from the District Court of Sweetwater County The Honorable
Richard L. Lavery, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Tina N. Olson*, Chief
Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
Counsel. Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General;
Katherine A. Adams, Assistant Attorney General. Argument by
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ. *An order
granting Ms. Olson's Motion to Withdraw was entered on
December 13, 2017.
Steven D. McLaren challenges convictions for five felonies
stemming from a bizarre and violent encounter with his
girlfriend in March of 2014. He claims that the trial court
violated his due process rights when it failed to order a
third competency evaluation and when it allowed defense
counsel to assert a plea of not guilty by reason of mental
illness (NGMI) against his will. He also argues that the jury
instructions contained structural error because they did not
require the State to prove he did not act in a sudden heat of
passion to establish attempted second-degree murder and that
the trial court abused its discretion when it denied defense
counsel's motion for mistrial after Mr. McLaren's
outburst during trial. We conclude that, while the trial
court did not improperly fail to order a competency hearing,
it violated Mr. McLaren's due process rights when, in
spite of Mr. McLaren's numerous declarations that he did
not wish to proceed with the NGMI plea, it allowed defense
counsel to assert the plea at trial. We reverse and remand.
We reorder and rephrase the issues as follows:
1. Did the trial court violate Mr. McLaren's
constitutional rights when it failed to suspend the
proceedings on its own motion and request a competency
2. Did constitutional error occur when trial counsel
proceeded on a not guilty by reason of mental illness plea
against the will of his client?
3. Did structural error occur in connection with Mr.
McLaren's attempted second-degree murder conviction
because the jury instructions did not indicate that the State
had to prove beyond a reasonable doubt that Mr. McLaren did
not act in a sudden heat of passion?
4. Did the trial court abuse its discretion when it denied
the defense's motion for a mistrial after Mr. McLaren
jumped up from his chair, moved toward the jury and the door,
and yelled expletives in the presence of the jury?
We address the first and second issues because of the
interplay between competency and the NGMI plea. Our ruling on
the second issue is dispositive. Therefore, we address the
third issue only to a limited extent to provide guidance on
remand and we do not reach the last issue. See Sadler v.
State, 2016 WY 56, ¶ 2, 375 P.3d 728, 728 (Wyo.
2016); Thomas v. State, 2003 WY 53, ¶ 30, 67
P.3d 1199, 1206 (Wyo. 2003).
Mr. McLaren owned 57 cats. He and his girlfriend, Jennifer
Evans, referred to the cats as their "kids" or
"the kid." On March 10, 2014, one of Mr.
McLaren's exotic Savannah kittens, Cameo, was sick, so he
and Ms. Evans took it to a veterinary clinic for treatment.
Mr. McLaren testified that he had injected "somewhere
between a quarter and a third of a gram" of
methamphetamine right before he noticed Cameo was ill, had
not slept for days, and had been experiencing hallucinations
since the night before. He was under the impression that Ms.
Evans was attempting to harm or kill the kitten.
After leaving Cameo at the veterinary clinic, they went to a
convenience store where Mr. McLaren purchased a pack of
cigarettes. The convenience store clerk testified that Mr.
McLaren's behavior "threw a red flag, " he was
"pacing back and forth, walking just a little weird,
" and she kept an eye on him because she thought he was
going to steal something. After Mr. McLaren left the
convenience store, he and Ms. Evans drove around a nearby
neighborhood looking at houses. Ms. Evans testified that at
that time Mr. McLaren was "normal" and did not
appear to be mad at her, but that they were "upset about
When they left the neighborhood, they stopped at a stop sign.
