Goad v. State

137 Nev., Advance Opinion 17
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

RALPH EDMOND GOAD, No. 79977-COA
Appellant,
vs.
THE STATE OF NEVADA, Fi
Respondent. APR 2 9 2021
ELIZABETH A. BROWN
CLERK,' F S PREME COURT
BY •
DEPUTY CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of murder with the use of a deadly weapon. Second Judicial District
Court, Washoe County; David A. Hardy, Judge.
Vacated and remanded.

John L. Arrascada, Public Defender, and Kathryn Reynolds, Deputy Public
Defender, Washoe County,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Kevin Naughton, Appellate Deputy District
Attorney, Washoe County,
for Respondent.

BEFORE GIBBONS, C.J., TAO and BULLA, JJ.

OPINION
By the Court, GIBBONS, C.J.:
The United States and Nevada Constitutions prohibit trying a
criminal defendant while he is mentally incompetent. An incompetent
defendant lacks the requisite mental cognizance to receive a fair trial and
appreciate the rights associated therewith. A defendant cannot, among
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other things, effectively assist counsel, confront witnesses, or intelligently
decide whether to testify or remain silent. Thus, both the United States
and Nevada Supreme Courts have recognized that conviction of an
incompetent criminal defendant violates due process.
The right to stand trial while competent being paramount, the
United States Supreme Court has recognized a procedural due process right
to a hearing to determine whether a defendant is competent if sufficient
doubt of competency arises at any time. The Nevada Supreme Court has
embraced this right by requiring a trial court to order a competency hearing
sua sponte when any evidence before the court—in isolation or in light of
other evidence—gives rise to reasonable doubt as to the defendant's
competency. Nevada prescribes statutory procedures that trial courts must
follow when determining whether doubt is reasonable. If there is such
doubt, the court must conduct a competency hearing; neither the defendant
nor defense counsel can waive the right to a hearing. The Nevada Supreme
Court has consistently remedied violations of a defendant's right to a
competency hearing with reversal of the conviction and remand for a new
trial but has not mandated that a new trial is the only permissible remedy.
This case presents three questions that Nevada competency
jurisprudence has yet to answer or clarify. First, does reasonable doubt
exist where a defendant has a history of mental health issues and use of
psychoactive medications, been deprived of an unknown medication during
trial, and becomes debilitated during trial? Second, is a trial court required
to consider evidence of incompetence adduced during pretrial proceedings
in its reasonable doubt determination if a different judge adjudicated
pretrial matters? Third, is it permissible to remedy a violation of a

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defendant's right to a competency hearing by remanding the case to the trial
court to determine whether the defendant was incompetent during trial?
We now extend Nevada's procedural due process requirement
of a hearing to determine competency to novel factual circumstances and
apply a new remedy. Accordingly, we conclude that (1) reasonable doubt
exists as to a defendant's competency where the defendant has a history of
mental health issues and psychoactive medication use, is deprived of
medication during trial, and becomes debilitated thereafter; (2) a trial court
must consider any evidence of incompetence in the record when determining
whether reasonable doubt exists notwithstanding whether the case is
transferred from another judge; and (3) we may remedy a violation of a
defendant's right to a competency hearing by remanding the case to the trial
court to determine whether the defendant was incompetent during trial, but
the trial court must first determine if the competency hearing is feasible
before holding it.
FACTS AND PROCEDURAL HISTORY
Appellant Ralph Edmond Goad and Theodore Gibson lived in
apartments located in the same hallway of an apartment building in Reno.
Goad and Gibson were apparently close friends and frequently spent time
together. Both Goad and Gibson were in their seventies and received Social
Security benefits through a payee counseling service that managed income
from Social Security on behalf of beneficiaries who were unable to manage
their own finances. Near the end of 2018, the payee service closed. Goad
received his last payment from the payee service in November 2018. On
January 11, 2019, Goad received a notice of eviction for nonpayment of rent.
He was locked out of his apartment on January 30.
On February 13, employees of the apartment building found
Gibson's dead body in his apartment. According to the autopsy report,

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Gibson suffered a total of 250 stab wounds to the face, head, neck, and other
parts of his body. Inside the apartment, police found Gibson's wallet on the
floor with its contents strewn about and containing no cash. Police
recovered scissors and a knife from inside Gibson's apartment with Gibson's
blood on them. Police found Goad's DNA on the handle of the scissors.
Police later recovered Goad's clothes from his apartment, on which police
detected Gibson's blood. Police obtained video surveillance footage of the
hallway in which Gibson's and Goad's apartments were located. The footage
shows Gibson entering his apartment on January 18, which was the last
time Gibson was seen alive, and Goad entering and exiting Gibson's
apartment multiple times between January 18 and January 22. Goad was
arrested in Sacramento on March 7.
The State charged Goad with murder with the use of a deadly
weapon. The State moved to admit evidence of Goad's finances, including
documents regarding his eviction. Goad opposed the motion. In its reply,
the State included a transcript of the police interrogation of Goad following
his arrest. During the interrogation, Goad discussed his finances and
recounted his mental health history, including mental health
hospitalizations, doctors struggling to diagnose his mental conditions, and
psychoactive medications that he had been prescribed to stabilize his
conditions. Among other things, Goad stated,
they said [I was in the mental hospital] because
depression. . . . But, um, the nurses would tell ya
you got something else. They'd tell the doctor to
write that down. . . . Some years they'd say it was
this and give me these pills. . . . And some years
they'd say it was that and give me those pills. The
only thing that really worked was Amitriptyline for
sleep. And, uh, 1 milligram of Ativan three times a

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day to stop the shakes [, which are from] this and
that. See, I've been a nervous wreck all my life.

No, Fm definitely not fine. . . . I don't know [what's
wrong,] I just don't get along like, um, I'm
different. . . . [I just don't get along with people]
because I can't sleep right and rm nervous all the
time.

[I take] Amitriptyline and the Ativan. The
Amitriptyline is for depression and sleep. And the
Ativan is for bad nervous, anxiety. It's much better
than Valium. Valium just makes you sleepy.
Ativan calms you down like that.

[The last time I took my medications was] 7 years
ago, 'cause when they took me out of the mental
hospital and gave me that payee, she was
independent, so I wasn't allowed to go back and see
a doctor or get medicine anymore. So it was good in
a way. But I wasn't able to get any medication
anymore. So 7 years, I went without medicine.

• I I

[When I'm not on medication, I] get angry [and]
have to drink beer to calm down. . . . [When] the
beer wears off, it makes you angry 'cause now I
gotta walk to the store and buy more beer to calm
down again.

In this case, one judge presided over all pretrial matters, and
the case was transferred to another judge for trial. The trial judge
acknowledged during trial that he was not entirely familiar with what

5
occurred pretrial by stating, "I did not conduct the pretrial hearings," and
"I reflected on the fact that I don't know everything that was argued in front
of the pretrial judge.
On the first day of trial, during jury selection but outside the
presence of the prospective jurors, the court, defense counsel, and the State
briefly discussed Goad's mental health and whether the State would seek
admission of the transcript of the police interrogation of Goad. The State
informed the court that it would not seek to introduce the transcript at trial.
The parties discussed the interrogation transcript again after opening
statements because defense counsel quoted a line from the transcript in his
opening statement but could not provide a viable theory for admission of the
transcript at trial.
At around 2 p.m. on the third day of Goad's trial, the district
court and counsel discussed Goad's condition and demeanor outside the
presence of the jury. The court explained that "there had been some
inquiries about Mr. Goad's health." Court staff informed the court that,
according to medical staff at the jail, Goad had not received his medication
that morning and that it was "the type that cannot wait [to be administered]
until the end of' the day. Therefore, Goad needed to be transported
immediately to the sheriffs office in order to receive the medication. The
district court and the parties did not discuss the name or effects of the
medication Goad was deprived of on the third day of trial.
After staff came forward, the court solicited comments from the
State and defense counsel on the matter. Both informed the court that Goad
appeared infirm that morning and that his condition worsened as the day
progressed. Defense counsel reported that Goad had been "degrading in his
physical [condition]." The State reported that, when Goad came into the

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courtroom on the morning of the third day of trial, "he did not sit down, he
stood there with a look that I think was objectively concerning to the
[S] tate."
The district court expressed that it had also observed a change
in Goad's demeanor. The court stated, "I've watched Mr. Goad a little bit
more today, hoping that he doesn't fall out. I do not believe there is any
gamesmanship, legal strategy, being pursued at all." The court added, "Mr.
Goad is entitled to be present and well as he both observes trial and
participates with his attorneys privately." The court then recessed for the
day in order for Goad to be transported to receive his medication.
On the morning of the fourth day of trial, defense counsel asked
the district court to canvass Goad because Goad refused to interact with or
even acknowledge defense counsel that morning. The court replied that it
was "not going to conduct some form of informal miniN mental examination
from the bench" and that the trial would "proceed with or without Mr.
Goad's presence or participation." Nevertheless, the court began asking
Goad questions, and Goad gestured to inform the court that he was unable
to speak. The court thereafter reported Goad's gestures for the record,
including Goad's nods affirming that he was aware of what the judge does,
who his attorneys were, and that he desired to proceed with trial. The
court's questions did not specifically address the factors for determining
incompetence set forth in NRS 178.400(2).1 Court staff informed the court

1See NRS 178.400(2) ("Uncompetent means that the person does not
have present ability to (a) [u]nderstand the nature of the criminal charges
against the person; (b) [u]nderstand the nature and purpose of the court
proceedings; or (c) [a]id and assist the person's counsel in the defense at any
time during the proceedings with a reasonable degree of rational
understanding.").

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that the infirmary at the jail had medically cleared Goad for trial. The
district court then resumed trial.
Later, the court asked Goad's counsel to comment on his
condition. Defense counsel stated, "it's as if the medication that he was
given yesterday has a time frame in which it actually has its effect. Because
I have noticed a marked difference now with respect to Mr. Goad and his
ability to communicate with me." Counsel continued, "[i] t's as if.. . . this
morning [the medication] hadn't fully activated."
The jury ultimately found Goad guilty of murder with the use
of a deadly weapon. The district court later sentenced Goad to life in prison
without the possibility of parole and a consecutive sentence of 36 to 240
months for the use of a deadly weapon.2 This appeal followed.
On appeal, Goad argues that the district court (1) violated his
federal due process and Nevada constitutional rights by failing to order a
competency hearing, (2) abused its discretion by admitting evidence of his
financial situation,3 and (3) abused its discretion by admitting photos of

2This court only reviews the record that was before the district court
on the third and fourth days of trial, when Goad endured the effects of
missing his medication. However, the dissent asserts "Goad has never been
found legally incompetent" based on comments from Goad's sentencing
hearing and oral argument before this court, which were not in the record
before the district court on the third and fourth days of trial. Even so, at
sentencing, the court commented Goad was the subject of "five separate
proceedings in which somebody sought to have him involuntarily committed
because of mental health concerns that he may be a harm to himself or
others."

3The district court admitted the evidence of Goad's finances and
eviction as res gestae evidence under NRS 48.035(3), but denied the State's
motion as to its alternative theory that the evidence consisted of prior bad
acts that qualified under the motive exception in NRS 48.045(2). However,

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Gibson's clothing that he was wearing when he was killed.4 We conclude
the district denied Goad due process by failing to conduct a competency
hearing when reasonable doubt arose about Goad's competency.
Accordingly, we vacate Goad's judgment of conviction and remand for
appropriate hearings.5
ANALYSIS
Goad argues that the district court denied him due process
under the United States and Nevada Constitutions when it failed to order

on appeal, Goad argues that the district court admitted this evidence under
the motive exception to the rule prohibiting prior bad act evidence; that is,
Goad does not challenge the admission of the evidence under NRS 48.035(3).
Thus, Goad waived any alleged error. See Old Aztec Mine, Inc. v. Brown, 97
Nev. 49, 52, 623 P.2d 981, 983 (1981) (stating that, by failing to raise an
argument on appeal, a party thereby waives the argument); see also
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (explaining that
this court need not consider an appellant's argument that is not cogently
argued or lacks the support of relevant authority).
4Goad moved to preclude admission of photographs of Gibson's blood-
soaked clothes with holes corresponding to his stab wounds, arguing the
photos were substantially more unfairly prejudicial than probative because
they were gruesome. The district court ruled the photographs were
admissible because they assisted the State's forensic pathologist with her
testimony and were not unfairly prejudicial. We conclude that there was
no abuse of discretion because the photographs of the blood-soaked clothes
were not substantially more unfairly prejudicial than probative, and they
assisted the States pathologist to testify as to the stab wounds. See Browne
v. State, 113 Nev. 305, 314, 933 P.2d 187, 192 (1997); cf. Harris v. State, 134
Nev. 877, 880, 432 P.3d 207, 211 (2018) (holding photographs of a crash
scene were prejudicial because they showed mutilated bodies in the
aftermath of a crash scene), cert. denied, 587 U.S. , 139 S. Ct. 2671
(2019).
5We do not reach Goad's claim of cumulative error in light of our
disposition.
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a competency hearing. He contends reasonable doubt about his competency
arose because he was deprived of a necessary medication, refused to interact
with defense counsel, and was unable to speak. Goad emphasizes that
defense counsel, the State, and the district court agreed that he was unable
to be present on the afternoon of the third day of trial due to his declining
condition. Goad further argues that the court's canvass of Goad on the
fourth day of trial did not dispel the reasonable doubt, especially because
the court failed to ask Goad why he could not speak or why he refused to
interact with his counsel.
The State argues that a competency hearing was unnecessary.
The State claims that the canvass the district court performed at the
request of defense counsel, Goad's comprehension of the canvass, Goad's
desire to proceed with the trial, that the infirmary medically cleared Goad
on the morning of the fourth day of trial, and Goad's ability to write in lieu
of speaking all dispelled any doubt. The State further argues that the
Nevada Supreme Court rejected a due process claim analogous to Goad's in
Lipsitz v. State, 135 Nev. 131, 442 P.3d 138 (2019). We disagree with the
State.
We first address the due process requirement for a competency
hearing, its relationship to Nevada's competency statutes, and evaluate the
district coures compliance with each. We then conclude that a retrospective
competency hearing is an acceptable remedy for denial of a defendant's
right to a competency hearing, and further adopt a test for determining
whether a retrospective competency hearing is feasible and may proceed in
lieu of reversal and a new trial.
Due process
Federal due process jurisprudence and Nevada law govern
Goad's claim that the district court violated his right to procedural due

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process by failing to order a competency hearing. See Melchor-Gloria v.
State, 99 Nev. 174, 180, 660 P.2d 109, 113 (1983); Nev. Const. art. 1, § 8. A
district court's determination of whether a competency hearing is required
is reviewed for abuse of discretion. Olivares v. State, 124 Nev, 1142, 1148,
195 P.3d 864, 868 (2008). A district court abuses its discretion and denies
due process when reasonable doubt as to the defendant's competency arises
and it fails to order a competency hearing. Id.
"The Due Process Clause of the Fourteenth Amendment
provides that a criminal defendant may not be prosecuted if he or she lacks
competence to stand trial." Lipsitz, 135 Nev. at 135, 442 P.3d at 142. A
defendant is competent if he "has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding—and [ifl he
has a rational as well as factual understanding of the proceedings against
him." Melchor-Gloria, 99 Nev. at 179-80, 660 P.2d at 113 (quoting Dusky v.
United States, 362 U.S. 402, 402 (1960) (internal quotations omitted)); see
also NRS 178.400(2); Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001)
([C]ompetence to stand trial does not consist merely of passively observing
the proceedings. Rather, it requires the mental acuity to see, hear[J and
digest the evidence, and the ability to communicate with counsel in helping
prepare an effective defense."). There are two "due process rights related to
competency to stand trial. The first is the traditional right not to be tried
or convicted while legally incompetent. The second . . . is the right to be
accorded a competency hearing when sufficient evidence of incompetency is
adduced before the trial court." Doggett v. Warden, 93 Nev. 591, 595, 572
P.2d 207, 210 (1977) (citations omitted). This appeal primarily concerns the
latter.

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Nevada statutory law prescribes a procedure that trial courts
must follow in order to determine whether doubt as to a defendant's
competency amounts to reasonable doubt necessitating a competency
hearing. See NRS 178.405(1) (providing that a court must suspend the
proceedings when doubt arises until the question of competency is
determined); NRS 178.415 (prescribing the procedures a court must follow
in conducting a competency hearing). "Under Nevada's competency
procedure, if any 'doubt arises as to the competence of the defendant, the
court shall suspend the . . . [trial] until the question of competence is
determined.'" Scarbo v. Eighth Judicial Dist. Court, 125 Nev. 118, 121-22,
206 P.3d 975, 977 (2009) (quoting NRS 178.405(1)) (emphasis added).
During the suspension, the court must "hold a hearing to fully consider
[such] doubts and to determine whether further competency proceedings
under NRS 178.415 are warranted." Olivares, 124 Nev. at 1149, 195 P.3d
at 869. "Further competency proceedings under NRS 178.415 are
warranted when there is reasonable doubt regarding a defendant's
competency." Scarbo, 125 Nev. at 121-22, 206 P.3d at 977 (internal
quotations omitted).
Nevada's competency statutes
It is unclear whether the district court was attempting to
comply with NRS 178.405(1) on the third day when it paused the
proceedings, solicited comments about Goad's behavior, and ultimately
recessed for the day. However, due process requires us to find error where
a defendant did not receive a competency hearing if reasonable doubt
existed as to his competency, regardless of whether the district court
complied with NRS 178.405(1). Nevertheless, we note that NRS 178.405
and NRS 178.415 prescribe a framework for compliance with the due

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process reasonable doubt standard that trial courts are required to fo11ow.6
Unequivocal and diligent adherence to these statutes will naturally guide
district courts to a reliable determination of whether a formal competency
hearing is necessary and, ultimately, whether the defendant is
incompetent.' See Olivares, 124 Nev. at 1149, 195 P.3d at 869 ("In addition
to the doubts that have been raised, the district court may consider all
available information, including any prior competency reports and any new
information calling the defendant's competency into question.").

6See, e.g., Humphreys v. State, Docket No. 52525, at *4 (Order of
Affirmance, Nov. 25, 2009) ("Nevada's governing statutes, as interpreted by
this court, set up a two-stage procedure that the district court must follow
whenever the question of a defendant's competency has been raised: First,
the district court must evaluate if there is any doubt as to the defendant's
competency. If there is, the court must suspend the proceedings and hold a
hearing to consider fully the doubts. Second, if as a result of considering
fully those doubts, the district court finds there is reasonable doubt
regarding a defendant's competency, the district court must order a full
competency evaluation pursuant to the provisions of NRS 178.415."
(citations omitted)).
7The dissent does not discuss NRS 178.405 or NRS 178.415, but
asserts our decision encourages "fishing expeditions" in which we "imagine"
evidence will surface. The dissent's comments belie the prescriptions of
NRS 178.415, which specifically invite new evidence for the purpose of
determining competency. NRS 178.415 requires a district court to appoint
two psychologists or psychiatrists, or one of each, to "examine" the
defendant, and the court must receive their "report of the examination."
NRS 178.415(1), (2). Both the prosecution and the defendant may
"introduce other evidence including, without limitation, evidence related to
treatment to competency and the possibility of ordering the involuntary
administration of medication . . . ." NRS 178.415(3).

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Procedural due process
We now turn to whether Goad was entitled to a competency
hearing as a matter of procedural due process.8 In Nevada, "[a] formal
competency hearing is constitutionally compelled any time there is
'substantial evidence that the defendant may be mentally incompetent to
stand trial. In this context, evidence is 'substantial if it 'raises a reasonable
doubt about the defendant's competency to stand trial.'" Melchor-Gloria, 99
Nev. at 180, 660 P.2d at 113 (quoting Moore v. United States, 464 F.2d 663,
666 (9th Cir. 1972)). "The trial court's sole function in such circumstances
is to decide whether there is any evidence which, assuming its truth, raises
a reasonable doubt about the defendant's competency."9 Id. A court must

8The State correctly acknowledged during oral argument before this
court that if Goad was incompetent at any point during trial, he was denied
substantive due process. However, Goad argues on appeal that he was
denied procedural due process insofar as he did not receive a hearing to
determine his competency, not that he was incompetent in fact and denied
his substantive due process right not to stand trial while incompetent. As
Goad stated during oral argument, the procedural due process right to a
hearing to determine competency—which protects and ensures the
substantive right not to stand trial while incompetent—has been treated
like it is structural. The Nevada Supreme Court has historically remedied
a district court's failure to provide a competency hearing when reasonable
doubt arose by reversing and remanding for a new trial, but it has not ruled
that such error is structural. See, e.g., Olivares, 124 Nev. at 1149, 195 P.3d
at 869; Fergusen v. State, 124 Nev. 795, 806, 192 P.3d 712, 720 (2008);
Williams v. Warden, 91 Nev. 16, 17, 530 P.2d 761, 761-62 (1975); Krause v.
Fogliani, 82 Nev. 459, 463, 421 P.2d 949, 951 (1966).

