Dang v. Commonwealth ( 2014 )


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  • PRESENT: All the Justices
    LAM DANG
    OPINION BY
    v.   Record No. 130553             JUSTICE ELIZABETH A. McCLANAHAN
    JANUARY 10, 2014
    COMMONWEALTH OF VIRGINIA
    FROM THE COURT OF APPEALS OF VIRGINIA
    A jury convicted Lam Dang of one count each of murder and
    violation of a protective order.    Relying on Code § 19.2-169.1,
    Dang argues on appeal that the circuit court erred in failing to
    order a second competency evaluation after his counsel
    discovered new information regarding Dang's life history and
    physical trauma he suffered as a child.     We reject Dang's
    argument and will affirm his convictions.
    I. BACKGROUND
    A.   Competency Evaluation Report
    After Dang was charged with murder and felony protective
    order violation for the death of Nguyet Lu, the Fairfax County
    Juvenile and Domestic Relations Court granted Dang's motion for
    a competency evaluation pursuant to Code § 19.2-169.1.     On
    January 12, 2011, Dr. Kristen A. Hudacek, a court-appointed
    psychologist, submitted an evaluation of competency report in
    which she found Dang competent to stand trial.     Her evaluation
    was based on the background information provided to her by Dang
    and his counsel as well as her own clinical observations.
    Because Dang's preferred speaking language is Vietnamese, an
    interpreter assisted in translation during Dr. Hudacek's
    evaluation.   Dang, who was 40 years old at the time of the
    evaluation, informed Dr. Hudacek that he was born in South
    Vietnam and moved to Philadelphia at the age of 17.    He denied
    having any prior psychological problems or history of
    hospitalization for mental health related issues.    Dr. Hudacek
    noted that despite her inability to gain additional information
    from collateral sources, she "believes the information is an
    accurate portrayal of [Dang's] current functioning as it relates
    to the question of competency to stand trial."
    In evaluating whether Dang was competent to stand trial,
    Dr. Hudacek considered Dang's understanding of the legal
    process, appreciation of the legal process as it applied to his
    case, capacity to communicate with his counsel, and capacity to
    make decisions.   According to Dr. Hudacek, Dang understood he
    was charged with "[m]urder, killing someone, second degree" and
    could receive "up to 40 years in jail." 1   He also understood the
    roles of the jury, the judge, his lawyer and the Commonwealth's
    Attorney.   Dang understood his attorney was "working on his
    behalf" and "the importance of relaying information about the
    1
    Although the Commonwealth ultimately pursued a conviction
    for murder in the first degree, Dang gave the correct sentence
    for murder of the second degree. See Code § 18.2-32.
    2
    facts of his case."   Dang stated "he would speak to his attorney
    if he wanted to relay information about any concerns he had
    during a hearing or trial."   Although "Dang was mostly able to
    provide a rational, logical, coherent explanation of facts that
    would aid his attorney in defending him," Dr. Hudacek noted that
    he "does become very focused on providing information that may
    paint him in a favorable light."       According to Dr. Hudacek, Dang
    "was able to discuss his legal situation in a manner that
    demonstrated weighing his options and basing decisions upon the
    potential best outcome given the circumstances and after
    conferring with counsel."
    Dr. Hudacek stated that while Dang's speech was coherent,
    "he frequently shifted topics to the time of the offense and
    facts related to his relationship with the alleged victim."      For
    example, prior to the start of the interview, Dang "immediately
    began speaking about his case after [Dr. Hudacek] introduced
    herself" and "was asked three times to stop talking until his
    interpreter arrived."   The information Dang related to Dr.
    Hudacek "included facts about the case that would have been best
    kept for discussion with his attorney or following full
    disclosure of the nature and purpose of the interview."      Finding
    it necessary to repeatedly re-direct Dang to the questions
    posed, Dr. Hudacek noted Dang "seemed highly focused on
    3
    providing 'his side of the story'" and/or "worried about his
    situation."
    Dr. Hudacek reported that Dang "was highly concerned about
    going to trial, as he believed [his life] would be over."    He
    presented "in a manner that appear[ed] related to anxiety about
    the alleged charges and potential sentence he is facing."    Dr.
    Hudacek explained that his situational anxiety "does not suggest
    that [he] suffers from a major mental illness that would affect
    abilities relevant to competency to stand trial."   Although she
    noted that Dang tended to "become anxious and excitable" in
    persisting to relay facts regarding his case, his impulse in
    this regard "is consistent with most defendants who face legal
    charges."
    In determining that Dang was competent to stand trial, Dr.
    Hudacek stated that "it does not appear that [Dang] currently
    suffers from a mental illness and/or cognitive or intellectual
    impairment."   Furthermore, Dr. Hudacek did not believe that
    "Dang's capacity to communicate with counsel is impaired by
    mental illness."   Based on Dr. Hudacek's evaluation and the
    information available to her, she concluded that "Dang has
    sufficient, present ability to consult with his attorney with a
    reasonable degree of rational understanding," "possesses a
    rational as well as factual understanding of the proceedings
    4
    against him," and "is able to assist in preparing for his own
    defense."
    B.      Motion for Second Competency Evaluation Before Trial
    Dang's counsel moved for a second competency evaluation on
    December 1, 2011, eleven months after the first evaluation and
    four days prior to his trial, which was scheduled to begin on
    December 5. 2   According to the motion, on November 30, 2011,
    Dang's counsel learned "extensive information about Mr. Dang's
    history, family, and childhood which dramatically differs from
    the versions previously provided by Mr. Dang" giving counsel
    reason to believe that Dang "has over a 30 year history of
    suffering from developmental disabilities, cognitive functioning
    difficulties, effects of traumatic brain injury, and mental
    illness including but not limited to post-traumatic stress
    disorder."
    At the hearing on the motion, counsel stated that the new
    information regarding Dang's history was discovered when plans
    were being made for Dang's family to travel from Pennsylvania
    for the trial.    In particular, Mrs. Hoa Pham, who identified
    2
    The motion was filed on Thursday and noticed for hearing
    on the Friday before the trial's commencement on the ensuing
    Monday. The motion also included a request for a second
    evaluation of sanity at the time of the offense. The request
    for the evaluation of sanity at the time of the offense is not
    before us on appeal.
