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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                          This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
November 30, 2004
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                                                                              petition to review an adverse decision by the
Clerk of Court of Appeals                                                                                                                                      Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                               and RULE 809.62.
                                                                                                                                                               Cir. Ct. No.   00CF004159
Appeal No.                                                                               03-0478-CR
STATE OF WISCONSIN                                                                                                                                             IN COURT OF APPEALS
                                                                                                                                                               DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
KATRINA FRENCH,
DEFENDANT-APPELLANT.
APPEAL  from  a  judgment  of  the  circuit  court  for  Milwaukee
County:  JEFFREY A. WAGNER, Judge.   Affirmed.
Before Fine, Curley and Kessler, JJ.
¶1                                                                                       PER   CURIAM.      Katrina   French   appeals   from   a   judgment
convicting her of one count of neglecting a child, causing death, in violation of
WIS. STAT. § 948.21(1) (2001-02).1   French contends that the trial court erred in
1 All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise
noted.




No. 03-0478-CR
finding her competent and in denying her motions seeking to suppress statements
she made to the police.   Because the trial court’s finding of competency was not
clearly erroneous and because we need not address French’s challenge to the trial
court’s denial of her suppression motion by virtue of the ultimate charge to which
she pled guilty, we affirm.
I.   BACKGROUND.
¶2                                                                                       On the morning of August 7, 2000, the body of a three-month-old
infant was found in a dumpster near North 14th Street.   The infant was wearing a
white t-shirt and was naked from the waist down.   A small sock was placed in the
infant’s mouth, and rolled up leaves had been stuffed in each of his nostrils.   The
medical examiner determined that the infant died of asphyxiation, and that he also
had suffered a skull fracture.
¶3                                                                                       The infant had been left in the care of French, a mentally disabled
individual, and her sister on the evening of August 6, at approximately 10:45 p.m.
The mother, French’s downstairs neighbor, returned for the child at approximately
3:30 a.m., but was unable to locate him.   After several hours, she called the police,
and the infant’s body was found in the dumpster later in the morning of August 7.
¶4                                                                                       That evening, the police asked French if she would voluntarily go to
the police station for questioning, and she agreed.   After being interviewed, and
agreeing to stay to speak with additional detectives, the police discovered that
French had an outstanding municipal warrant and arrested her in the early morning
hours of August 8.   After she was arrested, she was advised of her Miranda rights2
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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No. 03-0478-CR
and agreed to speak  without an attorney present.    The  police commenced an
interview that lasted approximately four and one-half hours.   The police continued
to interview French over the course of the next several days.    Throughout the
course  of  the  interviews,  French  gave  inconsistent  statements  to  the  police,
denying her involvement in the infant’s death, and implicating others.
¶5                                                                                       On the morning of August 9, French gave an inculpatory statement
to the police, admitting her involvement in the infant’s death, and indicating that
she acted alone.   She told the police that at around 11:35 p.m. on August 6, she
went downstairs, picked up the infant, and attempted to get him to stop crying.
When her efforts to quiet the baby proved to be unsuccessful, she took the sock off
of his foot and placed it in his mouth.   She told the police that she took the sock
out of his mouth three times, but he would not stop crying.   Eventually, the infant
stopped  crying,  and  when  she  checked on  him,  she  realized that he  was not
breathing.   French told the police that she panicked, and carried the infant out
through the back door wrapped in a white blanket, with the sock still in his mouth.
She walked down the alley for a couple of blocks, and decided to “hide” him in a
garbage can.   When she opened the garbage can, she saw water in the bottom of
the can, so she found some leaves, rolled them up, and placed them in each of his
nostrils, because she did not want the water to go up his nose.   She told the police
that she put the infant in the garbage can, still wrapped in the blanket, and that she
believed he was still wearing a diaper when she did so.   At that time, she ran back
to the house.
¶6                                                                                       Later on August 9, after a court commissioner found probable cause,
French was interviewed yet again, and gave another inculpatory statement to the
police.   This time, however, French told the police that the infant was covered by a
towel, not a blanket, when she picked him up, and that she noticed that his diaper
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No. 03-0478-CR
was wet.   She said that she attempted to change him into one of her daughter’s
diapers, but it was too big, so she removed the diaper completely.   She told the
police that she gave the infant a pacifier, tried to feed him, and walked around
with him, but he would not stop crying.   She carried him outside into the backyard,
and because he would not stop crying, removed one of his socks and placed it in
his mouth.   She said that she took the sock out of his mouth, but put it back
because he would not stop crying.    After she did this two or three times, she
realized that he was not breathing.    French told police that she panicked, and
began walking away from the house.   She ran into a friend of her brother, whom
she referred to as “Junior,” and after he inquired as to what was wrong, she told
him that she killed the baby by accident and did not know what to do.   She said
that she asked him to open the garbage “cart” and noticed that there was water in
the bottom.   She placed the leaves in the infant’s nostrils, again asked the friend to
open the garbage “cart,” and dropped the infant inside.