9The dissent missapplies Melchor-Gloria to argue reasonable doubt
about competency is solely a question of fact that is entirely "within the
discretion of the trial court." The very next line in Melchor-Gloria states,
"[t]he court's discretion in this area, however, is not unbridled." 99 Nev. at
180, 660 P.2d at 113. Indeed, in the ensuing paragraph, Melchor-Gloria
sets forth two jointly sufficient criteria for finding abuse of discretion and

14
consider evidence of incompetence in the aggregate, rather than separately
or in isolation. Drope v. Missouri, 420 U.S. 162, 179-80 (1975). "Once there
is such evidence from any source, there is a doubt that cannot be dispelled
by resort to conflicting evidence," Melchor-Gloria, 99 Nev. at 180, 660 P.2d
at 113 (quoting Moore, 464 F.2d at 666), and the court must, "sua
sponte, . . . order a competency hearing," Krause, 82 Nev. at 463, 421 P.2d
at 951. "If [evidence raising a reasonable doubt] exists, the failure of the
court to order a formal competency hearing is an abuse of discretion and a
denial of due process."10 Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113

violation of due process: evidence giving rise to a reasonable doubt about
competency, and failure to order a competency hearing. Reasonable doubt
is not evaluated for abuse of discretion; rather, it is a criterion for finding
an abuse of discretion. The dissent thus inverts the abuse of discretion
standard as it pertains to the reasonable doubt (puts the cart before the
horse). We do not evaluate whether reasonable doubt existed for abuse of
discretion; according to Melchor-Gloria, we find abuse of discretion where
reasonable doubt existed and the district court failed to order a competency
hearing. Since both criterion are present here, we must find an abuse of
discretion in this case.
loThe dissent asserts Melchor-Gloria states "three things courts must
weigh to determine whether a full competency hearing is required—the
defendant's history of irrational behavior, his demeanor at trial, and [any]
prior medical opinion of his competence to stand trial . . . ." Melchor-Gloria
states this information in a parenthetical citing to Drope, 420 U.S. at 180.
However, Drope states that these factors "are all relevant in determining
whether further inquiry is required, but that even one of these factors
standing alone may, in some cases, be sufficient." Id. Drope also notes that
there are no "fixed or immutable" factors for the trial court to address
because "the inquiry is often a difficult one in which a wide range of
manifestations and subtle nuances are implicated." Id. Thus, the dissent
mischaracterizes Melchor-Gloria as positing an exclusive list of sources
from which a district court may infer reasonable doubt. Drope shows that
these are potential sources used to assess doubt as to competency, not
exclusive factors.
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(citing Pate v. Robinson, 383 U.S. 375, 385 (1966)). A defendant cannot
waive his right to a competency hearing and, accordingly, does not waive
his right to a competency hearing by failing to request one. Krause, 82 Nev.
at 463, 421 P.2d at 951; see also Pate, 383 U.S. at 384.
Moore, the United States Court of Appeals for the Ninth Circuit
opinion from which Melchor-Gloria adopted its language regarding
reasonable doubt, dictates that an appellate court reviews a district court's
reasonable doubt determination (or lack thereof) based on the evidence
"before the court" at the time when reasonable doubt purportedly arose. 464
F.2d at 666. Federal precedent further indicates that any evidence in the
record is properly "before the [trial] court" at any given time. See United
States v. Brugnara, 856 F.3d 1198, 1215 (9th Cir. 2017) ("Such reasonable
[doubt] exists when there is substantial evidence in the record . . . ."
(internal quotations omitted)); Hernandez v. Ylst, 930 F.2d 714, 718 (9th
Cir. 1991) (finding that a court's pretrial determination of doubt properly
excluded a psychological report that was not in the record at the time the
determination was made); United States v. Veatch, 674 F.2d 1217, 1223 (9th
Cir. 1981) (stating that the court reviewed "the entire record that was before
the district court" to determine whether reasonable doubt existed). Thus,
when read in light of Moore, Melchor-Gloria's broad requirement that a
district court must consider "whether there is any evidence "from any
source" in its reasonable doubt determination extends to evidence of
incompetence in the record corresponding to the defendant's case, including
evidence adduced pretrial or before a different judge. 99 Nev. at 180, 660
P.2d at 113; Moore, 464 F.2d at 666.

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Reasonable doubt
The foregoing authority compels us to conclude that the district
court denied Goad due process because reasonable doubt existed on the
third and fourth days of trial and the court did not hold a competency
hearing. Pursuant to Moore and Melchor-Gloria, the district court was
required to consider any evidence of incompetence in the record to conclude
there was no reasonable doubt.11 Moore, 464 F.2d at 666; Melchor-Gloria,
99 Nev. at 180, 660 P.2d at 113. For example, the interrogation transcript
was among the evidence before the district court; i.e., in the record, on the
third and fourth days of trial. Thus, the court was required to consider any
information in the transcript pertinent to Goad's competency in its
reasonable doubt determination, including Goad's possible history of mental
health hospitalizations, the fact that doctors struggled to diagnose him, and
his past use of various psychoactive medications.
We understand that, as a practical matter, district courts do not
typically scrutinize every item in the record of every case. However, the
Nevada Supreme Court has not limited the scope of the evidence that
Mekhor-Gloria requires a district court to consider. At a minimum,
Melchor-Gloria requires a district court to consider evidence in the record,

11The district court never stated on the record that a reasonable doubt
did or did not exist as to Goad's competency; however, a trial court impliedly
determines there is no reasonable doubt as to a defendant's competency if
it fails to exercise its sua sponte duty to order a competency hearing. See
Drope, 420 U.S. at 181 ("[A] trial court must always be alert to
circumstances suggesting a change that would render the accused unable
to meet the standard of competence to stand trial."); Moore, 464 F.2d at 666
("At any time . . . evidence [raising a reasonable doubt as to defendant's
competency] appears, the trial court sua sponte must order an evidentiary
hearing on the competency issue."); Fergusen, 124 Nev. at 802, 192 P.3d at
717; Krause, 82 Nev. at 463, 421 P.2d at 951.

17
given that Moore, the case from which the supreme court adopted the
standard announced in Melchor-Gloria, specifies that the record is among
the sources of evidence a district court must consider. Yet, the district court
must also consider the defendant's behavior at trial, which may not be
reflected in the record. See Drope, 420 U.S. at 180 ("[E]vidence of a
defendant's irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial are all relevant in determining
whether further inquiry is required . . . .”). Thus, the burden of holding
district courts to account for evidence of incompetence in the record is
neither novel nor exhaustive of a district court's duty to ensure a defendant
is competent during trial.
Additionally, the burden established by the Nevada Supreme
Court in Melchor-Gloria is apt given that it ultimately serves to protect the
right to be competent while one stands trial. The right to a hearing to
determine competency safeguards the substantive due process right not to
stand trial while incompetent, which is
rudimentary, for upon it depends the main part of
those rights deemed essential to a fair trial,
including the right to effective assistance of
counsel, the rights to summon, confront, and to
cross-examine witnesses, and the right to testify on
ones own behalf or remain silent without penalty
for doing so.

Riggins v. Nevada, 504 U.S. 127, 139-40 (1992) (Kennedy, J., concurring).
If we allow a district court to overlook portions of the record, we risk
curtailing the evidence of incompetence that will come to the coures
attention. See Fergusen, 124 Nev. at 802, 192 P.3d at 718 (stating that a
district court may not assign the determination of whether a defendant is
competent to a different judge during trial because doing so would interrupt

18
the trial judge's ongoing assessment of the defendanes competence). This
would decrease the likelihood that a court will find reasonable doubt exists
as to the defendanes competency, and the right to a competency hearing
would become dependent upon the trial coures diligence in reviewing the
record. This is particularly so in cases where the defendant's behavior
during trial could seem negligible in isolation, but when considered in light
of evidence in the record that was submitted pretrial, the doubtfulness as
to competency may become palpable.
The evidence of Goad's incompetence that was properly before
the district court gave rise to a reasonable doubt in the aggregate. As
stated, the district court was required to consider any evidence of
incompetence in the record and its own observations in light of other
evidence or observations bearing on Goad's competence in reaching its
reasonable doubt determination. See Drope, 420 U.S. at 179-80. In the
aggregate, the crime of which Goad was accused—stabbing his elderly
friend 250 times and repeatedly visiting the victim's apartment following
the victim's death;12 Goad's apparent history of mental health issues and

'2A1though the extreme nature of the stabbings of which Goad was
accused and his returns to the crime scene do not prove that he was
incompetent at trial, the fact that he apparently engaged in such irrational
behavior is a factor a district court must weigh in determining whether
reasonable doubt exists. See Drope, 420 U.S. at 179 (stating that the trial
court failed to give proper weight to record evidence, including the victim's
testimony that the defendant allegedly attempted to choke her to death on
the Sunday prior to trial); id. (stating that the trial court may not ignore
"the uncontradicted testimony of a history of pronounced irrational
behavioe); Doggett, 93 Nev. at 595, 572 P.2d at 209 (citing Pate, 383 U.S.
375) (stating that the Supreme Court held in Pate v. Robinson that there
was a reasonable doubt about Pate's competency in part due to
"uncontradicted testimony of defendant's long history of disturbed and
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psychoactive medication use; the fact that Goad was deprived of medication
on the third day of trial; and the fact that Goad became debilitated on the
third day of trial—which was corroborated by defense counsel, the State,
and the district court—collectively suggested that Goad was deprived of a
medication that stabilized his mental health, was suffering from
withdrawals, or was somehow adversely affected by not having taken the
medication. Thus, the evidence of Goad's incompetence gave rise to a
reasonable doubt as to whether Goad was competent on the third day of
tria1.13 See Melchor-Gloria, 99 Nev. at 179-80, 660 P.2d at 113; see also NRS

violent episodes, including the slaying of his infant son and an attempted
suicide").
13 The dissent states that, by "aggregating," we mean that a district
court must "conduct a full-blown hearing and investigation." Indeed, "that's
not how the legal test works [1" However, this is not how we applied the
aggregating principle. The aggregating principle requires a trial court to
consider evidence of potential incompetence in light of other such evidence
rather than in isolation when determining reasonable doubt. See Chavez v.
United States, 656 F.2d 512, 517-18 (9th Cir. 1981). In isolation, being
deprived of medication does not imply that the medication could affect
Goad's competency; the medication conceivably could have treated a purely
physical ailment that does not impact competency. Applying the
aggregating principle, it becomes more likely that the deprivation of
medication affected his competency because the district court must consider
the deprivation in light of other evidence, including Goad's behavior, the
court's worry that Goad "might fall out," that Goad has historically relied
on psychoactive medication to stabilize his mental health, and the urgency
with which staff had to administer Goad's medication. See 40 Am. Jur. 2d
Proof of Facts 171, § 10 cmt. (2021 Update) ("It would seem prudent to
require a competency hearing any time a defendant is taking medication or
drugs which may have an effect on his mental capabilities. This would
protect the defendanfs interests and also save the state considerable time
and expense by obviating the situation in which a lengthy trial would be
nullified due to a subsequent determination that the defendant was legally
incompetent to stand trial.").
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40> 1947K 414Via
178.400(2); People v. Moore, 946 N.E.2d 442, 448 (1ll. App. Ct. 2011)
(providing that a "bona fide doubt" arose when the "chemically-dependent"
defendant, who needed antidepressants to be fit for trial, was "suddenly
made to go off his medication," and that the trial court could not shirk its
sua sponte duty to order a competency hearing by placing the burden on
defense counsel to inquire into the matter).
Goad's competency only became more doubtful on the fourth
day of trial when he inexplicably lost his ability to speak and refused to
acknowledge his counsel despite never refusing to do so before. Thus, the
evidence of Goad's potential incompetence in the record, in the aggregate,
raised a reasonable doubt as to Goad's competence on the third and fourth
days of trial.
The evidence the State cites to contradict the reasonable doubt
that arose during trial did not dispose of the court's duty to order a
competency hearing. A reasonable doubt cannot be dispelled by resorting
to conflicting evidence once there is evidence of incompetence sufficient to
give rise to a reasonable doubt. Melchor-Gloria, 99 Nev. at 180, 660 P.2d at
113. Therefore, the evidence that the State cites to suggest that Goad was
competent, including that Goad was apparently medically cleared on the
fourth day of trial by an unknown person from the jail staff and Goad's
comprehension and nonverbal responsiveness during the court's canvass,
did not obviate the need for a competency hearing.N See Pate, 383 U.S. at
385 (rejecting the argument that "the mental alertness and understanding
displayed in [the defendant's] colloquies with the trial judge" dispensed with
the need for a competency hearing (internal quotations omitted)).

14Additiona11y, the district court's canvass did not cover the criteria
for incompetency as provided by NRS 178.400(2).
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Neither Goad's expressed desire to proceed nor defense
counsel's request for a canvass waived Goad's right to a competency
hearing. A defendant cannot waive his right to a competency hearing.
Krause, 82 Nev. at 463, 421 P.2d at 951 (citing Pate, 383 U.S. at 384). Goad
did not waive his right to a competency hearing by not specifically
requesting one either. See Pate, 383 U.S. at 384 (rejecting the prosecution's
argument that the defendant waived his right to a competency hearing
because his counsel failed to demand a hearing). Thus, the States
argument that the district court satisfied due process by obliging defense
counsel's request for a canvass and by confirming that Goad desired to
proceed is unpersuasive.15
The States analogy to Lipsitz overlooks that there are stronger
indicia of incompetence in Goad's case. In Lipsitz, the Nevada Supreme
Court held that a trial court did not err when it "relied on defense counsel's
assurances, its own interactions with [the defendant], and his responses to

15The dissent cites no authority for its conclusion that, " [i] f Goad can't
quite bring himself to say that he was incompetent in truth and in fact, then
I would conclude that there exists no 'reasonable doubar This is a classic
"red herrine because Goad was not required at trial, or now on appeal, to
assert he was incompetent. The quantum of proof for a defendant to be
entitled to a competency hearing is reasonable doubt. Melchor-Gloria, 99
Nev. at 180, 660 P.2d at 113. Due process required he receive a hearing
when there was reasonable doubt as to his competency, and the hearing was
not conditioned upon Goad or his counsel asserting that he was incompetent
in fact. Thus, even if he ultimately would have been found competent at
trial, he was still entitled to a hearing under NRS 178.415 to confirm he
was competent because there was a reasonable doubt. Additionally, NRS
178.415 shows competency in fact is a question requiring medical expertise:
a court may determine competency in fact only after receiving reports from
experts. We cannot expect Goad to declare in good faith that he was
incompetent when we would not allow a district court to reach the same
conclusion without the assistance of experts.
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the coures canvass in arriving at its determination that a competency
hearing was not warranted." 135 Nev. at 135, 442 P.3d at 142. The supreme
court concluded that the defendanes obstinacy was not sufficient to raise a
reasonable doubt as to the defendant's competence. Id. at 135, 442 P.3d at
142-43.
The State is correct that, like the district court in Lipsitz, the
district court here performed a canvass—albeit a brief one—and relied in
part on assurances from counsel that Goad desired to proceed with trial.
Similarly, Goad appeared to behave "obstinatelf on the morning of the
fourth day of trial when he refused to acknowledge his counsel. However,
unlike Goad, who was deprived of medication and whose psychiatric and
medical history suggested that the deprivation of the medication affected
his competency, there was no reason to believe that Lipsitz had been
deprived of medication that affected his competency.
Furthermore, Lipsitz's obstinacy was preceded by a pattern of
attempts to obstruct trial proceedings. Id. at 132-34, 442 P.3d at 141-42.
Comparatively, there is no indication in the record that Goad behaved
inappropriately, previously refused to acknowledge defense counsel, or
otherwise obstructed the proceedings prior to the fourth day of trial. On the
contrary, Goad's obstinacy on the fourth day of trial weighs in favor of
finding that reasonable doubt existed because, according to the district
court, he was well-behaved throughout trial. Based on the record, Goad's
temperament changed only after he was deprived of medication. See Drope,
420 U.S. 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."); see generally Hawaei

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v. Soares, 916 P.2d 1233, 1250 (Haw. Ct. App. 1996), overruled on other
grounds by State v. Janto, 986 P.2d 306 (Haw. 1999).16
In sum, federal due process jurisprudence and the Nevada
Constitution required the district court to order a competency hearing sua
sponte because reasonable doubt arose as to Goad's competency on the third
day of trial in light of the nature of the charged crime, Goad's history of
mental health conditions and use of psychoactive medications, Goad being
deprived of medication, and Goad's abnormal behavior thereafter. The
reasonable doubt that accrued on the third day of trial continued into the
fourth day of trial, where Goad's competency became even more doubtful in
light of his inability to speak and his refusal to acknowledge his counsel.
We emphasize that the record does not suggest that Goad was feigning his
behavior or attempting to manipulate the court at any time.
Although we conclude there was sufficient evidence to give rise
to a reasonable doubt, our conclusion should not be interpreted as endorsing
or opposing an inference that Goad was in fact incompetent during trial.

16A1though Nevada competency jurisprudence has not previously
addressed the significance of deprivation of medication with regard to a
court's reasonable doubt determination, Goad's case is very similar to
Soares. 916 P.2d at 1250. In Soares, the Intermediate Court of Appeals of
Hawail held that "a good faith doube—HawaiTs rendition of the
"reasonable doubt" standard—arose based upon the defendant's assertion
that he had not received his medication that morning and his trial counsel's
representation that he "was acting completely differently from the first day
of trial." Id. The court explained that it was "not clear from the record
whether [d]efendant required the medication in order to be mentally
competent to proceed to trial. However, in view of [d] efendant's assertion,
as well as his trial counsel's representations that [d] efendant was acting
completely differently from the first day of trial [,] . . . a good faith doubt was
clearly raised as to whether [d] efendant's failure to take his medication was
directly affecting his legal competence to stand trial." Id.

24
We reiterate that the district court was required to "decide whether there
is any evidence which, assuming its truth, raise[d] a reasonable doubt"
about Goad's competency. See Melchor-Gloria, 99 Nev. at 180, 660 P.2d at
113 (emphasis added) (quoting Moore, 464 F.2d at 666). We thus do not
resolve whether Goad was telling the truth when he made the statements
documented in the interrogation transcript, whether the medication did in
fact impact his competency, or any other matter bearing on Goad's
competency except to the extent that it gave rise to a reasonable doubt
necessitating a competency hearing.
Remedy
In every case where the Nevada Supreme Court has found on
direct review that a trial court failed to order a competency hearing when
reasonable doubt existed, it has reversed the judgment of conviction and
ordered a new trial.17 When the case entailed review of a petition for a writ
of habeas corpus, the court discharged the petitioner from confinement
unless the State elected to retry the petitioner within a reasonable time. 18
Despite this uniformity, the Nevada Supreme Court has not ruled that
reversal and remand for a new trial is always required when a trial court

17See Olivares, 124 Nev. at 1149, 195 P.3d at 869 (reversing
defendant's conviction and remanding the case to district court to conduct a
new trial); Fergusen, 124 Nev. at 806, 192 P.3d at 720 (reversing the
defendanes conviction and remanding the case for a new trial).

18See Williams, 91 Nev. at 17, 530 P.2d at 761-62 (reversing a habeas
petitioner's conviction because the trial court failed to order a competency
hearing and "discharg[ing] [petitioner] from confinement unless the State
within a reasonable time elects to retry him"); Krause, 82 Nev. at 463, 421
P.2d at 951 (discharging a habeas petitioner from confinement due to a trial
court's failure to sua sponte order a competency hearing "unless the State,
within a reasonable time, elects to retry him").
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fails to order a competency hearing. See Krause, 82 Nev. at 463, 421 P.2d
at 951 (stating that the court "prefer[s] the United States Supreme Court's
remedy in Pate of reversal and remand due to the difficulty of holding a
limited retrospective hearing). Nor has the United States Supreme Court
ruled that reversal and remand is the exclusive remedy when a court
violates Pate. See Pate, 383 U.S. at 386; Drope, 420 U.S. at 183.
In lieu of reversal and remand, appellate courts have at times
remedied trial courts failures to order a competency hearing with a
retrospective, or nunc pro tunc, competency hearing. See Odle, 238 F.3d at
1089-90 ("The state court can nonetheless cure its failure to hold a
competency hearing at the time of trial by conducting one retroactively.").
A nunc pro tunc hearing is a hearing that takes the place of a
contemporaneous hearing, as if it had been held at an earlier time. See
louri v. Ashcroft, 464 F.3d 172, 181-82 (2d Cir. 2006), opinion modified and
superseded on denial of rehearing, 487 F.3d 76 (2d Cir. 2007).
The utility of a retrospective competency hearing is clear: " [a] n
automatic full reversal with a remand for a new trial . . . would impose
severe costs on the justice system in remedying a violation that, while
considered a miscarriage of justice in the context of competency
proceedings, might not have affected the guilt and penalty verdicts." People
v. Lightsey, 279 P.3d 1072, 1102 (Cal. 2012). "[I]f placing [the] defendant in
a position comparable to the one he would have been in had the violation
not occurred is possible," and the district court finds that the defendant was
competent to stand trial on remand, then "we would have no reason to

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question the fundamental fairness and reliability of the remainder of the
judgment against him." Id.
However, before a nunc pro tunc competency hearing can occur,
the district court must determine on remand that a meaningful
retrospective hearing to determine competency is feasible.'9 See Odle, 238
F.3d at 1089-90; see also McGregor v. Gibson, 248 F.3d 946, 962 (10th Cir.
2001) ("Retrospective competency hearings are generally disfavored but are
permissible whenever a court can conduct a meaningful hearing to evaluate
retrospectively the competency of the defendant." (internal quotations
omitted)). A retrospective competency hearing is "feasible if there is
sufficient evidence available to reliably determine a defendant's competence
at or around the time reasonable doubt arose. Lightsey, 279 P.3d at 1104-
05. To determine whether a retrospective competency hearing is feasible, a
trial court must consider the following factors:
(1) [t]he passage of time, (2) the availability of
contemporaneous medical evidence, including
medical records and prior competency
determinations, (3) any statements by the
defendant in the trial record, and (4) the
availability of individuals and trial witnesses, both
experts and non-experts, who were in a position to
interact with [the] defendant before and during

19The dissent states, "there is nothing for the district court to
aggregate on remand." The dissent again confuses reasonable doubt with
determining competency in fact. The aggregating principle applies when a
court is considering whether there is reasonable doubt such that a hearing
is necessary, not during a competency hearing when a court determines if a
defendant is incompetent in fact under NRS 178.415. Similarly, the
dissent's comments regarding the scope of a competency hearing, which are
not supported by authority, completely overlook NRS 178.415, the
controlling statute.
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trial as well as any other facts the court deems
relevant.