    5
    herself as Dang's biological mother, told defense counsel that
    beginning at the approximate age of 6 years, Dang was subjected
    to repeated physical assaults from teenagers and young adults as
    a result of "his appearance as someone who was American." 3   Mrs.
    Pham said she found Dang "beaten in the head with rocks," and
    "there were times when she was afraid his brain was going to
    come through his skull."   By Mrs. Pham's account, the beatings
    continued until Dang was in sixth or seventh grade at which
    point he stopped going to school.    She believed the history of
    physical trauma to Dang adversely affected his mental health and
    potentially caused traumatic brain injury impairing his
    cognitive functioning.   Counsel also informed the court that
    Dang's sister "confirmed that she saw Mr. Dang exhibiting
    symptoms of mental illness or similar trauma as well."
    3
    Defense counsel explained that Dang had informed counsel
    he lived with an adoptive family and had never met his
    biological mother. While he had been reluctant to share names
    and contact information of any family members, he eventually
    provided counsel with the name of a family member from whom
    counsel obtained contact information for Mrs. Pham. Counsel
    initially relied upon a family member to relay information from
    Mrs. Pham, who resides in Philadelphia and speaks only
    Vietnamese. However, when the defense team sentencing advocate
    spoke directly to Mrs. Pham, by telephone through an
    interpreter, she provided new information. According to Mrs.
    Pham, Dang's father was an American serviceman, and when Dang
    began attending school, he "began to appear to be more American
    physically."
    6
    As a result of the information learned from Mrs. Pham and
    Dang's sister, counsel spoke with the mental health professional
    who conducted the evaluation of Dang's sanity at the time of the
    offense.   According to counsel, this individual indicated that
    such trauma could support a potential diagnosis of post-
    traumatic stress disorder and, in a severe case, it would not be
    uncommon for the patient to develop delusions of his life to
    replace the actual traumatic life history.      Counsel also
    informed the court that communications with Dang had been
    difficult during the three months defense counsel had been
    working with him, that Dang was repeatedly confused and unable
    to recall recent discussions, and unable to focus conversations
    on issues that are relevant.   Based on the newly reported
    history of head trauma and counsel's concern that Dang might be
    "operating under some delusion," counsel asked for an evaluation
    to determine "whether [Dang] is able to effectively communicate
    with us and assist us in preparing his defense."
    Finding no probable cause to believe that Dang "lacks
    substantial capacity to understand the proceedings against him
    or to assist his attorney in his own defense," the circuit court
    denied the motion.   The court explained that the report of the
    competency evaluation previously conducted indicated that Dang
    understood the proceedings against him and was able to assist
    his attorney in his own defense.       According to the court, while
    7
    there appeared to be "an element of a lack of candor," it found
    no basis in the record to grant the motion.
    C.   Plea Colloquy 4
    On the morning of trial, the circuit court conducted a plea
    colloquy with Dang, in which Dang pled not guilty to the charges
    of murder and violation of a protective order. 5    During the
    colloquy, Dang provided his name and date of birth, denied being
    under the influence of alcohol or drugs, stated that he
    understood the charges against him and had discussed these
    charges with his counsel.   Dang told the court he had given his
    attorneys the names of any witnesses who could testify on his
    behalf, that he was satisfied with the services provided by his
    attorneys, and that he voluntarily made the decision to plead
    not guilty.
    Dang also stated that he understood he had a right not to
    testify on his own behalf or to testify if he so chose, and that
    his counsel had discussed with and advised him regarding the
    question of whether he should testify or not.      In response to
    the court's inquiry as to his decision to have his case tried by
    a jury or judge, Dang expressed his desire to be tried by a
    4
    Interpreters were present throughout the trial
    proceedings.
    5
    Prior to conducting the plea colloquy, defense counsel
    renewed the motion for a competency evaluation, which the
    circuit court denied for the reasons given at the hearing.
    8
    jury.    Dang acknowledged that if the jury found him guilty, the
    jury would also determine the appropriate punishment.       Dang
    confirmed that he understood all of the questions from the court
    and had no questions of his own for the court.
    During the plea colloquy, there were instances in which
    Dang responded to the court's questions by providing facts or
    explanation regarding the murder. For example, when asked if
    Dang had given his counsel the names of witnesses, Dang
    initially replied that he had and that he "was drunk."       The
    court interrupted Dang and explained that Dang was not being
    asked for his defense but whether he had given the names of
    witnesses to his counsel and whether they were present.       A
    discussion then ensued between the court and Dang as to the
    witnesses that might testify on Dang's behalf.       Additionally, in
    response to the court's inquiry as to whether Dang's plea of not
    guilty was voluntarily made, Dang stated that he saw "the
    video," referring to a security camera recording of the murder.
    He added, "I don't believe that I killed her," "I did not intend
    [to kill her]," and "She hit me."        Upon being redirected by the
    court to the question asked, Dang responded appropriately.
    THE COURT: Mr. Dang, that's not what I'm asking
    you. The question I'm asking you is this: You
    are pleading not guilty; is that correct?
    THE DEFENDANT:   Yes.
    9
    THE COURT: Are you pleading not guilty because
    you think that's what you ought to do and it's a
    voluntary decision on your part?
    THE DEFENDANT:   Yes.
    Following the colloquy, the circuit court accepted Dang's
    plea of not guilty, finding it had been made freely and
    voluntarily.    Because Dang told the court there was information
    he still would like to share with his counsel, the circuit court
    took a recess at the conclusion of the colloquy to afford Dang
    an opportunity to meet with counsel and "see if there's anything
    else he wants to tell you."
    D.      Renewed Motion for Competency Evaluation and Second
    Colloquy
    Upon returning from the recess, Dang's counsel renewed,
    again, the motion for an evaluation of Dang's competency to
    stand trial.    According to counsel, Dang expressed feeling that
    "he is not normal right now," is "forgetting things," and "only
    understands a little bit about what is happening."        In addition,
    counsel told the court that Dang expressed "for the first time
    ever in our communications with him that he believes he is
    facing capital punishment."    Counsel believed that Dang's
    "mental status is deteriorating, which is not unusual for people
    who suffer from mental illness."         Counsel stated that "as of
    just a few minutes ago – during this recess – in counsel's
    opinion, there's probable cause to believe that Mr. Dang both
    10
    does not understand the nature of the proceedings against him
    and is unable to effectively communicate with counsel in order
    to assist in his defense and is, in fact, unable to participate
    in his defense in several critical ways."
