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State v. Keys

Superior Court of Delaware

March 1, 2018

KYAIR KEYS, Defendant.

          Submitted: December 18, 2017

         Upon Consideration of Defendant's Motion to Transfer Charges to Family Court, GRANTED.

          Phillip M. Casale, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State.

          Monica G. Germono, Esquire, Assistant Public Defender, Office of Defense Services, Wilmington, Delaware. Attorney for the Defendant.




         Kyair Keys ("Defendant") is not competent to stand trial. He entered the adult criminal justice system at age thirteen when the State made its charging decision to bring his charges here.[1] He is charged in this Court with one count of Assault First Degree, three counts of Possession of a Firearm During Commission of a Felony, Possession of a Firearm by Prohibited Juvenile, and two counts of Reckless Endangering First Degree.[2] All charges may be considered for transfer to Family Court under 10 Del. C. § 1011 and, upon Defendant's Motion to Transfer, a reverse amenability hearing was held on December 18, 2017. The State also argues that the reverse amenability hearing should not proceed because Defendant's competency status prevents him from being able to meaningfully participate in the proceedings. After consideration of the parties' submissions, oral arguments, and the record in this case, Defendant's Motion to Transfer Charges to Family Court is GRANTED.


         Defendant has been in the juvenile justice system since age eleven and currently has fifteen other unrelated matters that remain pending in the Family Court.[3] In addition to various misdemeanor offenses, his alleged behavior escalated to felony offenses including charges of Aggravated Menacing and Possession of a Deadly Weapon During the Commission of a Felony before he was arrested for these shooting offenses.

         On these charges, the Court need not make a preliminary determination of whether the State has made out a prima facie case against the Defendant because both sides have stipulated, for purposes of reverse amenability only, that there is a fair likelihood of Defendant's conviction if he proceeded to trial. At age thirteen, Defendant allegedly pulled a pistol from his waistband and fired approximately five to seven shots at three individuals following arguments between two groups of young men. One of the victims was a fifteen-year-old, who required surgery to his shoulder and suffered injuries to his back and chest as a result of the shooting.

         Defendant was originally charged with these offenses in Family Court in April 2017. In July of 2017, Drs. Robin Belcher-Timme, Psy.D., MACJ, and Amy Diehl Iannetta, Psy.D., both licensed psychologists, opined respectively on behalf of Defendant and the State that Defendant was not competent to stand trial.[4] His record is replete with documentation that reflects an inability to control his frustration and anger that often results in fights with parents, peers, and others, and has required commitments to Rockford due to uncontrollable behavior.[5] His various diagnoses include, but are not limited to Mood Disorder, Oppositional Defiant Disorder, Attention Deficit Hyperactivity Disorder, Conduct Disorder, Cannabis Abuse, and Opioid Abuse.[6] Defendant's diagnoses have led both sides to agree that, under 10 Del. C. § 1007A, he is not competent to stand trial. As such, none of his charges have been adjudicated and remain pending on a "Competency Calendar" in Family Court.

         The State argues that the Family Court's inability to address Defendant's competency has effectively paralyzed the adjudication of his pending cases and hampered all potential treatment efforts to address his various diagnoses. The State further maintains that at this rate, if Defendant is sent back to Family Court, "he would end up shot or end up shooting someone."[7] Regrettably, this fatalistic prediction is not off the mark. Delaware has a crime rate higher than the national average, with Wilmington possessing a higher crime rate than either Los Angeles or New York City.[8] Children in Wilmington are more at risk of being victims of gun violence than in any other city in the country, a phenomenon labeled by the Centers for Disease Control and Prevention as an epidemic.[9] Unfortunately, here, both defendant and victim(s) are children.

         The State also argues that there is no viable prosecution available in Family Court, and should Defendant remain not competent, the statutory language of the Family Court's competency processes under 10 Del. C. § 1007A will lead to a mandatory dismissal. Therefore, on August 7, 2017, the State concedes that it made the charging decision to bring the charges to this Court primarily because this Court has a "Superior Court Competency Restoration Program" ("restoration program")[10]that could attempt to restore Defendant's competency, whereas the Family Court does not have such a program.[11]The availability of such a program served as the impetus to charge this juvenile with adult offenses, and in doing so, the State bypassed the Family Court processes that are currently available for children with these types of cognitive and behavioral diagnoses.

         The State asks that Defendant be ordered to participate in the restoration program. In response, Defendant argues first that his competency determination has already been made and that participation in the restoration program will serve only to prejudice Defendant's consideration for transfer. Defendant urges the Court to proceed with a determination on reverse amenability and argues that Defendant's competency status could be considered as one factor under 10 Del. C. § 1011 (b), but should not preclude his right to be heard on the issue of transfer.

         Alternatively, the State argues that if Defendant is not ordered to participate in this Court's restoration program, and remains not competent, he should be precluded from having a reverse amenability hearing. Before the Court considers the issue of transfer, both sides request that this Court first address how the determination of competency affects Defendant's right to a reverse amenability hearing.