Id. at 1105 (alterations in original) (citation and internal quotations
omitted). The trial court's focus in making "the feasibility determination
must be on whether a retrospective competency hearing will provide [al
defendant a fair opportunity to prove incompetence, not merely whether
some evidence exists by which the trier of fact might reach a decision on the
subject." Id. (emphasis omitted). "Because of the inherent difficulties in
attempting to look back at the defendant's past mental state, the burden of
persuasion" is on the prosecution to convince the trial court "by a
preponderance of the evidence that a retrospective competency hearing is
feasible in this case."2° Id. (citation omitted).
We conclude that vacating the judgment of conviction and
ordering a retrospective, or nunc pro tunc, competency hearing is the
appropriate remedy for the district court's violation. If, on remand,21 the

20During oral argument, we asked the parties if it would be feasible
at this time to conduct a hearing to determine Goad's competence during
his trial. Neither party conceded that it would be feasible, but neither
argued that it would be impracticable or impossible. Notably, neither party
suggested that there are any impediments in determining the effect of being
deprived of the medication Goad was receiving, which would likely be the
focus of the feasibility determination and, if feasible, the subsequent nunc
pro tunc competency hearing.
21Remanding a case for the district court to make a determination on
a specific issue is not a novel practice for a Nevada reviewing court. See
Harvey v. State, 136 Nev., Adv. Op. 61, 473 P.3d 1015 (2020) (reversing a
judges rulings on post-trial motions who sat in for the trial judge and
remanding the case for the trial judge to consider the motions). Lightsey
further explains that "a limited remand for the purpose of conducting, if
feasible, a retrospective competency hearing is akin to a limited remand to
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10) 194713 4110.
district court determines that a hearing to retrospectively determine Goad's
competence is not feasible in accordance with the forgoing prescripts, then
the judgment of conviction remains vacated and the district court is ordered
to conduct a new trial.22 See id. at 1120. If the district court determines
that a hearing is feasible, then it shall conduct the hearing in accordance
with NRS 178.415.23 If, at the conclusion of the hearing, the district court
finds that Goad was competent throughout his 2019 trial, then the court
shall reinstate its judgment of conviction. See NRS 178.420; Lightsey, 279
P.3d at 1120. Alternatively, if the court finds that Goad was incompetent,
then the district court must conduct a new trial.24 Id.

remedy a sentencing error that has not affected the judgment of guilt." 279
P.3d at 1103.

22Pursuant to Lightsey, a reviewing court reverses the judgment of
conviction and remands the case for a nunc pro tunc hearing with
instructions to conduct a new trial if the hearing is not feasible or the result
of the hearing is that the defendant is found to have been incompetent. See
Lightsey, 279 P.3d at 1120. We choose to vacate because the judgment of
conviction may be reinstated depending on the outcome of the hearing.

231n Doggett v. Warden, the Nevada Supreme Court, in reviewing a
petition for postconviction relief, commented that the burden of proof in a
retrospective hearing to determine competency is sometimes allocated to
the State. 93 Nev. 591, 595, 572 P.2d 207, 210 (1977) ("It is only when the
trial court has failed to follow the procedural requirements of Pate that the
State is required to forgo its usual requirement that the defendant establish
his incompetence as of the date of the original trial."). Because the Doggett
court reviewed an order denying a petition for a writ of habeas corpus that
did not allege a Pate violation, and because the decision predates the
enactment of Nevada's current competency hearing statute, NRS 178.415,
we need not decide its possible application here.

24The dissent cites an unpublished case, State v. Fifth judicial Dist.
Court, to argue that the Nevada Supreme Court has ruled against the
remedy we order here. Docket No. 53926 (Order Granting Petition, Sept.

29
CONCLUSION
Trial courts have a duty to ensure that criminal defendants are
competent while standing trial. Thus, a trial court must order a hearing
sua sponte to determine whether a defendant is competent when there is
reasonable doubt about his or her competency. To fulfill its duty to order a
competency hearing, a trial court must follow Nevada's statutory
competency procedures and consider any evidence of incompetence in the
record regardless of whether that evidence was adduced pretrial or during
trial. In reaching its reasonable doubt determination, the trial court must
consider evidence of incompetence in the aggregate; that is, evidence of
incompetence should be considered in light of other evidence of
incompetence as well as the court's own observations of the defendant. If a
trial court fails to order a competency hearing when reasonable doubt
arises, an appellate court may remedy the failure by remanding the case to
the trial court to hold a retrospective hearing to determine whether the
defendant was incompetent during trial, provided the trial court first
determines on remand that it is feasible to retrospectively determine the
defendanes competence.

25, 2009) ("Nevada law does not permit a trial court to vacate prior
proceedings based upon present doubt as to past competency."). Even if this
decision bo-und us, which it does not, see NRAP 36(c)(3), our remedy does
not vest the district court with power to "vacate prior proceedings." This
court is vacating the district court's judgment, and the district court will
reinstate the judgment of conviction if a competency hearing is feasible and
the district court determines that Goad was competent during his trial after
the hearing. Otherwise, the district court must conduct a new trial
pursuant to our order.
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Accordingly, we order the judgment of conviction vacated and
remand this case for a retrospective competency hearing, if feasible, and
any such other proceedings consistent with this opinion.

s.

71 , C.J.
Gibbons

I concur:

J.
Bulla

31
TAO, J., concurring in part and dissenting in part:
The majority resolves this appeal by vacating a murder
conviction in favor of a remedy—a retrospective competency hearing to be
held more than 21 months after the original trial—that Goad himself never
requested; that the Nevada Supreme Court has already announced that
district courts cannot order; and that doesn't even apply to the facts of this
case. The majority ends up vacating a murder conviction for the district
court to "aggregate additional evidence that Goad himself doesn't claim to
exist, for the purposes of assessing the truth of something that Goad himself
doesn't claim to be true. "There's no there there to aggregate. Gertrude
Stein, Evelybody's Autobiography (1937). Respectfully, I dissent.
I.
Goad stabbed his victim a total of 250 times in one of the most
brutal and bloody murders in recent memory. Goad has been diagnosed
with a mental illness, and it's pretty clear that he has one of some sort; the
excessive and wanton violence of the crime alone seems to suggest that. But
what we don't know is whether his mental illness either did, or did not,
render him incompetent on one particular day several months after the
murder, day four (August 8, 2019) of his trial. As the majority notes, the
record is devoid of sufficient information. For example, as the majority
specifically notes (and greatly emphasizes), we don't know much about his
precise diagnosis, as he was apparently never examined by a psychologist
or psychiatrist during the litigation of this case, and we don't know what
medications he was administered during his trial and how they may, or may
not, have affected him.
This lack of information matters, because mental illness and
legal incompetence are two very different things. Many people who suffer
from various mental illnesses are fully competent to stand trial for the
crimes they commit. The test for legal incompetence is altogether different,
and considerably harder to meet, than the test for whether someone suffers
from one of the many mental illnesses listed in the DSM (Diagnostic and
Statistical Manual of Mental Disorders, published by the American
Psychiatric Association). A court measures competence not by whether the
defendant has a mental illness, but rather something very different: by the
defendant's ability to understand the nature of the criminal charges, the
nature and purpose of the court proceedings, and by his or her ability to aid
and assist his or her counsel in the defense at any time during the
proceedings with a reasonable degree of rational understanding. Calvin v.
State, 122 Nev. 1178, 1182-83, 147 P.3d 1097, 1100 (2006); Dusky v. U.S.,
362 U.S. 402, 402 (1960); see NRS 178.400(2)(a)-(c).
"Diagnosis of a mental illness or defect, without more, does not
reasonably raise doubt about defendant's competence to stand trial."
Robinson v. State, 301 So. 3d 577 (Miss. 2020); see People v. Lara, (Cal. Ct.
App., Dec. 20, 2006, No. B186598) 2006 WL 3734924, at *2 (noting
psychologist's evaluation that defendant was mentally ill but not
incompetent); Commonwealth v. Zook, 887 A.2d 1218, 1225 (Pa. 2005)
(affirming trial judge's conclusion that defendant was "mentally ill and not
incompetent to proceed"); Bishop v. Caudill, 118 S.W.3d 159, 167 (Ky. 2003)
(Keller, J., concurring) (noting entire class of cases "where the defendant is
mentally ill, but not incompetent"). The Nevada Supreme Court agrees: "]a
defendant's] history of drug abuse, possible PTSD, and mental health
history, without more, did not indicate that he was unable to consult with
his attorney or understand the proceedings against him." Eubanks v.
Baker, Docket No. 68628, at *1 (Order of Affirmance, May 9, 2016) (citing

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Melchor-Gloria v. State, 99 Nev. 174, 179-80, 660 P.2d 109, 113 (1983), and
Dusky, 362 U.S. at 402).
Quite the opposite can often be true: people with mental
illnesses can function at such a high level that several have won Pulitzer
Prizes and Nobel Prizes for their work. See James C. Kaufman, Genius,
Lunatics, and Poets: Mental Illness in Prize-Winning Authors, SAGE J., Vol.
20, Issue 4, pp. 305-14 (Yale Univ. June 1, 2001); A. Rothenberg, Creativity
and Mental Illness, Am. J. of Psychiatry, 152:5, pp. 815-16 (1995). Meeting
the basic test of legal competency is many orders of magnitude less complex
than the kind of sustained genius that wins those kinds of awards. Genius
aside, millions of other people diagnosed with mental illnesses are
nonetheless fully competent to sign contracts, raise children, be licensed to
drive, open bank accounts, write valid wills, hold important jobs, grant or
refuse consent to medical treatment, make important life choices without
being overruled by a court-appointed guardian, and be put on trial for the
crimes they commit. See Munsey v. State, 2004 WL 587642 (Tenn. Crim.
App. 2004) (finding that a mentally ill defendant was fully competent to
waive right to counsel); In re Yetter, 1973 WL 15229 (Pa. Ct. Comm. Pleas
1973) (refusing to appoint a guardian to oversee medical decisions for a
person who had mental illness but was fully competent to make her own
medical decisions). See generally Claudine Walker Ausness, Note: The
Identification of Incompetent Defendants: Separating Those Unfit for
Adversary Combat From Those Who Are Fit, 66 Ky. L. J. 666, 679 (1977-78).
On the other hand, people can be incompetent for reasons
entirely unrelated to mental illness. Intoxicated defendants, for example,
may be incompetent (albeit temporarily). In Nevada, children under six
years of age are presumptively incompetent to testify in judicial

3
proceedings. People suffering from Alzheimer's disease or dementia, or who
have suffered certain types of head injuries, may be incompetent despite
having no diagnosed mental illness whatsoever. Competence can
sometimes come and go; someone can be incompetent to testify at one period
in time but fully competent at another. See Felix v. State, 109 Nev. 151,
173, 849 P.2d 220, 235-36 (1993), superseded by statute on other grounds as
stated in Springman v. State, Docket No. 50325 (Order of Affirmance,
February 10, 2009).
Of course, it goes without saying that for many people mental
illness and competency can be related. Some people suffer from mental
illnesses so severe that they render that person legally incompetent,
sometimes permanently. But the larger point is that the link between the
two things is at best imperfect. The presence of one does not necessarily
suggest the other. In fact, the link is so tenuous that mental illness cannot
even be said to usually or commonly suggest legal incompetence. See
Robinson, 301 So. 3d at 582; Bishop, 118 S.W.3d at 167 (noting entire class
of cases "where the defendant is mentally ill, but not incompetent"). If we're
going to get the analysis right, then as the saying goes, we need to make
sure apples are sorted with apples and oranges with oranges.
II.
The answer to our lack of knowledge isn't to vacate the
conviction and remand for a retrospective hearing, because that approach
turns such a hearing into something it isn't supposed to be: rather than a
focused judicial weighing of existing evidence, it becomes a tool of open-
ended investigation and discovery requiring the district court to conduct a
free-floating fishing expedition for new information totally outside of the
record and beyond the evidence that the parties decided to present on their

4
behalf, regardless of whether the parties want the new evidence or think it
helps them or not. Worse, it directs the district court to do this even though
Goad did not request such an investigation either before or during trial.
Fundamentally, it reverses not because the district court
committed any legal error in evaluating what the parties actually
presented, but rather because the majority imagines that there might be
some evidence outside the record that the parties overlooked that the court
was never asked to consider but that someone ought to now go look for, 21
months after the fact. Mind you, the majority tacitly admits that we don't
know what that evidence might be, because it isn't enough for this court to
actually conclude that Goad was so clearly incompetent that the district
court must conduct a new trial. Rather, the majority expressly leaves open
the possibility that the district court is free on remand to conclude that any
additional evidence it finds might not be enough to warrant a full
competency adjudication, much less demand the conclusion that Goad was
incompetent to stand trial on day four. So whatever additional evidence
might be out there (whatever it is) could go either way. But let's vacate
Goad's murder conviction and require the district court to look anyway.
This isn't how such hearings are supposed to work. They're not
supposed to be open-ended discovery searches. Rather,
[t] his court "disfavor [s] retrospective
determinations of incompetence," see Williams v.
Woodford, 384 F.3d 567, 608 (9th Cir. 2004), and
they are reserved for those cases where it is
possible to "conduct a meaningful hearing to
evaluate retrospectively the competency of the
defendant." Moran v. Godinez, 57 F.3d 690, 696
(9th Cir. 1995), overruled on other grounds by
Lockyer v. Andrade, 538 U.S. 63, 75-76, . . . (2003);
see Drope [v. Missouri], 420 U.S. [162,]
183 . . . [(1975)] (holding that "[Oven the inherent
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difficulties of such a nunc pro tunc determination
under the most favorable circumstances," a
retrospective competency hearing six years after
the trial was not possible). In determining whether
such a hearing is warranted, we evaluate such
factors as the passage of time and the availability
of contemporaneous medical reports. Moran, 57
F.3d at 696; see also McMurtrey [v. Ryan], 539 F.3d
[1112,1 1131-32 [(2008]).
Maxwell v. Roe, 606 F.3d 561, 576 (9th Cir. 2010). Requiring one when we
have no idea if any concrete evidence even exists risks morphing Goad's trial
from an adversarial proceeding into something more like an inquisitorial
one (familiar to Europeans) in which the judge, not the parties, directs the
investigation, decides where to look, and decides what should matter to the
parties whether they like it or not. That might be how things work in
Europe, but ies not how we're supposed to handle things. In our adversarial
system of justice, when the record lacks information necessary to warrant
reversal, the solution is to conclude that the appellant failed to meet his or
her burden of demonstrating that he or she is entitled to relief. In Nevada,
the burden falls on the appellant trying to overturn a jury verdict to provide
us with a complete enough record to make a case for reversal, and if he or
she fails to do so we "necessarily presume that the missing portion supports
the district coures decision." Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123
Nev. 598, 603, 172 P.3d 131, 135 (2007). This premise is sometimes phrased
in an alternative: we "cannot properly consider matters not appearing in
th[c] record." Johnson v. State, 113 Nev. 772, 776, 942 P.2d 167, 170 (1997).
Here, the record contains ample evidence of mental illness, but
none whatsoever that Goad has ever been legally incompetent at any time
in his long 74-year life. Indeed, he never claimed to be incompetent at any
time during the litigation of his murder case: he did not assert a defense of

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insanity or diminished capacity in response to the charges, and his trial
counsel never argued to the district court that he believed his client was
incompetent to stand trial or assist in his defense. Goad and his counsel
presented no evidence at all that he has ever been legally incompetent for
even a single minute of his life, and Nevada law holds that lack of
information against the party bearing the burden of proof on appeal, which
is Goad. Yet by reversing anyway, the majority assumes something it
doesn't want to say: that by failing to challenge competency more
vigorously, Goad's counsel was basically ineffective and two judges of this
court are going to give him a second chance to come up with more evidence
than he presented the first time. But unlike my colleagues, I'm not willing
to jump to the conclusion that counsel failed at his job. Rather, I would
think that if anyone knows Goad's mental competence, it would be counsel
in close contact with him during the litigation of a murder trial over the
course of several months, rather than appellate judges viewing nothing but
a written transcript almost two years later.
Quite to the contrary, one fact stands out: Goad doesn't even
claim himself that he was incompetent during his trial. In determining
whether a full competency hearing is required, courts focus on three factors:
the defendant's history of irrational behavior, the defendant's demeanor at
trial, and prior medical opinion of the defendant's competence to stand trial.
Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113 (citing Drope, 420 U.S. at
180). Two of the three are nonexistent by Goad's own admission, and the
third supports the district court.
As a starting point, Goad admits that he goes long periods of his
life without taking any medication for his mental illness; in fact, he told the
police during a recorded and transcribed interrogation that he was

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medication-free for seven years before his arrest, and he never disavows the
truth of that statement, not even now. See Transcript of March 2019 Police
Interview, 1 JA 124: "Q: When was the last time you took, you took your
medications? A: 7 years ago . . . . So 7 years I went without medicine." Yet
he never claimed to be legally incompetent. In district court, Goad never
argued that he was incompetent either before or during trial, and indeed
while the district court conducted the canvass that gives rise to this appeal,
neither Goad nor his counsel suggested that there existed any past history
of incompetency. On appeal, his counsel expressly admitted that there is
no evidence that Goad has ever been diagnosed or adjudicated incompetent
by any physician or court at any time during his 74-year life, not even
during the years when he was medication-free.
[Court:1 1B1ut mental illness and incompetence are
two different things, so my question to you is, has
he ever in his seventy-four years been adjudicated
incompetent by any other court, because it doesn't
appear anywhere during the lifespan of this case
before trial that anyone raised any questions of his
competency despite the fact that he clearly has a
mental illness. Has anyone ever, other than this
one day in time, had questions about his
competency as opposed to his overall mental
health?

[Goad:1 . . . In the record, before the district court or
anything that was currently in the appellant record
there is no other indication that Mr. Goad has been
formally adjudicated incompetent by a court.
Notably, the question asked during argument wasn't just whether he's ever
been formally adjudicated legally incompetent, but whether anyone has
ever "had questions" about his competency, to which the answer was
negative. If any such evidence existed, this was certainly the prime moment
for counsel to mention it.
8
Conclusion: there is simply is no evidence that Goad was ever
legally incompetent to stand trial for murder, either with or without
medication.
Indeed, if you look closely and carefully at both the record and
Goad's briefing, Goad himself never actually asserted that he was ever
incompetent, either to the district court or, notably, even in his briefing on
appeal to this court even after having had almost two years to think about
it. The best argument that Goad makes is the cleverly worded one that "due
process clearly required that Mr. Goad be evaluated for his competence to
stand trial." (Appellant's Opening Brief, page 15.) His "Summary of
Argument" elaborates:
In this case, Mr. Goad was found to be seriously ill
on the afternoon of August 7. When he returned to
court on August 8, he refused to engage with or
acknowledge counsel, and appeared unable to
assist counsel in his own defense. Given these
circumstances, the district court abused its
discretion in failing to initiate formal competency
proceedings.
(Appellant's Opening Brief, p. 10.) We all know that Goad was mentally
"ill," but notice what's cleverly missing from even Goad's own carefully
parsed argument: the factual assertion that he has ever been incompetent,
either before August 8, on August 8, or at any time after August 8 through
today. His argument is all about day four of the trial, August 8. He concedes
(and the majority accepts) that he was fully competent on days one and two
of the trial, and then fully competent on every day after day four. But even
as to day four itself, nowhere does he go so far as to allege that he actually
was, as a medical truth, incompetent. So it appears to me that Goad just
wants a reversal of his murder conviction for the purely rhetorical reason
that the evidence might suggest victory based upon grounds that he himself

9
does not personally say were factually true. Unlike the majority, I don't
assume that counsel must have done a bad job. Rather, I see this as good
and clever lawyering, the kind of quality representation that every
defendant facing murder charges deserves to have but relatively few ever
get. But good lawyering by itself doesn't mean that reversal is warranted.
If Goad can't quite bring himself to say that he was incompetent in truth
and in fact, then I would conclude that there exists no "reasonable doubt"
about it: it's just not true. At the very least, we must conclude that the
existing record supports no other conclusion.
The majority thus remands this matter back to the district
court for supposedly failing to "aggregate" evidence that Goad's trial and
appellate counsel do not claim to actually exist anywhere in the world. The
district court can hardly be faulted for failing to "aggregate" evidence that
Goad did not bother to present to the district court when given the
opportunity, and even now does not quite say actually exists. If any hearing
would be meaningless, this one will be, and during oral argument Goad's
counsel quite sensibly agreed:
[Court] Is it possible in this situation to send this
case back for a competency hearing at this point in
time as opposed to a new trial?

