IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA19-175 Filed: 1 October 2019 Wake County, No. 14CR754465 STATE OF NORTH CAROLINA v. BRITTANY SUE OPAL BRYANT, Defendant. Appeal by Defendant from an order entered on 18 September 2018 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 3 September 2019. Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for Defendant. BROOK, Judge. Brittany S. O. Bryant (“Defendant”) appeals from the superior court’s order entered on 18 September 2018. Defendant argues the superior court erred in denying her petition for writ of certiorari, which sought review of a district court order denying her motion for appropriate relief. We agree. We therefore reverse the superior court’s order and vacate Defendant’s conviction. I. Background STATE V. BRYANT Opinion of the Court – 2 – On 6 September 2014, Defendant was cited with larceny for $14.94 worth of merchandise (“acne toner and towelettes”) from a Wal-Mart store located in Wake County. Specifically, the citation stated: The officer named below has probable cause to believe that on or about Saturday, the 06 day of September, 2014, at 03:08 PM in the county named above you did unlawfully and willfully STEAL, TAKE, AND CARRY AWAY (ACNE TONER AND TOWELETTES), THE PERSONAL PROPERTY OF (WAL-MART STORES INC. STORE#1372, 4500 FAYETTEVILLE RD, RALEIGH, NC 27603), SUCH PROPERTY HAVE A VALUE OF ($14.94). (G.S. 14-72(A)). Pursuant to a plea agreement with the State, Defendant pleaded guilty to the purportedly amended charge of shoplifting on 3 March 2015. The prosecutor reduced the charge by drawing a line through the capitalized text, handwrote “Shoplifting,” and beside the word initialed her name with the date. The trial court entered judgment against Defendant for shoplifting by concealing merchandise—defined under N.C. Gen. Stat. § 14.72.1(a). Defendant was sentenced to a suspended sentence of 15 days imprisonment and placed on nine months of supervised probation.1 1 We note that this sentence violated N.C. Gen. Stat. § 15A-1340.23(d), which states, “the judgment for a person convicted of a Class 3 misdemeanor who has no more than three prior convictions shall only consist of a fine.” N.C. Gen. Stat. § 15A-1340.23(d) (2017). Defendant was convicted of shoplifting as a Class 3 misdemeanor, and the judgment notes the Defendant had only one prior conviction. N.C. Gen. Stat. § 14.72.1(e) (2017). Thus, the sentence should have been court costs and a fine only, and her sentence as imposed is unlawful. Defendant did not raise this issue on appeal, however, and thus it is not before us. STATE V. BRYANT Opinion of the Court – 3 – On 13 August 2018, Defendant filed a motion for appropriate relief in Wake County District Court challenging her conviction. The Honorable Louis B. Meyer denied her motion in an order dated 12 September 2018. On 13 September 2018, Defendant filed a petition for writ of certiorari in Wake County Superior Court seeking reversal of the order denying her motion for appropriate relief. The Honorable Paul C. Ridgeway entered an order denying her petition on 18 September 2018. Defendant sought review of that decision and filed a petition for writ of certiorari in this Court, which allowed the petition on 1 October 2018. II. Standard of Review A writ of certiorari is granted or denied at the discretion of the superior court judge, see State v. Hamrick, 110 N.C. App. 60, 65, 428 S.E.2d 830, 832-33 (1993), and ordinarily is reviewed for abuse of discretion, see N.C. Cent. Univ. v. Taylor, 122 N.C. App. 609, 612, 471 S.E.2d 115, 117 (1996), aff’d per curiam, 345 N.C. 630, 481 S.E.2d 83 (1997). However, Defendant’s certiorari petition alleged that the district court lacked subject matter jurisdiction to enter judgment against her. “Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal.” State v. Armstrong, 248 N.C. App. 65, 67, 786 S.E.2d 830, 832 (2016) (quoting McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010)). Under de novo review, this Court considers the matter anew and freely substitutes its own STATE V. BRYANT Opinion of the Court – 4 – judgment for that of the lower tribunal. See State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (internal marks and citations omitted). III. Analysis On appeal, Defendant argues that the district court lacked jurisdiction to enter judgment against her because the amended citation was insufficient to charge her with shoplifting by concealing merchandise. Specifically, Defendant argues that the citation was improperly amended to charge a different offense in violation of N.C. Gen. Stat. § 15A-922(f). We agree. 2 We note at the outset that a defendant who pleads guilty generally waives all non-jurisdictional errors in the proceeding. See State v. Warren, 113 N.C. 499, 500, 18 S.E.2d 498 (1893). However, there is “abundant authority that a plea of guilty standing alone does not waive a jurisdictional defect,” see State v. Stokes, 274 N.C. 409, 412, 163 S.E.2d 770, 772 (1968), and our Court has long recognized that subject matter jurisdiction can be raised for the first time on appeal, see State v. Peele, 246 N.C. App. 159, 165, 783 S.E.2d 28, 33 (2016) (internal marks and citations omitted). Thus, we can and do turn to the merits of Defendant’s argument. A citation is one of the seven types of pleadings that may be used to initiate a criminal prosecution in North Carolina. N.C. Gen. Stat. § 15A-921 (2017). A properly 2 Because we decide the amendment itself was unlawful under N.C. Gen. Stat. § 15A-922(f), we do not reach the issue of whether the citation as amended meets the requirements of N.C. Gen. Stat. § 15A-302(c) as articulated in State v. Jones, 371 N.C. 548, 819 S.E.2d 340 (2018). STATE V. BRYANT Opinion of the Court – 5 – drafted criminal pleading provides the court with jurisdiction to enter judgment on the offense charged, while certain pleading defects deprive the court of jurisdiction. See State v. Wallace, 351 N.C. 481, 503-04, 528 S.E.2d 326, 340-41 (2000). “A statement of charges, criminal summons, warrant for arrest, citation, or magistrate’s order may be amended at any time prior to or after final judgment when the amendment does not change the nature of the offense charged.” N.C. Gen. Stat. § 15A-922(f) (2017). “It is well established that misdemeanor charging documents may not be amended so as to charge the defendant with committing a different crime.” State v. Carlton, 232 N.C. App. 62, 66, 753 S.E.2d 203, 206 (2014). In Carlton, the defendant was initially cited for a violation of N.C. Gen. Stat. § 14-291, but ultimately was convicted of violating N.C. Gen. Stat. § 14-290. See id. at 63, 753 S.E.2d at 204. “Instead of requiring the State to establish that Defendant was acting as a representative in the State for an illegal lottery,” that amendment would have “merely require[d] proof