    In response to counsel's motion, the circuit court stated:
    But I also have the advantage of additional
    information now [than at the hearing], and that
    is that I've done the not-guilty colloquy with
    your client, and what strikes me is that he
    certainly was able to understand my questions –
    in some cases I had to explain them, but that's
    not unusual – and his responses were intelligent.
    And, it is true, he wanted to tell me more than I
    was asking him, but that's also not unusual.
    So, I also have the benefit of having now
    heard from your client directly for the first
    time, and what strikes me is that he came across
    to me as entirely rational. There was something
    he wanted to tell you, which I gave him the
    opportunity to do, so you could talk with him.
    At defense counsel's request, 6 the circuit court conducted
    an additional colloquy with Dang:
    THE COURT:   Do you understand who I am?
    THE DEFENDANT:     Why?
    THE COURT:   No.    Do you understand who the judge
    is?
    6
    Before the circuit court conducted the colloquy, it
    expressed concern to Dang's counsel regarding the risk that
    statements made by Dang could be used by the Commonwealth during
    trial. While acknowledging that risk, Dang's counsel confirmed
    the request for an inquiry "into Mr. Dang's appropriateness for
    an evaluation of his competency to stand trial."
    11
    THE DEFENDANT:   Yes, I do.
    THE COURT:   And what role does the judge play in
    the case?
    THE DEFENDANT:   To listen to the case.
    THE COURT:   And what do I do after I listen to
    the case?
    THE DEFENDANT:   I don't know.
    THE COURT: Do you understand that you're on
    trial today?
    THE DEFENDANT:   Yes, I know.
    THE COURT:   Do you know what you're charged with?
    THE DEFENDANT:   Yes.   Murder.
    THE COURT: And do you know what else you're
    charged with?
    THE DEFENDANT:   No.
    THE COURT: Do you know what the sentence is that
    if you're found guilty that a jury might impose
    in this case or might decide was the appropriate
    sentence for murder?
    THE DEFENDANT:   Yes, but it was not my intention
    –
    THE COURT: No, but I'm asking you, what is the
    most sentence that a jury could impose in this
    case? Do you know?
    THE DEFENDANT: Yes. My lawyer did mention to me
    that maybe thirty years.
    THE COURT:   Who are your lawyers?
    THE DEFENDANT:   Right here next to me.
    THE COURT:   Do you know their names?
    12
    THE DEFENDANT:   Sarah.
    THE COURT:   And what about the other attorney?
    THE DEFENDANT:   Robert. 7
    THE COURT: Okay. And do you know that there is
    also a prosecutor in the courtroom who is
    involved in the case?
    THE DEFENDANT:   I have never heard the word
    "prosecutor."
    THE COURT: What about the Commonwealth Attorney?
    Have you ever heard that phrase?
    THE DEFENDANT:   No.
    THE COURT:   Now, how are you feeling today?
    THE DEFENDANT: I feel okay, but since I've been
    here I haven't been normal. I feel kind of
    weird. I feel sometimes I'm okay, but I'm not
    crazy. But my mind sometimes is not here in some
    situations. It doesn't seem right to me.
    I just want you to know that I do kind of
    understand, but I just don't feel okay today.
    I've never known about the law or anything. I
    just know I go to work, I go home to my family
    and take care of myself. Other than that, I
    never, like, know anything about the law.
    THE COURT: Do you know that the maximum penalty
    for murder is life in prison if the Commonwealth
    is not seeking the death penalty?
    THE DEFENDANT: I don't know.    I don't know why I
    even kill people.
    THE COURT:   You don't know what?
    7
    Dang's trial attorneys were Lysandra Pachuta and Robert
    Frank.
    13
    THE DEFENDANT: I don't know why I even kill.      I
    don't know why.
    THE COURT: Do you know that you're also charged
    with violating a protective order?
    THE DEFENDANT:   I don't know.   I didn't know.
    THE COURT: Well, when I asked you questions a
    little while ago, you said you were aware of the
    fact that you were charged with violating a
    protective order. You pled not guilty to it.
    THE DEFENDANT: I know I killed someone, but I
    plead not guilty because it was not my intention
    – because they hit me, they attacked me, and I
    couldn't take it no more. And I have evidence –
    I have the work from the doctor, that I had stab
    wounds.
    And I was drunk, and then I had a knife and
    I just went after her. And I stabbed and I threw
    the knife away. I put the knife down, and I
    don't know what else happened. And then the
    police took me to the hospital, and then the next
    day is when I realized that I killed someone.
    THE COURT:   Okay.   Have a seat.
    Following the colloquy, the circuit court denied the
    renewed motion for a second competency evaluation, explaining,
    certainly the answers the Defendant gave were not
    by any means a showing of perfect clarity, but I
    believe he understands why he's here today and he
    understands what we're doing.
    He certainly has a – he articulates a
    defense to the offenses – the principal offense
    with which he's charged, which is the first-
    degree murder. In the colloquy he both pled not
    guilty and confirmed that he was the person
    charged with that event.
    And when I combine everything I've heard
    today from the Defendant, I do not see a basis to
    14
    order the competency exam – in other words, to
    change the decision that I made last Friday – and
    that will remain my decision.
    At trial, the evidence proved Dang entered into a
    restaurant in Fairfax County where Nguyet Lu was eating with her
    boyfriend and another individual.      Dang approached Lu and
    stabbed her with a knife.   Lu died from stab wounds to her neck
    and abdomen, and was pronounced dead at the scene.      Upon
    completion of the three-day trial, the jury found Dang guilty of
    first-degree murder and violation of the protective order.       In
    accordance with the verdict, the circuit court imposed sentences
    of life and five years' imprisonment on the two convictions.
    Dang appealed his convictions to the Court of Appeals, which
    denied his petition for appeal by per curiam order and again by
    a three-judge panel.