[Goad:1 Your honor, I don't believe a competency
examination at this point in time could establish
whether Mr. Goad was competent during that
morning of trial, though it may provide more
information if we knew what the medication was.

[Court] Couldn't a hearing determine the answer
to the questions [the court] posed?

[Goad:] A hearing could determine the answer to
those questions, though it would be difficult to
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determine Mr. Goad's mental state on that
morning.

[Court] It would be difficult, but would it be
impossible?

[Goad:1 I think it would be next to impossible.
There is nothing for the district court to aggregate on remand. The
aggregate of zero is zero, and we should affirm.
111.
The scope and purpose of a retrospective hearing is
considerably more limited and narrow than the majority opinion suggests.
Its purpose is to answer the narrow question of legal competence, not to
conduct a free-wheeling investigation into a defendant's overall mental
health just to see what might be lurking there. Thus, the remedy is far from
sweeping; to the contrary, it is actually quite narrow. First, it triggers only
when there exists "reasonable doubt" regarding competency; it is not
supposed to be held for every defendant who happens to suffer from some
kind of mental illness unrelated to competency.
Second, the remedy is only an appellate remedy, not one that
can be granted by a district court in connection with a post-verdict motion
for new trial no matter how much doubt exists regarding competence. The
Nevada Supreme Court has already announced that "Nevada law does not
permit a trial court to vacate prior proceedings based upon present doubt
as to past competency" and a district court that vacates a jury verdict and
grants a new trial on this basis "exceeds its authority." State v. Fifth
Judicial Dist. Court, Docket No. 53926, (Order Granting Petition, Sept. 25,
2009). In that case, the defendant was convicted at trial but behaved
erratically during sentencing. The district court ordered and conducted its
own retrospective hearing and determined that the defendant had been
11
incompetent during trial, and vacated the conviction. The State filed a
petition for writ of mandamus, and the Nevada Supreme Court intervened
and ordered the district court to restore the guilty verdict, concluding:
The State challenges the district court's order
setting aside the verdict on two grounds: (1) the
district court exceeded its authority under NRS
175.381(2) when it set aside the verdict on a ground
other than sufficiency of the evidence, and (2) the
district court exceeded its authority and abused its
discretion when it made a determination as to
Yowell's past competency that was not supported
by substantial evidence. We agree.

First, a trial court may set aside the verdict and
enter a judgment of acquittal if the evidence is
insufficient to sustain a conviction. NRS
175.381(2). In the instant case, the district court
set aside the verdict because it believed that Yowell
was not competent during his trial. There was no
allegation, let alone a finding by the district court,
that the evidence presented by the State was
insufficient to sustain a conviction. Therefore, we
conclude that the district court exceeded its
authority under NRS 175.381(2) by setting aside
the verdict.

NRS 176.515(1) provides that "the court may grant
a new trial to a defendant if required as a matter of
law on the ground of newly discovered evidence!'
However, Nevada law does not permit a trial court
to vacate prior proceedings based upon present
doubt as to past competency.
Id. at *2. Thus, a district court's power to vacate a jury verdict and grant a
new trial in a criminal case is governed by statute, and the statutes do not
authorize courts to grant new trials on grounds other than insufficiency of
the evidence. Id. Consequently, district courts may not vacate jury verdicts

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and order such hearings themselves after trial. Only appellate courts may
order such hearings; district courts have no authority to do so.
Accordingly, the scope of what the majority does today is
extremely limited: it applies only to the judges of this court, not to any
district courts and not to the Nevada Supreme Court either, which remains
free to ignore opinions from lower courts. It is precedent only to us, not any
other court either above or below. Because this is only an appellate remedy
not available to the district court, the inquiry must be filtered through the
appellate standard of review. Whether there exists "reasonable doubt"
regarding competency is a question of fact "within the discretion of the trial
court" to answer. Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113.
Appellate courts are required to defer to the district court on questions of
fact.
An appellate court is not particularly well-suited to
make factual determinations in the first instance.
Zugel [by Zugel v. Miller], 99 Nev. [100,] 101, 659
P.2d [296,] 297 [(1983)]; 16 Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3937.1 (2d ed. 1996)
("Appellate procedure is not geared to
factfinding."); see also Anderson v. Bessemer City,
470 U.S. 564, 575 (1985) (explaining that a trial
court is better suited as an original finder of fact
because of the trial judges superior position to
make determinations of credibility and experience
in making determinations of fact); Alburquerque v.
Bara, 628 F.2d 767, 775 (2d Cir. 1980) (remanding
habeas petition to district court for additional fact
findings because Court of Appeals was not well-
suited to make factual findings). An appellate
court's ability to make factual determinations is
hampered by the rules of appellate procedure, the
limited ability to take oral testimony, and its panel
or en banc nature.

13
Ryan's Express v. Amador Stage Lines, 128 Nev. 289, 299, 279 P.3d 166,
172-73 (2012).
So, properly framed, the issue before us isn't whether we think
there existed "reasonable doubt" regarding Goad's competency; we have no
ability to engage in fact-finding when we can't see Goad and all we have
before us is a typed transcript of events that happened over 21 months ago.
Rather, the issue is whether there exists "substantial evidence in the
record to support the district court's conclusion that no such doubt existed
based upon its firsthand personal interaction with Goad at the precise
moment in time when his competency was supposedly under suspicion.

This court reviews the district court's decision to hold or not to
hold a more in-depth competency proceeding for an abuse of discretion.
Olivares v. State, 124 Nev. 1142, 1149, 195 P.3d 864, 869 (2008). Here, Goad
is mentally ill, but that tells us little about whether he was incompetent on
any particular day of his trial. Even at the ripe old age of 74, Goad admits
that there exists precisely zero evidence that he has ever been previously
suspected, diagnosed, or adjudicated as legally incompetent at any time in
his life by any physician or any court, despite suffering from a mental illness
continuously. See Eubanks v. Baker, Docket No. 68628, at *1 (Order of
Affirmance, May 9, 2016) (a defendant's "history of drug abuse, possible
PTSD, and mental health history, without more, did not indicate that he
was unable to consult with his attorney or understand the proceedings
against him"). Did the district court "abuse its discretion" in finding that a
formal competency hearing was unnecessary? Here's what the trial record
says.

14
During six months of pretrial litigation between Goad's arrest
and trial (from March to August 2019), neither he nor his counsel ever
placed his competency into question. I would think that counsel in close
quarters with Goad while preparing for a murder trial would know plenty
that we do not, and would raise the matter on even the slightest sniff of a
problem. Nothing. The district court was asked to resolve a series of
pretrial motions, none of which raised any question about Goad's
competency (motion to admit/exclude evidence of Goad's eviction/financial
issues, motion to exclude prior bad acts, motion to exclude prejudicial photos
and videos).
If anything, the pretrial record cuts the opposite way. The only
pretrial motion relating in any way to Goad's mental health was a motion
to admit/exclude a recording/transcript of police interrogation in which
Goad describes his mental health history in some detail but never claimed
any prior diagnosis of incompetency. During it, Goad claimed (all
unverified) that he spent time in various mental health facilities (at UC
Davis, in Glendale, and in Galletti) and suffers from what he described as
"depression" and at one time took the medications Amitripyline to help him
sleep and Ativan for "shakes." However, he asserted that the last time he
took those medications was seven years before the interrogation. Therefore,
by his own admission, he does not need medication to be legally
incompetent. Perhaps the medication reduces the severity of the symptoms
of his mental illness. But when he admits that he has not received
medication for seven years, and then counsel adds that he has never been
diagnosed or adjudicated incompetent, the last step of the syllogism
becomes obvious: the district court correctly concluded that there is simply

15
no evidence that Goad needs medication to be legally competent to stand
trial for the crime of murder.
So Goad's competency was never questioned before trial and
has apparently not been questioned in the 21 months that have elapsed
since trial until now. What about the trial itself? In evaluating whether a
full competency hearing is required, trial courts must consider their own
observations of the defendant's behavior. Melchor-Gloria, 99 Nev. at 180,
660 P.2d at 113; Drope, 420 U.S. at 180. Goad concedes that he was fully
competent on days one and two of the trial, and then fully competent on
every day of the trial that took place after day four. Even on day four, he
concedes (as will soon become apparent) that he was competent by the early
afternoon.
The only issue is what happened during part of the morning of
day four, as he was fully competent after lunch. Here's what the trial
transcript says about Goad's behavior during the events of that day.
On day three of Goad's trial, the district court stated shortly
after the lunch break:
I've observed a difference in Mr. Goad's physical
appearance today. And during the lunch hour, just
in the last five minutes, Deputy Cross came to me
and said that there had been some inquires about
Mr. Goad's health. I asked him if Mr. Goad's
attorneys were aware of it, and he said that they
had been here for the entire break.
A deputy court marshal then stated on the record that he was "advised of
the change of behavior" and was in contact with medical staff, which
revealed that Goad did not receive a medicine that day. The deputy further
noted the medication was the "type that cannot wait until the end of our
normal business day." The deputy recommended stopping proceedings for
the day and taking care of Goad.
16
The district court then asked defense counsel for his
impressions, to which counsel responded that Goad was "worse than he was
this mornine and was degrading physically. Notably, counsel did not
question Goad's ability to communicate with him or assist in defending the
trial, despite the judge's express invitation. The district court then said, "I
think ies appropriate that we recess for the day. And if that means that it
pushes the trial back, thaes what it means. Mr. Goad is entitled to be
present and well as he both observes trial and participates with his
attorneys privately." The district court then sent the jury home, after which
Goad received his medication.
Trial reconvened the next day at 9 a.m. Defense counsel started
by notifying the district court that Goad was unresponsive and failed to
acknowledge his attorneys. The record indicates, however, that Goad was
responsive with the marshals and courtroom deputies. Defense counsel
next said, "So what I would be interested in this morning is just the Court
to ask Mr. Goad if he understands why were here and what we're doing.
And if he could acknowledge that to the Court I would feel comfortable going
forward." Notably, counsel did not express the belief that Goad was
incompetent, and did not request the full competency hearing that the
majority now says was necessary. The district court responded:
rm not going to conduct some form of informal mini
mental examination from the bench. This trial is
going to proceed with or without Mr. Goad's
presence or participation. I want Mr. Goad to be
present. But if Mr. Goad, for example, chose not to
accept the transport I'd quickly do some legal
research but I—I have a sense that without any
competent jury this trial proceeds.

So I'm going to ask Mr. Goad about being here, I'm
going to acknowledge him, express my gratitude

17
that hes here, my hope that he remains, but I'm not
going to make findings about his cog nature.
The following is the interaction the district court had with Goad.
[Court] Mr. Goad, good morning. And you've just
raised your hand to say hello to me in gesture. Are
you having a hard time speaking?

[Goad:] (Nods head.)

[Court] Yes, you're nodding your head yes. The
record will reflect that I'm looking directly at Mr.
Goad and he is looking at me as I speak to him. Our
eyes are communicating with each other, and hes
nodding his head yes. But you're not able to speak
this morning; is that correct?

[Goad:] (No audible response.)

[Court] So Mr. Goad has attempted to make noise
with his throat and he's held his hand up to his
throat indicating there may be some problem with
his ability to use words this morning.

Mr. Goad, do you know who I am? Not my name,
but do you know what I do? Yeah, you're nodding
your head yes. And these are your two attorneys.
And you're nodding your head and saying yes and
waving to them.

Are you able to write at all? Yes? So what I'll do is
at defense counsel's request, if at any time you want
to communicate with your attorneys, just let Ms.
Mayhew know, shell stand and let me know,
and . . . well let you write a note to them. I'm not
sure what's going on.

Has Mr. Goad been medically cleared from the
infirmary? The deputies are answering yes, he has,
and he is nodding his head yes.

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Mr. Goad, is it—will you just raise your hand if you
want this trial to proceed? Yes. Hes raising his
hand immediately.

All right. That's enough of a canvass for me.
The district court then called the jury in and the trial proceeded. By early
that afternoon, Goad's counsel entered the following observation into the
record:
What I want to let the court know is it's as if the
medication that he was given yesterday has a time
frame in which it actually has its effect. l3ecause I
have noticed a marked difference now with respect
to Mr. Goad and his ability to communicate with
me. . . . It's as if the medication took a while to have
its effect, this morning it hadn't fully activated.
Thus, any issue that Goad had during the morning of day four
was resolved by that afternoon.
V.
Notably, at no point during this lengthy exchange did defense
counsel argue that Goad was incompetent or suggest that there existed
some additional evidence bearing on competency that the court should
consider. Counsel's concern was not that Goad was incapable of
understanding enough to proceed, but only that he was being difficult and
obstinate toward his attorneys (as he was simultaneously responsive to the
courtroom marshals and the judges canvass). Obstinacy is an entirely
different problem than competency. Being difficult, even to the extent of
being overtly rude and dismissive to counsel, is not the same thing as being
incapable of understanding the nature of the proceedings.
Even to the extent that this exchange suggests something about
competency rather than mere stubbornness, on appeal the question isn't
whether we agree with the district court's observations. We can't see them,
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so we have no basis to either agree or disagree. The only question is
whether the record indicates that the district court did what it was
supposed to do, which is personally evaluate Goad's demeanor, and it did.
The only other question is whether the record contains "substantial
evidence supporting the district court's conclusion that it did not need to
probe further into Goad's competency, and without being able to see Goad
ourselves, we must say that it does.
What this exchange tells us is this. Of the three things courts
must weigh to determine whether a full competency hearing is required—
the defendant's history of irrational behavior, his demeanor at trial, and
prior medical opinion of his competence to stand trial—two of the three are
nonexistent by Goad's own admission (no evidence of any prior history of
behavior suggesting incompetency, no prior medical diagnosis of
incompetency), and the third (Goad's demeanor at trial) is something the
district court saw, made an extensive record about, and we cannot see
ourselves on appeal. See Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113
(citing Drope, 420 U.S. at 180). Then on top of that, Goad doesn't even quite
assert that he was incompetent at the moment in question on day four, nor
did his attorneys suggest that there existed some other evidence the court
should consider when given an opportunity to do so. When all three of the
factors, plus Goad's own argument, come out in favor of the district court,
our inquiry ought to end there.
VI.
The majority nonetheless remands for the district court to
review such things "in the aggregate as medical records pre-dating the
trial, Goad's medication and dosage during the trial, and even the gruesome
facts of the crime itself six months earlier, in the apparent belief that, if the

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district court looks, maybe something about competency might come up.
I3ut that's not how the legal test works. The district court isn't supposed to
conduct a full-blown hearing and investigation (and we're not supposed to
reverse if it doesn't) until there first exists some threshold reason to believe
that there's something worth finding. When Goad himself doesn't say
theres anything at all to uncover—when he fails to mention any evidence
of incompetence to the district court and then admits on appeal that there
is no evidence that he has ever been adjudicated incompetent—then the
district court was well within its bounds to conclude that the threshold was
not met and a hearing would be meaningless. See Maxwell, 606 F.3d at 576.
Perhaps one could take the position that there's no harm in
trying to get more information, especially when the stakes involve a brutal
murder and are at their highest. But I'm of a mind that courts must deal
with the real rather than the conjectural, limiting ourselves to evidence for
which a strong case has been made to actually exist, not merely hypothetical
evidence that might exist in theory but not anywhere in the record we have.
Courts aren't supposed to tolerate "fishing expeditione in civil discovery,
and were certainly not supposed to order district courts to engage in them
ourselves. See Groom v. Standard Ins. Co., 492 F. Supp. 2d 1202, 1205 (C.D.
Cal. 2007) ("[D]iscovery must be narrowly tailored and cannot be a fishing
expedition."). Similarly, we're not supposed to vacate murder convictions
on appeal just because the district court failed to conduct its own sua sponte
search for something that Goad never claimed to exist. The idea of a
retrospective hearing assumes a reason to believe that there actually was
some concrete evidence that the district cotu-t failed to consider. When there
is no reason to believe that such evidence exists, a retrospective hearing will

21
accomplish nothing except waste time and resources in the pursuit of
nothing useful to add to the existing record.
Could additional evidence nonetheless still be found if the
district court looks further on remand, even though Goad himself doesn't
assert that any such evidence exists? I suppose it's conceivable. As noted
astronomer Carl Sagan used to say, absence of evidence is not necessarily
evidence of absence. Carl Sagan, The Demon-Haunted World: Science as a
Candle in the Dark 213 (Ballantine, 1st ed. 1997). Lots of things that seem
implausible today might turn out to be true tomorrow. See 2019 Chapman
University Survey of American Fears (CSAF) (reporting that 57% of
Americans believe in the existence of the lost continent of Atlantis and
more than 1 in 5 believe that Bigfoot exists), published in Christopher D.
Bader et al., Fear Itself: The Causes and Consequences of Fear in America
(NYU Press 2019), available at https://www.chapman.edu/wilkinson/
research-centers/babbie-center/survey-american-fears.aspx. Likewise, it's
theoretically possible that some additional evidence of incompetence might
exist somewhere in the universe even though Goad's own counsel never
mentioned any, either to the district court or on appeal. Even completely
random discovery "fishing expeditions" occasionally do uncover meaningful
evidence.
But when the overall standard of appellate review is "abuse of
discretion" and the district court decides as a factual matter that no
additional hearing is warranted, the standard we apply—the standard that
Nevada appellate courts have applied in literally thousands of cases—is
whether the court's decision is supported by "substantial evidence." Ogawa
v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). In the thousands of
cases we've handled over the past six years, we have never assessed

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"substantial evidence" by speculating about hypothetical evidence that
appeared nowhere in the record and was never presented to the trial court.
"Substantial evidence is assessed by looking at the evidence actually in the
record before the court and asking whether it was enough to justify the
finding. Once we enter into the realm of speculation, there can always be
hypothetical countervailing evidence that might go the other way, whether
it's a criminal case, workers compensation case, or family law case. But we
don't engage in that kind of speculation; at least, we never have before. If
we did, no verdict could ever stand up on appeal because someone could
always imagine the possibility of something more to find if someone else
just looks a little harder.
Legality aside, consider as a practical matter how unlikely it
really is that there could be something to find anyway. Goad admits on
appeal that there is no evidence of past incompetence. Beyond that
admission, can someone be legally competent every day for the entirety of a
74-year life, but yet incompetent for only a couple of hours one morning
before becoming fully competent again by the early afternoon? Sure, it's
possible. Just not in any way that matters to this case. One could be drunk
or high on drugs that quickly wear off. Maybe one could suffer the effects a
concussion that impairs cognitive ability for a few hours. People suffering
from Alzheimer's or dementia can sometimes float in and out of competency.
But Goad wasn't suffering from any of this. Looking to mental health
records from some other time well before trial might make sense if a
defendant had a long history of floating in and out of legal competency over
time. If someone was legally incompetent in the past, that suggests at least
the possibility of being legally incompetent again later. But here, there's no
evidence whatsoever that Goad was incompetent at any other time of his

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life, including even later during the afternoon of the same day, so evidence
of Goad's mere mental illness months, weeks, or days before trial tells us
nothing about whether he was legally competent for part of the morning of
the fourth day of trial. As the majority notes, even assuming as true that
there was incompetence for part of the morning of day four, that was only
because the triggering event was Goad not being given medication that
morning. So what, exactly, is the relevance of his mental health months or
weeks earlier before trial when things were very different and Goad himself
states that he was medication-free for seven years before trial yet was never
suspected of being legally incompetent, much less adjudicated so?
The bottom line is that the question at hand—whether someone
who's been competent their entire life suddenly became incompetent for
only a couple of hours one morning or not—is a fundamentally factual one
which, in this case, the district court answered in the record in detail and
at length based upon its personal interactions with Goad and its
observations of his behavior. The district court is expressly required to
consider its own observations about the defendant's demeanor, which we
cannot see and can never second-guess. Melchor-Gloria, 99 Nev. at 180, 660
P.2d at 113 (citing Drope, 420 U.S. at 180). The district court personally
canvassed the defendant, made remarks and observations about the
defendant's nonverbal conduct and in-court behavior, and then immediately
found that there was no need to go further. It clearly gave a lot of weight to
its personal observations. We must give deference to those observations
which we cannot see in a typewritten transcript and therefore ought not
second-guess. And deference on a purely factual matter means that,
whenever the district court's factual findings are supported by any
substantial evidence at all, we must affirm.