According to Ms. Evans, that was when Mr. McLaren started
acting "weird." Mr. McLaren turned to Ms. Evans and
said, "I know what you did. You bathed in their
blood." He then headed northbound on Yellowstone Road
toward Highway 191, driving erratically, hitting speeds of
over eighty miles per hour. He drove on the wrong side of the
road, nearly colliding head-on with two separate vehicles and
causing both to veer off the road. He called Ms. Evans names
and told her that she "needed to pay for [her]
sins." Mr. McLaren told Ms. Evans that she "was
going to die" and that she "wasn't going to
live to see tomorrow." He asked her why she killed their
neighbors and told her he could smell their blood on her
Mr. McLaren continued driving north on Highway 191, coming to
a stop in the southbound lane in front of an oncoming Pepsi
truck. Ms. Evans attempted to get out of Mr. McLaren's
truck, but he pulled her by her hair back into the truck and
locked the doors, telling her that her "kids deserved a
better mother" and that she "was going to die
today." The Pepsi truck swerved around them, and Mr.
McLaren turned off Highway 191, onto Wild Horse Loop. As he
drove down Wild Horse Loop, Ms. Evans fought with Mr. McLaren
and continued to attempt to get out, kicking the truck into
park several times. Mr. McLaren also continued to hit and
punch Ms. Evans; he grabbed her throat and forced her to the
floorboard of the truck.
Mr. McLaren stopped the truck and hit Ms. Evans three times
in the head with a Maglite flashlight that contained no
batteries. There is conflicting testimony about whether he
hit her while he was in the driver's seat of the truck or
whether he hit her after he walked around to the passenger
side of the truck. In any event, Mr. McLaren ultimately
opened the passenger door and Ms. Evans fell out of the
truck. Ms. Evans testified that Mr. McLaren stood over her,
pulled her head to the left and the right, "trying to
rip my head off, " and then let go. As soon as Mr.
McLaren released her, Ms. Evans got up and ran toward Highway
191, where a truck stopped to assist her. When Ms. Evans
arrived at the emergency room, she had two lacerations on her
head and numerous bruises.
Mr. McLaren testified that the night before these events
transpired, he saw a roe deer jump over his truck and that he
saw "what looked like a woman with like the top of a
deer, the color of deer, and real long black hair, and I
don't know how or why, but I got it in my head all of a
sudden that it was something like a 'jagula' or a
devil woman, and I was kind of like really freaked out."
He also testified that "[a]ll the time in the truck, I
was . . . seeing this [jagula] but it was kind of out of my
peripheral vision. If I looked at [Ms. Evans], I didn't
see anything like that. I seen [Ms. Evans]." Mr. McLaren
described driving past the truck that had stopped to help Ms.
Evans after she ran away, stating that he "started
seeing something out of [his] peripheral vision" and
"took off." He then drove to a spot in the desert
where he had a 360-degree view because he was "freaking
out." Mr. McLaren testified that "I had in my mind
that there was -- there was a 'jagular' or devil
woman or a feline creature that wasn't just a cat, and .
. . I don't know where it came from." He also
testified that he saw a "jagula" in his truck. Mr.
McLaren described a vision he had while he was in the desert:
"I remember I seen something so fantastic at the bull
works. . . . I can see the four pillars out at bull works,
and then the side of an arch, it was perfect, and I
couldn't believe what I was seeing . . . . I honestly
believe that it's preflood." The sheriff who arrived
on scene testified that when he first made contact with Mr.
McLaren, he "seemed to be rambling" and that
"he was saying something about aliens that were jumping
from sagebrush to sagebrush in front of him as he was faced
looking out across the desert, " but that he did not
appear to be confused and he was able to follow commands.
Mr. McLaren was charged with five felonies: attempted
second-degree murder, strangulation of a household member,
two counts of aggravated assault, and
kidnapping.The procedural history is complex, due in
large part to competency evaluations and hearings on Mr.
McLaren's counsel's motions to withdraw, which will
be discussed in greater detail as they become relevant to the
issues raised in this appeal. Suffice it to say that Mr.