¶7                                                                                        The police arrested “Junior” after French identified him in a photo.
He  was  subsequently  released,  however,  when  the  police  verified  his  alibi.
Shortly thereafter, after summoning detectives, French gave yet another statement
on August 10 indicating that she did not know who helped her dispose of the body.
¶8                                                                                        A  complaint was filed on August  12,  charging French with one
count of first-degree reckless homicide, in violation of WIS. STAT. § 940.02(1).   At
a pretrial conference on January 11, 2001, defense counsel raised concerns about
French’s competency to proceed.   Pursuant to WIS. STAT. § 971.14, the trial court
ordered  that  French  be  examined  by a  doctor  from  the  Forensic  Unit  of  the
Milwaukee County Mental Health Division.   That doctor concluded that French
was not competent to  proceed.    Thereafter, French was examined three more
times, and all three doctors concluded that she was competent to proceed.
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No. 03-0478-CR
¶9                                                                                       In March  2001, the trial court held an evidentiary hearing on the
issue of French’s competency and her motion to suppress the statements she made
to the police.   Over the course of the hearing, which stretched over nearly a month,
several  doctors  and  police  officers  testified  as  to  French’s  competency,  the
circumstances surrounding the Miranda warnings, and her understanding of those
rights.   After weighing the evidence, the trial court first concluded that French was
competent to stand trial, and later denied the motion to suppress.
¶10    In October  2001, defense counsel re-raised the issue of French’s
competency to proceed.   The trial court ordered that she be re-examined, and the
doctor who examined her concluded that she was competent.   In December, the
trail court held another evidentiary hearing, and in January 2002, again found her
to be competent.
¶11    On January 15, 2002, French pled guilty to a lesser charge of one
count of neglecting a child, causing death, in violation of WIS. STAT. § 948.21(1).
The factual basis for the plea was set forth as follows:
On  about  August  6,  year  2000,  …  the  mother  of  [the
victim] … arranged with Katrina French to have … French
babysit  [the infant].    French agreed to babysit….                                                                                                          [The
mother]  brought                                                                         [the  infant]  to  the  duplex  apartment
building  where                                                                          …  Katrina  French  lived  in  the  upper
apartment.   French knew that  [the infant] was left in the
downstairs apartment and that [the mother] was leaving at
the time.
French did not go to the … downstairs apartment to
retrieve [the infant] who was, therefore, left unsupervised.
As a consequence of French’s intentional failure to act and
take  custody  of                                                                        [the  infant],  which  contributed  to  his
neglect, [the infant’s] death by asphyxiation subsequently
resulted.                                                                                …
All of this occurred on or about August 6, 2000, at
or in the vicinity of the 1800 block of North 12th Street, in
the City and County of Milwaukee, State of Wisconsin.
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No. 03-0478-CR
French was subsequently sentenced to ten years, consisting of four years of initial
confinement and six years of extended supervision.    The trial court stayed the
sentence, however, and placed her on probation, with conditions, for seven years.
She now appeals.
II.   ANALYSIS.
¶12    French contends that the trial court erred in finding her competent to
stand trial.    She argues that she is incompetent because she lacked substantial
mental capacity to understand the proceedings and to assist in her own defense.
French insists that although mental retardation, in and of itself, is generally not
sufficient  to  give  rise  to  a  finding  of  incompetence,  a  defendant  may  be
incompetent based on mental retardation alone if the condition is so severe as to
render her incapable of functioning in critical areas, and each doctor who testified
acknowledged her inability to function in critical areas.   She also contends that
only one doctor “clearly and heads on addressed” her decision-making capacity
and found her incompetent to make a number of decisions that she faced.   French
contends that, in assessing her competency, the trial court took into account only
“the most rudimentary of matters.”   She argues that the doctors who found her
competent  did  so  without  foundation,  and  all  acknowledged  her  significant
deficits.   She insists that under cases such as State v. Garfoot, 207 Wis. 2d 214,
558 N.W.2d 626 (1997), competency “means much more than just knowing the
roles of the judge, DA, defense attorney, and jury[,]” and although the trial court
mentioned these cases, it failed to apply their principles.
¶13                                                                                    “Whenever there is a reason to doubt the competency of a defendant
to proceed, the trial court must order an examination of the defendant under WIS.