24
VII.
The district court was confronted with a factual inquiry that it
answered based upon personal observations that we cannot see. Instead of
speculating that there may be more evidence out there somewhere in the
ether that the district court should investigate now, more than 21 months
later, I would affirm.
el44
—' J
Tao

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137 Nev., Advance Opinion 17
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

RALPH EDMOND GOAD, No. 79977-COA
Appellant,
vs.
THE STATE OF NEVADA, Fi
Respondent. APR 2 9 2021
ELIZABETH A. BROWN
CLERK,' F S PREME COURT
BY •
DEPUTY CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of murder with the use of a deadly weapon. Second Judicial District
Court, Washoe County; David A. Hardy, Judge.
Vacated and remanded.

John L. Arrascada, Public Defender, and Kathryn Reynolds, Deputy Public
Defender, Washoe County,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Kevin Naughton, Appellate Deputy District
Attorney, Washoe County,
for Respondent.

BEFORE GIBBONS, C.J., TAO and BULLA, JJ.

OPINION
By the Court, GIBBONS, C.J.:
The United States and Nevada Constitutions prohibit trying a
criminal defendant while he is mentally incompetent. An incompetent
defendant lacks the requisite mental cognizance to receive a fair trial and
appreciate the rights associated therewith. A defendant cannot, among
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other things, effectively assist counsel, confront witnesses, or intelligently
decide whether to testify or remain silent. Thus, both the United States
and Nevada Supreme Courts have recognized that conviction of an
incompetent criminal defendant violates due process.
The right to stand trial while competent being paramount, the
United States Supreme Court has recognized a procedural due process right
to a hearing to determine whether a defendant is competent if sufficient
doubt of competency arises at any time. The Nevada Supreme Court has
embraced this right by requiring a trial court to order a competency hearing
sua sponte when any evidence before the court—in isolation or in light of
other evidence—gives rise to reasonable doubt as to the defendant's
competency. Nevada prescribes statutory procedures that trial courts must
follow when determining whether doubt is reasonable. If there is such
doubt, the court must conduct a competency hearing; neither the defendant
nor defense counsel can waive the right to a hearing. The Nevada Supreme
Court has consistently remedied violations of a defendant's right to a
competency hearing with reversal of the conviction and remand for a new
trial but has not mandated that a new trial is the only permissible remedy.
This case presents three questions that Nevada competency
jurisprudence has yet to answer or clarify. First, does reasonable doubt
exist where a defendant has a history of mental health issues and use of
psychoactive medications, been deprived of an unknown medication during
trial, and becomes debilitated during trial? Second, is a trial court required
to consider evidence of incompetence adduced during pretrial proceedings
in its reasonable doubt determination if a different judge adjudicated
pretrial matters? Third, is it permissible to remedy a violation of a

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defendant's right to a competency hearing by remanding the case to the trial
court to determine whether the defendant was incompetent during trial?
We now extend Nevada's procedural due process requirement
of a hearing to determine competency to novel factual circumstances and
apply a new remedy. Accordingly, we conclude that (1) reasonable doubt
exists as to a defendant's competency where the defendant has a history of
mental health issues and psychoactive medication use, is deprived of
medication during trial, and becomes debilitated thereafter; (2) a trial court
must consider any evidence of incompetence in the record when determining
whether reasonable doubt exists notwithstanding whether the case is
transferred from another judge; and (3) we may remedy a violation of a
defendant's right to a competency hearing by remanding the case to the trial
court to determine whether the defendant was incompetent during trial, but
the trial court must first determine if the competency hearing is feasible
before holding it.
FACTS AND PROCEDURAL HISTORY
Appellant Ralph Edmond Goad and Theodore Gibson lived in
apartments located in the same hallway of an apartment building in Reno.
Goad and Gibson were apparently close friends and frequently spent time
together. Both Goad and Gibson were in their seventies and received Social
Security benefits through a payee counseling service that managed income
from Social Security on behalf of beneficiaries who were unable to manage
their own finances. Near the end of 2018, the payee service closed. Goad
received his last payment from the payee service in November 2018. On
January 11, 2019, Goad received a notice of eviction for nonpayment of rent.
He was locked out of his apartment on January 30.
On February 13, employees of the apartment building found
Gibson's dead body in his apartment. According to the autopsy report,

3
Gibson suffered a total of 250 stab wounds to the face, head, neck, and other
parts of his body. Inside the apartment, police found Gibson's wallet on the
floor with its contents strewn about and containing no cash. Police
recovered scissors and a knife from inside Gibson's apartment with Gibson's
blood on them. Police found Goad's DNA on the handle of the scissors.
Police later recovered Goad's clothes from his apartment, on which police
detected Gibson's blood. Police obtained video surveillance footage of the
hallway in which Gibson's and Goad's apartments were located. The footage
shows Gibson entering his apartment on January 18, which was the last
time Gibson was seen alive, and Goad entering and exiting Gibson's
apartment multiple times between January 18 and January 22. Goad was
arrested in Sacramento on March 7.
The State charged Goad with murder with the use of a deadly
weapon. The State moved to admit evidence of Goad's finances, including
documents regarding his eviction. Goad opposed the motion. In its reply,
the State included a transcript of the police interrogation of Goad following
his arrest. During the interrogation, Goad discussed his finances and
recounted his mental health history, including mental health
hospitalizations, doctors struggling to diagnose his mental conditions, and
psychoactive medications that he had been prescribed to stabilize his
conditions. Among other things, Goad stated,
they said [I was in the mental hospital] because
depression. . . . But, um, the nurses would tell ya
you got something else. They'd tell the doctor to
write that down. . . . Some years they'd say it was
this and give me these pills. . . . And some years
they'd say it was that and give me those pills. The
only thing that really worked was Amitriptyline for
sleep. And, uh, 1 milligram of Ativan three times a

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OA 1947B ca#F,
day to stop the shakes [, which are from] this and
that. See, I've been a nervous wreck all my life.

No, Fm definitely not fine. . . . I don't know [what's
wrong,] I just don't get along like, um, I'm
different. . . . [I just don't get along with people]
because I can't sleep right and rm nervous all the
time.

[I take] Amitriptyline and the Ativan. The
Amitriptyline is for depression and sleep. And the
Ativan is for bad nervous, anxiety. It's much better
than Valium. Valium just makes you sleepy.
Ativan calms you down like that.

[The last time I took my medications was] 7 years
ago, 'cause when they took me out of the mental
hospital and gave me that payee, she was
independent, so I wasn't allowed to go back and see
a doctor or get medicine anymore. So it was good in
a way. But I wasn't able to get any medication
anymore. So 7 years, I went without medicine.

• I I

[When I'm not on medication, I] get angry [and]
have to drink beer to calm down. . . . [When] the
beer wears off, it makes you angry 'cause now I
gotta walk to the store and buy more beer to calm
down again.

In this case, one judge presided over all pretrial matters, and
the case was transferred to another judge for trial. The trial judge
acknowledged during trial that he was not entirely familiar with what

5
occurred pretrial by stating, "I did not conduct the pretrial hearings," and
"I reflected on the fact that I don't know everything that was argued in front
of the pretrial judge.
On the first day of trial, during jury selection but outside the
presence of the prospective jurors, the court, defense counsel, and the State
briefly discussed Goad's mental health and whether the State would seek
admission of the transcript of the police interrogation of Goad. The State
informed the court that it would not seek to introduce the transcript at trial.
The parties discussed the interrogation transcript again after opening
statements because defense counsel quoted a line from the transcript in his
opening statement but could not provide a viable theory for admission of the
transcript at trial.
At around 2 p.m. on the third day of Goad's trial, the district
court and counsel discussed Goad's condition and demeanor outside the
presence of the jury. The court explained that "there had been some
inquiries about Mr. Goad's health." Court staff informed the court that,
according to medical staff at the jail, Goad had not received his medication
that morning and that it was "the type that cannot wait [to be administered]
until the end of' the day. Therefore, Goad needed to be transported
immediately to the sheriffs office in order to receive the medication. The
district court and the parties did not discuss the name or effects of the
medication Goad was deprived of on the third day of trial.
After staff came forward, the court solicited comments from the
State and defense counsel on the matter. Both informed the court that Goad
appeared infirm that morning and that his condition worsened as the day
progressed. Defense counsel reported that Goad had been "degrading in his
physical [condition]." The State reported that, when Goad came into the

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(1)) 194711 wifejP
courtroom on the morning of the third day of trial, "he did not sit down, he
stood there with a look that I think was objectively concerning to the
[S] tate."
The district court expressed that it had also observed a change
in Goad's demeanor. The court stated, "I've watched Mr. Goad a little bit
more today, hoping that he doesn't fall out. I do not believe there is any
gamesmanship, legal strategy, being pursued at all." The court added, "Mr.
Goad is entitled to be present and well as he both observes trial and
participates with his attorneys privately." The court then recessed for the
day in order for Goad to be transported to receive his medication.
On the morning of the fourth day of trial, defense counsel asked
the district court to canvass Goad because Goad refused to interact with or
even acknowledge defense counsel that morning. The court replied that it
was "not going to conduct some form of informal miniN mental examination
from the bench" and that the trial would "proceed with or without Mr.
Goad's presence or participation." Nevertheless, the court began asking
Goad questions, and Goad gestured to inform the court that he was unable
to speak. The court thereafter reported Goad's gestures for the record,
including Goad's nods affirming that he was aware of what the judge does,
who his attorneys were, and that he desired to proceed with trial. The
court's questions did not specifically address the factors for determining
incompetence set forth in NRS 178.400(2).1 Court staff informed the court

1See NRS 178.400(2) ("Uncompetent means that the person does not
have present ability to (a) [u]nderstand the nature of the criminal charges
against the person; (b) [u]nderstand the nature and purpose of the court
proceedings; or (c) [a]id and assist the person's counsel in the defense at any
time during the proceedings with a reasonable degree of rational
understanding.").

7
that the infirmary at the jail had medically cleared Goad for trial. The
district court then resumed trial.
Later, the court asked Goad's counsel to comment on his
condition. Defense counsel stated, "it's as if the medication that he was
given yesterday has a time frame in which it actually has its effect. Because
I have noticed a marked difference now with respect to Mr. Goad and his
ability to communicate with me." Counsel continued, "[i] t's as if.. . . this
morning [the medication] hadn't fully activated."
The jury ultimately found Goad guilty of murder with the use
of a deadly weapon. The district court later sentenced Goad to life in prison
without the possibility of parole and a consecutive sentence of 36 to 240
months for the use of a deadly weapon.2 This appeal followed.
On appeal, Goad argues that the district court (1) violated his
federal due process and Nevada constitutional rights by failing to order a
competency hearing, (2) abused its discretion by admitting evidence of his
financial situation,3 and (3) abused its discretion by admitting photos of

2This court only reviews the record that was before the district court
on the third and fourth days of trial, when Goad endured the effects of
missing his medication. However, the dissent asserts "Goad has never been
found legally incompetent" based on comments from Goad's sentencing
hearing and oral argument before this court, which were not in the record
before the district court on the third and fourth days of trial. Even so, at
sentencing, the court commented Goad was the subject of "five separate
proceedings in which somebody sought to have him involuntarily committed
because of mental health concerns that he may be a harm to himself or
others."

3The district court admitted the evidence of Goad's finances and
eviction as res gestae evidence under NRS 48.035(3), but denied the State's
motion as to its alternative theory that the evidence consisted of prior bad
acts that qualified under the motive exception in NRS 48.045(2). However,

8
Gibson's clothing that he was wearing when he was killed.4 We conclude
the district denied Goad due process by failing to conduct a competency
hearing when reasonable doubt arose about Goad's competency.
Accordingly, we vacate Goad's judgment of conviction and remand for
appropriate hearings.5
ANALYSIS
Goad argues that the district court denied him due process
under the United States and Nevada Constitutions when it failed to order

on appeal, Goad argues that the district court admitted this evidence under
the motive exception to the rule prohibiting prior bad act evidence; that is,
Goad does not challenge the admission of the evidence under NRS 48.035(3).
Thus, Goad waived any alleged error. See Old Aztec Mine, Inc. v. Brown, 97
Nev. 49, 52, 623 P.2d 981, 983 (1981) (stating that, by failing to raise an
argument on appeal, a party thereby waives the argument); see also
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (explaining that
this court need not consider an appellant's argument that is not cogently
argued or lacks the support of relevant authority).
4Goad moved to preclude admission of photographs of Gibson's blood-
soaked clothes with holes corresponding to his stab wounds, arguing the
photos were substantially more unfairly prejudicial than probative because
they were gruesome. The district court ruled the photographs were
admissible because they assisted the State's forensic pathologist with her
testimony and were not unfairly prejudicial. We conclude that there was
no abuse of discretion because the photographs of the blood-soaked clothes
were not substantially more unfairly prejudicial than probative, and they
assisted the States pathologist to testify as to the stab wounds. See Browne
v. State, 113 Nev. 305, 314, 933 P.2d 187, 192 (1997); cf. Harris v. State, 134
Nev.. 877, 880, 432 P.3d 207, 211 (2018) (holding photographs of a crash
scene were prejudicial because they showed mutilated bodies in the
aftermath of a crash scene), cert. denied, 587 U.S. , 139 S. Ct. 2671
(2019).
5We do not reach Goad's claim of cumulative error in light of our
disposition.
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a competency hearing. He contends reasonable doubt about his competency
arose because he was deprived of a necessary medication, refused to interact
with defense counsel, and was unable to speak. Goad emphasizes that
defense counsel, the State, and the district court agreed that he was unable
to be present on the afternoon of the third day of trial due to his declining
condition. Goad further argues that the court's canvass of Goad on the
fourth day of trial did not dispel the reasonable doubt, especially because
the court failed to ask Goad why he could not speak or why he refused to
interact with his counsel.
The State argues that a competency hearing was unnecessary.
The State claims that the canvass the district court performed at the
request of defense counsel, Goad's comprehension of the canvass, Goad's
desire to proceed with the trial, that the infirmary medically cleared Goad
on the morning of the fourth day of trial, and Goad's ability to write in lieu
of speaking all dispelled any doubt. The State further argues that the
Nevada Supreme Court rejected a due process claim analogous to Goad's in
Lipsitz v. State, 135 Nev. 131, 442 P.3d 138 (2019). We disagree with the
State.
We first address the due process requirement for a competency
hearing, its relationship to Nevada's competency statutes, and evaluate the
district coures compliance with each. We then conclude that a retrospective
competency hearing is an acceptable remedy for denial of a defendant's
right to a competency hearing, and further adopt a test for determining
whether a retrospective competency hearing is feasible and may proceed in
lieu of reversal and a new trial.
Due process
Federal due process jurisprudence and Nevada law govern
Goad's claim that the district court violated his right to procedural due

10
process by failing to order a competency hearing. See Melchor-Gloria v.
State, 99 Nev. 174, 180, 660 P.2d 109, 113 (1983); Nev. Const. art. 1, § 8. A
district court's determination of whether a competency hearing is required
is reviewed for abuse of discretion. Olivares v. State, 124 Nev, 1142, 1148,
195 P.3d 864, 868 (2008). A district court abuses its discretion and denies
due process when reasonable doubt as to the defendant's competency arises
and it fails to order a competency hearing. Id.
"The Due Process Clause of the Fourteenth Amendment
provides that a criminal defendant may not be prosecuted if he or she lacks
competence to stand trial." Lipsitz, 135 Nev. at 135, 442 P.3d at 142. A
defendant is competent if he "has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding—and [ifl he
has a rational as well as factual understanding of the proceedings against
him." Melchor-Gloria, 99 Nev. at 179-80, 660 P.2d at 113 (quoting Dusky v.
United States, 362 U.S. 402, 402 (1960) (internal quotations omitted)); see
also NRS 178.400(2); Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001)
([C]ompetence to stand trial does not consist merely of passively observing
the proceedings. Rather, it requires the mental acuity to see, hear[J and
digest the evidence, and the ability to communicate with counsel in helping
prepare an effective defense."). There are two "due process rights related to
competency to stand trial. The first is the traditional right not to be tried
or convicted while legally incompetent. The second . . . is the right to be
accorded a competency hearing when sufficient evidence of incompetency is
adduced before the trial court." Doggett v. Warden, 93 Nev. 591, 595, 572
P.2d 207, 210 (1977) (citations omitted). This appeal primarily concerns the
latter.

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Nevada statutory law prescribes a procedure that trial courts
must follow in order to determine whether doubt as to a defendant's
competency amounts to reasonable doubt necessitating a competency
hearing. See NRS 178.405(1) (providing that a court must suspend the
proceedings when doubt arises until the question of competency is
determined); NRS 178.415 (prescribing the procedures a court must follow
in conducting a competency hearing). "Under Nevada's competency
procedure, if any 'doubt arises as to the competence of the defendant, the
court shall suspend the . . . [trial] until the question of competence is
determined.'" Scarbo v. Eighth Judicial Dist. Court, 125 Nev. 118, 121-22,
206 P.3d 975, 977 (2009) (quoting NRS 178.405(1)) (emphasis added).
During the suspension, the court must "hold a hearing to fully consider
[such] doubts and to determine whether further competency proceedings
under NRS 178.415 are warranted." Olivares, 124 Nev. at 1149, 195 P.3d
at 869. "Further competency proceedings under NRS 178.415 are
warranted when there is reasonable doubt regarding a defendant's
competency." Scarbo, 125 Nev. at 121-22, 206 P.3d at 977 (internal
quotations omitted).
Nevada's competency statutes
It is unclear whether the district court was attempting to
comply with NRS 178.405(1) on the third day when it paused the
proceedings, solicited comments about Goad's behavior, and ultimately
recessed for the day. However, due process requires us to find error where
a defendant did not receive a competency hearing if reasonable doubt
existed as to his competency, regardless of whether the district court
complied with NRS 178.405(1). Nevertheless, we note that NRS 178.405
and NRS 178.415 prescribe a framework for compliance with the due

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to) Nos .410,3
process reasonable doubt standard that trial courts are required to fo11ow.6
Unequivocal and diligent adherence to these statutes will naturally guide
district courts to a reliable determination of whether a formal competency
hearing is necessary and, ultimately, whether the defendant is
incompetent.' See Olivares, 124 Nev. at 1149, 195 P.3d at 869 ("In addition
to the doubts that have been raised, the district court may consider all
available information, including any prior competency reports and any new
information calling the defendant's competency into question.").

6See, e.g., Humphreys v. State, Docket No. 52525, at *4 (Order of
Affirmance, Nov. 25, 2009) ("Nevada's governing statutes, as interpreted by
this court, set up a two-stage procedure that the district court must follow
whenever the question of a defendant's competency has been raised: First,
the district court must evaluate if there is any doubt as to the defendant's
competency. If there is, the court must suspend the proceedings and hold a
hearing to consider fully the doubts. Second, if as a result of considering
fully those doubts, the district court finds there is reasonable doubt
regarding a defendant's competency, the district court must order a full
competency evaluation pursuant to the provisions of NRS 178.415."
(citations omitted)).
7The dissent does not discuss NRS 178.405 or NRS 178.415, but
asserts our decision encourages "fishing expeditions" in which we "imagine"
evidence will surface. The dissent's comments belie the prescriptions of
NRS 178.415, which specifically invite new evidence for the purpose of
determining competency. NRS 178.415 requires a district court to appoint
two psychologists or psychiatrists, or one of each, to "examine" the
defendant, and the court must receive their "report of the examination."
NRS 178.415(1), (2). Both the prosecution and the defendant may
"introduce other evidence including, without limitation, evidence related to
treatment to competency and the possibility of ordering the involuntary
administration of medication . . . ." NRS 178.415(3).

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Procedural due process
We now turn to whether Goad was entitled to a competency
hearing as a matter of procedural due process.8 In Nevada, "[a] formal
competency hearing is constitutionally compelled any time there is
'substantial evidence that the defendant may be mentally incompetent to
stand trial. In this context, evidence is 'substantial if it 'raises a reasonable
doubt about the defendant's competency to stand trial.'" Melchor-Gloria, 99
Nev. at 180, 660 P.2d at 113 (quoting Moore v. United States, 464 F.2d 663,
666 (9th Cir. 1972)). "The trial court's sole function in such circumstances
is to decide whether there is any evidence which, assuming its truth, raises
a reasonable doubt about the defendant's competency."9 Id. A court must

8The State correctly acknowledged during oral argument before this
court that if Goad was incompetent at any point during trial, he was denied
substantive due process. However, Goad argues on appeal that he was
denied procedural due process insofar as he did not receive a hearing to
determine his competency, not that he was incompetent in fact and denied
his substantive due process right not to stand trial while incompetent. As
Goad stated during oral argument, the procedural due process right to a
hearing to determine competency—which protects and ensures the
substantive right not to stand trial while incompetent—has been treated
like it is structural. The Nevada Supreme Court has historically remedied
a district court's failure to provide a competency hearing when reasonable
doubt arose by reversing and remanding for a new trial, but it has not ruled
that such error is structural. See, e.g., Olivares, 124 Nev. at 1149, 195 P.3d
at 869; Fergusen v. State, 124 Nev. 795, 806, 192 P.3d 712, 720 (2008);
Williams v. Warden, 91 Nev. 16, 17, 530 P.2d 761, 761-62 (1975); Krause v.
Fogliani, 82 Nev. 459, 463, 421 P.2d 949, 951 (1966).