that Defendant knowingly possessed lottery tickets in order to make out a prima facie violation of the statute.” Id. at 66, 753 S.E.2d at 206. As in Carlton, the defendant here was charged via a North Carolina Uniform Citation. When the prosecutor amended the citation in question from larceny to shoplifting, she changed the nature of the offense charged. Larceny and shoplifting are separate statutory offenses requiring proof of different elements. Compare State v. Bowers, 273 N.C. 652, 655, 161 S.E.2d 11, 14 (1968) (holding a larceny requires the STATE V. BRYANT Opinion of the Court – 6 – defendant to have had the intent to steal at the time of the taking), with State v. Hales, 256 N.C. 27, 32, 122 S.E.2d 768, 772 (1961) (“Our shoplifting statute . . . does not require any felonious intent or any criminal intent on the part of the person who, without authority, willfully conceals the goods and merchandise of a store.”). Further bearing out this point is the fact that larceny is punishable as a Class 1 misdemeanor while shoplifting is a less serious Class 3 misdemeanor. Compare N.C. Gen. Stat. § 14-72(a) (2017) (making the misdemeanor offense of larceny punishable as a Class 1 misdemeanor), with id. § 14-72.1(e) (punishing a first conviction of shoplifting as a Class 3 misdemeanor and allowing for deviation by the sentencing judge in specified circumstances). Thus, the amendment was not legally permissible and deprived the district court of jurisdiction to enter judgment against Defendant. See Carlton, 232 N.C. App. at 66-67, 753 S.E.2d at 206-07. 3 We therefore reverse the superior court’s order denying Defendant’s certiorari petition and vacate the judgment entered against her. See State v. Partridge, 157 N.C. App. 568, 571, 579 S.E.2d 398, 400 (2003) (holding that when a trial court lacks jurisdiction to allow a conviction, the appropriate remedy is to vacate the judgment of the trial court). III. Conclusion 3 The citation here was more detailed in its description of the alleged offense than was the case in Carlton. This, however, is not determinative. See Carlton, 232 N.C. App. at 67, 753 S.E.2d at 207 (vacating judgment where court did not have jurisdiction because amended offense separate and distinct from offense originally charged). STATE V. BRYANT Opinion of the Court – 7 – For the reasons stated above, we reverse the order denying Defendant’s petition for writ of certiorari and vacate her conviction. VACATED. Chief Judge MCGEE and Judge BRYANT concur.
IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA19-66 Filed: 1 October 2019 Wilkes County, Nos. 16 CRS 54383, 16 CRS 53498, 17 CRS 436 STATE OF NORTH CAROLINA v. MICHAEL DENNIS MILLER Appeal by Defendant from Judgments entered 13 September 2018 by Judge Angela B. Puckett in Wilkes County Superior Court. Heard in the Court of Appeals 21 August 2019. Attorney General Joshua H. Stein, by Assistant Attorney General Jason Caccamo, for the State. Richard Croutharmel for defendant-appellant. HAMPSON, Judge. Facts and Procedural History Michael Dennis Miller (Defendant) appeals from Judgments entered upon his convictions for Assault with a Deadly Weapon Inflicting Serious Injury, Possession of a Firearm by a Felon, Discharge of a Weapon into an Occupied Vehicle in Operation Inflicting Serious Bodily Injury, and Discharge of a Weapon into an Occupied Vehicle in Operation. On appeal to this Court, Defendant challenges only the trial court’s STATE V. MILLER Opinion of the Court – 2 – imposition of judgment and sentencing on Discharging a Weapon into an Occupied Vehicle in Operation. The Record before us tends to show the following: On 17 December 2016, Defendant, along with his girlfriend Jarrita Roark, Derek Osborne, and Jennifer Martin, attended a holiday party. On 18 December 2016, Defendant and Roark left the party around 1:30 A.M. and returned to Roark’s house. Osborne and Martin arrived soon after. Defendant and Osborne remained outside on the porch. Roark and Martin entered the house. Shortly after, Defendant and Osborne began arguing. Defendant opened the door and yelled inside for Martin and Osborne to leave. A scuffle ensued between Defendant and Osborne. Martin and Roark came outside. Osborne and Martin began walking to Martin’s car, while Defendant went inside. As Martin and Osborne reached Martin’s car, Defendant returned to the porch with his gun and a fired a single shot into the air. Martin and Osborne got into the car. Martin, the driver, started the car and placed it in reverse. As Martin backed up, Defendant fired a second shot at the car. The shot entered the vehicle through the rear passenger window and struck Osborne in the neck. Martin applied pressure to the wound while 911 was called and the parties waited for first responders. Defendant was identified as the shooter and detained. Later in the morning of 18 December 2016, Warrants issued for Defendant’s arrest on one count of Felonious Assault with Deadly Weapon Intent to Kill Inflicting Serious Injury. The following day, 19 December 2016, Warrants issued charging STATE V. MILLER Opinion of the Court – 3 – Defendant with Felonious Possession of Firearm by a Felon, Felonious Discharge of a Firearm into an Occupied Vehicle in Operation Inflicting Serious Bodily Injury naming Osborne as the victim, and Felonious Discharge of a Firearm into an Occupied Vehicle in Operation naming Martin as the victim. Defendant was indicted on all charges on 30 October 2017. On 11 September 2018, Defendant was tried before a jury in Wilkes County Superior Court. On 13 September 2018, the jury returned verdicts finding Defendant guilty of: Discharging a Weapon into an Occupied Vehicle in Operation Inflicting Serious Bodily Injury; Discharging a Weapon into an Occupied Vehicle in Operation; Possession of a Firearm by a Felon; and Assault with a Deadly Weapon Inflicting Serious Injury. 