THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2023-0417, State of New Hampshire v. S.B., the court on April 14, 2025, issued the following order:
The court has reviewed the written arguments and the record submitted on appeal, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The defendant, S.B., appeals an order of the Superior Court (Colburn, J.), following a hearing, finding him not competent to stand trial on certain criminal charges, and dismissing the charges. See RSA 135:17-a (2021). On appeal, the defendant argues that the evidence was insufficient to establish that he is not competent, and that the trial court deprived him of due process by relying upon competency examinations performed in an unrelated criminal case. We affirm.
"The mental competence of a criminal defendant is an absolute basic condition of a fair trial." State v. Smith, 177 N.H. ___, ___ (2025), 2025 N.H. 1, ¶10 (quotation omitted). To be competent, the defendant must have both "a sufficient present ability to consult with and assist his lawyer with a reasonable degree of rational understanding," and "a factual as well as rational understanding of the proceedings against him." Id. (quotations omitted). We defer to the trial court's determination of competence unless no reasonable fact finder could have found as the trial court did. Id.
The trial court granted the defendant's motion for a competency evaluation, ordering an examination of him by the Office of the Forensic Examiner (OFE). In response, an examiner from the OFE submitted a letter on May 31, 2022, requesting the court to "reconsider its current order requiring a new competency evaluation," explaining that she had examined the defendant in an unrelated criminal case in February 2022 and had found him competent, that an additional evaluation so soon thereafter was unlikely to yield a different result, and that if the defendant's counsel believed that his "presentation has deteriorated," it would be appropriate to seek a second opinion. With the letter, the examiner submitted the report from the evaluation she had performed in the unrelated case, and requested that the court "accept this letter and the recent report for use in [the] pending case."
The report submitted by the OFE examiner revealed that the same examiner had evaluated the defendant twice prior to February 2022, once in 2016 and once in 2017. In the prior evaluations, the OFE examiner had determined that he was not competent. In determining that he was competent
1
2
in February 2022, the examiner contrasted his presentation during her recent examination from his presentations in 2016 and 2017. The trial court held a competency hearing on August 26, 2022. At that hearing, the parties revealed that the defendant was in the process of obtaining, but had not yet received, a second competency opinion in the unrelated case, and they requested the court to continue the hearing until the defendant had received the second opinion. Although the court expressed concern that the OFE's evaluation would become stale and that the defendant had only been evaluated within the context of the unrelated case, the court ultimately agreed to continue the matter until after the defendant had obtained the second opinion. The court suggested that defense counsel consult with counsel in the unrelated case and have the examiner providing the second opinion conduct the examination "with all charges pending in mind." On October 18, 2022, a second forensic examiner issued a competency report based upon an examination conducted on July 29, 2022, prior to the August hearing, and concluded that the defendant was not competent. In the report, the examiner discussed at length the evaluations conducted by the OFE examiner in 2016, 2017, and February 2022, and opined that during the July 2022 examination, the defendant "presented nearly identically to when he was interviewed by [the OFE examiner] in 2016 and 2017." The second forensic examiner concluded that the defendant "lacks a rational understanding of the proceedings against him, and is unable to consult with his attorney with a reasonable degree of rational understanding." Nothing in the report indicates whether the examiner considered the charges in the present case. On February 16, 2023, the OFE examiner issued an addendum to her earlier report and letter that she had filed in the present case, explaining that she had reviewed the report issued by the second forensic examiner, and that the second examiner's description of the defendant's presentation was
"identical to [her] previous evaluations" of the defendant, and "demonstrated that his mental health had deteriorated since [her] evaluation in February, 2022." Accordingly, the OFE examiner reported that she "would not be able to opine that [the defendant] was currently competent."
The trial court held a competency hearing on April 28, 2023, at which the OFE examiner testified, and the trial court, without objection, took judicial notice of the report by the second forensic examiner. The State conceded that, in light of the OFE examiner's addendum, it could not meet its burden to prove competency, but asserted that it would introduce evidence on whether the defendant could be restored to competence, and whether he was dangerous. See RSA 135:17-a, I, V. The OFE examiner testified that she had amended her opinion because the second forensic examiner's description of the defendant's presentation "was very reminiscent of his previous evaluations . . . [from] 2016 and 2017, and [she] . . . could no longer say that . . . [the defendant's]
3
presentation was the same as it had been in February of 2022." However, the OFE examiner opined that, with treatment, the defendant's "symptoms would be reduced and he could be competent."
In finding that the defendant was not competent, the trial court observed that (1) the OFE examiner had "opine[d] that the defendant is not competent,"
and (2) the State had conceded that it cannot meet its burden regarding competency. The trial court concluded that the defendant "does not have a sufficient ability to consult with and assist his lawyer, and while he may have a factual understanding of the proceedings against him, he does not have a rational one." The trial court further found that there was no reasonable likelihood that the defendant could be restored to competence within twelve months, see RSA 135:17-a, I, and that he was not a danger to himself or others, see RSA 135:17-a, V. Accordingly, the court dismissed the charges, and the defendant, while self-represented, appealed the determination that he is not competent. See State v. Veale, 158 N.H. 632, 637-39 (2009) (holding that incompetency finding implicates reputational interests sufficient to warrant due process protection under State Constitution). On appeal, the defendant first argues that the evidence was insufficient to support the finding that he is not competent because, he claims, the OFE examiner did not "opine[] that he is not competent," but only "expressed a lack of comfort with her previous opinion," and because her report concluded that he was competent. We disagree.