9The dissent missapplies Melchor-Gloria to argue reasonable doubt
about competency is solely a question of fact that is entirely "within the
discretion of the trial court." The very next line in Melchor-Gloria states,
"[t]he court's discretion in this area, however, is not unbridled." 99 Nev. at
180, 660 P.2d at 113. Indeed, in the ensuing paragraph, Melchor-Gloria
sets forth two jointly sufficient criteria for finding abuse of discretion and

14
consider evidence of incompetence in the aggregate, rather than separately
or in isolation. Drope v. Missouri, 420 U.S. 162, 179-80 (1975). "Once there
is such evidence from any source, there is a doubt that cannot be dispelled
by resort to conflicting evidence," Melchor-Gloria, 99 Nev. at 180, 660 P.2d
at 113 (quoting Moore, 464 F.2d at 666), and the court must, "sua
sponte, . . . order a competency hearing," Krause, 82 Nev. at 463, 421 P.2d
at 951. "If [evidence raising a reasonable doubt] exists, the failure of the
court to order a formal competency hearing is an abuse of discretion and a
denial of due process."10 Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113

violation of due process: evidence giving rise to a reasonable doubt about
competency, and failure to order a competency hearing. Reasonable doubt
is not evaluated for abuse of discretion; rather, it is a criterion for finding
an abuse of discretion. The dissent thus inverts the abuse of discretion
standard as it pertains to the reasonable doubt (puts the cart before the
horse). We do not evaluate whether reasonable doubt existed for abuse of
discretion; according to Melchor-Gloria, we find abuse of discretion where
reasonable doubt existed and the district court failed to order a competency
hearing. Since both criterion are present here, we must find an abuse of
discretion in this case.
loThe dissent asserts Melchor-Gloria states "three things courts must
weigh to determine whether a full competency hearing is required—the
defendant's history of irrational behavior, his demeanor at trial, and [any]
prior medical opinion of his competence to stand trial . . . ." Melchor-Gloria
states this information in a parenthetical citing to Drope, 420 U.S. at 180.
However, Drope states that these factors "are all relevant in determining
whether further inquiry is required, but that even one of these factors
standing alone may, in some cases, be sufficient." Id. Drope also notes that
there are no "fixed or immutable" factors for the trial court to address
because "the inquiry is often a difficult one in which a wide range of
manifestations and subtle nuances are implicated." Id. Thus, the dissent
mischaracterizes Melchor-Gloria as positing an exclusive list of sources
from which a district court may infer reasonable doubt. Drope shows that
these are potential sources used to assess doubt as to competency, not
exclusive factors.
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(citing Pate v. Robinson, 383 U.S. 375, 385 (1966)). A defendant cannot
waive his right to a competency hearing and, accordingly, does not waive
his right to a competency hearing by failing to request one. Krause, 82 Nev.
at 463, 421 P.2d at 951; see also Pate, 383 U.S. at 384.
Moore, the United States Court of Appeals for the Ninth Circuit
opinion from which Melchor-Gloria adopted its language regarding
reasonable doubt, dictates that an appellate court reviews a district court's
reasonable doubt determination (or lack thereof) based on the evidence
"before the court" at the time when reasonable doubt purportedly arose. 464
F.2d at 666. Federal precedent further indicates that any evidence in the
record is properly "before the [trial] court" at any given time. See United
States v. Brugnara, 856 F.3d 1198, 1215 (9th Cir. 2017) ("Such reasonable
[doubt] exists when there is substantial evidence in the record . . . ."
(internal quotations omitted)); Hernandez v. Ylst, 930 F.2d 714, 718 (9th
Cir. 1991) (finding that a court's pretrial determination of doubt properly
excluded a psychological report that was not in the record at the time the
determination was made); United States v. Veatch, 674 F.2d 1217, 1223 (9th
Cir. 1981) (stating that the court reviewed "the entire record that was before
the district court" to determine whether reasonable doubt existed). Thus,
when read in light of Moore, Melchor-Gloria's broad requirement that a
district court must consider "whether there is any evidence "from any
source" in its reasonable doubt determination extends to evidence of
incompetence in the record corresponding to the defendant's case, including
evidence adduced pretrial or before a different judge. 99 Nev. at 180, 660
P.2d at 113; Moore, 464 F.2d at 666.

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10) I947B .11050'
Reasonable doubt
The foregoing authority compels us to conclude that the district
court denied Goad due process because reasonable doubt existed on the
third and fourth days of trial and the court did not hold a competency
hearing. Pursuant to Moore and Melchor-Gloria, the district court was
required to consider any evidence of incompetence in the record to conclude
there was no reasonable doubt.11 Moore, 464 F.2d at 666; Melchor-Gloria,
99 Nev. at 180, 660 P.2d at 113. For example, the interrogation transcript
was among the evidence before the district court; i.e., in the record, on the
third and fourth days of trial. Thus, the court was required to consider any
information in the transcript pertinent to Goad's competency in its
reasonable doubt determination, including Goad's possible history of mental
health hospitalizations, the fact that doctors struggled to diagnose him, and
his past use of various psychoactive medications.
We understand that, as a practical matter, district courts do not
typically scrutinize every item in the record of every case. However, the
Nevada Supreme Court has not limited the scope of the evidence that
Mekhor-Gloria requires a district court to consider. At a minimum,
Melchor-Gloria requires a district court to consider evidence in the record,

11The district court never stated on the record that a reasonable doubt
did or did not exist as to Goad's competency; however, a trial court impliedly
determines there is no reasonable doubt as to a defendant's competency if
it fails to exercise its sua sponte duty to order a competency hearing. See
Drope, 420 U.S. at 181 ("[A] trial court must always be alert to
circumstances suggesting a change that would render the accused unable
to meet the standard of competence to stand trial."); Moore, 464 F.2d at 666
("At any time . . . evidence [raising a reasonable doubt as to defendant's
competency] appears, the trial court sua sponte must order an evidentiary
hearing on the competency issue."); Fergusen, 124 Nev. at 802, 192 P.3d at
717; Krause, 82 Nev. at 463, 421 P.2d at 951.

17
given that Moore, the case from which the supreme court adopted the
standard announced in Melchor-Gloria, specifies that the record is among
the sources of evidence a district court must consider. Yet, the district court
must also consider the defendant's behavior at trial, which may not be
reflected in the record. See Drope, 420 U.S. at 180 ("[E]vidence of a
defendant's irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial are all relevant in determining
whether further inquiry is required . . . .”). Thus, the burden of holding
district courts to account for evidence of incompetence in the record is
neither novel nor exhaustive of a district court's duty to ensure a defendant
is competent during trial.
Additionally, the burden established by the Nevada Supreme
Court in Melchor-Gloria is apt given that it ultimately serves to protect the
right to be competent while one stands trial. The right to a hearing to
determine competency safeguards the substantive due process right not to
stand trial while incompetent, which is
rudimentary, for upon it depends the main part of
those rights deemed essential to a fair trial,
including the right to effective assistance of
counsel, the rights to summon, confront, and to
cross-examine witnesses, and the right to testify on
ones own behalf or remain silent without penalty
for doing so.

Riggins v. Nevada, 504 U.S. 127, 139-40 (1992) (Kennedy, J., concurring).
If we allow a district court to overlook portions of the record, we risk
curtailing the evidence of incompetence that will come to the coures
attention. See Fergusen, 124 Nev. at 802, 192 P.3d at 718 (stating that a
district court may not assign the determination of whether a defendant is
competent to a different judge during trial because doing so would interrupt

18
the trial judge's ongoing assessment of the defendanes competence). This
would decrease the likelihood that a court will find reasonable doubt exists
as to the defendanes competency, and the right to a competency hearing
would become dependent upon the trial coures diligence in reviewing the
record. This is particularly so in cases where the defendant's behavior
during trial could seem negligible in isolation, but when considered in light
of evidence in the record that was submitted pretrial, the doubtfulness as
to competency may become palpable.
The evidence of Goad's incompetence that was properly before
the district court gave rise to a reasonable doubt in the aggregate. As
stated, the district court was required to consider any evidence of
incompetence in the record and its own observations in light of other
evidence or observations bearing on Goad's competence in reaching its
reasonable doubt determination. See Drope, 420 U.S. at 179-80. In the
aggregate, the crime of which Goad was accused—stabbing his elderly
friend 250 times and repeatedly visiting the victim's apartment following
the victim's death;12 Goad's apparent history of mental health issues and

'2A1though the extreme nature of the stabbings of which Goad was
accused and his returns to the crime scene do not prove that he was
incompetent at trial, the fact that he apparently engaged in such irrational
behavior is a factor a district court must weigh in determining whether
reasonable doubt exists. See Drope, 420 U.S. at 179 (stating that the trial
court failed to give proper weight to record evidence, including the victim's
testimony that the defendant allegedly attempted to choke her to death on
the Sunday prior to trial); id. (stating that the trial court may not ignore
"the uncontradicted testimony of a history of pronounced irrational
behavioe); Doggett, 93 Nev. at 595, 572 P.2d at 209 (citing Pate, 383 U.S.
375) (stating that the Supreme Court held in Pate v. Robinson that there
was a reasonable doubt about Pate's competency in part due to
"uncontradicted testimony of defendant's long history of disturbed and
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psychoactive medication use; the fact that Goad was deprived of medication
on the third day of trial; and the fact that Goad became debilitated on the
third day of trial—which was corroborated by defense counsel, the State,
and the district court—collectively suggested that Goad was deprived of a
medication that stabilized his mental health, was suffering from
withdrawals, or was somehow adversely affected by not having taken the
medication. Thus, the evidence of Goad's incompetence gave rise to a
reasonable doubt as to whether Goad was competent on the third day of
tria1.13 See Melchor-Gloria, 99 Nev. at 179-80, 660 P.2d at 113; see also NRS

violent episodes, including the slaying of his infant son and an attempted
suicide").
13 The dissent states that, by "aggregating," we mean that a district
court must "conduct a full-blown hearing and investigation." Indeed, "that's
not how the legal test works [1" However, this is not how we applied the
aggregating principle. The aggregating principle requires a trial court to
consider evidence of potential incompetence in light of other such evidence
rather than in isolation when determining reasonable doubt. See Chavez v.
United States, 656 F.2d 512, 517-18 (9th Cir. 1981). In isolation, being
deprived of medication does not imply that the medication could affect
Goad's competency; the medication conceivably could have treated a purely
physical ailment that does not impact competency. Applying the
aggregating principle, it becomes more likely that the deprivation of
medication affected his competency because the district court must consider
the deprivation in light of other evidence, including Goad's behavior, the
court's worry that Goad "might fall out," that Goad has historically relied
on psychoactive medication to stabilize his mental health, and the urgency
with which staff had to administer Goad's medication. See 40 Am. Jur. 2d
Proof of Facts 171, § 10 cmt. (2021 Update) ("It would seem prudent to
require a competency hearing any time a defendant is taking medication or
drugs which may have an effect on his mental capabilities. This would
protect the defendanfs interests and also save the state considerable time
and expense by obviating the situation in which a lengthy trial would be
nullified due to a subsequent determination that the defendant was legally
incompetent to stand trial.").
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40> 1947K 414Via
178.400(2); People v. Moore, 946 N.E.2d 442, 448 (1ll. App. Ct. 2011)
(providing that a "bona fide doubt" arose when the "chemically-dependent"
defendant, who needed antidepressants to be fit for trial, was "suddenly
made to go off his medication," and that the trial court could not shirk its
sua sponte duty to order a competency hearing by placing the burden on
defense counsel to inquire into the matter).
Goad's competency only became more doubtful on the fourth
day of trial when he inexplicably lost his ability to speak and refused to
acknowledge his counsel despite never refusing to do so before. Thus, the
evidence of Goad's potential incompetence in the record, in the aggregate,
raised a reasonable doubt as to Goad's competence on the third and fourth
days of trial.
The evidence the State cites to contradict the reasonable doubt
that arose during trial did not dispose of the court's duty to order a
competency hearing. A reasonable doubt cannot be dispelled by resorting
to conflicting evidence once there is evidence of incompetence sufficient to
give rise to a reasonable doubt. Melchor-Gloria, 99 Nev. at 180, 660 P.2d at
113. Therefore, the evidence that the State cites to suggest that Goad was
competent, including that Goad was apparently medically cleared on the
fourth day of trial by an unknown person from the jail staff and Goad's
comprehension and nonverbal responsiveness during the court's canvass,
did not obviate the need for a competency hearing.N See Pate, 383 U.S. at
385 (rejecting the argument that "the mental alertness and understanding
displayed in [the defendant's] colloquies with the trial judge" dispensed with
the need for a competency hearing (internal quotations omitted)).

14Additiona11y, the district court's canvass did not cover the criteria
for incompetency as provided by NRS 178.400(2).
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Neither Goad's expressed desire to proceed nor defense
counsel's request for a canvass waived Goad's right to a competency
hearing. A defendant cannot waive his right to a competency hearing.
Krause, 82 Nev. at 463, 421 P.2d at 951 (citing Pate, 383 U.S. at 384). Goad
did not waive his right to a competency hearing by not specifically
requesting one either. See Pate, 383 U.S. at 384 (rejecting the prosecution's
argument that the defendant waived his right to a competency hearing
because his counsel failed to demand a hearing). Thus, the States
argument that the district court satisfied due process by obliging defense
counsel's request for a canvass and by confirming that Goad desired to
proceed is unpersuasive.15
The States analogy to Lipsitz overlooks that there are stronger
indicia of incompetence in Goad's case. In Lipsitz, the Nevada Supreme
Court held that a trial court did not err when it "relied on defense counsel's
assurances, its own interactions with [the defendant], and his responses to

15The dissent cites no authority for its conclusion that, " [i] f Goad can't
quite bring himself to say that he was incompetent in truth and in fact, then
I would conclude that there exists no 'reasonable doubar This is a classic
"red herrine because Goad was not required at trial, or now on appeal, to
assert he was incompetent. The quantum of proof for a defendant to be
entitled to a competency hearing is reasonable doubt. Melchor-Gloria, 99
Nev. at 180, 660 P.2d at 113. Due process required he receive a hearing
when there was reasonable doubt as to his competency, and the hearing was
not conditioned upon Goad or his counsel asserting that he was incompetent
in fact. Thus, even if he ultimately would have been found competent at
trial, he was still entitled to a hearing under NRS 178.415 to confirm he
was competent because there was a reasonable doubt. Additionally, NRS
178.415 shows competency in fact is a question requiring medical expertise:
a court may determine competency in fact only after receiving reports from
experts. We cannot expect Goad to declare in good faith that he was
incompetent when we would not allow a district court to reach the same
conclusion without the assistance of experts.
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(0 194711 APO.
the coures canvass in arriving at its determination that a competency
hearing was not warranted." 135 Nev. at 135, 442 P.3d at 142. The supreme
court concluded that the defendanes obstinacy was not sufficient to raise a
reasonable doubt as to the defendant's competence. Id. at 135, 442 P.3d at
142-43.
The State is correct that, like the district court in Lipsitz, the
district court here performed a canvass—albeit a brief one—and relied in
part on assurances from counsel that Goad desired to proceed with trial.
Similarly, Goad appeared to behave "obstinatelf on the morning of the
fourth day of trial when he refused to acknowledge his counsel. However,
unlike Goad, who was deprived of medication and whose psychiatric and
medical history suggested that the deprivation of the medication affected
his competency, there was no reason to believe that Lipsitz had been
deprived of medication that affected his competency.
Furthermore, Lipsitz's obstinacy was preceded by a pattern of
attempts to obstruct trial proceedings. Id. at 132-34, 442 P.3d at 141-42.
Comparatively, there is no indication in the record that Goad behaved
inappropriately, previously refused to acknowledge defense counsel, or
otherwise obstructed the proceedings prior to the fourth day of trial. On the
contrary, Goad's obstinacy on the fourth day of trial weighs in favor of
finding that reasonable doubt existed because, according to the district
court, he was well-behaved throughout trial. Based on the record, Goad's
temperament changed only after he was deprived of medication. See Drope,
420 U.S. 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."); see generally Hawaei

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v. Soares, 916 P.2d 1233, 1250 (Haw. Ct. App. 1996), overruled on other
grounds by State v. Janto, 986 P.2d 306 (Haw. 1999).16
In sum, federal due process jurisprudence and the Nevada
Constitution required the district court to order a competency hearing sua
sponte because reasonable doubt arose as to Goad's competency on the third
day of trial in light of the nature of the charged crime, Goad's history of
mental health conditions and use of psychoactive medications, Goad being
deprived of medication, and Goad's abnormal behavior thereafter. The
reasonable doubt that accrued on the third day of trial continued into the
fourth day of trial, where Goad's competency became even more doubtful in
light of his inability to speak and his refusal to acknowledge his counsel.
We emphasize that the record does not suggest that Goad was feigning his
behavior or attempting to manipulate the court at any time.
Although we conclude there was sufficient evidence to give rise
to a reasonable doubt, our conclusion should not be interpreted as endorsing
or opposing an inference that Goad was in fact incompetent during trial.

16A1though Nevada competency jurisprudence has not previously
addressed the significance of deprivation of medication with regard to a
court's reasonable doubt determination, Goad's case is very similar to
Soares. 916 P.2d at 1250. In Soares, the Intermediate Court of Appeals of
Hawail held that "a good faith doube—HawaiTs rendition of the
"reasonable doubt" standard—arose based upon the defendant's assertion
that he had not received his medication that morning and his trial counsel's
representation that he "was acting completely differently from the first day
of trial." Id. The court explained that it was "not clear from the record
whether [d]efendant required the medication in order to be mentally
competent to proceed to trial. However, in view of [d] efendant's assertion,
as well as his trial counsel's representations that [d] efendant was acting
completely differently from the first day of trial [,] . . . a good faith doubt was
clearly raised as to whether [d] efendant's failure to take his medication was
directly affecting his legal competence to stand trial." Id.

24
We reiterate that the district court was required to "decide whether there
is any evidence which, assuming its truth, raise[d] a reasonable doubt"
about Goad's competency. See Melchor-Gloria, 99 Nev. at 180, 660 P.2d at
113 (emphasis added) (quoting Moore, 464 F.2d at 666). We thus do not
resolve whether Goad was telling the truth when he made the statements
documented in the interrogation transcript, whether the medication did in
fact impact his competency, or any other matter bearing on Goad's
competency except to the extent that it gave rise to a reasonable doubt
necessitating a competency hearing.
Remedy
In every case where the Nevada Supreme Court has found on
direct review that a trial court failed to order a competency hearing when
reasonable doubt existed, it has reversed the judgment of conviction and
ordered a new trial.17 When the case entailed review of a petition for a writ
of habeas corpus, the court discharged the petitioner from confinement
unless the State elected to retry the petitioner within a reasonable time. 18
Despite this uniformity, the Nevada Supreme Court has not ruled that
reversal and remand for a new trial is always required when a trial court

17See Olivares, 124 Nev. at 1149, 195 P.3d at 869 (reversing
defendant's conviction and remanding the case to district court to conduct a
new trial); Fergusen, 124 Nev. at 806, 192 P.3d at 720 (reversing the
defendanes conviction and remanding the case for a new trial).

18See Williams, 91 Nev. at 17, 530 P.2d at 761-62 (reversing a habeas
petitioner's conviction because the trial court failed to order a competency
hearing and "discharg[ing] [petitioner] from confinement unless the State
within a reasonable time elects to retry him"); Krause, 82 Nev. at 463, 421
P.2d at 951 (discharging a habeas petitioner from confinement due to a trial
court's failure to sua sponte order a competency hearing "unless the State,
within a reasonable time, elects to retry him").
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fails to order a competency hearing. See Krause, 82 Nev. at 463, 421 P.2d
at 951 (stating that the court "prefer[s] the United States Supreme Court's
remedy in Pate of reversal and remand due to the difficulty of holding a
limited retrospective hearing). Nor has the United States Supreme Court
ruled that reversal and remand is the exclusive remedy when a court
violates Pate. See Pate, 383 U.S. at 386; Drope, 420 U.S. at 183.
In lieu of reversal and remand, appellate courts have at times
remedied trial courts failures to order a competency hearing with a
retrospective, or nunc pro tunc, competency hearing. See Odle, 238 F.3d at
1089-90 ("The state court can nonetheless cure its failure to hold a
competency hearing at the time of trial by conducting one retroactively.").
A nunc pro tunc hearing is a hearing that takes the place of a
contemporaneous hearing, as if it had been held at an earlier time. See
louri v. Ashcroft, 464 F.3d 172, 181-82 (2d Cir. 2006), opinion modified and
superseded on denial of rehearing, 487 F.3d 76 (2d Cir. 2007).
The utility of a retrospective competency hearing is clear: " [a] n
automatic full reversal with a remand for a new trial . . . would impose
severe costs on the justice system in remedying a violation that, while
considered a miscarriage of justice in the context of competency
proceedings, might not have affected the guilt and penalty verdicts." People
v. Lightsey, 279 P.3d 1072, 1102 (Cal. 2012). "[I]f placing [the] defendant in
a position comparable to the one he would have been in had the violation
not occurred is possible," and the district court finds that the defendant was
competent to stand trial on remand, then "we would have no reason to

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question the fundamental fairness and reliability of the remainder of the
judgment against him." Id.
However, before a nunc pro tunc competency hearing can occur,
the district court must determine on remand that a meaningful
retrospective hearing to determine competency is feasible.'9 See Odle, 238
F.3d at 1089-90; see also McGregor v. Gibson, 248 F.3d 946, 962 (10th Cir.
2001) ("Retrospective competency hearings are generally disfavored but are
permissible whenever a court can conduct a meaningful hearing to evaluate
retrospectively the competency of the defendant." (internal quotations
omitted)). A retrospective competency hearing is "feasible if there is
sufficient evidence available to reliably determine a defendant's competence
at or around the time reasonable doubt arose. Lightsey, 279 P.3d at 1104-
05. To determine whether a retrospective competency hearing is feasible, a
trial court must consider the following factors:
(1) [t]he passage of time, (2) the availability of
contemporaneous medical evidence, including
medical records and prior competency
determinations, (3) any statements by the
defendant in the trial record, and (4) the
availability of individuals and trial witnesses, both
experts and non-experts, who were in a position to
interact with [the] defendant before and during

19The dissent states, "there is nothing for the district court to
aggregate on remand." The dissent again confuses reasonable doubt with
determining competency in fact. The aggregating principle applies when a
court is considering whether there is reasonable doubt such that a hearing
is necessary, not during a competency hearing when a court determines if a
defendant is incompetent in fact under NRS 178.415. Similarly, the
dissent's comments regarding the scope of a competency hearing, which are
not supported by authority, completely overlook NRS 178.415, the
controlling statute.
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trial as well as any other facts the court deems
relevant.