1 The trial court entered judgment and sentenced in four separate Judgments. The trial court entered two Judgments in file number 16 CRS 53498 imposing two concurrent sentences: (1) Discharge of a Weapon into an Occupied Vehicle in Operation Inflicting Serious Bodily Injury, a Class C Felony, in which the trial court sentenced Defendant within the presumptive range to an active sentence of 83 to 112 months; and (2) Discharge of a Weapon into an Occupied Vehicle in Operation, a Class D Felony, in which the trial court sentenced Defendant within the presumptive range to a term of 73 to 100 months’ imprisonment. In file number 16 CRS 53483, the trial court entered Judgment on Defendant’s conviction for Assault 1 This was submitted to the jury as a lesser included offense of the Assault with a Deadly Weapon with Intent to Kill Inflicting Serious Injury. STATE V. MILLER Opinion of the Court – 4 – with a Deadly Weapon Inflicting Serious Injury, a Class E Felony, imposing a suspended sentence in the presumptive range of 29 to 47 months and placing Defendant on supervised probation for 36 months to run upon Defendant’s release from incarceration. In file number 17 CRS 436, the trial court entered judgment on the Possession of a Firearm by a Felon conviction, a Class G Felony, within the presumptive range, to a suspended sentence of 14 to 26 months and again placing Defendant on supervised probation for 36 months to run upon his release from incarceration. On 14 September 2018, Defendant timely filed notice of appeal. Issue The sole issue on appeal is whether a defendant may be sentenced for two convictions for Discharging a Weapon into an Occupied Vehicle under two separate subsections of N.C. Gen. Stat. § 14-34.1 when a single shot was fired into a single vehicle with two occupants and, therefore, whether the trial court erred by not arresting judgment on the lesser of the two charges for Discharging a Weapon into an Occupied Vehicle in Operation under N.C. Gen. Stat. § 14-34.1(b). Standard of Review Defendant challenges his sentence on legal rather than factual grounds, asserting the trial court erred as a matter of law by sentencing him twice under different subsections of N.C. Gen. Stat. § 14-34.1 for a single act. Thus, the issue before the Court is a question of law reviewed de novo. See, e.g., State v. Hayes, 248 STATE V. MILLER Opinion of the Court – 5 – N.C. App. 414, 415, 788 S.E.2d 651, 652 (2016) (“Issues of statutory construction are questions of law which we review de novo on appeal[.]” (citation omitted)). Analysis “A defendant properly preserves the issue of a sentencing error on appeal despite his failure to object during the sentencing hearing.” State v. Paul, 231 N.C. App. 448, 449, 752 S.E.2d 252, 253 (2013). “Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division . . . . The sentence imposed was unauthorized at the time imposed[.]” N.C. Gen. Stat. § 15A-1446(d)(18) (2017). Defendant concedes he was properly indicted and tried on the two separate charges of Discharging a Weapon into an Occupied Vehicle. Rather, he appeals the imposition of judgment and his sentence under N.C. Gen. Stat. § 14-34.1(b) for Discharging a Weapon into an Occupied Vehicle in Operation. Specifically, he contends his act of firing a single shot into the vehicle occupied by Martin and Osborne only amounts to one violation of N.C. Gen. Stat. § 14-34.1, and therefore, the trial court should not have imposed judgment and sentenced him for both Discharging a Weapon into an Occupied Vehicle Inflicting Serious Bodily Injury under Section 14- 34.1(c) and for Discharging a Weapon into an Occupied Vehicle in Operation under Section 14-34.1(b). Instead, he argues, the trial court was required to arrest STATE V. MILLER Opinion of the Court – 6 – judgment on the lesser offense once the jury found the Defendant guilty of both counts. We agree. In relevant part, Section 14-34.1 provides: Discharging certain barreled weapons or a firearm into occupied property. (a) Any person who willfully or wantonly discharges or attempts to discharge any firearm . . . into any building, structure, vehicle, . . . or other enclosure while it is occupied is guilty of a Class E felony. (b) A person who willfully or wantonly discharges a weapon described in subsection (a) of this section into an occupied dwelling or into an occupied vehicle . . . or other conveyance that is in operation is guilty of a Class D felony. (c) If a person violates this section and the violation results in serious bodily injury to any person, the person is guilty of a Class C felony. N.C. Gen. Stat. § 14-34.1 (2017). Section 14-34.1 is comprised of three subsections—(a), (b), and (c). Each subsection enumerates the class of felony constituted by a violation of Section 14- 34.1, elevating the class when specific factors are satisfied. Subsection (a) lays out the initial Felony, a Class E. To elevate the offense enumerated in subsection (a) to that in subsection (b), a Class D Felony, the vehicle must be in operation. See State v. Galloway, 226 N.C. App. 100, 104, 738 S.E.2d 412, 414 (2013) (holding where the indictment failed to allege that the vehicle was in operation, as required under STATE V. MILLER Opinion of the Court – 7 – subsection (b) of Section 14-34.1, the defendant could not be charged with the “elevated offense” and therefore could only be charged under subsection (a)). Subsection (c), a Class C Felony, provides the highest felony offense under Section 14-34.1. A violation of subsection (c) occurs when “a person violates this section and the violation results in serious bodily injury to any person[.]” N.C. Gen. Stat. § 14-34.1(c). Unlike subsection (b), which expressly refers to subsection (a), subsection (c) states “this section[,]” referring to Section 14-34.1 as a whole. A violation of Section 14-34.1 (a) or (b) may be elevated to a Class C Felony in accord with subsection (c) where serious bodily injury results to “any person[.]” Id. § 14- 34.1(c) (emphasis added). “The protection of the occupant(s) of the building was the primary concern and objective of the General Assembly when it enacted G.S. 14-34.1.” State v. Williams, 284 N.C. 67, 72, 199 S.E.2d 409, 412 (1973). [A] person is guilty of the felony created by G.S. 14-34.1 if he intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons. Id. at 73, 199 S.E.2d at 412. “Discharging a firearm into a vehicle does not require that the State prove any specific intent but only that the defendant perform the act which is forbidden by statute. It is a general intent crime.” State v. Jones, 339 N.C. 114, 148, 451 S.E.2d 826, 844 (1994). As such, the required elements of the crime STATE V. MILLER Opinion of the Court – 8 – are: “(1) the willful or wanton discharging (2) of a firearm (3) into any building [or vehicle] (4) while it is occupied.” State v. Jones, 104 N.C. App. 251, 258, 409 S.E.2d 322, 326 (1991). Thus, “[t]he crime of discharging a weapon into an occupied building is accomplished when the defendant shoots once into the structure [or vehicle].” Id. at 259, 409 S.E.2d at 326. In the case sub judice, Defendant committed the elevated Class D Felony offense of Discharging a Weapon into an Occupied Vehicle in Operation when he fired a single shot into the car occupied by Martin and Osborne while it was backing up. Similar to this Court’s reasoning in Galloway, subsection (c) again elevates this crime to a Class C Felony where the jury found a person suffered serious bodily injury as a result. See 226 N.C. App. at 104, 738 S.E.2d at 414. Thus, when the jury found Defendant guilty under Section 14-34.1(c), the trial court should have arrested judgment for his conviction for the lesser offense under Section 14-34.1(b) arising from the same shot into the same occupied vehicle. The State, nevertheless, contends the statute should be read to support multiple punishments where there are multiple victims because it is designed to protect the occupants of a vehicle, and in the case sub judice, there was more than one occupant inside the car. However, as this Court articulated in Jones, “any person located in the target building is a victim of this offense.” 