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Competency hearing might keep retarded Albuquerque man from trial
Proving competency
1. Defendant understands the nature and significance of the criminal proceedings.
2. Has a factual understanding of the criminal charges.
3. Is able to assist his attorneys in his defense.
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Whether a mentally retarded man stands trial for the slaying and rape of an 11-year-old girl or walks free will depend on which psychologist jurors believe more.
The competency hearing for Robert Gonzales was expected to continue for a second day today in Albuquerque with testimony from the second of two psychologists, this one hired by Gonzales' public defenders.
Eric Westfried was expected to testify that based on his evaluation, Gonzales, 22, is incompetent to stand trial and barely functions above an extremely marginal level.
But on Tuesday, Daniel McCombs, a psychologist for the state, testified that while Gonzales is mildly to moderately mentally retarded he is competent enough to stand trial on charges of first-degree murder, rape and five others counts in the Halloween 2005 slaying of Victoria Sandoval.
"It was clear that Mr. Gonzales has some difficulties, but it was not the case that he didn't know what was going on," said McCombs, a forensic psychologist with the New Mexico Behavioral Health Institute in Las Vegas.
Mental retardation, he cautioned, does not necessarily mean incompetency.
Testimony before state District Judge Carl Butkus was expected to conclude today; jurors will begin deliberating shortly afterward.
Gonzales, who court documents say has an IQ of 62, is accused of crawling into the girl's bedroom window at her grandparents' West Side mobile home and having sex with her.
According to an Albuquerque police statement, Gonzales, then 20, said he became angry when he learned she had lied about her age and decided he was "going to teach her a lesson" by choking her.
The girl's friends told police she met Gonzales in the summer at a pool and began dating him, but she told him she was 15.
Attorneys on both sides suggested to jurors Tuesday that how each psychologist arrived at his conclusion is crucial in determining which version to believe.
Westfried spent 18 hours over a period of three days taking "copious notes" while interviewing, observing and conducting a battery of approved tests on Gonzales as well as interviewing members of his family and reviewing volumes of previous examinations and other paperwork on Gonzales' mental retardation dating back to when Gonzales was 2, public defender Jeff Buckels said.
But Assistant District Attorney Bryan McKay suggested that family members and a defense-paid expert might not be as reliable as nearly four months of around-the-clock observations of Gonzales while he was housed at the Las Vegas institute in late 2006.
"This was not just some sterile test," McKay said.
McCombs testified that he pored over an extensive number of reports and testing done on Gonzales by schools, social workers, law enforcement agencies and others for the past 15 years.
Gonzales, well-groomed and wearing a white dress shirt and tie, spent most of Tuesday's hearing hunched over, seemingly preoccupied by scribbling on a notepad.
This week's hearing continues competency proceedings that began in June 2006. At the first hearing, Butkus found reasonable doubt that Gonzales was competent to stand trial but reserved ruling until additional testing on Gonzales could be completed.
In May, a similar hearing involving the testimony of both McCombs and Westfried was conducted, but Butkus said he could not decide the issue of competency. The judge agreed to have a jury decide the matter instead.
If jurors find Gonzales competent, a trial will be scheduled.
Should they find Gonzales incompetent, the case would be turned over to the state Health Department to determine whether Gonzales should be civilly committed to the Las Vegas institute.
Unlike other cases in which the defendant's mental status is an issue, the case would likely end there. The judge would have 14 months to dismiss the charges against Gonzales.
"Mental retardation is for some reason treated differently than any other mental disorder," McKay wrote in court documents.