McLaren underwent two competency evaluations, one ordered by
the circuit court in March of 2014, which was completed in
June of 2014, and one ordered by the district court on the
eve of a December 2015 trial date, completed in February of
2016. At both evaluations, Mr. McLaren was found competent to
proceed. Mr. McLaren was also evaluated in February of 2015
and April of 2015 regarding his criminal responsibility after
defense counsel filed a motion to change his plea to NGMI.
[¶11] A five-day jury trial commenced on April 11, 2016,
and the jury found Mr. McLaren guilty on all counts. Mr.
McLaren was sentenced to consecutive terms in prison of not
less than twenty-four to twenty-eight years on attempted
second-degree murder, four to five years for strangulation of
a household member, eight to ten years on each aggravated
assault count, and twenty-four years to twenty-eight years
for kidnapping. Mr. McLaren timely filed this appeal.
Additional facts will be discussed as they relate to the
issues Mr. McLaren raises.
Did the trial court violate Mr. McLaren's
constitutional rights when it failed to suspend the
proceedings on its own motion and request a competency
Wyo. Stat. Ann. § 7-11-302 (LexisNexis 2017) sets forth
the standard for mental competency of a defendant to proceed
in a criminal case:
(a) No person shall be tried, sentenced or punished for the
commission of an offense while, as a result of mental illness
or deficiency, he lacks the capacity to:
(i) Comprehend his position;
(ii) Understand the nature and object of the proceedings
(iii) Conduct his defense in a rational manner; and
(iv) Cooperate with his counse.l to the end that any
available defense may be interposed.
"Although the question of competency is a factual issue,
the requirement that competency be established is a matter of
law that is reviewed de novo." Wilson v.
State, 2007 WY 55, ¶ 11, 155 P.3d 1009, 1011 (Wyo.
2007); see also deShazer v. State, 2003 WY 98,
¶ 12, 74 P.3d 1240, 1244-45 (Wyo. 2003). Further,
"[i]f it appears at any stage of a criminal proceeding,
by motion or upon the court's own motion, that there is
reasonable cause to believe that the accused has a mental
illness or deficiency making him unfit to proceed, all
further proceedings shall be suspended" and the
"court shall order an examination of the accused . . .
." Wyo. Stat. Ann. § 7-11-303(a) & (b)
(LexisNexis 2017). "We apply the substantial evidence
standard when reviewing a trial court's decision not to
order a further competency evaluation." Marshall v.
State, 2016 WY 119, ¶ 12, 385 P.3d 304, 308, (Wyo.
Mr. McLaren's competency was evaluated twice, once
shortly after the information was filed and a second time
before trial. He was found competent on both occasions.
Nevertheless, on appeal, Mr. McLaren contends that the
district court should have suspended his trial and sua sponte
ordered another competency evaluation. To properly address
Mr. McLaren's argument, we will examine the competency
evaluations, his relationship with counsel, and his behavior
leading to and during trial.
McLaren's first competency evaluation
The information charging Mr. McLaren was filed in the circuit
court on March 12, 2014. On March 17, 2014, Mr. McLaren's
court-appointed defense counsel filed a Motion for
Psychological Evaluation, stating that Mr. McLaren "does
not appear to have the ability to assist counsel in his
defense." The circuit court suspended proceedings and
ordered an examination to determine Mr. McLaren's
competency to proceed.
Dr. McCormick at the Wyoming State Hospital examined Mr.
McLaren and found him fit to proceed. In her June 9, 2014
letter to the circuit court, Dr. McCormick concluded:
[T]his examiner is of the opinion the Defendant's
preliminary primary diagnosis is Unspecified Dissociative
Disorder (partial Dissociative Identity Disorder) with an
important rule out of severe Borderline Personality Disorder.
The Defendant clearly has a history of abusing drugs,
particularly more recently methamphetamines, and a remote
history of abusing alcohol. His abuse of substances almost
certainly exacerbates his dissociative tendencies. The
Defendant also appears to meet criteria for Major Depressive
Disorder, which is a common comorbid condition among those
who experience problematic dissociative states, have a
history of trauma, and recurrent substance abuse issues.