104 N.C. App. at 259, 409 S.E.2d at 327 (emphasis added). Indeed, the plain language of the statute requires STATE V. MILLER Opinion of the Court – 9 – only that the building or vehicle be occupied; it does not consider the number of occupants. N.C. Gen. Stat. § 14-34.1; see Williams, 284 N.C. at 73, 199 S.E.2d at 412 (holding that the offense is committed when Defendant knows or has reasonable grounds to believe the building is “occupied by one or more persons”).2 Further, the State conceded at oral arguments that there is no prior case where the number of occupants determined the number of convictions under Section 14- 34.1. To the contrary, where our Courts have upheld multiple convictions under Section 14-34.1 it has done so irrespective of the number of occupants. Instead, our Courts have relied on the existence of multiple shots or multiple occupied properties to support multiple convictions. For example, in State v. Rambert, the defendant argued evidence “he fired three shots from one gun into occupied property within a short period of time would support a conviction and sentence on only one count, not three counts, of discharging a firearm into occupied property[.]” 341 N.C. 173, 174, 459 S.E.2d 510, 511 (1995). Our Supreme Court analyzed the defendant’s double jeopardy claim and held that he was properly charged with “three separate and distinct acts” under Section 14-34.1. Id. at 176-77, 459 S.E.2d at 513. The Court reasoned: “Each shot . . . required that 2 Notably, while the relevant Warrant and Indictment in this case name Osborne as the victim in one count under Section 14-34.1(c) and Martin as the victim under Section 14-34.1(b), the trial court’s jury instructions did not require the jury to find any particular victim to support either charge. Indeed, the trial court’s jury instructions were consistent with our prior case law and with our analysis here. STATE V. MILLER Opinion of the Court – 10 – defendant employ his thought processes each time he fired the weapon. Each act was distinct in time, and each bullet hit the vehicle in a different place.” Id. Similarly, in State v. Nobles, the victim’s three young children were present in the vehicle when the defendant fired seven shots into the vehicle. 350 N.C. 483, 491, 515 S.E.2d 885, 890 (1999). Yet again, our Supreme Court concluded the seven distinct and separate shots were the basis for the defendant’s seven convictions. Id. at 505, 515 S.E.2d at 899. Likewise, this Court upheld a defendant’s four convictions under Section 14-34.1(b) because the evidence showed four separate bullet holes in the doorframe, even when at the time of the shooting the dwelling was occupied by two adults and a four-year-old child. See State v. Kirkwood, 229 N.C. App. 656, 658, 666-68, 747 S.E.2d 730, 732, 734 (2013). In State v. Ray, this Court held a defendant’s two convictions under Section 14- 34.1 did not violate the defendant’s right against double jeopardy where the defendant fired a single bullet that entered two apartments, constituting two separate occupied dwellings. 97 N.C. App. 621, 623-25, 389 S.E.2d 422, 423-24 (1990). Consistent with Nobles and Kirkwood, the defendant’s multiple convictions in Ray were not related to the number of victims, as each apartment in Ray had multiple occupants. See id. None of these cases based the number of charges the defendant received under Section 14-34.1 by the number of victims in the occupied property. STATE V. MILLER Opinion of the Court – 11 – Instead, our Courts have consistently relied on multiple shots or multiple occupied properties in order to support multiple convictions under Section 14-34.1. The State also argues the legislative intent behind Section 14-34.1 requires a defendant should face greater jeopardy where the risk of injury to multiple persons is increased. For example, the State posits a firearm discharged into a vehicle in operation presents a greater danger to the public than one not in operation. We are persuaded that the General Assembly addressed this concern by elevating the offense to a Class D Felony when the vehicle is in operation, thereby providing greater punishment. N.C. Gen. Stat. § 14-34.1(b). Likewise, the State suggests where a driver of a vehicle is “shot or startled” this may result in a crash presenting a risk of serious bodily injury to the occupants or the public. Again, though, the General Assembly legislatively mandated where the discharge of the weapon into an occupied vehicle results in serious bodily injury to any person, the offense is elevated to the Class C Felony. Id. § 14-34.1(c). Thus, the State’s concerns are directly addressed and remedied by the very structure of the Statute and its provisions for elevated punishments. Consequently, based on our reading of the Statute and our existing case law, we hold: where Defendant fired a single shot into a single vehicle occupied by two people while the vehicle was in operation, resulting in serious bodily injury to one occupant, and where the jury returned verdicts finding Defendant guilty both under STATE V. MILLER Opinion of the Court – 12 – N.C. Gen. Stat. § 14-34.1(b) and § 14-34.1(c) based upon that single shot into a single occupied vehicle, the trial court was required to arrest judgment on the conviction under subsection (b) and impose judgment only upon the elevated Class C Felony under subsection (c) based on the resulting serious bodily injury. Accordingly, we arrest judgment on Defendant’s conviction under Section 14-34.1(b). Conclusion On appeal, Defendant does not challenge his convictions for Assault with a Deadly Weapon Inflicting Serious Injury or Possession of a Firearm by a Felon. Therefore, we uphold those Judgments and hold there was no error in file numbers 16 CRS 53483 and 17 CRS 436. In file number 16 CRS 53498, we conclude there was no error in Defendant’s conviction for the Class C Felony of Discharging a Weapon into an Occupied Vehicle in Operation Inflicting Serious Bodily Injury; we arrest Judgment on Defendant’s conviction of the Class D Felony of Discharging a Weapon into an Occupied Vehicle in Operation. We do not remand for resentencing because the Judgments were entered separately and the active sentences run concurrently. NO ERROR IN PART; JUDGMENT ARRESTED IN PART. Judges INMAN and BROOK concur.
IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA18-1016 Filed: 1 October 2019 Cabarrus County, Nos. 15CRS001292, -1293 STATE OF NORTH CAROLINA, v. CAROLYN D. “BONNIE” SIDES, Defendant. Appeal by Defendant from judgments entered 11 November 2017 by Judge Beecher R. Gray in Cabarrus County Superior Court. Heard in the Court of Appeals 24 April 2019. Attorney General Josh Stein, by Special Deputy Attorney General Keith Clayton, for the State-Appellee. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Wyatt Orsbon, for Defendant-Appellant. COLLINS, Judge. Defendant appeals from judgments entered upon jury verdicts finding her guilty of three counts of felony embezzlement following trial in early November 2017. Defendant contends that the trial court erred by (1) failing to conduct a competency hearing before proceeding with the trial in her absence following her mid-trial ingestion of intoxicants, and (2) amending the judgments to reflect a different date for the commission of the relevant crimes in her absence. We discern no error. STATE V. SIDES Opinion of the Court – 2 – I. Background On 7 July 2015, Defendant was indicted by a Cabarrus County Grand Jury on four counts of felony embezzlement. On 30 November 2015, superseding indictments were issued. The State dismissed one of the counts on 4 May 2017, leaving Defendant charged with two Class C and one Class H counts of felony embezzlement. Jury trial began on 6 November 2017. Defendant was present in the courtroom on that date, as well as on 7 and 8 November 2017, as the State presented its casein-chief. During those first three days of the trial, Defendant conferred with her trial counsel on multiple occasions, and neither Defendant nor her counsel raised the issue of Defendant’s competency to the trial court. On the evening of 8 November 2017, Defendant ingested 60 one-milligram Xanax tablets in an apparent intentional overdose, and was taken to the hospital for treatment. The trial court was made aware of this fact on the morning of 9 November 2017 before the trial resumed. The trial court told the jury there would be a delay and sent them to the jury room. The parties and the trial court then discussed the impact of Defendant’s overdose on the proceedings with reference to a petition for involuntary commitment by which the treating physician sought to keep Defendant for observation and further evaluation. In the petition for involuntary commitment, the physician opined that Defendant was “mentally ill and dangerous to self or others or mentally ill and in need of treatment in order to prevent further disability or STATE V. SIDES Opinion of the Court – 3 – deterioration that would predictably result in dangerousness” and “ha[d] been experiencing worsening depression and increased thoughts of self-harm.” The trial court asked the parties to draft an order for the release of Defendant’s medical records and to research the legal import of a defendant’s absence from trial under such circumstances, and recessed the proceedings. When the proceedings resumed later that afternoon, the State’s attorney stated that he had found case law that he believed allowed the trial to proceed in Defendant’s absence, directing the trial court’s attention to State v. Minyard, 231 N.C. App. 605, 753 S.E.2d 176 (2014), discussed below. But “in an abundance of caution,” the State’s attorney suggested continuing the proceedings until the beginning of the following week in case Defendant was able by that time to return to the courtroom. The trial court agreed, and released the jury. Later that afternoon, the trial court signed the order for the release of Defendant’s medical records, revoked Defendant’s bond, and issued an order for Defendant’s arrest once she left the hospital. When the proceedings resumed on 13 November 2017, Defendant was again absent from the courtroom and, according to her trial counsel, remained in the hospital undergoing evaluation and treatment. The trial court asked Defendant’s trial counsel: “Up [until] the time that this matter occurred, Mr. Russell, you have not observed anything of [Defendant] that would indicate [Defendant] lacked STATE V. SIDES Opinion of the Court – 4 – competency to proceed in this trial, would that be a fair statement?” Defendant’s trial counsel agreed. The trial court then ruled that the trial would proceed in Defendant’s absence because Defendant “voluntarily by her own actions made herself absent from the trial[.]” Defendant’s trial counsel noted an objection to the ruling on voluntary absence, but did not ask the trial court to conduct a competency hearing or object to the trial court’s decision to proceed without conducting a competency hearing. Before bringing the jury into the courtroom and proceeding with the trial, the trial court admitted Defendant’s medical records (which it had received over the weekend) and the petition for involuntary commitment, and noted for the record that it had considered this evidence in deciding to proceed. The trial court then brought the jury back into the courtroom, instructed the jurors not to consider Defendant’s absence in weighing the evidence or determining guilt, and allowed the State to continue to present its case. At the close of the State’s evidence, Defendant moved to dismiss. Defendant argued that the State had presented insufficient evidence to convict, but did not argue for dismissal based upon either Defendant’s absence from the trial or the fact that the trial court had not conducted a competency hearing before proceeding. The trial court denied Defendant’s motion. Defendant put on no evidence, rested, and renewed its motion to dismiss for insufficient evidence. Defendant again did not argue as bases for dismissal either STATE V. SIDES Opinion of the Court – 5 – Defendant’s absence from the trial or the fact that the trial court had not conducted a competency hearing before proceeding. The trial court again denied Defendant’s motion. The jury deliberated and ultimately found Defendant guilty of all three charges later that afternoon. Defendant returned to the courtroom on 16 November 2017 for sentencing, and testified on her own behalf, providing a lengthy personal statement accepting responsibility for her actions and responding to the questions of her trial counsel and the State’s attorney without difficulty. The trial court then entered judgment against Defendant: (1) imposing consecutive presumptive-range sentences of 60 to 84 months’ imprisonment for the Class C felonies; (2) imposing a presumptive-range sentence of 6 to 17 months’ imprisonment for the Class H felony, which the trial court suspended for 60 months of supervised probation; and (3) ordering Defendant to pay $364,194.43 in restitution. Defendant filed a written notice of appeal on 28 November 2017. Sometime before 28 December 2017, the trial court entered amended judgments in response to a request for clarification from the Combined Records Section of the North Carolina Department of