    II.     ANALYSIS
    On appeal, Dang argues the Court of Appeals erred in
    denying his appeal because there was probable cause to believe
    he was incompetent to stand trial under Code § 19.2-169.1(A).
    A.   Code § 19.2-169.1(A)
    "It is well established that the Due Process Clause of the
    Fourteenth Amendment prohibits the criminal prosecution of a
    defendant who is not competent to stand trial."      Medina v.
    California, 
    505 U.S. 437
    , 439 (1992); see also Drope v.
    Missouri, 
    420 U.S. 162
    , 171-72 (1975); Pate v. Robinson, 383
    
    15 U.S. 375
    , 385(1966).   Therefore, due process requires that
    states provide criminal defendants "access to procedures for
    making a competency evaluation."     
    Medina, 505 U.S. at 449
    . 8
    The General Assembly has provided criminal defendants
    access to such procedures in Code § 19.2-169.1.     Pursuant to
    this statute, "the court shall order that a competency
    evaluation" of the defendant be performed by a mental health
    expert if "there is probable cause to believe that the defendant
    . . . lacks substantial capacity to understand the proceedings
    against him or to assist his attorney in his own defense."        Code
    § 19.2-169.1(A).   This language reflects the standard for
    competency articulated by the Supreme Court of the United
    States, which is "whether the defendant has 'sufficient present
    ability to consult with his lawyer with a reasonable degree of
    rational understanding' and has 'a rational as well as factual
    understanding of the proceedings against him.'"     Godinez v.
    Moran, 
    509 U.S. 389
    , 396 (1993) (quoting Dusky v. United States,
    
    362 U.S. 402
    , 402 (1960)).   See Orndorff v. Commonwealth, 271
    8
    The Supreme Court of the United States has held that a
    state procedure requiring a hearing on competency where the
    evidence raises a "bona fide doubt" as to the defendant's
    competency is constitutionally adequate, as is a state procedure
    requiring an examination where there is "reasonable cause" to
    believe that the defendant is incompetent. 
    Drope, 420 U.S. at 172-73
    .
    
    16 Va. 486
    , 500, 
    628 S.E.2d 344
    , 351 (2006) (discussing ultimate
    determination of whether defendant is competent pursuant to Code
    § 19.2-169.1(E) in light of constitutional standard of
    competency).
    When the defendant has already been afforded a competency
    evaluation in which he is found competent, the circuit court
    need not order a second evaluation unless it is presented with a
    substantial change in circumstances.   See 
    Drope, 420 U.S. at 181
    (trial court required to order competency examination when there
    were "circumstances suggesting a change that would render the
    accused unable to meet the standards of competence to stand
    trial"); Senna v. Patrissi, 
    5 F.3d 18
    , 20 (2d Cir. 1993) (no
    constitutional requirement for additional competency hearing
    where there is "no substantial change" in defendant's
    condition); People v. Kelly, 
    822 P.2d 385
    , 412 (Cal. 1992)
    (where defendant has already been found competent, it is
    unnecessary to conduct a second hearing on competency unless the
    court is presented with a "substantial change of circumstances"
    or new evidence "casting a serious doubt on the validity of that
    finding"); State v. Lafferty, 
    20 P.3d 342
    , 360 (Utah 2001)
    (same); State v. Sanders, 
    549 S.E.2d 40
    , 52 (W. Va. 2001)(same).
    B.   Standard of Review
    The statutory mandate, that an evaluation be ordered if
    there is "probable cause to believe" that the defendant is
    17
    incompetent to stand trial, Code § 19.2-169.1(A), involves the
    exercise of discretion by the circuit court in weighing the
    facts presented on the question of competency.   See 
    Orndorff, 271 Va. at 500
    , 628 S.E.2d at 351 (determination of competency
    is a question of fact that will not be disturbed on appeal
    unless plainly wrong); see also Johnson v. Commonwealth, 53 Va.
    App. 79, 93, 
    669 S.E.2d 368
    , 375 (2008) ("We review a circuit
    court's decision not to order a competency evaluation only for
    abuse of discretion.").   This is so because the circuit court
    "will often prove best able to make more fine-tuned mental
    capacity decisions, tailored to the individualized circumstances
    of a particular defendant."   Indiana v. Edwards, 
    554 U.S. 164
    ,
    177 (2008); see also United States v. Mason, 
    52 F.3d 1286
    , 1289
    (4th Cir. 1995) (whether "reasonable cause" to believe a
    defendant may be incompetent exists under 18 U.S.C. § 4241(a) is
    a question left to the discretion of the trial court). 9
    9
    See also Denes v. State, 
    508 N.E.2d 6
    , 9-10 (Ind. 1987)
    (decision of whether to order competency hearing reviewed for
    abuse of discretion); State v. Barnes, 
    262 P.3d 297
    , 309 (Kan.
    2011) (decision of whether to order competency evaluation
    reviewed for abuse of discretion); State v. Hewett, 
    538 A.2d 268
    , 269 (Me. 1988) (decision of whether to order competency
    hearing reviewed for abuse of discretion); Morales v. State, 
    992 P.2d 252
    , 254 (Nev. 2000) (decision of whether to order
    competency evaluation reviewed for abuse of discretion); People
    v. Morgan, 
    662 N.E.2d 260
    , 261 (N.Y. 1995) (same); State v.
    Drayton, 
    243 S.E.2d 458
    , 459 (S.C. 1978) (same); Garza v. State,
    
    522 S.W.2d 693
    , 694 (Tex. Crim. App. 1975) (decision of whether
    to order competency hearing reviewed for abuse of discretion);
    18
    We have held that a circuit court abuses its discretion
    "when a relevant factor that should have been given significant
    weight is not considered; when an irrelevant or improper factor
    is considered and given significant weight; and when all proper
    factors, and no improper ones, are considered, but the court, in
    weighing those factors, commits a clear error of judgment."