The Defendant is currently in a structured environment and
does not have access to substances. He is also receiving
medication for symptoms of depression. Moreover, there was no
evidence or indication Mr. McLaren's mental health
problems directly or grossly impacted his adjudicative
capacities in a negative manner. Therefore, in conclusion,
this examiner is of the opinion the Defendant does not lack
the capacity to comprehend this position, understand the
nature and object of the proceedings against him, conduct his
defense in a rational manner, or corroborate with his counsel
to the end that any defense may be interposed.
The record does not reveal whether the circuit court found
Mr. McLaren competent to proceed; however, it held a
preliminary hearing and, on July 9, 2014, bound the case over
for trial in the district court.
McLaren's NGMI Evaluation
In November of 2014, Mr. McLaren changed his plea and entered
an NGMI plea to all counts. The district court suspended
proceedings and ordered an evaluation to determine whether
Mr. McLaren "has a mental illness or deficiency"
and whether "at the time of the alleged criminal conduct
[Mr. McLaren], as a result of mental illness or deficiency,
lacked substantial capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of
the law, " in accordance with Wyo. Stat. Ann. §
7-11-304(f) (LexisNexis 2017).
Dr. McCormick also conducted this "NGMI" evaluation
and submitted her findings in a report dated February 10,
2015. Dr. McCormick opined that, based upon reports of Mr.
McLaren, the alleged victim, and law enforcement, "at
the very least, Mr. McLaren was going in and out of a
psychotic state around and at the time of the alleged
offenses." However, she observed that despite this,
"he did not provide a description that would suggest a
strong link between his psychosis and the capacity to
determine right from wrong and conform his conduct to the
requirements of the law." Dr. McCormick also remarked
that "his own recollections and observations by law
enforcement suggest McLaren was undergoing a
Methamphetamine-Induced Psychotic Episode." She
concluded that "even if [his] capacities were
compromised to a substantial degree, he would still not
qualify for the NGMI defense since his mental state was
self-induced by drugs."
The district court held a hearing regarding the NGMI
evaluation in which it informed Mr. McLaren that he had the
option to get a further evaluation if he desired. Mr. McLaren
stated that he thought the report was "sloppy"
because Dr. McCormick did not know whether he was charged
with attempted second-degree murder or attempted first-degree
murder. Mr. McLaren indicated that he would like another
evaluation; the court instructed him to discuss the matter
with his attorney and, if they determined another evaluation
would be desirable, to "file something" quickly.
The court set the trial for April, but informed Mr. McLaren
that proceedings would have to be suspended if another
evaluation was requested.
McLaren's relationship with counsel and pretrial
Approximately one month later, Mr. McLaren's attorney
filed a motion to withdraw as counsel for Mr. McLaren. In
support of that motion, the attorney stated that he and Mr.
McLaren had "repeatedly discussed whether the
proceedings should be delayed" to obtain an independent
NGMI evaluation and that Mr. McLaren had "changed his
mind several times." He also explained that at their
most recent meeting, Mr. McLaren indicated that he wanted to
represent himself, and that on previous occasions when Mr.
McLaren had displayed a similar desire, he had agreed to
allow the attorney's representation to continue. At the
March 27, 2015 hearing on the motion, Mr. McLaren stated that
he wanted to proceed with different counsel. He complained
that his attorney had failed to file exculpatory evidence,
failed to investigate, and failed to return his phone calls.
Mr. McLaren expressed frustration regarding his
attorney's opinion that he is mentally ill: "I get
treated like I'm mentally ill and that my opinion
doesn't matter, " and "Why do I have to be a
lunatic here?" As the hearing progressed, Mr. McLaren
stated, "I don't really want to change [counsel],
your Honor. I just want a fair shake." Mr. McLaren then
I want to be able to do an independent investigation to prove
my innocence. There is [sic] mitigating circumstances here
that will make this Court absolutely ill. There's a lot
of money involved here.