STAT. § 971.14(1)(a) and (2).”   Garfoot, 207 Wis. 2d at 221.   Under WIS. STAT.
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No. 03-0478-CR
§ 971.14(3), the examiner must submit a report including, inter alia, his or her
opinion  “regarding  the  defendant’s  present  mental  capacity  to  understand  the
proceedings and assist in his or her defense.”                                            § 971.14(3)(c).   If the defendant’s
competency is contested, as it was here, the trial court is to hold an evidentiary
hearing.                                                                                  § 971.14(4)(b).   The burden is on the State to prove by the greater weight
of  the  credible  evidence  that  the  defendant  is  competent  to  proceed,  if  the
defendant asserts that he or she is incompetent.  Garfoot, 207 Wis. 2d at 221-22.
¶14    The  supreme  court  has  set  forth  the  basic  test  for                        determining
competency as follows:
A person is competent to proceed if:   1) he or she possesses
sufficient present ability to consult with his or her lawyer
with a reasonable degree of rational understanding, and 2)
he  or  she  possesses  a  rational  as  well  as  factual
understanding of a proceeding against him or her.   Dusky
[v. United States], 362 U.S. [402, 402 (1960) (per curiam)].
The  [Supreme] Court later expanded on this test, noting
that “a person whose mental condition is such that he lacks
the  capacity to  understand  the  nature  and  object  of  the
proceedings against him, to consult with counsel, and to
assist in preparing his defense may not be subjected to a
trial.”   Drope v. Missouri, 420 U.S. 162, 171 (1975).
Wisconsin Statutes  §  971.13(1) is the codification
of the Dusky test.   In Wisconsin, if a defendant claims to be
incompetent,  the  court  shall  find  him  incompetent  to
proceed unless the [S]tate can prove by the greater weight
of the credible evidence that the defendant is competent
under  the  two-part  Dusky  standard  as  explained  by  the
[C]ourt in Drope.
Garfoot, 207 Wis. 2d at 222.                                                              “This two-part ‘understand-and-assist’ test consti-
tutes the core of the competency-to-stand-trial analysis.”   State v. Byrge, 2000 WI
101, ¶28, 237 Wis. 2d 197, 614 N.W.2d 477.
¶15                                                                                       “Competency  to  stand  trial  constitutes  a  judicial  inquiry,  not  a
medical determination.”   Id., ¶31.   To determine whether the State met its burden,
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No. 03-0478-CR
the trial court must weigh all of the evidence presented, and is “in the best position
to  decide  whether  the  evidence  of  competence  outweighs  the  evidence  of
incompetence[,] … [and] to make decisions that require conflicting evidence to be
weighed.”   Garfoot, 207 Wis. 2d at 222-23.   Indeed, “[a]lthough the court must
ultimately apply a legal test, its determination is functionally a factual one:   either
the [S]tate has convinced the court that the defendant has the skills and abilities to
be considered  ‘competent,’ or it has not.”    Id. at  223.    Finally,  “[b]ecause a
competency determination depends on the [trial] court’s ability to appraise witness
credibility and  demeanor,  ‘there  are  compelling and familiar  justifications for
leaving the process of applying law to fact to the trial court.’”   Byrge, 237 Wis. 2d
197,                                                                                       ¶45   (citation  omitted).     As  such,  we  will  not  reverse  a  trial  court’s
determination of competency unless it was clearly erroneous.   Id., ¶¶45-46.
¶16    Here, the trial court heard testimony from several doctors, and from
French herself, over the course of two different hearings.    The trial court also
considered the reports filed by the doctors, and observed French’s behavior and
interactions with her attorney during the course of the proceedings.   All but one of
the  doctors  found  French  to  be  competent.    In  determining  that  French  was
competent to proceed, the trial court indicated that it found a lot of consistency
within the reports that were filed.   The trial court noted that the reports indicated
that she was attentive and alert, responsive to questioning, capable of maintaining
a social relationship for a period of time, able to make and receive calls on a
cellular phone, and mindful of the roles of the attorneys, the court, and the jury.   It
also indicated that she adapted to the rules of the ward while she was being
observed in the inpatient setting.
¶17    The trial court addressed her intellectual functioning, indicating that
she can think in terms of good and bad, and understands what it means to tell a lie
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No. 03-0478-CR
or the truth.   It noted that French did appear to be mildly retarded, but that it also
must consider her background and life experiences.   The trial court also noted that
one  doctor  did  conclude  that  French  was  incompetent  and  unlikely to  regain
competency within the statutory period.   It concluded, however:
So when the Court takes the entire record and all
those  individuals  who  testified,  whether  or  not  the
defendant has sufficient present ability to consult with her
lawyer   and   with   a   reasonable   degree   of   rational
understanding and whether or not she has a rational as well
as a factual understanding of the proceedings against her,
using those standards as stated on the record and contained
in the cases that were cited … the Court believes that the
State  has  proven  by  a  greater  weight  of  the  credible
evidence  that  the  defendant  is  certainly  competent  to
proceed and the State has met its burden of proof.   …   A lot
of that certainly was based upon the testimony and, also,
the Court’s observations of the witnesses who testified and
the  Court’s  observations  during  the  entire  trial  of  the
defendant, and the totality of the evidence.