Id. at 1105 (alterations in original) (citation and internal quotations
omitted). The trial court's focus in making "the feasibility determination
must be on whether a retrospective competency hearing will provide [al
defendant a fair opportunity to prove incompetence, not merely whether
some evidence exists by which the trier of fact might reach a decision on the
subject." Id. (emphasis omitted). "Because of the inherent difficulties in
attempting to look back at the defendant's past mental state, the burden of
persuasion" is on the prosecution to convince the trial court "by a
preponderance of the evidence that a retrospective competency hearing is
feasible in this case."2° Id. (citation omitted).
We conclude that vacating the judgment of conviction and
ordering a retrospective, or nunc pro tunc, competency hearing is the
appropriate remedy for the district court's violation. If, on remand,21 the

20During oral argument, we asked the parties if it would be feasible
at this time to conduct a hearing to determine Goad's competence during
his trial. Neither party conceded that it would be feasible, but neither
argued that it would be impracticable or impossible. Notably, neither party
suggested that there are any impediments in determining the effect of being
deprived of the medication Goad was receiving, which would likely be the
focus of the feasibility determination and, if feasible, the subsequent nunc
pro tunc competency hearing.
21Remanding a case for the district court to make a determination on
a specific issue is not a novel practice for a Nevada reviewing court. See
Harvey v. State, 136 Nev., Adv. Op. 61, 473 P.3d 1015 (2020) (reversing a
judges rulings on post-trial motions who sat in for the trial judge and
remanding the case for the trial judge to consider the motions). Lightsey
further explains that "a limited remand for the purpose of conducting, if
feasible, a retrospective competency hearing is akin to a limited remand to
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district court determines that a hearing to retrospectively determine Goad's
competence is not feasible in accordance with the forgoing prescripts, then
the judgment of conviction remains vacated and the district court is ordered
to conduct a new trial.22 See id. at 1120. If the district court determines
that a hearing is feasible, then it shall conduct the hearing in accordance
with NRS 178.415.23 If, at the conclusion of the hearing, the district court
finds that Goad was competent throughout his 2019 trial, then the court
shall reinstate its judgment of conviction. See NRS 178.420; Lightsey, 279
P.3d at 1120. Alternatively, if the court finds that Goad was incompetent,
then the district court must conduct a new trial.24 Id.

remedy a sentencing error that has not affected the judgment of guilt." 279
P.3d at 1103.

22Pursuant to Lightsey, a reviewing court reverses the judgment of
conviction and remands the case for a nunc pro tunc hearing with
instructions to conduct a new trial if the hearing is not feasible or the result
of the hearing is that the defendant is found to have been incompetent. See
Lightsey, 279 P.3d at 1120. We choose to vacate because the judgment of
conviction may be reinstated depending on the outcome of the hearing.

231n Doggett v. Warden, the Nevada Supreme Court, in reviewing a
petition for postconviction relief, commented that the burden of proof in a
retrospective hearing to determine competency is sometimes allocated to
the State. 93 Nev. 591, 595, 572 P.2d 207, 210 (1977) ("It is only when the
trial court has failed to follow the procedural requirements of Pate that the
State is required to forgo its usual requirement that the defendant establish
his incompetence as of the date of the original trial."). Because the Doggett
court reviewed an order denying a petition for a writ of habeas corpus that
did not allege a Pate violation, and because the decision predates the
enactment of Nevada's current competency hearing statute, NRS 178.415,
we need not decide its possible application here.

24The dissent cites an unpublished case, State v. Fifth judicial Dist.
Court, to argue that the Nevada Supreme Court has ruled against the
remedy we order here. Docket No. 53926 (Order Granting Petition, Sept.

29
CONCLUSION
Trial courts have a duty to ensure that criminal defendants are
competent while standing trial. Thus, a trial court must order a hearing
sua sponte to determine whether a defendant is competent when there is
reasonable doubt about his or her competency. To fulfill its duty to order a
competency hearing, a trial court must follow Nevada's statutory
competency procedures and consider any evidence of incompetence in the
record regardless of whether that evidence was adduced pretrial or during
trial. In reaching its reasonable doubt determination, the trial court must
consider evidence of incompetence in the aggregate; that is, evidence of
incompetence should be considered in light of other evidence of
incompetence as well as the court's own observations of the defendant. If a
trial court fails to order a competency hearing when reasonable doubt
arises, an appellate court may remedy the failure by remanding the case to
the trial court to hold a retrospective hearing to determine whether the
defendant was incompetent during trial, provided the trial court first
determines on remand that it is feasible to retrospectively determine the
defendanes competence.

25, 2009) ("Nevada law does not permit a trial court to vacate prior
proceedings based upon present doubt as to past competency."). Even if this
decision bo-und us, which it does not, see NRAP 36(c)(3), our remedy does
not vest the district court with power to "vacate prior proceedings." This
court is vacating the district court's judgment, and the district court will
reinstate the judgment of conviction if a competency hearing is feasible and
the district court determines that Goad was competent during his trial after
the hearing. Otherwise, the district court must conduct a new trial
pursuant to our order.
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Accordingly, we order the judgment of conviction vacated and
remand this case for a retrospective competency hearing, if feasible, and
any such other proceedings consistent with this opinion.

s.

71 , C.J.
Gibbons

I concur:

J.
Bulla

31
TAO, J., concurring in part and dissenting in part:
The majority resolves this appeal by vacating a murder
conviction in favor of a remedy—a retrospective competency hearing to be
held more than 21 months after the original trial—that Goad himself never
requested; that the Nevada Supreme Court has already announced that
district courts cannot order; and that doesn't even apply to the facts of this
case. The majority ends up vacating a murder conviction for the district
court to "aggregate additional evidence that Goad himself doesn't claim to
exist, for the purposes of assessing the truth of something that Goad himself
doesn't claim to be true. "There's no there there to aggregate. Gertrude
Stein, Evelybody's Autobiography (1937). Respectfully, I dissent.
I.
Goad stabbed his victim a total of 250 times in one of the most
brutal and bloody murders in recent memory. Goad has been diagnosed
with a mental illness, and it's pretty clear that he has one of some sort; the
excessive and wanton violence of the crime alone seems to suggest that. But
what we don't know is whether his mental illness either did, or did not,
render him incompetent on one particular day several months after the
murder, day four (August 8, 2019) of his trial. As the majority notes, the
record is devoid of sufficient information. For example, as the majority
specifically notes (and greatly emphasizes), we don't know much about his
precise diagnosis, as he was apparently never examined by a psychologist
or psychiatrist during the litigation of this case, and we don't know what
medications he was administered during his trial and how they may, or may
not, have affected him.
This lack of information matters, because mental illness and
legal incompetence are two very different things. Many people who suffer
from various mental illnesses are fully competent to stand trial for the
crimes they commit. The test for legal incompetence is altogether different,
and considerably harder to meet, than the test for whether someone suffers
from one of the many mental illnesses listed in the DSM (Diagnostic and
Statistical Manual of Mental Disorders, published by the American
Psychiatric Association). A court measures competence not by whether the
defendant has a mental illness, but rather something very different: by the
defendant's ability to understand the nature of the criminal charges, the
nature and purpose of the court proceedings, and by his or her ability to aid
and assist his or her counsel in the defense at any time during the
proceedings with a reasonable degree of rational understanding. Calvin v.
State, 122 Nev. 1178, 1182-83, 147 P.3d 1097, 1100 (2006); Dusky v. U.S.,
362 U.S. 402, 402 (1960); see NRS 178.400(2)(a)-(c).
"Diagnosis of a mental illness or defect, without more, does not
reasonably raise doubt about defendant's competence to stand trial."
Robinson v. State, 301 So. 3d 577 (Miss. 2020); see People v. Lara, (Cal. Ct.
App., Dec. 20, 2006, No. B186598) 2006 WL 3734924, at *2 (noting
psychologist's evaluation that defendant was mentally ill but not
incompetent); Commonwealth v. Zook, 887 A.2d 1218, 1225 (Pa. 2005)
(affirming trial judge's conclusion that defendant was "mentally ill and not
incompetent to proceed"); Bishop v. Caudill, 118 S.W.3d 159, 167 (Ky. 2003)
(Keller, J., concurring) (noting entire class of cases "where the defendant is
mentally ill, but not incompetent"). The Nevada Supreme Court agrees: "]a
defendant's] history of drug abuse, possible PTSD, and mental health
history, without more, did not indicate that he was unable to consult with
his attorney or understand the proceedings against him." Eubanks v.
Baker, Docket No. 68628, at *1 (Order of Affirmance, May 9, 2016) (citing

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Melchor-Gloria v. State, 99 Nev. 174, 179-80, 660 P.2d 109, 113 (1983), and
Dusky, 362 U.S. at 402).
Quite the opposite can often be true: people with mental
illnesses can function at such a high level that several have won Pulitzer
Prizes and Nobel Prizes for their work. See James C. Kaufman, Genius,
Lunatics, and Poets: Mental Illness in Prize-Winning Authors, SAGE J., Vol.
20, Issue 4, pp. 305-14 (Yale Univ. June 1, 2001); A. Rothenberg, Creativity
and Mental Illness, Am. J. of Psychiatry, 152:5, pp. 815-16 (1995). Meeting
the basic test of legal competency is many orders of magnitude less complex
than the kind of sustained genius that wins those kinds of awards. Genius
aside, millions of other people diagnosed with mental illnesses are
nonetheless fully competent to sign contracts, raise children, be licensed to
drive, open bank accounts, write valid wills, hold important jobs, grant or
refuse consent to medical treatment, make important life choices without
being overruled by a court-appointed guardian, and be put on trial for the
crimes they commit. See Munsey v. State, 2004 WL 587642 (Tenn. Crim.
App. 2004) (finding that a mentally ill defendant was fully competent to
waive right to counsel); In re Yetter, 1973 WL 15229 (Pa. Ct. Comm. Pleas
1973) (refusing to appoint a guardian to oversee medical decisions for a
person who had mental illness but was fully competent to make her own
medical decisions). See generally Claudine Walker Ausness, Note: The
Identification of Incompetent Defendants: Separating Those Unfit for
Adversary Combat From Those Who Are Fit, 66 Ky. L. J. 666, 679 (1977-78).
On the other hand, people can be incompetent for reasons
entirely unrelated to mental illness. Intoxicated defendants, for example,
may be incompetent (albeit temporarily). In Nevada, children under six
years of age are presumptively incompetent to testify in judicial

3
proceedings. People suffering from Alzheimer's disease or dementia, or who
have suffered certain types of head injuries, may be incompetent despite
having no diagnosed mental illness whatsoever. Competence can
sometimes come and go; someone can be incompetent to testify at one period
in time but fully competent at another. See Felix v. State, 109 Nev. 151,
173, 849 P.2d 220, 235-36 (1993), superseded by statute on other grounds as
stated in Springman v. State, Docket No. 50325 (Order of Affirmance,
February 10, 2009).
Of course, it goes without saying that for many people mental
illness and competency can be related. Some people suffer from mental
illnesses so severe that they render that person legally incompetent,
sometimes permanently. But the larger point is that the link between the
two things is at best imperfect. The presence of one does not necessarily
suggest the other. In fact, the link is so tenuous that mental illness cannot
even be said to usually or commonly suggest legal incompetence. See
Robinson, 301 So. 3d at 582; Bishop, 118 S.W.3d at 167 (noting entire class
of cases "where the defendant is mentally ill, but not incompetent"). If we're
going to get the analysis right, then as the saying goes, we need to make
sure apples are sorted with apples and oranges with oranges.
II.
The answer to our lack of knowledge isn't to vacate the
conviction and remand for a retrospective hearing, because that approach
turns such a hearing into something it isn't supposed to be: rather than a
focused judicial weighing of existing evidence, it becomes a tool of open-
ended investigation and discovery requiring the district court to conduct a
free-floating fishing expedition for new information totally outside of the
record and beyond the evidence that the parties decided to present on their

4
behalf, regardless of whether the parties want the new evidence or think it
helps them or not. Worse, it directs the district court to do this even though
Goad did not request such an investigation either before or during trial.
Fundamentally, it reverses not because the district court
committed any legal error in evaluating what the parties actually
presented, but rather because the majority imagines that there might be
some evidence outside the record that the parties overlooked that the court
was never asked to consider but that someone ought to now go look for, 21
months after the fact. Mind you, the majority tacitly admits that we don't
know what that evidence might be, because it isn't enough for this court to
actually conclude that Goad was so clearly incompetent that the district
court must conduct a new trial. Rather, the majority expressly leaves open
the possibility that the district court is free on remand to conclude that any
additional evidence it finds might not be enough to warrant a full
competency adjudication, much less demand the conclusion that Goad was
incompetent to stand trial on day four. So whatever additional evidence
might be out there (whatever it is) could go either way. But let's vacate
Goad's murder conviction and require the district court to look anyway.
This isn't how such hearings are supposed to work. They're not
supposed to be open-ended discovery searches. Rather,
[t] his court "disfavor [s] retrospective
determinations of incompetence," see Williams v.
Woodford, 384 F.3d 567, 608 (9th Cir. 2004), and
they are reserved for those cases where it is
possible to "conduct a meaningful hearing to
evaluate retrospectively the competency of the
defendant." Moran v. Godinez, 57 F.3d 690, 696
(9th Cir. 1995), overruled on other grounds by
Lockyer v. Andrade, 538 U.S. 63, 75-76, . . . (2003);
see Drope [v. Missouri], 420 U.S. [162,]
183 . . . [(1975)] (holding that "[Oven the inherent
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difficulties of such a nunc pro tunc determination
under the most favorable circumstances," a
retrospective competency hearing six years after
the trial was not possible). In determining whether
such a hearing is warranted, we evaluate such
factors as the passage of time and the availability
of contemporaneous medical reports. Moran, 57
F.3d at 696; see also McMurtrey [v. Ryan], 539 F.3d
[1112,1 1131-32 [(2008]).
Maxwell v. Roe, 606 F.3d 561, 576 (9th Cir. 2010). Requiring one when we
have no idea if any concrete evidence even exists risks morphing Goad's trial
from an adversarial proceeding into something more like an inquisitorial
one (familiar to Europeans) in which the judge, not the parties, directs the
investigation, decides where to look, and decides what should matter to the
parties whether they like it or not. That might be how things work in
Europe, but ies not how we're supposed to handle things. In our adversarial
system of justice, when the record lacks information necessary to warrant
reversal, the solution is to conclude that the appellant failed to meet his or
her burden of demonstrating that he or she is entitled to relief. In Nevada,
the burden falls on the appellant trying to overturn a jury verdict to provide
us with a complete enough record to make a case for reversal, and if he or
she fails to do so we "necessarily presume that the missing portion supports
the district coures decision." Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123
Nev. 598, 603, 172 P.3d 131, 135 (2007). This premise is sometimes phrased
in an alternative: we "cannot properly consider matters not appearing in
th[c] record." Johnson v. State, 113 Nev. 772, 776, 942 P.2d 167, 170 (1997).
Here, the record contains ample evidence of mental illness, but
none whatsoever that Goad has ever been legally incompetent at any time
in his long 74-year life. Indeed, he never claimed to be incompetent at any
time during the litigation of his murder case: he did not assert a defense of

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insanity or diminished capacity in response to the charges, and his trial
counsel never argued to the district court that he believed his client was
incompetent to stand trial or assist in his defense. Goad and his counsel
presented no evidence at all that he has ever been legally incompetent for
even a single minute of his life, and Nevada law holds that lack of
information against the party bearing the burden of proof on appeal, which
is Goad. Yet by reversing anyway, the majority assumes something it
doesn't want to say: that by failing to challenge competency more
vigorously, Goad's counsel was basically ineffective and two judges of this
court are going to give him a second chance to come up with more evidence
than he presented the first time. But unlike my colleagues, I'm not willing
to jump to the conclusion that counsel failed at his job. Rather, I would
think that if anyone knows Goad's mental competence, it would be counsel
in close contact with him during the litigation of a murder trial over the
course of several months, rather than appellate judges viewing nothing but
a written transcript almost two years later.
Quite to the contrary, one fact stands out: Goad doesn't even
claim himself that he was incompetent during his trial. In determining
whether a full competency hearing is required, courts focus on three factors:
the defendant's history of irrational behavior, the defendant's demeanor at
trial, and prior medical opinion of the defendant's competence to stand trial.
Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113 (citing Drope, 420 U.S. at
180). Two of the three are nonexistent by Goad's own admission, and the
third supports the district court.
As a starting point, Goad admits that he goes long periods of his
life without taking any medication for his mental illness; in fact, he told the
police during a recorded and transcribed interrogation that he was

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medication-free for seven years before his arrest, and he never disavows the
truth of that statement, not even now. See Transcript of March 2019 Police
Interview, 1 JA 124: "Q: When was the last time you took, you took your
medications? A: 7 years ago . . . . So 7 years I went without medicine." Yet
he never claimed to be legally incompetent. In district court, Goad never
argued that he was incompetent either before or during trial, and indeed
while the district court conducted the canvass that gives rise to this appeal,
neither Goad nor his counsel suggested that there existed any past history
of incompetency. On appeal, his counsel expressly admitted that there is
no evidence that Goad has ever been diagnosed or adjudicated incompetent
by any physician or court at any time during his 74-year life, not even
during the years when he was medication-free.
[Court:1 1B1ut mental illness and incompetence are
two different things, so my question to you is, has
he ever in his seventy-four years been adjudicated
incompetent by any other court, because it doesn't
appear anywhere during the lifespan of this case
before trial that anyone raised any questions of his
competency despite the fact that he clearly has a
mental illness. Has anyone ever, other than this
one day in time, had questions about his
competency as opposed to his overall mental
health?

[Goad:1 . . . In the record, before the district court or
anything that was currently in the appellant record
there is no other indication that Mr. Goad has been
formally adjudicated incompetent by a court.
Notably, the question asked during argument wasn't just whether he's ever
been formally adjudicated legally incompetent, but whether anyone has
ever "had questions" about his competency, to which the answer was
negative. If any such evidence existed, this was certainly the prime moment
for counsel to mention it.
8
Conclusion: there is simply is no evidence that Goad was ever
legally incompetent to stand trial for murder, either with or without
medication.
Indeed, if you look closely and carefully at both the record and
Goad's briefing, Goad himself never actually asserted that he was ever
incompetent, either to the district court or, notably, even in his briefing on
appeal to this court even after having had almost two years to think about
it. The best argument that Goad makes is the cleverly worded one that "due
process clearly required that Mr. Goad be evaluated for his competence to
stand trial." (Appellant's Opening Brief, page 15.) His "Summary of
Argument" elaborates:
In this case, Mr. Goad was found to be seriously ill
on the afternoon of August 7. When he returned to
court on August 8, he refused to engage with or
acknowledge counsel, and appeared unable to
assist counsel in his own defense. Given these
circumstances, the district court abused its
discretion in failing to initiate formal competency
proceedings.
(Appellant's Opening Brief, p. 10.) We all know that Goad was mentally
"ill," but notice what's cleverly missing from even Goad's own carefully
parsed argument: the factual assertion that he has ever been incompetent,
either before August 8, on August 8, or at any time after August 8 through
today. His argument is all about day four of the trial, August 8. He concedes
(and the majority accepts) that he was fully competent on days one and two
of the trial, and then fully competent on every day after day four. But even
as to day four itself, nowhere does he go so far as to allege that he actually
was, as a medical truth, incompetent. So it appears to me that Goad just
wants a reversal of his murder conviction for the purely rhetorical reason
that the evidence might suggest victory based upon grounds that he himself

9
does not personally say were factually true. Unlike the majority, I don't
assume that counsel must have done a bad job. Rather, I see this as good
and clever lawyering, the kind of quality representation that every
defendant facing murder charges deserves to have but relatively few ever
get. But good lawyering by itself doesn't mean that reversal is warranted.
If Goad can't quite bring himself to say that he was incompetent in truth
and in fact, then I would conclude that there exists no "reasonable doubt"
about it: it's just not true. At the very least, we must conclude that the
existing record supports no other conclusion.
The majority thus remands this matter back to the district
court for supposedly failing to "aggregate" evidence that Goad's trial and
appellate counsel do not claim to actually exist anywhere in the world. The
district court can hardly be faulted for failing to "aggregate" evidence that
Goad did not bother to present to the district court when given the
opportunity, and even now does not quite say actually exists. If any hearing
would be meaningless, this one will be, and during oral argument Goad's
counsel quite sensibly agreed:
[Court] Is it possible in this situation to send this
case back for a competency hearing at this point in
time as opposed to a new trial?