Although the OFE examiner stated in her addendum that she was "no longer confident in her previous opinion" and testified that she was "no longer comfortable finding [that the defendant] was competent," she also stated that she could not opine that he "was currently competent," and testified that she
"could no longer say that . . . his presentation was the same as it had been in February of 2022." Moreover, she specifically testified that with appropriate treatment, the defendant "could be competent," necessarily implying that, in her opinion, the defendant was not competent. In context, we construe the OFE examiner's addendum and testimony to be expressing her opinion that, based upon the defendant's presentation as reported by the second forensic examiner in his October 2022 report, and upon all of the OFE examiner's prior examinations of the defendant, the defendant's mental health had deteriorated since February 2022 to the point that he was not competent. The October 2022 report, expressly considered by the OFE examiner and the trial court, supports the OFE examiner's opinion and the trial court's finding. Based on this record, we conclude that the trial court reasonably determined that the defendant was not competent. See Smith, 177 N.H. at ___, 2025 N.H. 1, ¶10. The defendant next argues that, because his competency was only examined with reference to the unrelated case, he was deprived of an opportunity for rebuttal in violation of his right to due process. See Veale, 158
4
N.H. at 643. We note that Veale was specifically decided under the State Constitution, finding it to be more protective than its federal counterpart. See id. at 636-45. In this case, however, the defendant has not specifically invoked the State Constitution, arguing only that, under Veale, the failure to examine him with reference to this case deprived him of "procedural due process."
Accordingly, he has not preserved a state constitutional claim on appeal. See, e.g., State v. Oakes, 161 N.H. 270, 285 (2010); State v. Dellorfano, 128 N.H. 628, 632 (1986) (to preserve state constitutional claim, defendant must both raise State Constitution in trial court and specifically invoke provision of State Constitution in the brief; merely referring to case law decided under State Constitution on appeal is not enough to specifically invoke State Constitution). Moreover, regardless of whether the defendant invoked the State Constitution in his brief, we agree with the State that the defendant did not raise any constitutional issue, state or federal, in the trial court with respect to the trial court's alleged deprivation of his right to present rebuttal evidence by relying upon competency evaluations ordered in the unrelated case. See Oakes, 161 N.H. at 285. Although the defendant argues that he preserved his due process argument simply by filing a motion for a competency evaluation, at no point in his motion, which the trial court granted, did the defendant argue that the trial court's reliance upon competency examinations in the unrelated case to the exclusion of an examination in this case would deprive him of his due process right to present rebuttal evidence.
Nor did the defendant preserve his constitutional argument by asserting, at the August 26, 2022 competency hearing, that it was the trial court's
"obligation to go forward . . . with an evaluation." At no point during this brief exchange did the defendant specifically argue that the Federal or State Due Process Clauses entitled him to a third competency examination in this case, as opposed to the then-pending unrelated criminal case, in order to present rebuttal evidence to protect his reputational interest.
We reject the defendant's argument that the trial court's statements of concern at the August 26 hearing that the OFE's evaluation would become stale and that the defendant had only been evaluated within the context of the unrelated case demonstrate that the court understood that the issue he now raises — whether the failure to require a third competency examination specific to this case violated his procedural due process right of rebuttal — "was squarely before it, and the court had the opportunity to address this issue."
We note that, contrary to the defendant's argument, nothing that transpired at the August 26 hearing reflects that the trial court "reconsider[ed] its order for a competency evaluation." Rather, the court merely continued the matter until after the defendant had obtained the second opinion he was then in the process of obtaining in the unrelated criminal case.
5
When the court proceeded with the competency hearing on April 28, 2023, based upon the addendum filed by the OFE examiner in this case, the second opinion rendered in the unrelated case, and the State's concession that it could not prove competency, the defendant did not object on the basis that he had not yet received an examination specific to this case. Nor did he move to reconsider on the basis that the failure to perform a third examination deprived him of his due process right of rebuttal. See N.H. R. Crim. P. 43(a) ("To preserve issues for an appeal to the Supreme Court, an appellant must have given the court the opportunity to consider such issues; thus, to the extent that the court, in its decision, addresses matters not previously raised in the case, a party must identify any alleged errors concerning those matters in a motion under this rule to preserve such issues for appeal."). Accordingly, we conclude that the defendant failed to preserve his due process argument. Finally, we reject the defendant's argument that the trial court's failure to require a third competency examination specific to this case amounted to plain error. See Sup. Ct. R. 16-A. The plain error rule is to be used sparingly, limited to those circumstances in which a miscarriage of justice would otherwise result. State v. Hanes, 171 N.H. 173, 182 (2018). For the rule to apply, among other requirements, the error must be "plain," meaning "clear" or
"obvious in the sense that the governing law was clearly settled to the contrary"
at the time of trial. Id. (quotation omitted).
In Veale, we observed that a "fair opportunity for rebuttal is among the most important procedural mechanisms for purposes of avoiding erroneous deprivations," and that, had the defendant, who sought to challenge the determination that he was not competent, requested to testify or call witnesses at the competency hearing, "due process may well have afforded him that right." Veale, 158 N.H. at 643 (quotations omitted). We further observed that the competency examinations of the defendant performed by medical experts in the case "provided him with a forum to demonstrate competency." Id. We did not hold, however, that due process always requires a competency examination specific to the case, particularly under circumstances in which, as in this case, the defendant's competency had been examined by multiple professionals in a contemporaneous case, one of those professionals offered an opinion as to the defendant's competency in the present case, and the parties did not oppose the trial court's reliance upon the reports from the contemporaneous case. As noted above, in Veale, we construed the State Constitution to be more protective than its federal counterpart. See id. at 636-39, 645. We conclude that, even if the defendant had a state or federal due process right to a
6
competency examination specific to this case, the trial court's error in not requiring the examination, under the circumstances, was not "plain."
Affirmed.
MacDonald, C.J., and Bassett and Countway, JJ., concurred.
Timothy A. Gudas, Clerk