    Landrum v. Chippenham & Johnston-Willis Hosps., 
    282 Va. 346
    ,
    352, 
    717 S.E.2d 134
    , 137 (2011) (quoting Kern v. TXO Production
    Corp., 
    738 F.2d 968
    , 970 (8th Cir. 1984)); see also 
    Drope, 420 U.S. at 179
    (reviewing whether state courts failed "to give
    proper weight" to evidence regarding competency to stand
    trial). 10
    C.      Circuit Court's Finding of No Probable Cause
    In re Fleming, 
    16 P.3d 610
    , 615 (Wash. 2001) (decision of
    whether to order competency evaluation reviewed for abuse of
    discretion); United States v. Davis, 
    61 F.3d 291
    , 304 (5th Cir.
    1995) (decision of whether to order competency hearing under 18
    U.S.C. § 4241 reviewed for abuse of discretion); Zapata v.
    Estelle, 
    588 F.2d 1017
    , 1020-21 (5th Cir. 1979) (decision by
    state court of whether to order competency hearing reviewed for
    abuse of discretion); United States v. Andrews, 
    469 F.3d 1113
    ,
    1121 (7th Cir. 2006) (decision to hold hearing or order
    examination under 18 U.S.C. § 4241 reviewed for abuse of
    discretion).
    10
    Although the dissent agrees that a circuit court's
    finding that probable cause did not exist to order a competency
    evaluation should be reviewed for an abuse of discretion, it
    seems to review the circuit court's decision here de novo. Under
    an abuse of discretion standard of review, it is neither our
    function to “consider” the evidence, nor to determine that “the
    facts here are sufficient to meet the probable cause standard
    fixed by Code § 19.2-169.1(A).”
    19
    Applying these principles, we do not believe the circuit
    court abused its discretion in finding that there was no
    probable cause to believe that Dang "lack[ed] substantial
    capacity to understand the proceedings against him or to assist
    his attorney in his own defense."   Code § 19.2-169.1(A).
    1.   Family Information and Past Trauma
    First, Dang argues that the circuit court failed to give
    due weight to the information regarding Dang's family history
    that came to light shortly before trial.
    According to Dang, "[t]he most significant factor in this
    case that established probable cause for a competency evaluation
    was that Mr. Dang appeared to have constructed a completely
    false life history, or at least one that significantly deviated
    from his mother's recollection as expressed to defense counsel."
    Because Dang failed to disclose the history of serious head
    trauma suffered during his childhood in Vietnam and the
    existence of his biological family in Philadelphia, defense
    counsel suggests Dang may have constructed "an entire delusion
    about his past life to replace his real, traumatic life."
    Relying on defense counsel's conversation with the evaluator who
    performed Dang's sanity at the time of the offense evaluation,
    Dang contends that such a delusion would not be unusual if he
    had suffered post-traumatic stress disorder, and the trauma
    20
    reportedly experienced by him could support such a potential
    diagnosis.
    Furthermore, citing treatises discussing the relationship
    between traumatic brain injury and violent criminal behavior,
    Dang argues this information may have "substantiated an
    evaluation" of Dang for traumatic brain injury or another form
    of organic brain injury.    Thus, according to Dang, while his
    failure to communicate about his life history could have been
    characterized as a lack of candor, it could also have been "a
    symptom of an underlying mental illness or organic brain injury
    that was affecting his competence."
    We disagree that the circuit court failed to give proper
    weight to the information learned by defense counsel from Mrs.
    Pham and Dang's sister.    In response to defense counsel's
    argument that Dr. Hudacek made note of the fact that she did not
    have access to collateral sources, the circuit court pointed to
    Dr. Hudacek's conclusion that despite her inability to gain
    additional information from collateral sources, she "believes
    the information is an accurate portrayal of [Dang's] current
    functioning as it relates to the question of competency to stand
    trial."   As the circuit court explained at the hearing, it
    reviewed Dr. Hudacek's report, noting that the evaluation was
    "thorough" and the report "goes into great detail as to the
    21
    defendant's understanding of the proceedings against him and his
    ability to assist his attorney in his own defense."
    As the circuit court properly recognized, the issue before
    it was Dang's present ability to understand the proceedings and
    assist his counsel as was addressed in Dr. Hudacek's report.     A
    history of mental illness does not necessarily render a
    defendant incompetent to stand trial.   See Bramblett v.
    Commonwealth, 
    257 Va. 263
    , 273, 
    513 S.E.2d 400
    , 407
    (1999)(defendant diagnosed as presently suffering from
    delusional disorder competent to stand trial).   As the Fourth
    Circuit Court of Appeals has explained, "neither low
    intelligence, mental deficiency, nor bizarre, volatile, and
    irrational behavior can be equated with mental incompetence to
    stand trial."   Walton v. Angelone, 
    321 F.3d 442
    , 460 (4th Cir.
    2003) (citation omitted).   Rather, as noted above, the legal
    test for competency is "whether the defendant has 'sufficient
    present ability to consult with his lawyer with a reasonable
    degree of rational understanding' and has 'a rational as well as
    factual understanding of the proceedings against him.'"
    
    Godinez, 509 U.S. at 396
    (quoting 
    Dusky, 362 U.S. at 402
    )
    (emphasis added).   Therefore, the evidence supporting probable
    cause must be directed to the question of defendant's competency
    at the time of trial.
    22
    Thus, even if Dang's failure to disclose an accurate history
    to his counsel and his evaluator was, as he posits, an
    indication of an underlying mental illness or brain injury,
    there was no information before the circuit court to relate any
    possible mental illness or injury to Dang's present competence.
    In light of Dr. Hudacek's opinion that was addressed to Dang's
    "current functioning," the circuit court appropriately inquired:
    Focusing on his competency today, is it not fair
    to say that what you're identifying is that your
    client has not been candid with you, which does
    not seem to me to be a competency issue, and then
    beyond that, you're just speculating about what
    effect it could – it might have?
    (Emphasis added.)
    The circuit court was properly focused on the issue of
    Dang's present competence.   The information gained from Mrs.
    Pham related to injuries reportedly sustained by Dang decades
    prior to the murder and did not provide evidence of a
    substantial change in Dang's competence.   With nothing more than
    counsel's speculation that the information from Mrs. Pham and
    Dang's sister could potentially change Dr. Hudacek's opinion or
    otherwise bear on Dang's present ability to understand the
    proceedings or assist in his defense, we do not believe the
    circuit court failed to give proper weight to such information.
