554

                      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

APPENDIX
                         JURISDICTIONAL STATEMENT

      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,

                                            1
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

                                           2
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

proceedings.

                                            3
      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

record.

      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).




                                            4
        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).

                                   FACTUAL STATEMENT

        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

   1
     Pursuant to Fla. R. App. P. 9.220(b), asterisks (*) should be used to designate omissions in the
record and/or testimony.




                                                   5
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

15).

        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

that:

              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,

                                           6
             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.


                                                         7
       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

                                             8
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.


                                               9
      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

                                            10
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

                                          11
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);

                                            12
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

                                                                                      I
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

                                           13
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

                                              14
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

                                             15
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

                                              16
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

                                           17
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

                                            18
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

                                             19
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

2005.

        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

                                            20
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

                                             21
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

                                            22
              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


                                            23
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

                                           24
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;

                                           25
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
      from this?

      MR. JEFFRIES: Well, I guess sometimes it depends on what you do and

                                           26
       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

pending proceedings.

       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


                                                   27
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,

131-2).

       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

                                             28
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.

                                             29
       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
       know.

(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

him.

             (ii) appreciate the range and nature of possible penalties, if applicable, that


                                            30
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

                                                   31
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
       head?

       MR. JEFFRIES: In that piece of artwork.

       DR. BERLAND: Okay. And what is the meaning of being connected to
       the back of her head?

                                             32
      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
      victim.

      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

                                                  33
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

                                               34
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

of anybody.

       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

                                            35
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

                                              36
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

                                           37
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.
       at 8).
                                           *****
       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).

                                            38
                                          *****
      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

                                                  39
       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,
       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
   2
     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
hearing.




                                                         40
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,

                                            41
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

                                            42
(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

assessment.

       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

                                             43
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

                                             44
      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

                                            45
Court, under full review, the Appellant should not be forced to proceed in post-conviction

proceedings.

                            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
                                         Assistant CCRC-Middle

                                         /s/ Daphney E. Gaylord
                                         Daphney E. Gaylord
                                         Assistant CCRC-Middle
                                         Florida Bar No.: 0136298
                                         CAPITAL COLLATERAL REGIONAL
                                         COUNSEL-MIDDLE
                                         3801 Corporex Park Drive, Suite 210
                                         Tampa, Florida 33619-1136
                                         813-740-3544

                                         Attorneys for Appellant




Copies furnished to:

Honorable Robert C. Wattles                     425 N. Orange Avenue
Circuit Court Judge                             Orlando, FL 32801-1515
Orange County Courthouse

                                           46
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
                                               DOC #X18736
                                               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
                                        Assistant CCRC-Middle
                                        Florida Bar No.: 0136298
                                        CAPITAL COLLATERAL REGIONAL
                                        COUNSEL-MIDDLE
                                        3801 Corporex Park Drive, Suite 210
                                        Tampa, Florida 33619-1136
                                        813-740-3544




                                          47

				
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