THE STATE OF NEW HAMPSHIRE

LACONIA DISTRICT COURT BELKNAP COUNTY

STATE V JEAN ALLAN

DOCKET # 09-CR-4147

MOTION FOR RETROSPECTIVE DETERMINATION OF COMPETENCY

　

NOW COMES, defendant Jean E. Allan aka Jean E. Allan Sovik, as pro se agent, and brings this instant MOTION, with respect to the issue of ‘retrospective determination of competency’, and that the issue may be raised sua sponte by the Court at the Competency Hearing that is scheduled for December 20, 2010; and, in furtherance states as follows:

  1. In State v Walter Haycock, Strafford County 98-481 the New Hampshire Supreme Court found that, "The mental competence of a criminal defendant at the time of trial is "an absolute basic condition of a fair trial." Id. (quotation omitted); see State v. Champagne, 127 N.H. 266, 270 (1985). A defendant is competent if he has "`sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding,'" and if he has "`a rational as well as [a] factual understanding of the proceedings against him.'" State v. Champagne, 127 N.H. at 270 (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). By rational understanding, we mean that the defendant must have "sufficient contact with reality." Lafferty v. Cook, 949 F.2d 1546, 1551 (10th Cir. 1991). The State bears the burden of proving both of these elements by a preponderance of the evidence. See Zorzy, 136 N.H. at 714."
  2. In this instant matter it is the State’s Expert witness that has issued a Report to this Court that defendant Allan/Allan Sovik is ‘not competent’ to stand trial. And, on May 5, 2010 this Court made the Order which agreed with the State ‘without making any findings to support its conclusion’.
  3. In an Alice and Wonderland way this case in the exact opposite of where the State usually finds itself, i.e. with the burden to prove that the defendant is ‘competent’. And, considering that the State is the only party that has introduced as its prima facie case that defendant Allan/Allan Sovik is ‘not competent’: An upside down position for the State to have taken.
  4. In a more usual case where it’s the defendant who is attempting to prove that they are ‘not competent’ such as in State v Haycock, the New Hampshire Supreme Court has found that "when a defendant establishes a prima facie case of incompetency through the introduction of uncontroverted expert testimony, the trial court should delineate its reasons for rejecting that testimony and those reasons must be supported by the record. See Lagway v. Dallman, 806 F. Supp. 1322, 1338 (N.D. Ohio 1992). So it would appear that this would be the standard that this Court should apply to this mirror image situation.
  5. In State v Haycock: "The State further argued that, although it has the burden to prove that the defendant is competent, it need not produce its own evidence to meet its burden of proof." The New Hampshire Supreme Court agreed "that, generally, a party may satisfy its burden of proof if the necessary evidence is introduced by his adversary and is sufficiently convincing and uncontroverted. See 29 Am. Jur. 2d Evidence § 158, at 185 (1994).
  6. The New Hampshire Supreme Court also found in State v Haycock, that "The trial court has not, however, made the necessary findings to support its conclusion that the State met its burden by relying solely on Dr. Stenslie's testimony." To date in this matter there has been no contravening expert testimony introduced to allow the Court to make a ‘competency’ determination. The only prima facie evidence is that of the State’s expert witness whose October 13, 2009 Report has found defendant Allan/Allan Sovik ‘not competent’ and the May 5, 2010 Court’s Ordered concurred but, without stating its own findings.
  7. To further confuse this issue for the Court, the New Hampshire Supreme Court found that "While "[a] defendant's competency is measured by his abilities at the time of the trial proceeding," Zorzy, 136 N.H. at 715, we conclude that in this case [State v Haycock], it is impossible to determine the degree to which the trial court's competency determination at trial was influenced by the court's erroneous pretrial determination. As such, we cannot agree that the court independently found the defendant competent at trial." The record shows that the May 5, 2010 Order relied solely upon the State’s October 13, 2009 report without any rebuttal testimony from defendant Allan/Allan Sovik.
  8. And, in conclusion in State v Haycock, the New Hampshire Supreme Court stated: "Because there is a record of the pretrial competency hearing, the trial court on remand should consider whether a retrospective determination based on the application of the correct standard can be made, and, if so, make such a determination. See State v. Stiles, 123 N.H. 680, 685 (1983). If such a determination is not possible, a new trial is required. See id. Because the defendant's remaining argument will likely be raised again if a new trial is required….."

WHEREAS, the court’s May 5, 2010 Order did not include its own findings of facts; and

WHEREAS, State’s only expert witness found that defendant Allan/Allan Sovik was ‘not competent’, in contradiction to its usual burden to proof the defendant ‘competent’; and,

WHEREAS, defendant Allan/Allan Sovik had no opportunity, in violation of her constitutional rights, to rebut State’s expert witness during the May 5, 2010 trial.

THERFORE, defendant Allan/Allan Sovik prays that this Court:

  1. Grant her instant Motion and Consider a retrospective determination of the competency Order that the Court made on May 5, 2010; and
  2. Make a complete finding of fact and law with respect to State’s expert witness the Office of Forensic Examiner’s October 13, 2009 Report that it submitted to this Court; and
  3. If this Court finds that a fraud was committed upon it, sanction all those officers of the court that allowed the fraud to be committed.
  4. And, for any other relief that is just and mete.

Respectfully submitted:

Jean E. Allan aka Jean E. Allan Sovik [REDACT]

603-581-6183 Dated: December 15,2010

　

　

Certification of Delivery

On this 15 day of December, 2010 I certify that a true copy of this Motion was sent to State’s Prosecutor Libby, c/o Bristol Police Department, Bristol, NH 03226

[This Page Last Updated on December 16, 2010]