C. J., MILLER, P. J., and REESE, J.
Miller, Presiding Judge.
Joshua Johnson was indicted for armed robbery (OCGA §
16-8-41), aggravated assault (OCGA § 16-5-21), and
misdemeanor obstruction of a law enforcement officer (OCGA
§ 16-10-24), defense counsel requested an evaluation of
Johnson's competency. The trial court ordered a
psychological evaluation, held a hearing as required by
Sell v. United States, 539 U.S. 166 (123 S.Ct. 2174,
156 L.Ed.2d 197) (2003), and ordered Johnson be involuntarily
medicated in order to make him competent to stand trial.
Johnson now appeals, arguing that the trial court failed to
follow the test under Sell. For the reasons that
follow, we agree and vacate the trial court's order and
remand the case for further proceedings.
the Supreme Court of the United States established a
four-part test for determining the rare instances when it is
constitutionally permissible to involuntarily medicate a
mentally ill criminal defendant for the sole purpose of
making him competent to stand trial.
(Citations and punctuation omitted.) Warren v.
State, 297 Ga. 810, 812 (1) (778 S.E.2d 749) (2015).
[T]he first part of the [Sell] test generally
presents a legal question and thus should be reviewed de novo
on appeal, while the remaining three parts present primarily
factual questions and thus should be reviewed only for clear
error by the trial court.
(Citations and footnote omitted.) Id.
viewed, the evidence shows that Johnson was indicted in
October 2015. On February 1, 2016, at the request of defense
counsel, the trial court ordered the Georgia Department of
Behavioral Health and Developmental Disabilities
("Department of Behavioral Health") to conduct an
evaluation of Johnson's competency to stand trial as well
as his criminal responsibility at the time of the alleged
psychiatrist, Deepti Vats, interviewed Johnson in February
2016 and determined that Johnson is incompetent to stand
trial. Notably, Dr. Vats reported that when Johnson was first
brought into the jail he had "slurred and scarce speech
with a tangential thought process. He responded by giving
inappropriate answers and making inappropriate expressions.
[H]e had a history of being on medications, but was not
currently prescribed any medications."
Vats diagnosed Johnson with schizophrenia spectrum and other
psychotic disorders, and he reported that Johnson had taken
the anti-psychotic medications Haldol and Risperdal in the
past. Dr. Vats also reported that Johnson has delusions of
grandeur and symptoms of mental illness characterized by his
delusions; his symptoms seriously impair his competency to
stand trial; and he lacks the ability to assist his attorney
because he cannot provide an accounting of his actions with
respect to the charged crimes. Dr. Vats concluded that,
"to a reasonable degree of medical certainty, "
Johnson is not competent to stand trial. Dr. Vats also found
that nothing during the interview suggested that Johnson was
malingering or faking either incompetence or insanity.
than six months after Dr. Vats determined that Johnson was
incompetent to stand trial, the trial court held the
Sell hearing at issue in this case. At the hearing,
the State presented the testimony of two witnesses,
Psychologist Amy Gambow and Psychiatrist Kelly Coffman
Neither Dr. Vats nor Dr. Koster testified at the
Gambow is a post-doctoral fellow in clinical psychology.
Although Dr. Gambow is not yet Board Certified or licensed to
practice as a psychologist in Georgia, the trial court
allowed her to testify as an expert over defense
counsel's objection. Dr. Gambow testified that she works
for the psychiatry and law service, which runs the
"in-jail restoration program within the Fulton County
jail" (hereinafter the "Program"), and she
provides clinical services to inmates, like Johnson, who are
found incompetent to stand trial.
Gambow first met with and examined Johnson beginning in March
2016, she reviewed his medical records from the jail, and she
determined that Johnson was a good candidate for the Program.
Johnson entered the Program on April 27, 2016, and
participated in group sessions for the first two days,
however, Johnson refused to participate in the Program after
that time, so he was transferred out of the Program on June
1, 2016. Johnson refused to take any antipsychotic
medications through this time. Dr. Gambow testified that
Johnson is schizophrenic, but she ...