Public Safety, changing the “Offense Date[s]” on each of the judgments, and the Cabarrus County Clerk of Superior Court filed Combined Records’ request with a response thereto noting that the trial court had committed “clerical error, only.” Defendant was not present when the judgments were amended. STATE V. SIDES Opinion of the Court – 6 – II. Discussion Defendant contends that the trial court erred by (1) failing to conduct a competency hearing before proceeding with the trial in her absence following her overdose and (2) amending the judgments in her absence. We address each argument in turn. a. Competency Hearing “It is well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial.” Medina v. California, 505 U.S. 437, 439 (1992); see State v. Young, 291 N.C. 562, 568, 231 S.E.2d 577, 581 (1977) (“a conviction cannot stand where defendant lacks capacity to defend himself”). A defendant is competent to stand trial when he has “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and has “a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 (1960); see State v. Badgett, 361 N.C. 234, 259, 644 S.E.2d 206, 221 (2007) (applying Dusky). In North Carolina, a trial court has a statutory duty to hold a hearing to resolve questions of a defendant’s competency if the issue is raised by any party. N.C. Gen. Stat. § 15A-1002(b) (2017). In this case, Defendant never asserted her statutory right to a competency hearing at trial, and therefore waived that right. Badgett, 361 N.C. STATE V. SIDES Opinion of the Court – 7 – at 259, 644 S.E.2d at 221 (“[T]he statutory right to a competency hearing is waived by the failure to assert that right at trial.”). Beyond the statutory duty, a “trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent.” Young, 291 N.C. at 568, 231 S.E.2d at 581 (quotation marks, emphasis, and citation omitted); see Godinez v. Moran, 509 U.S. 389, 401 n.13 (1993) (“[A] competency determination is necessary only when a court has reason to doubt the defendant’s competence.”). Put another way, the trial court “is required to hold a competency hearing when there is a bona fide doubt as to the defendant’s competency.” State v. Staten, 172 N.C. App. 673, 678, 616 S.E.2d 650, 654 (2005). The need for a competency hearing may arise at any point during the proceeding, “from the time of arraignment through the return of a verdict.” Moran, 509 U.S. at 403 (Kennedy, J., concurring). “[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” to the determination of whether a hearing is required. Drope v. Missouri, 420 U.S. 162, 180 (1975). But “[t]here are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed[.]” Id. On appeal, Defendant argues that because of her history of mental illness and her overdose, the trial court had substantial evidence following the overdose that STATE V. SIDES Opinion of the Court – 8 – Defendant may have been incompetent to stand trial, and thus the trial court was constitutionally required to initiate a competency hearing sua sponte before proceeding, regardless of the fact that Defendant did not raise the issue. It is true that since the United States Constitution requires a trial court to institute a competency hearing sua sponte upon substantial evidence that the defendant may be mentally incompetent, Young, 291 N.C. at 568, 231 S.E.2d at 581, it follows that a defendant may not waive her constitutional right to a competency hearing (when required) by failing to raise the issue at trial. We have held, however, that where a defendant waives their constitutional right to be present at a non-capital trial, a sua sponte competency hearing is not required. Minyard, 231 N.C. App. at 621, 753 S.E.2d at 188. A defendant waives the right to be present at trial by voluntarily absenting herself from the trial. State v. Wilson, 31 N.C. App. 323, 326-27, 229 S.E.2d 314, 317 (1976) (holding that a “defendant’s voluntary and unexplained absence from court after his trial begins constitutes a waiver of his right to be present”); see Diaz v. United States, 223 U.S. 442, 455 (1912) (“[W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with STATE V. SIDES Opinion of the Court – 9 – like effect as if he were present.”). And this Court has held that a defendant’s voluntary ingestion of intoxicants may result in voluntary absence and thus waiver of the constitutional right to be present such that a sua sponte competency hearing is not a prerequisite to proceeding with the trial. Minyard, 231 N.C. App. at 621, 753 S.E.2d at 188. In Minyard, the defendant intentionally overdosed on tranquilizers and alcohol during jury deliberations, and “became lethargic and slumped over in the courtroom.” Id. at 613, 753 S.E.2d at 183. The trial court asked the defendant to “do [his] very best to stay vertical, stay conscious, stay with us.” Id. at 612, 753 S.E.2d at 183. But the defendant became “stuporous and non-responsive[,]” and the trial court had the sheriff escort the defendant from the courtroom to seek medical attention. Id. at 613, 615, 753 S.E.2d at 183-84. The jury subsequently returned with a guilty verdict, and the defendant appealed. Id. at 614, 753 S.E.2d at 183. On appeal, the Minyard defendant argued, inter alia, that the trial court committed reversible error by failing to institute a competency hearing sua sponte before proceeding once the defendant became non-responsive. Id. at 615, 753 S.E.2d at 184. The Minyard Court noted that the defendant’s conduct “provide[d] ample evidence to raise a bona fide doubt whether [the d]efendant was competent to stand trial[,]” and that “[s]uch conduct would ordinarily necessitate a sua sponte [competency] hearing.” Id. at 626, 753 S.E.2d at 190. The Court also noted, however, STATE V. SIDES Opinion of the Court – 10 – that the defendant “voluntarily ingested large quantities of intoxicants in a short period of time apparently with the intent of affecting his competency.” Id. at 626, 753 S.E.2d at 191 (emphasis in original). Because the ingestion of the intoxicants was voluntary, the Court held that the defendant had “voluntarily waived his constitutional right to be present,” accordingly “disagree[d] with [the d]efendant that a sua sponte competency hearing was required,” and concluded that the trial court had not erred by proceeding without conducting such a hearing. Id. at 621, 753 S.E.2d at 188. Minyard controls our analysis in this case. Like the Minyard defendant, Defendant here ingested a large quantity of intoxicants which rendered her unable to be present at her trial, and did so because she was concerned about the anticipated outcome of the trial. Compare id. at 612, 614, 753 S.E.2d at 183 (noting witness testimony that the defendant took 15 Klonopin because he was “worried about the outcome” of the trial), with Rule 9(d)(2) Ex. at 88 (attending physician’s report that Defendant “took 60 mgs of Xanax in an attempt to kill herself to avoid going to jail for Embezzlement”). The question of whether Defendant’s ingestion of the intoxicants was an attempted suicide rather than an attempt to render herself nonresponsive does not distinguish Minyard from this case, because in both cases the defendants ingested a large quantity of intoxicants that rendered them unable to be STATE V. SIDES Opinion of the Court – 11 – present at their trials. 