[Goad:1 Your honor, I don't believe a competency
examination at this point in time could establish
whether Mr. Goad was competent during that
morning of trial, though it may provide more
information if we knew what the medication was.

[Court] Couldn't a hearing determine the answer
to the questions [the court] posed?

[Goad:] A hearing could determine the answer to
those questions, though it would be difficult to
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determine Mr. Goad's mental state on that
morning.

[Court] It would be difficult, but would it be
impossible?

[Goad:1 I think it would be next to impossible.
There is nothing for the district court to aggregate on remand. The
aggregate of zero is zero, and we should affirm.
111.
The scope and purpose of a retrospective hearing is
considerably more limited and narrow than the majority opinion suggests.
Its purpose is to answer the narrow question of legal competence, not to
conduct a free-wheeling investigation into a defendant's overall mental
health just to see what might be lurking there. Thus, the remedy is far from
sweeping; to the contrary, it is actually quite narrow. First, it triggers only
when there exists "reasonable doubt" regarding competency; it is not
supposed to be held for every defendant who happens to suffer from some
kind of mental illness unrelated to competency.
Second, the remedy is only an appellate remedy, not one that
can be granted by a district court in connection with a post-verdict motion
for new trial no matter how much doubt exists regarding competence. The
Nevada Supreme Court has already announced that "Nevada law does not
permit a trial court to vacate prior proceedings based upon present doubt
as to past competency" and a district court that vacates a jury verdict and
grants a new trial on this basis "exceeds its authority." State v. Fifth
Judicial Dist. Court, Docket No. 53926, (Order Granting Petition, Sept. 25,
2009). In that case, the defendant was convicted at trial but behaved
erratically during sentencing. The district court ordered and conducted its
own retrospective hearing and determined that the defendant had been
11
incompetent during trial, and vacated the conviction. The State filed a
petition for writ of mandamus, and the Nevada Supreme Court intervened
and ordered the district court to restore the guilty verdict, concluding:
The State challenges the district court's order
setting aside the verdict on two grounds: (1) the
district court exceeded its authority under NRS
175.381(2) when it set aside the verdict on a ground
other than sufficiency of the evidence, and (2) the
district court exceeded its authority and abused its
discretion when it made a determination as to
Yowell's past competency that was not supported
by substantial evidence. We agree.

First, a trial court may set aside the verdict and
enter a judgment of acquittal if the evidence is
insufficient to sustain a conviction. NRS
175.381(2). In the instant case, the district court
set aside the verdict because it believed that Yowell
was not competent during his trial. There was no
allegation, let alone a finding by the district court,
that the evidence presented by the State was
insufficient to sustain a conviction. Therefore, we
conclude that the district court exceeded its
authority under NRS 175.381(2) by setting aside
the verdict.

NRS 176.515(1) provides that "the court may grant
a new trial to a defendant if required as a matter of
law on the ground of newly discovered evidence!'
However, Nevada law does not permit a trial court
to vacate prior proceedings based upon present
doubt as to past competency.
Id. at *2. Thus, a district court's power to vacate a jury verdict and grant a
new trial in a criminal case is governed by statute, and the statutes do not
authorize courts to grant new trials on grounds other than insufficiency of
the evidence. Id. Consequently, district courts may not vacate jury verdicts

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and order such hearings themselves after trial. Only appellate courts may
order such hearings; district courts have no authority to do so.
Accordingly, the scope of what the majority does today is
extremely limited: it applies only to the judges of this court, not to any
district courts and not to the Nevada Supreme Court either, which remains
free to ignore opinions from lower courts. It is precedent only to us, not any
other court either above or below. Because this is only an appellate remedy
not available to the district court, the inquiry must be filtered through the
appellate standard of review. Whether there exists "reasonable doubt"
regarding competency is a question of fact "within the discretion of the trial
court" to answer. Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113.
Appellate courts are required to defer to the district court on questions of
fact.
An appellate court is not particularly well-suited to
make factual determinations in the first instance.
Zugel [by Zugel v. Miller], 99 Nev. [100,] 101, 659
P.2d [296,] 297 [(1983)]; 16 Charles Alan Wright,
Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3937.1 (2d ed. 1996)
("Appellate procedure is not geared to
factfinding."); see also Anderson v. Bessemer City,
470 U.S. 564, 575 (1985) (explaining that a trial
court is better suited as an original finder of fact
because of the trial judges superior position to
make determinations of credibility and experience
in making determinations of fact); Alburquerque v.
Bara, 628 F.2d 767, 775 (2d Cir. 1980) (remanding
habeas petition to district court for additional fact
findings because Court of Appeals was not well-
suited to make factual findings). An appellate
court's ability to make factual determinations is
hampered by the rules of appellate procedure, the
limited ability to take oral testimony, and its panel
or en banc nature.

13
Ryan's Express v. Amador Stage Lines, 128 Nev. 289, 299, 279 P.3d 166,
172-73 (2012).
So, properly framed, the issue before us isn't whether we think
there existed "reasonable doubt" regarding Goad's competency; we have no
ability to engage in fact-finding when we can't see Goad and all we have
before us is a typed transcript of events that happened over 21 months ago.
Rather, the issue is whether there exists "substantial evidence in the
record to support the district court's conclusion that no such doubt existed
based upon its firsthand personal interaction with Goad at the precise
moment in time when his competency was supposedly under suspicion.

This court reviews the district court's decision to hold or not to
hold a more in-depth competency proceeding for an abuse of discretion.
Olivares v. State, 124 Nev. 1142, 1149, 195 P.3d 864, 869 (2008). Here, Goad
is mentally ill, but that tells us little about whether he was incompetent on
any particular day of his trial. Even at the ripe old age of 74, Goad admits
that there exists precisely zero evidence that he has ever been previously
suspected, diagnosed, or adjudicated as legally incompetent at any time in
his life by any physician or any court, despite suffering from a mental illness
continuously. See Eubanks v. Baker, Docket No. 68628, at *1 (Order of
Affirmance, May 9, 2016) (a defendant's "history of drug abuse, possible
PTSD, and mental health history, without more, did not indicate that he
was unable to consult with his attorney or understand the proceedings
against him"). Did the district court "abuse its discretion" in finding that a
formal competency hearing was unnecessary? Here's what the trial record
says.

14
During six months of pretrial litigation between Goad's arrest
and trial (from March to August 2019), neither he nor his counsel ever
placed his competency into question. I would think that counsel in close
quarters with Goad while preparing for a murder trial would know plenty
that we do not, and would raise the matter on even the slightest sniff of a
problem. Nothing. The district court was asked to resolve a series of
pretrial motions, none of which raised any question about Goad's
competency (motion to admit/exclude evidence of Goad's eviction/financial
issues, motion to exclude prior bad acts, motion to exclude prejudicial photos
and videos).
If anything, the pretrial record cuts the opposite way. The only
pretrial motion relating in any way to Goad's mental health was a motion
to admit/exclude a recording/transcript of police interrogation in which
Goad describes his mental health history in some detail but never claimed
any prior diagnosis of incompetency. During it, Goad claimed (all
unverified) that he spent time in various mental health facilities (at UC
Davis, in Glendale, and in Galletti) and suffers from what he described as
"depression" and at one time took the medications Amitripyline to help him
sleep and Ativan for "shakes." However, he asserted that the last time he
took those medications was seven years before the interrogation. Therefore,
by his own admission, he does not need medication to be legally
incompetent. Perhaps the medication reduces the severity of the symptoms
of his mental illness. But when he admits that he has not received
medication for seven years, and then counsel adds that he has never been
diagnosed or adjudicated incompetent, the last step of the syllogism
becomes obvious: the district court correctly concluded that there is simply

15
no evidence that Goad needs medication to be legally competent to stand
trial for the crime of murder.
So Goad's competency was never questioned before trial and
has apparently not been questioned in the 21 months that have elapsed
since trial until now. What about the trial itself? In evaluating whether a
full competency hearing is required, trial courts must consider their own
observations of the defendant's behavior. Melchor-Gloria, 99 Nev. at 180,
660 P.2d at 113; Drope, 420 U.S. at 180. Goad concedes that he was fully
competent on days one and two of the trial, and then fully competent on
every day of the trial that took place after day four. Even on day four, he
concedes (as will soon become apparent) that he was competent by the early
afternoon.
The only issue is what happened during part of the morning of
day four, as he was fully competent after lunch. Here's what the trial
transcript says about Goad's behavior during the events of that day.
On day three of Goad's trial, the district court stated shortly
after the lunch break:
I've observed a difference in Mr. Goad's physical
appearance today. And during the lunch hour, just
in the last five minutes, Deputy Cross came to me
and said that there had been some inquires about
Mr. Goad's health. I asked him if Mr. Goad's
attorneys were aware of it, and he said that they
had been here for the entire break.
A deputy court marshal then stated on the record that he was "advised of
the change of behavior" and was in contact with medical staff, which
revealed that Goad did not receive a medicine that day. The deputy further
noted the medication was the "type that cannot wait until the end of our
normal business day." The deputy recommended stopping proceedings for
the day and taking care of Goad.
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The district court then asked defense counsel for his
impressions, to which counsel responded that Goad was "worse than he was
this mornine and was degrading physically. Notably, counsel did not
question Goad's ability to communicate with him or assist in defending the
trial, despite the judge's express invitation. The district court then said, "I
think ies appropriate that we recess for the day. And if that means that it
pushes the trial back, thaes what it means. Mr. Goad is entitled to be
present and well as he both observes trial and participates with his
attorneys privately." The district court then sent the jury home, after which
Goad received his medication.
Trial reconvened the next day at 9 a.m. Defense counsel started
by notifying the district court that Goad was unresponsive and failed to
acknowledge his attorneys. The record indicates, however, that Goad was
responsive with the marshals and courtroom deputies. Defense counsel
next said, "So what I would be interested in this morning is just the Court
to ask Mr. Goad if he understands why were here and what we're doing.
And if he could acknowledge that to the Court I would feel comfortable going
forward." Notably, counsel did not express the belief that Goad was
incompetent, and did not request the full competency hearing that the
majority now says was necessary. The district court responded:
rm not going to conduct some form of informal mini
mental examination from the bench. This trial is
going to proceed with or without Mr. Goad's
presence or participation. I want Mr. Goad to be
present. But if Mr. Goad, for example, chose not to
accept the transport I'd quickly do some legal
research but I—I have a sense that without any
competent jury this trial proceeds.

So I'm going to ask Mr. Goad about being here, I'm
going to acknowledge him, express my gratitude

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that hes here, my hope that he remains, but I'm not
going to make findings about his cog nature.
The following is the interaction the district court had with Goad.
[Court] Mr. Goad, good morning. And you've just
raised your hand to say hello to me in gesture. Are
you having a hard time speaking?

[Goad:] (Nods head.)

[Court] Yes, you're nodding your head yes. The
record will reflect that I'm looking directly at Mr.
Goad and he is looking at me as I speak to him. Our
eyes are communicating with each other, and hes
nodding his head yes. But you're not able to speak
this morning; is that correct?

[Goad:] (No audible response.)

[Court] So Mr. Goad has attempted to make noise
with his throat and he's held his hand up to his
throat indicating there may be some problem with
his ability to use words this morning.

Mr. Goad, do you know who I am? Not my name,
but do you know what I do? Yeah, you're nodding
your head yes. And these are your two attorneys.
And you're nodding your head and saying yes and
waving to them.

Are you able to write at all? Yes? So what I'll do is
at defense counsel's request, if at any time you want
to communicate with your attorneys, just let Ms.
Mayhew know, shell stand and let me know,
and . . . well let you write a note to them. I'm not
sure what's going on.

Has Mr. Goad been medically cleared from the
infirmary? The deputies are answering yes, he has,
and he is nodding his head yes.

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Mr. Goad, is it—will you just raise your hand if you
want this trial to proceed? Yes. Hes raising his
hand immediately.

All right. That's enough of a canvass for me.
The district court then called the jury in and the trial proceeded. By early
that afternoon, Goad's counsel entered the following observation into the
record:
What I want to let the court know is it's as if the
medication that he was given yesterday has a time
frame in which it actually has its effect. l3ecause I
have noticed a marked difference now with respect
to Mr. Goad and his ability to communicate with
me. . . . It's as if the medication took a while to have
its effect, this morning it hadn't fully activated.
Thus, any issue that Goad had during the morning of day four
was resolved by that afternoon.
V.
Notably, at no point during this lengthy exchange did defense
counsel argue that Goad was incompetent or suggest that there existed
some additional evidence bearing on competency that the court should
consider. Counsel's concern was not that Goad was incapable of
understanding enough to proceed, but only that he was being difficult and
obstinate toward his attorneys (as he was simultaneously responsive to the
courtroom marshals and the judges canvass). Obstinacy is an entirely
different problem than competency. Being difficult, even to the extent of
being overtly rude and dismissive to counsel, is not the same thing as being
incapable of understanding the nature of the proceedings.
Even to the extent that this exchange suggests something about
competency rather than mere stubbornness, on appeal the question isn't
whether we agree with the district court's observations. We can't see them,
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so we have no basis to either agree or disagree. The only question is
whether the record indicates that the district court did what it was
supposed to do, which is personally evaluate Goad's demeanor, and it did.
The only other question is whether the record contains "substantial
evidence supporting the district court's conclusion that it did not need to
probe further into Goad's competency, and without being able to see Goad
ourselves, we must say that it does.
What this exchange tells us is this. Of the three things courts
must weigh to determine whether a full competency hearing is required—
the defendant's history of irrational behavior, his demeanor at trial, and
prior medical opinion of his competence to stand trial—two of the three are
nonexistent by Goad's own admission (no evidence of any prior history of
behavior suggesting incompetency, no prior medical diagnosis of
incompetency), and the third (Goad's demeanor at trial) is something the
district court saw, made an extensive record about, and we cannot see
ourselves on appeal. See Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113
(citing Drope, 420 U.S. at 180). Then on top of that, Goad doesn't even quite
assert that he was incompetent at the moment in question on day four, nor
did his attorneys suggest that there existed some other evidence the court
should consider when given an opportunity to do so. When all three of the
factors, plus Goad's own argument, come out in favor of the district court,
our inquiry ought to end there.
VI.
The majority nonetheless remands for the district court to
review such things "in the aggregate as medical records pre-dating the
trial, Goad's medication and dosage during the trial, and even the gruesome
facts of the crime itself six months earlier, in the apparent belief that, if the

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district court looks, maybe something about competency might come up.
I3ut that's not how the legal test works. The district court isn't supposed to
conduct a full-blown hearing and investigation (and we're not supposed to
reverse if it doesn't) until there first exists some threshold reason to believe
that there's something worth finding. When Goad himself doesn't say
theres anything at all to uncover—when he fails to mention any evidence
of incompetence to the district court and then admits on appeal that there
is no evidence that he has ever been adjudicated incompetent—then the
district court was well within its bounds to conclude that the threshold was
not met and a hearing would be meaningless. See Maxwell, 606 F.3d at 576.
Perhaps one could take the position that there's no harm in
trying to get more information, especially when the stakes involve a brutal
murder and are at their highest. But I'm of a mind that courts must deal
with the real rather than the conjectural, limiting ourselves to evidence for
which a strong case has been made to actually exist, not merely hypothetical
evidence that might exist in theory but not anywhere in the record we have.
Courts aren't supposed to tolerate "fishing expeditione in civil discovery,
and were certainly not supposed to order district courts to engage in them
ourselves. See Groom v. Standard Ins. Co., 492 F. Supp. 2d 1202, 1205 (C.D.
Cal. 2007) ("[D]iscovery must be narrowly tailored and cannot be a fishing
expedition."). Similarly, we're not supposed to vacate murder convictions
on appeal just because the district court failed to conduct its own sua sponte
search for something that Goad never claimed to exist. The idea of a
retrospective hearing assumes a reason to believe that there actually was
some concrete evidence that the district cotu-t failed to consider. When there
is no reason to believe that such evidence exists, a retrospective hearing will

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accomplish nothing except waste time and resources in the pursuit of
nothing useful to add to the existing record.
Could additional evidence nonetheless still be found if the
district court looks further on remand, even though Goad himself doesn't
assert that any such evidence exists? I suppose it's conceivable. As noted
astronomer Carl Sagan used to say, absence of evidence is not necessarily
evidence of absence. Carl Sagan, The Demon-Haunted World: Science as a
Candle in the Dark 213 (Ballantine, 1st ed. 1997). Lots of things that seem
implausible today might turn out to be true tomorrow. See 2019 Chapman
University Survey of American Fears (CSAF) (reporting that 57% of
Americans believe in the existence of the lost continent of Atlantis and
more than 1 in 5 believe that Bigfoot exists), published in Christopher D.
Bader et al., Fear Itself: The Causes and Consequences of Fear in America
(NYU Press 2019), available at https://www.chapman.edu/wilkinson/
research-centers/babbie-center/survey-american-fears.aspx. Likewise, it's
theoretically possible that some additional evidence of incompetence might
exist somewhere in the universe even though Goad's own counsel never
mentioned any, either to the district court or on appeal. Even completely
random discovery "fishing expeditions" occasionally do uncover meaningful
evidence.
But when the overall standard of appellate review is "abuse of
discretion" and the district court decides as a factual matter that no
additional hearing is warranted, the standard we apply—the standard that
Nevada appellate courts have applied in literally thousands of cases—is
whether the court's decision is supported by "substantial evidence." Ogawa
v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). In the thousands of
cases we've handled over the past six years, we have never assessed

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"substantial evidence" by speculating about hypothetical evidence that
appeared nowhere in the record and was never presented to the trial court.
"Substantial evidence is assessed by looking at the evidence actually in the
record before the court and asking whether it was enough to justify the
finding. Once we enter into the realm of speculation, there can always be
hypothetical countervailing evidence that might go the other way, whether
it's a criminal case, workers compensation case, or family law case. But we
don't engage in that kind of speculation; at least, we never have before. If
we did, no verdict could ever stand up on appeal because someone could
always imagine the possibility of something more to find if someone else
just looks a little harder.
Legality aside, consider as a practical matter how unlikely it
really is that there could be something to find anyway. Goad admits on
appeal that there is no evidence of past incompetence. Beyond that
admission, can someone be legally competent every day for the entirety of a
74-year life, but yet incompetent for only a couple of hours one morning
before becoming fully competent again by the early afternoon? Sure, it's
possible. Just not in any way that matters to this case. One could be drunk
or high on drugs that quickly wear off. Maybe one could suffer the effects a
concussion that impairs cognitive ability for a few hours. People suffering
from Alzheimer's or dementia can sometimes float in and out of competency.
But Goad wasn't suffering from any of this. Looking to mental health
records from some other time well before trial might make sense if a
defendant had a long history of floating in and out of legal competency over
time. If someone was legally incompetent in the past, that suggests at least
the possibility of being legally incompetent again later. But here, there's no
evidence whatsoever that Goad was incompetent at any other time of his

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life, including even later during the afternoon of the same day, so evidence
of Goad's mere mental illness months, weeks, or days before trial tells us
nothing about whether he was legally competent for part of the morning of
the fourth day of trial. As the majority notes, even assuming as true that
there was incompetence for part of the morning of day four, that was only
because the triggering event was Goad not being given medication that
morning. So what, exactly, is the relevance of his mental health months or
weeks earlier before trial when things were very different and Goad himself
states that he was medication-free for seven years before trial yet was never
suspected of being legally incompetent, much less adjudicated so?
The bottom line is that the question at hand—whether someone
who's been competent their entire life suddenly became incompetent for
only a couple of hours one morning or not—is a fundamentally factual one
which, in this case, the district court answered in the record in detail and
at length based upon its personal interactions with Goad and its
observations of his behavior. The district court is expressly required to
consider its own observations about the defendant's demeanor, which we
cannot see and can never second-guess. Melchor-Gloria, 99 Nev. at 180, 660
P.2d at 113 (citing Drope, 420 U.S. at 180). The district court personally
canvassed the defendant, made remarks and observations about the
defendant's nonverbal conduct and in-court behavior, and then immediately
found that there was no need to go further. It clearly gave a lot of weight to
its personal observations. We must give deference to those observations
which we cannot see in a typewritten transcript and therefore ought not
second-guess. And deference on a purely factual matter means that,
whenever the district court's factual findings are supported by any
substantial evidence at all, we must affirm.

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VII.
The district court was confronted with a factual inquiry that it
answered based upon personal observations that we cannot see. Instead of
speculating that there may be more evidence out there somewhere in the
ether that the district court should investigate now, more than 21 months
later, I would affirm.
el44
—' J
Tao

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