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Fugate v. Commonwealth11/21/2001
TO BE PUBLISHED
AFFIRMING
On July 8, 1995, two people were killed and a third injured when their vehicle was struck head-on by another vehicle being operated in the wrong lane of travel by Appellant, Garroll Seldon Fugate. Appellant's blood alcohol level was later determined to be 0.26g/lOOml. Following a trial by jury in the Montgomery Circuit Court, Appellant was convicted of two counts of manslaughter in the second degree and one count of assault in the second degree. He was sentenced to ten years on each count to run consecutively for a total imprisonment of thirty years. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), and asserts six claims of error, four with respect to his competency to stand trial and two with respect to evidentiary rulings at trial.
I. COMPETENCY ISSUES.
A. Trial judge's findings and conclusion.
Appellant was severely injured in the accident, sustaining ankle, hip and facial fractures, a compression fracture of the T-9 vertebra, and a transection of his spinal cord at the T-10 level, resulting in permanent paraplegia. Appellant suffers from a rare condition known as "painful paraplegia," which causes him to suffer from chronic pain rather than no feeling at all below the level of the spinal cord injury. Appellant's primary care physician, Dr. Richard Hall, declined to express an opinion as to Appellant's competence to stand trial but did state that Appellant took prescription pain medication that occasionally caused him to be disoriented. On cross-examination, however, Dr. Hall admitted that Appellant understood the nature of his medical condition and that he was competent to make his own decisions with respect to future medical treatment.
Two psychologists testified at the competency hearing. Dr. Walter Powers, who had been appointed by the court to evaluate Appellant, opined that Appellant was competent to stand trial and that he was partially malingering and exaggerating his alleged mental deficiencies. Dr. Powers based his conclusions not only on his own examination, but also on interviews with nursing home attendants who observed Appellant on a daily basis and a neuropsychological evaluation performed by another psychologist at Dr. Powers' request. Several of the nursing home employees testified that Appellant read books, watched television, conversed normally with other patients, participated in group activities, used a laptop computer, and frequented the smoking lounge where he often played checkers. One nursing home employee testified that Appellant would engage in normal conversations with her when they were alone, but if outsiders were present, he would commence to stutter and claim to be disoriented.
Another testified that Appellant always addressed her by name except on one occasion when she came to his room while he was being interviewed by an unidentified man. On that occasion, Appellant claimed not to know her. Dr. Suzanne Johnson, who was retained by Appellant to evaluate his competency to stand trial, opined that Appellant was incompetent to stand trial and that he was neither malingering nor exaggerating. Her testimony was supported by that of Appellant's sister.
In concluding that Appellant was competent to stand trial, the trial judge made extensive findings of fact with respect to the evidence and found the testimonies of Dr. Powers and the nursing home employees to be more persuasive. Since the trial judge's conclusion was supported by substantial evidence, it was not clearly erroneous. Plumb v. Commonwealth, Ky., 490 S.W.2d 729, 731 (1973).
B. Appellant's absence from the competency hearing.
Appellant claims
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