1 And following Minyard, unless the trial court erred by concluding that Defendant voluntarily ingested the intoxicants that caused her absence, and thereby waived her right to be present at her trial, the failure to conduct a sua sponte hearing regarding the competency of the voluntarily-absent Defendant was not error. Minyard, 231 N.C. App. at 621, 753 S.E.2d at 188. As such, the question is not whether there should have been a competency hearing, but whether the action resulting in the waiver of Defendant’s right to be present was voluntary. See id. at 626, 753 S.E.2d at 191 (“Voluntary waiver of one’s right to be present is a separate inquiry from competency, and in a non-capital case, a defendant may waive the right by their own actions, including actions taken to destroy competency.”). We review the trial court’s conclusion that Defendant voluntarily waived her constitutional right to be present de novo. State v. Anderson, 222 N.C. App. 138, 142, 730 S.E.2d 262, 265 (2012) (“The standard of review for alleged violations of constitutional rights is de novo.” (quotation marks and citation 1 See United States v. Crites, 176 F.3d 1096, 1098 (8th Cir. 1999) (rejecting defendant’s argument that “an attempted suicide does not constitute a voluntary absence from trial” for purposes of Federal Rule of Civil Procedure 43, because defendant “clearly expressed his desire to be absent by intentionally ingesting a potentially lethal mix of intoxicants and by leaving a suicide note”); Finnegan v. State, 764 N.W.2d 856, 862 (Minn. Ct. App. 2009) (holding that “a suicide attempt can constitute a voluntary and unjustified absence from trial constituting a waiver of the right to be present”); Bottom v. State, 860 S.W.2d 266, 267 (Tex. Ct. App. 1993) (“The competent evidence shows [defendant] was not absent because of some sudden unexpected medical emergency, but because he chose to ingest large quantities of aspirin and arthritis medication. Because [defendant] chose to act in this way, his absence was voluntary. . . . [The defendant] cannot avoid trial by intentionally disabling himself” (emphasis omitted)); but see Peacock v. State, 77 So. 3d 1285, 1289 (Fla. 4th Dist. Ct. App. 2012) (noting that “[t]he case law appears to be split on whether a suicide attempt constitutes a voluntary absence from a court proceeding[,]” and collecting cases). STATE V. SIDES Opinion of the Court – 12 – omitted)); cf. State v. Ingram, 242 N.C. App. 173, 184, 774 S.E.2d 433, 442 (2015) (reviewing voluntariness of waiver of Miranda rights de novo). Whether the action was voluntary “must be found from a consideration of the entire record[.]” Ingram, 242 N.C. App. at 184, 774 S.E.2d at 442 (quotation marks and citation omitted). Defendant’s arguments that she did not voluntarily waive her right to be present are not supported by the law and are belied by a holistic review of the record. In her brief, Defendant first argues that “any determination that a defendant waived the right to be present at trial is predicated on an antecedent determination that the defendant is competent to stand trial.” But this argument contradicts the Supreme Court’s guidance that “a competency determination is necessary only when a court has reason to doubt the defendant’s competence.” Moran, 509 U.S. at 401 n.13 (emphasis added); Young, 291 N.C. at 568, 231 S.E.2d at 581 (a “trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent.” (emphasis added)). This argument is therefore unavailing. Defendant also argues that her overdose was not a voluntary act, but rather the result of mental illness. There is evidence in the record that Defendant has had mental health issues in the past, including a “past medical history of retention” and a “history of a mood disorder[,]” and was diagnosed by the attending physician STATE V. SIDES Opinion of the Court – 13 – following the overdose with “[a]djustment disorders, [w]ith mixed anxietyand [sic] depressed mood” and “[u]nspecified anxiety disorder.” But a consideration of the entire record does not convince us that Defendant’s overdose was the result of mental illness. The record reflects that Defendant reported to the attending physician at the hospital that, prior to the overdose, (1) she had not been receiving any outpatient mental health services other than getting prescriptions from her primary care doctor, (2) she had never before been psychiatrically hospitalized, and (3) she had never before tried to hurt herself. Defendant spent the three days she was present at her trial conferring with her trial counsel, who told the trial court that he had not observed anything causing him concern about Defendant’s competency prior to the overdose. And after speaking with Defendant and her stepson following the overdose, the attending physician noted that Defendant (1) had “informed her family that she was not going to go to jail” and “planned to kill herself[,]” (2) wrote goodbye letters to her grandchildren, and then (3) ingested an overdose of a powerful intoxicant “trying to kill herself.” The fact that Defendant was committed involuntarily subsequent to her overdose does not change our analysis, since Defendant’s involuntary commitment was a direct result of her overdose. N.C. Gen. Stat. § 15A-1443(c) (2017) (“A defendant is not prejudiced by . . . error resulting from his own conduct.”). STATE V. SIDES Opinion of the Court – 14 – The foregoing facts convince us that Defendant’s attempt to execute a purposeful plan to commit suicide by overdosing on powerful intoxicants to avoid jail was done voluntarily. As a result, Defendant voluntarily waived her right to be present at her trial, and following Minyard, we conclude that the trial court did not err by proceeding with Defendant’s trial in her absence without first conducting a sua sponte competency hearing. b. Amended Judgments Defendant also argues that the trial court erred by amending the judgments entered against her to reflect different “Offense Date[s]” in her absence. A criminal defendant has a common-law right to be present at the time her sentence is imposed. State v. Pope, 257 N.C. 326, 330, 126 S.E.2d 126, 129 (1962) (“The right to be present at the time sentence or judgment is pronounced is a common law right, separate and apart from the constitutional or statutory right to be present at the trial.”). That right includes the right to be present