    2.   Dang's Responses at Trial
    23
    Dang also contends the circuit court neglected to afford
    due weight to the answers given by him during the colloquies
    conducted by the court on the morning of trial.   According to
    Dang, throughout the plea colloquy and the subsequent colloquy
    conducted by the court at defense counsel's request, Dang gave
    nonresponsive answers indicating his lack of comprehension of
    the criminal proceedings against him.
    While many of Dang's responses to the circuit court's
    questions were indeed nonresponsive, as the circuit court
    recognized, Dang's tendency to shift focus to the facts
    regarding the murder and explain "his side of the story" was
    addressed extensively by Dr. Hudacek in her report.   According
    to Dr. Hudacek, Dang's behavior in this regard was "related to
    anxiety about the alleged charges and potential sentence he is
    facing," "does not suggest that [he] suffers from a major mental
    illness that would affect abilities relevant to competency to
    stand trial," and "is consistent with most defendants who face
    legal charges."   In other words, the responses Dang gave to the
    circuit court were consistent with the behavior he exhibited
    during his evaluation.   Despite this behavior, Dr. Hudacek
    concluded that "Dang has sufficient, present ability to consult
    with his attorney with a reasonable degree of rational
    understanding," "possesses a rational as well as factual
    24
    understanding of the proceedings against him," and "is able to
    assist in preparing for his own defense."
    During the plea colloquy, Dang certainly gave appropriate
    and rational answers to the court's initial inquiry regarding
    his understanding of the charges against him, the role of
    defense counsel, his discussions with counsel regarding possible
    witnesses on his behalf, his right to testify and be tried by a
    jury, and the voluntariness of his plea.    Although Dang
    attempted to interpose his explanation for the murder, when
    redirected to the question, he gave appropriate responses.
    During the subsequent colloquy, Dang's propensity to
    interject and explain his actions became more pronounced.    This
    was entirely in accord with Dr. Hudacek's opinion that Dang's
    inclination toward nonresponsive answers reflected apprehension
    "about going to trial" and the "potential sentence he is
    facing."   As Dang told the court during the second colloquy, "I
    feel okay, but since I've been here I haven't been normal."
    Dang also stated, "I just want you to know that I do kind of
    understand, but I just don't feel okay today."    Dang's increase
    in anxiety after the plea colloquy was evidenced by defense
    counsel's observation that Dang's mental status had deteriorated
    "as of just a few minutes ago – during this recess."    It was
    reasonable, therefore, to conclude that Dang's responses during
    the second colloquy were a reflection of heightened apprehension
    25
    of going to trial, rather than a sudden deterioration in his
    understanding of the nature of the proceedings on the morning of
    trial. 11   In fact, as the circuit court remarked, Dang was
    sufficiently competent to "articulate[] a defense" to the murder
    charge.
    Recognizing that circuit courts "are in the best position
    to make competency determinations, which at bottom rely not only
    on a defendant's behavioral history and relevant medical
    opinions, but also on the [circuit] court's first-hand
    interactions with, and observations of, the defendant and the
    attorneys at bar, we appropriately afford them wide latitude."
    United States v. Bernard, 
    708 F.3d 583
    , 593 (4th Cir. 2013).      In
    light of Dr. Hudacek's opinion that Dang's inclination to shift
    focus represented situational anxiety regarding the proceedings
    and potential punishment, we do not believe the circuit court
    11
    Given Dang's difficulty with the English language, it is
    not surprising that he referred to his counsel, Lysandra
    Pachuta, as "Sarah." Likewise, we do not find it remarkable
    that Dang was unable to articulate the charge of violation of a
    protective order or was unfamiliar with the terms "prosecutor"
    and "Commonwealth Attorney." Based on Dang's responses during
    the plea colloquy, he knew he was charged with murder and
    violation of a protective order, understood he was in court to
    be tried for those charges, and was well aware that he faced
    substantial punishment if found guilty by the jury. It is also
    evident from the record that Dang knew his defense counsel and
    their role in assisting him with his defense.
    26
    failed to properly consider and weigh Dang's responses to the
    court.
    3.     Defense Counsel's Concerns
    Dang also argues that the circuit court failed to give
    sufficient weight to defense counsel's concerns regarding his
    competency.
    As the Supreme Court of the United States has recognized,
    due process does not require courts to "accept without
    question[ing] a lawyer's representations concerning the
    competence of his client."    
    Drope, 420 U.S. at 177
    n.13.   "[A]n
    expressed doubt" by defense counsel "is unquestionably a factor
    which should be considered."     
    Id. While "counsel's
    representations deserve serious consideration" by the circuit
    court, they "cannot, however, assume an importance not merited
    by their content, particularly in those situations in which the
    [circuit] court has had an opportunity to make its own
    observations."    People v. Morino, 
    743 P.2d 49
    , 52 (Colo. App.
    1987).    "We must also bear in mind the [circuit] court's
    institutional advantage over [this Court] in evaluating the
    demeanor of the defendant and the statements of counsel about
    the defendant's mental state."     United States v. Rickert, 
    685 F.3d 760
    , 767 (8th Cir. 2012).
    Based on our review of the record, we believe the circuit
    court gave defense counsel's concerns serious consideration.
    27
    During the hearing on the motion for a second evaluation,
    defense counsel told the court that communications with Dang had
    been "extremely difficult," that Dang was "repeatedly confused,"
    and was "unable to focus conversations on the issues that are
    relevant at the moment."   After hearing argument, the circuit
    court acknowledged its consideration of the "representations
    made by [defense counsel]," but noted it did not have "any
    evidence" or "any testimony" before it to find probable cause in
    light of Dr. Hudacek's report that "goes into great detail as to
    the defendant's understanding of the proceedings against him and
    his ability to assist his attorney in his own defense."
    On the morning of trial, when counsel requested that the
    court conduct a colloquy with Dang to inquire into his
    competency, the circuit court did not dismiss counsel's concerns
    but granted counsel's request.   In fact, seeking direction as to
    counsel's specific concerns, the circuit court inquired of
    counsel as to "what questions you want [the court] to ask him,"
    commenting that "[i]t may strike you as obvious, but it doesn't
    strike me as obvious."   After defense counsel supplied the court
    with suggested questions, the court conducted the colloquy in
    accord with defense counsel's suggestions.
