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Johnson v. State

Court of Appeals of Georgia, Second Division

May 15, 2017

JOHNSON
v.
THE STATE.

          DOYLE, C. J., MILLER, P. J., and REESE, J.

          Miller, Presiding Judge.

         After 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.

         In Sell,

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.

         So 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 acts.

         A 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."

         Dr. 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.

         More 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 Sell Hearing.[1]

         Dr. 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.

         Dr. 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 ...


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