         Re-Determination of Competency is Not Required

         A determination under 10 Del. C. § 1007A has already been made by the Family Court that the Defendant is not competent to stand trial. The State argues that this Court is mandated to again follow the procedures under 10 Del. C. § 1007A and re-determine Defendant's competency. Although this Court does not challenge the charging decision made in this case, it respectfully disagrees with the State for several reasons.

         The troubling irony in the State's position is that it wants this Court to determine competency under 10 Del. C. § 1007A in order for Defendant to obtain the necessary treatment, yet it changed his trajectory from the Family Court that not only has already made this determination, but was mandated to order these juvenile-appropriate services. Given the competency issues in this case, the Court feels particularly obligated to highlight the precarious situation that has been created as a result of the decision to charge Defendant as an adult. The charging decision has affected Defendant's placement and treatment options, and may have thwarted the Family Court's efforts and the mandatory provisions under 10 Del. C. § 1007A.

         Section 1007A specifically dictates that the Superior Court will determine competency of juveniles subject to 10 Del. C. § 1010(a) or § 1010(c)(3) "consistent with the rules and procedures of that Court and any other applicable law."[12]Thus, in this Court, it is 11 Del. C. § 404 that governs the placement of individuals deemed not competent to stand trial. The statute reads:

Whenever the court is satisfied, after hearing, that an accused person because of mental illness or serious mental disorder, is unable to understand the nature of the proceedings against the accused, or to give evidence in the accused's own defense or to instruct counsel on the accused's own behalf, the court may order the accused person to be confined and treated in the Delaware Psychiatric Center until the accused person is capable of standing trial.[13]

         The provisions in this statute are quite generic and permissive as to how this Court treats "accused persons" who are not competent to stand trial.

         By contrast, the Family Court's consideration of whether a child is competent is found under 10 Del. C. § 1007A, and provides a more specific and mandatory roadmap of considerations and procedures as follows:

[t]he underlying bases for a finding that a child is not competent may include, but are not limited to, significant mental disorder or incapacity, significant developmental delay, significant cognitive impairment, and/or chronological immaturity. A child's age alone may not serve as the basis for a finding that a child is not competent. The finding must be based on the individual child's capacities for competency.[14]

         Here, the Family Court employed what appears to be a more holistic approach as to the "child" and his ability to effectively understand and participate in his or her defense, which is not limited to "a mental illness or serious mental disorder."[15] Additionally, § 1007A lays out mandatory procedures based upon whether the child's competency can be timely restored or acquired. If such restoration or acquisition can be timely, "the Court shall order appropriate treatment or services based on the finding and recommendations contained in the competency evaluation."[16] The Court shall then review the child's status at least every six months.[17] Section 1007A contemplates ongoing review by the Court, while § 404 does not.

         Here, Defendant remains in detention and has been precluded him from receiving the mandatory attention for treatment and the judicial review intended under § 1007A. Ms. Skinner, Family Court Master Specialist for YRS, testified that treatment or services mandated under § 1007A includes juvenile-specific treatment programs through outpatient, day, or residential placements. This is ordinarily provided by the mental health division of DSCYF, through Prevention and Behavioral Health ("PBH"). Yet, PBH is currently not offering any services to Defendant-their division has closed their case with him. Ms. Skinner, testified also that YRS treatment has also been minimal and explained that juveniles found not competent are left in a precarious position without access to any services and subject to what administrators have referred to as "the black hole."[18] Not only is PBH wholly absent, so too has YRS been precluded from offering services to Defendant while detained.

         The State opposes the proposed placements for treatment ordinarily afforded to children on the "Competency Calendar" due to the seriousness of Defendant's charges, his history of breaches of release, and his mental and behavioral health issues. But the State also acknowledges that the Delaware Psychiatric Center, the placement ordinarily ordered for "accused persons" under § 404, does not accept juveniles. Thus, the State maintains that Defendant should remain at the New Castle County Detention Center as the most appropriate setting. The Court disagrees. Warehousing Defendant with such deficits in a detention facility presents the worst placement option for him, particularly where Ms. Skinner testified that YRS is providing even less than they would a juvenile without his competency issues.

         This Court finds that the State's request that Defendant be ordered to undergo further competency evaluations or enrollment in the restoration program is counter to the spirit of 10 Del. C. § 1007A. The Family Court, through both State and Defense experts, determined that Defendant is not competent to stand trial and relied on 10 Del. C. § 1007A to provide the statutory mechanism to address children who fall in this category. This Court is not aware of any provision under either 10 Del. C. § 1007(A) or 11 Del. C. § 404 that mandates separate or multiple competency determinations.

         Even if a determination had to be made by both courts, under either statute, there is no requirement that Defendant be ordered to participate in the restoration program. This restoration program focuses on criminal proceedings in this Court. The State acknowledges that had the Family Court had a similar program, it would not have filed Defendant's charges here. Since DSCYF has remedied this issue as of the date of this writing, ordering Defendant to enroll in ...

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