    Furthermore, the concerns advanced by defense counsel at
    the hearing and trial were the same concerns dating back to
    previous counsel's representation and were, therefore, present
    28
    when Dr. Hudacek performed her evaluation.    In Dang's initial
    motion for a competency evaluation, which was granted, defense
    counsel asserted that Dang spoke and understood "limited
    English" and communicated to defense counsel with assistance of
    an interpreter.   According to the motion, Dang "was unable to
    express an understanding of important aspects of the proceedings
    against him and his rights related thereto, notwithstanding
    defense counsel's efforts to inform him."    Dr. Hudacek's report
    addressed Dang's tendency to shift focus and give nonresponsive
    answers, but concluded his behavior was a symptom of situational
    anxiety not incompetence.
    In sum, the record reflects that the circuit court
    carefully considered the representations made by counsel both at
    the hearing and at trial.   However, the circuit court also had
    the benefit of Dr. Hudacek's report addressing the issues of
    concern to counsel and the opportunity to observe Dang and his
    interaction with defense counsel.     We cannot conclude that the
    circuit court committed an abuse of discretion in weighing the
    significance of these factors.
    4.   Timing of Dang's Motion
    Finally, Dang argues that the circuit court erred in
    placing significant weight on the timing of the motion for the
    second competency evaluation.
    29
    At the December 2 hearing, when defense counsel explained
    that the new information from Mrs. Pham was gained when counsel
    used an interpreter to speak with her rather than relying on
    family, the circuit court asked whether an interpreter could
    have been used earlier.   Specifically, the circuit court stated:
    "[T]his matter has been continued several times and here we are,
    literally on the eve of trial – trial is set for Monday – and
    you're bringing things to my attention that there's just no
    reason that I can see why they weren't raised in September or
    October."   Again, the circuit court asked, "If you had problems
    communicating with your client back in October or September, why
    were you not back in court then seeking a new competency
    evaluation? Why now?"   In response to the court's comments,
    defense counsel explained that while it might have been possible
    to discover the information earlier, counsel had not, and the
    information learned from Mrs. Pham indicated potential causes
    for counsel's concerns regarding Dang's mental health.   This
    discussion between the circuit court and counsel continued
    intermittently throughout the hearing.
    After defense counsel concluded argument in support of the
    motion for a second competency evaluation, the circuit court
    noted that it had "focused considerably on the fact that this is
    occurring on the eve of trial" and "whether the information that
    was brought to my attention yesterday could have been available
    30
    months ago."   Nevertheless, the circuit court acknowledged that
    defense counsel was "correct that the focus is on whether or not
    there's probable cause at this time, regardless of whether it
    could have been produced to the [c]ourt at an earlier point in
    time."(Emphasis added.)   The circuit court then proceeded to
    discuss the standard set forth in Code § 19.2-169.1 and, in
    particular, whether there was probable cause to conclude that
    Dang lacked substantial capacity to understand the proceedings
    or assist his counsel.
    It is clear, then, that while the circuit court was
    understandably concerned about the timing of the motion and why
    counsel had not obtained the information at an earlier time if
    communications had, in fact, been difficult, it was properly
    focused on the question of Dang's competency as of the date of
    trial.   Furthermore, the circuit court made no comment regarding
    the timing of the motion when it was renewed at trial.
    Therefore, we reject Dang's underlying premise that the circuit
    court placed significant weight on the timing of his motion.
    III.    CONCLUSION
    In sum, we conclude the circuit court did not abuse its
    discretion in finding there was no probable cause to order a
    second competency evaluation.    Accordingly, we will affirm the
    judgment of the Court of Appeals.
    Affirmed.
    31
    JUSTICE MIMS, dissenting.
    The majority determines that the circuit court did not
    abuse its discretion when it failed to order a second competency
    evaluation for a defendant with possible organic brain injury
    who displayed signs of confusion and incoherence at trial.    In
    my view, that conclusion does not comport with the evidence in
    the record and the controlling precedent in Drope v. Missouri,
    
    420 U.S. 162
    (1975).   I therefore must dissent.
    A court is required to order a competency evaluation if it
    finds “at any time after the attorney for the defendant has been
    retained or appointed and before the end of trial . . . that
    there is probable cause to believe that the defendant . . .
    lacks substantial capacity to understand the proceedings against
    him or to assist his attorney in his own defense.”   Code § 19.2-
    169.1(A) (emphasis added). *
    *
    The statutory mandate coincides with defendants’ Fourteenth
    Amendment due process rights. See Medina v. California, 
    505 U.S. 437
    , 439 (1992); compare Code § 19.2-169.1(A) with Godinez
    v. Moran, 
    509 U.S. 389
    , 396 (1993) (stating the inquiry for
    competency “is whether the defendant has sufficient present
    ability to consult with his lawyer with a reasonable degree of
    rational understanding and has a rational as well as a factual
    understanding of the proceedings against him.”) (internal
    quotation marks omitted).
    32
    We review a trial court’s ruling whether such probable
    cause exists for abuse of discretion.   Johnson v. Commonwealth,
    
    53 Va. App. 79
    , 93, 
    669 S.E.2d 368
    , 375 (2008).   A court abuses
    its discretion in three principal ways:   “when a relevant factor
    that should have been given significant weight is not
    considered; when an irrelevant or improper factor is considered
    and given significant weight; and when all proper factors, and
    no improper ones, are considered, but the court, in weighing
    those factors, commits a clear error of judgment.”     Lawlor v.
    Commonwealth, 
    285 Va. 187
    , 213, 
    738 S.E.2d 847
    , 861 (2013)
    (quoting Landrum v. Chippenham & Johnston-Willis Hosps., 
    282 Va. 346
    , 352, 
    717 S.E.2d 134
    , 137 (2011)), cert. denied ___ U.S.
    ___, 
    134 S. Ct. 427
    (2013).