I raised cats that are worth $35, 000 a piece, your Honor,
and a lot of those cats are missing at this point. They have
been missing. And then I'm hearing that this girl that --
this defendant -- or the person that I'm accused of doing
this to, she's running around town selling cats that I --
that are from my stock, your Honor, selling them for 3 or
$400, and my Euro connection buys these cats for $35, 000. Do
you think that's justice? My 85-year-old mother is having
to take care of these animals.
I mean, what's going on, your Honor, is a travesty of
justice, and I cannot get any forward motion.
McLaren's attorney indicated that he was willing to work
with Mr. McLaren, but thought a competent defense required an
independent NGMI evaluation, which required Mr. McLaren's
consent. By the end of the hearing, Mr. McLaren agreed to
request an independent evaluation and to cooperate with his
attorney. His attorney moved for an independent NGMI
evaluation, and the district court granted that motion and
stayed proceedings until it could be conducted.
In October of 2015, Mr. McLaren's attorney filed a second
motion regarding his representation, informing the district
court that Mr. McLaren wished to represent himself and have
his attorney act as standby counsel. The court held another
hearing regarding representation. Mr. McLaren's attorney
and his supervisor attended. During that hearing, Mr.
McLaren's attorney indicated that Mr. McLaren had again
changed his position in that he now wanted a different
attorney and that his relationship with Mr. McLaren was
Mr. McLaren complained about the lack of communication from
his attorney and about the "ridiculous" plea
agreement that his attorney had presented to him. He
If he would have been treating me as a client that -- as a
lawyer in good standing would, I would -- he would know more
about what's going on with my case. I just asked him
about a cat that's -- the base price of this cat is $200,
000. In his career over 10 years, he would make approximately
6 to $10 million. He's a high percentage F1, it's 80
McLaren went on to describe his cat business and the effects
of his incarceration on that business. He complained about
his treatment at the state hospital and in jail, claiming
that his back was "busted" and that the "off
the charts" methane content at the jail was affecting
his health. Mr. McLaren also disapproved his attorney's
strategy regarding the NGMI plea. Mr. McLaren accused his
attorney of lying to him, and changed his mind several times
regarding representation, stating that he wanted to represent
himself, that his attorney has an "awesome
reputation" and would be his "best bet, " and
that he would like his attorney's supervisor to represent
him. The district court suggested that Mr. McLaren discuss
his options with the supervising attorney, after which the
court would reconvene the hearing. When the hearing
reconvened two days later, Mr. McLaren agreed to work with
his original attorney as lead counsel and the supervising
attorney as second chair. At that hearing, while discussing
his attorney's participation in his defense, Mr. McLaren
related "the Sheriff's Office and Southwest Task
Force are dirty in this up to their eyebrows. You know, I
know for a fact that this -- this girl ran into a sign with
her forehead . . . ."
On December 2, 2015, the district court held a hearing to
address issues raised at the pretrial conference and heard
several motions. At that hearing, Mr. McLaren declared that
he would like to fire his attorney. He expressed frustration
regarding his attorney "telling me I'm mentally
ill." He asked if this is "[s]ome kind of kangaroo
court?" and then explained, "I'm missing a $10
million breeder here, and it seems like the only thing you
guys are interested in is a bunch of malarkey." The
court denied Mr. McLaren's request to discharge his
attorney. As the hearing progressed, the State began to
discuss the victim's testimony and whether it would seek
to admit prior consistent statements. Mr. McLaren became
upset, interrupting the State's counsel, saying,
"That's right, I'm pissed." State's
counsel continued with his description of the victim's
prior consistent statements. Shortly thereafter, the
following exchange occurred:
[Prosecutor]: Your Honor, I -- I'm sorry to interject.
Mr. McLaren has been trying to talk to ...