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State v. Say

Superior Court of Maine, Kennebec

August 30, 2017



          Eric J. Walker, Judge

         Hearing on the Defendant's issue of competency was held on August 24, 2017. The Defendant was present and represented by Walter F. McKee, Esq. The State was represented by Assistant District Attorney Frayla Tarpinian.

         The Defendant was indicted by the Kennebec County Grand Jury on February 23, 2017, for a single charge of Gross Sexual Assault, Class A, according to 17-A M.R.S.A. §253(1)(C), based on allegations that on a date between April 1, 2011 and May 31, 2013, in Augusta, the Defendant did engage in a sexual act with S.V., not his spouse, who had not in fact attained the age of 12 years.

         At hearing, the State presented the testimony of Dr. Robert A. Riley, Psy.D., a clinical neuropsychologist based in Augusta, who examined the Defendant on issues of competency on March 30, 2017. Dr. Riley again examined the Defendant on May 25, 2017 as part of a further neuropsychological evaluation. By agreement of the parties, the Court accepted Dr. Riley's written reports dated April 20, 2017 and June 14, 2017 as evidence at the competency hearing. The Defendant was present and chose not to testify and did not call any witnesses.

         The Defendant is a 25-year-old man who was born in Cambodia. He has some limited proficiency in his first language of Khmer but it has never been his main language. Most of his education and upbringing was in an environment where English was the primary language. He had psychological evaluations in 2010 and 2011 to assess him for schooling purposes.

         In 2010, the Defendant was found by his examiners to have a "Full Scale IQ in the borderline range. However, there was wide variability in his abilities, including average perceptual reasoning skills, but impaired (1st percentile) verbal comprehension skills. He also had a very low working memory index. He was said to show evidence of having both auditory processing disorder and a processing speed disorder." The evaluation noted significantly reduced verbal skills and that complex directions would need to be broken down into small steps.

         In 2011, another evaluation was done that found the Defendant struggled with attention and memory issues. This evaluation found his "Full Scale IQ in the borderline to extremely low range (2nd percentile). He again demonstrated limitations in working memory, although his processing speed was low average. The psychologist concluded that the Defendant was diagnosed with several disorders including a cognitive disorder, communication disorder, adjustment disorder, ADHD traits and intermittent explosive disorder among other things.

         The Defendant graduated from high school in 2011 with the help of special education services. The Defendant obviously took and passed a driving course and passed a driving test and obtained a Maine driver's license. He didn't attend any further schooling but was able to obtain a job working in a warehouse. The Defendant was able to maintain that job for 3 years -only losing that job when this charge became known. Defendant's mother helps him manage his money as he doesn't spend his money. The Defendant has never been on psychiatric medications nor abused drugs or alcohol. He reports no major medical issues like brain injuries, seizures or heart attacks.

         When the Defendant spoke to Dr. Riley as part of the examination process he was initially reluctant to answer questions and looked to his attorney for guidance. When his attorney explained it was alright for him to answer the questions, the Defendant opened up more to Dr. Riley. The Defendant initially denied knowing what the charge against him was but later demonstrated that he knew that it didn't involve a bank robbery or a stolen car but instead involved a "something sexual assault" involving a family member and that it was "real serious". He understood that a felony was more serious than a misdemeanor charge and he thought his charge was a felony. When asked about what the possible sentence could be for his charge, the Defendant stated "lifetime, I don't know."[1]

         When police showed up to question the Defendant about the crime involving his young niece (presumably without notice) the Defendant was able to tell police that he had done something really bad to her and that it happened a long time ago. The Defendant allegedly told police that he had had intercourse with his niece and that it had just occurred one time only. The Defendant explained that when his niece said it hurt, he stopped. The Defendant explained that he knew what he had done was illegal and he asked police what was going to happen to him. He was apparently told by police that the case was going to be sent to the D.A.'s office and they would decide if he would be charged with Gross Sexual Assault.

         The Defendant has no experience with the court system but was able to correctly describe the role of a judge in that a judge sometimes decides guilt or innocence and then sentences a guilty person. The Defendant demonstrated no real understanding of the difference between a prosecutor and a defense attorney. He was able to correctly explain the concept of bail and probation and what might happen if one violates probation. The Defendant initially seemed to have trouble understanding issues related to the plea bargain process.

         After the initial competency evaluation, Dr. Riley concluded that no medications or treatment could make the Defendant's skills or limitations improve as they were a result of "long-standing developmental disabilities". In the end, Dr. Riley concluded that the Defendant should be able to "understand basic information pertaining to his case, and likely would, with extensive explanations, repetition, and other such compensatory strategies, be able to understand basic information pertaining to possible options in his case. It may be more difficult for him to understand complex alternatives, or complex information which might be presented if there were an actual trial. His ability to understand, quickly process, and express information all appear limited to some degree, and it could be increasingly difficult for him to follow along with trial proceedings."

         The Defendant was administered some tests during the neuropsychological evaluation. The Defendant was cooperative with Dr. Riley and was noted as appearing to understand the directions without need for repetition or clarification. The Defendant gave adequate effort and asked several times if he was doing okay. "On some tasks, particularly for auditory memory or attention, he appeared to give up somewhat easily, but with further prompting or encouragement, he would come up with more information and be able to recall more than was initially apparent. For visual tasks, he appeared to be quite meticulous, and actually would erase and try to fix minor errors, even when he was performing quite well."

         After the second evaluation and subsequent testing of the Defendant, Dr. Riley felt more confident that the Defendant was able to understand more than he appears. Dr. Riley opined that the Defendant presents a "mixed picture" in that he can understand complex information if it is broken down for him in small chunks but he may have problems verbalizing his responses to his attorney. The Defendant "performed quite well (in the average range or better) for many tasks, including tasks of visual constructional and visual perception skills, abstract visual reasoning, processing speed and divided attention skills, basic psychomotor speed, and visual memory. At the same time, he demonstrated weaknesses and limitations in many areas, particularly for many aspects of expressive verbal skills including vocabulary and general knowledge. His receptive vocabulary skills appear better with performance in the low average range, suggesting that he is able to recognize and understand a higher degree of information than he is able to spontaneously express on his own." After further testing, Dr. Riley explained that he was more confident that the Defendant was competent to stand trial if the court were patient and allowed the Defendant to take breaks to speak with his attorney and to repeat and process the information at trial. Dr. Riley indicated that, if new information were brought up at trial, it might be difficult for the Defendant to process. Existing ...

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