    In Drope, the Supreme Court of the United States set forth
    the factors relevant to a court’s consideration of whether an
    inquiry into a defendant’s competency is necessary.    They
    include “evidence of [his] irrational behavior, his demeanor at
    trial, and any prior medical opinion on competence to stand
    
    trial.” 420 U.S. at 180
    .   “[E]ven one of these factors standing
    alone may, in some circumstances, be sufficient.”     
    Id. The Court
    also made clear that when the signs of incompetency
    manifest themselves is not an appropriate factor for
    33
    consideration.    See 
    id. at 181
    (“Even when a defendant is
    competent at the commencement of his trial, a trial court must
    always be alert to circumstances suggesting a change that would
    render the accused unable to meet the standards of competence to
    stand trial.”).
    The majority determines that the circuit court did not
    abuse its discretion when it declined to order a second
    competency evaluation because the report following the first
    evaluation concluded that Dang was competent.    It holds that a
    new evaluation was necessary only if there was a substantial
    change in circumstances after the initial evaluation.    In my
    view, there was a substantial change in circumstances and the
    circuit court therefore abused its discretion in its application
    of the Drope factors.
    On the surface, the circuit court’s consideration of the
    report corresponds to the third Drope factor.     However, the
    value of the report was substantially undermined by the
    subsequent revelation that Lang had endured physical abuse
    during childhood, which may have resulted in organic brain
    injury.    This information was not known at the time of the
    evaluation.    Thus, the report could not take it into account.
    Moreover, the fact that Dang was unable or unwilling to disclose
    34
    it to the evaluator may itself have been symptomatic of an
    underlying disorder impacting his competence to stand trial.
    Similarly, the discovery that Dang had misrepresented his family
    history and relationships may have been clinically significant.
    Courts commonly have no mental health training and
    consequently are ill-prepared to reach competency conclusions
    without the assistance of professional mental health clinicians.
    Code § 19.2-169.1(A) requires a competency evaluation precisely
    for the purpose of providing such assistance.   In sum, we simply
    do not know the clinical relevance of this new information.
    However, the record establishes that Dang’s possible brain
    injury and his failure to disclose both it and his true family
    history and relationships were sufficient to give at least one
    mental health practitioner pause.
    Accordingly, in my view, these new facts amounted to a
    substantial change in circumstances by calling into question the
    accuracy of the conclusions in the competency evaluation report.
    Therefore, the value of the report’s conclusions to satisfy the
    third Drope factor was diminished.
    Dang’s failure to disclose his possible brain injury and
    his family history and relationships also may constitute
    evidence of irrational behavior under the first Drope factor.
    35
    We again do not know whether the behavior was symptomatic of an
    underlying disorder and, if so, whether that disorder may have
    affected his competency to stand trial.
    Perhaps most compelling, however, is Dang’s behavior during
    the circuit court’s colloquy, which goes to the second Drope
    factor.   As the majority emphasizes, the competency inquiry
    turns on the defendant’s “present ability to consult with his
    lawyer with a reasonable degree of rational understanding.”
    Godinez v. Moran, 
    509 U.S. 389
    , 396 (1993) (emphasis added)
    (internal quotation marks omitted).   Dang’s behavior during the
    colloquy is possibly the best indicator of his “present
    ability.”   Yet, in addition to being generally nonresponsive
    when his answers did not correspond to the court’s questions,
    his answers revealed that he did not understand the charges
    against him, did not understand the potential sentences that
    would follow from conviction, did not understand what a
    prosecutor was, and did not know the names of his attorneys.
    Dang’s failure to understand this information during the
    colloquy calls into question his competency at that time.
    The circuit court and the majority dismiss this behavior as
    being consistent with the evaluation report’s findings.    But,
    again, that report was predicated on incomplete and inaccurate
    36
    information.   In the absence of professional guidance, neither
    we nor the circuit court can ascertain whether the report’s
    conclusions would have been the same if the evaluator had known
    all the relevant facts.    Similarly, we cannot know whether
    Dang’s behavior during the colloquy was consistent with what the
    report described as anxiety, or whether it was consistent with,
    for example, an irrational panic or some other underlying mental
    disturbance which may or may not have affected his legal
    competence.
    In short, the majority considers the first report in
    isolation, without considering the information Dang failed, for
    whatever reason, to disclose.    It similarly considers Dang’s
    behavior during the colloquy to be consistent with the flawed
    report.   But under Drope, neither the report nor Dang’s behavior
    can be considered in isolation.    Rather, the circuit court, and
    this Court on review, is obligated to consider all the facts to
    determine whether probable cause existed to justify a second
    competency evaluation.    In my view, the facts here are
    sufficient to meet the probable cause standard fixed by Code §
    19.2-169.1(A).
    Finally, the circuit court was improperly influenced by the
    fact that the deficiencies in the report were not known until
    37
    “the eve of trial.”   Although the majority attempts to minimize
    the effect of this influence, the court itself admitted that it
    “focused considerably on the fact that this is occurring on the
    eve of trial . . . and whether the information that was brought
    to my attention yesterday could have been available months ago.”
    Both Drope and Code § 19.2-169.1(A) make clear that information
    calling the defendant’s competence into question is to be
    considered without regard to when or how the information is made
    known to the trial court.   The question was not whether the
    information could have been presented earlier, or even whether
    it was withheld for tactical advantage (an assertion made by
    neither the Commonwealth nor the circuit court).   The
    defendant’s constitutional right to due process and the
    statutory procedure that safeguards it are preeminent.    Rather,
    the question is whether the information, whenever made known to
    the trial court, calls into doubt the defendant’s competence at
    that time.
    I therefore must conclude that the circuit court abused its
    discretion.   It gave improper weight to the flawed competency
    report, the third Drope factor.    It failed to consider possible
    evidence of Dang’s irrational behavior, namely his failure to
    disclose possible brain injury and his family history and
    38
    relationships during the competency evaluation, the first Drope
    factor.   It failed to consider the possible deficiencies in the
    competency report when it concluded that Dang’s behavior during
    the colloquy was consistent with the report, the second Drope
    factor.   It improperly considered the timing of the information
    raising new questions about Dang’s competence.   Accordingly, I
    must dissent from the majority’s opinion affirming its judgment.
    39