¶18    French argues that the trial court failed to apply the proper principles
in making its determination of competency, but, as noted above, the trial court
weighed all of the evidence and concluded that she was able to both understand
the proceedings against her and to assist in her defense.   That is the standard set
forth in Byrge and Garfoot.   While the trial court did recognize that French suffers
from some mental deficiencies, it concluded that the evidence of her competency
outweighed that of her incompetency.   Other than referring to the opinion of one
doctor, who concluded that French was incompetent, French has not pointed to
anything that renders the trial court’s conclusion clearly erroneous.
¶19    While one doctor did determine that French was incompetent, and
several of the doctors concluded that she is unable to think abstractly and needs to
have things explained in a simple or incremental fashion, there was also evidence
presented that French is able to care for her five children, albeit with some help;
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No. 03-0478-CR
go  grocery  shopping;  understand  the  difference  between  guilt  and  innocence;
rationally communicate with her attorney; explain her whereabouts on the day of
the incident; and understand the charges against her, the possible consequences if
found guilty, and the facts and circumstances surrounding the charges.    Thus,
although there was conflicting evidence concerning her competence, it is the job
of the trial court to determine whether the evidence of the defendant’s competency
outweighed that of her incompetency.    While French is not satisfied with the
outcome of the trial court’s decision, there was sufficient evidence presented upon
which the trial court could base its determination of competency, and we have
found nothing in the record compelling us to conclude that that determination was
clearly erroneous.
¶20    Next, we address French’s contention that the trial court erred in
denying her motion to suppress statements she made to the police, and conclude
that under State v. Pozo, 198 Wis. 2d 705, 544 N.W.2d 228 (Ct. App. 1995), it is
unnecessary to consider the merits of this argument.   In that case, Pozo sought to
suppress a statement he made to the police, prior to being advised of his Miranda
rights, that was relevant to a charge that was dismissed after the preliminary
hearing and of which he was not eventually convicted as a result of his guilty plea.
Pozo, 198 Wis. 2d at 713-14.   We noted that a voluntary guilty plea waives all
nonjurisdictional defects, and although WIS. STAT. § 971.31(10) provides a narrow
exception  to  that  rule—allowing  the  review  of  a  motion  challenging  the
admissibility of a statement on appeal notwithstanding the fact that the judgment
was entered as a result of a guilty plea—that exception was inapplicable to Pozo’s
case “because the statement sought to be suppressed ha[d] no possible relevance to
the charge of which Pozo was convicted.”   Pozo, 198 Wis. 2d at  714-16.   We
reasoned:
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No. 03-0478-CR
[T]he trial court’s denial of Pozo’s motion to suppress the
statement could play no role in determining the result of a
trial on the charge [that he plead guilty to] (had he not pled
guilty to that offense).   And we agree … that … in framing
the narrow exception to the guilty-plea waiver rule found in
§ 971.31(10) … the legislature could not have intended to
allow a defendant who pleads guilty to one charge to raise
on appeal a claim regarding the suppression of evidence
relevant only to another separate charge of which he was
not convicted.
Pozo, 198 Wis. 2d at 715.   While the circumstances are a bit different here, the
essential reasoning still holds.
¶21    Here, the statements French sought to suppress—the statements she
gave to the police in which she confessed to killing the infant—were relevant to,
and presumably the basis for, the original charge of first-degree reckless homicide.
However, French eventually pled guilty to, and was convicted of, one count of
neglecting a child, causing death.   As indicated above, the factual basis set forth
for the plea did not reference or include any of the confessions or statements
French made to the police.   The factual basis for the plea described a situation in
which the infant was left in the care of French, the infant was left unsupervised,
and “[a]s a consequence of French’s intentional failure to act and take custody of
[the infant], which contributed to his neglect, [the infant’s] death by asphyxiation
subsequently resulted.”   Thus, the statements French sought to suppress are not
directly relevant to the charge of which she was convicted, and as such, we need
not  determine  whether  the  trial  court  erred  in  denying  their  suppression.
Accordingly, we affirm.
By the Court.—Judgment affirmed.
                                                                                       This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                              (b)5.
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