any time the sentence is substantively changed. State v. Crumbley, 135 N.C. App. 59, 67, 519 S.E.2d 94, 99 (1999) (vacating and remanding for new sentencing hearing where defendant was present when sentence was initially rendered but was not present for sentence’s subsequent alteration because defendant was not afforded the opportunity to be heard on the change). STATE V. SIDES Opinion of the Court – 15 – But where the trial court imposes a sentence in the defendant’s presence and later amends the judgment ex parte to address a clerical error without changing the substance of the sentence, there is no error. State v. Jarman, 140 N.C. App. 198, 202- 04, 535 S.E.2d 875, 878-79 (2000); see State v. Willis, 199 N.C. App. 309, 311, 680 S.E.2d 772, 774 (2009) (“It is universally recognized that a court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record[.]” (citation omitted)). Clerical error has been defined as “[a]n error resulting from a minor mistake or inadvertence, esp[ecially] in writing or copying something on the record, and not from judicial reasoning or determination.” Willis, 199 N.C. App. at 311, 680 S.E.2d at 774 (quotation marks and citation omitted). We review the question of whether a defendant was improperly sentenced outside his presence de novo. State v. Briggs, 249 N.C. App. 95, 97, 790 S.E.2d 671, 673 (2016). Defendant points out that the original judgments reflected “Offense Date[s]” of 1 January 2011, dates which correspond to presumptive sentence ranges lower than the presumptive ranges imposed by the trial court. Defendant argues that the amendment of the judgments to reflect different “Offense Date[s]” therefore effected substantive changes to her sentences that mandate resentencing. STATE V. SIDES Opinion of the Court – 16 – But the trial court’s amendment of the written judgments to reflect different “Offense Date[s]” was merely the correction of clerical error. The only differences between the original and amended judgments are that the “Offense Date[s]” thereupon were changed to dates in 2014 which fall within the “Date Range Of Offense” listed in the superseding indictments. Defendant does not direct our attention to anything in the record or the transcript indicating that the jury or the trial court determined that the crimes took place on 1 January 2011 or any other specific date. Further, the amended judgments carry the same sentences entered via the original judgments entered at the sentencing hearing in Defendant’s presence, where the trial court announced that the sentences were “in the presumptive range[s]” for the two classes of felonies. The facts that the trial court announced the sentences as “in the presumptive range[s]” and imposed the precise presumptive sentence ranges for the offenses available under the post-1 October 2013 sentencing regime—sentence ranges which would exceed the presumptive ranges for the crimes if committed on 1 January 2011, for which the pre-1 October 2013 regime would apply—indicate that the trial court intended to apply the post-1 October 2013 regime, and thus concluded at the sentencing hearing that Defendant’s crimes took place on or after that date. Since (1) the “Date Range[s] of [the] Offense[s]” listed on the superseding indictments include the dates in 2014 listed on the amended judgments, (2) Defendant was STATE V. SIDES Opinion of the Court – 17 – present when the trial court imposed the “presumptive range” sentences applicable to crimes committed on those dates, and (3) the amended judgments did not change the sentences imposed, we conclude that the amendment of the dates in the amended judgments did not effect a substantive change to the sentences requiring Defendant’s presence. See State v. Arrington, 215 N.C. App. 161, 168, 714 S.E.2d 777, 782 (2011) (holding no violation of right to be present when sentence imposed where amended sentence did not “constitute an additional or other punishment” and thus caused no substantive change to sentence). We accordingly reject Defendant’s argument that she must be resentenced. III. Conclusion Because we conclude that Defendant voluntarily ingested the intoxicants that caused her absence from trial, we accordingly conclude that Defendant waived her right to be present at the trial and that the trial court did not err by proceeding with Defendant’s trial in her absence without first conducting a sua sponte competency hearing. And because we conclude that the trial court’s amendment of the judgments to reflect different “Offense Date[s]” did not substantively change the sentences imposed, we conclude that the trial did not err by effecting those amendments outside of Defendant’s presence. NO ERROR. Judge BRYANT concurs. STATE V. SIDES Opinion of the Court – 18 – Judge STROUD dissents by separate opinion. No. COA18-1016 – State v. Sides STROUD, Judge, dissenting. I respectfully dissent from the majority’s opinion because the trial court, and the majority, overlooked the necessity for defendant first to be competent to stand trial before she can voluntarily waive her constitutional right to be present for trial. See State v. Badgett, 361 N.C. 234, 644 S.E.2d 206 (2007). “[I]f there is substantial evidence” that defendant “may be mentally incompetent[,]” the trial court has a duty to hold a hearing to determine the defendant’s competency to stand trial before proceeding and before determining that defendant was voluntarily absent from the trial. Id. at 259, 644 S.E.2d at 221 (emphasis added). Medical professionals and a magistrate determined that defendant was mentally ill and dangerous to herself or others, to the extent that she was involuntarily committed during her trial, in November of 2017. At the very least, defendant’s involuntary commitment was “substantial evidence” that defendant “may be mentally incompetent[,]” triggering the need for a hearing on the issue. Id. In addition, a defendant involuntarily committed under a valid court order cannot logically be voluntarily absent from her trial during her involuntary commitment. Involuntary commitment under North Carolina General Statute § 122C-251 et. seq.2 does not necessarily mean that a defendant is incompetent to stand trial, but it does raise an issue of competency to 2 Involuntary commitment generally and on the basis of mental illness is addressed in North Carolina General Statutes § 122C-251 through § 122C-279, and much of this text has been substantially revised since 2017. See N.C. Gen. Stat. § 122C-251 et. seq. (Supp. 2018). STATE V. SIDES STROUD, J., dissenting – 20 – stand trial. See generally id. Had the trial court held a hearing, it is possible it would have determined defendant was competent to stand trial, but no hearing was held. And had the trial court held a hearing and determined defendant to be competent, there is no dispute that she was involuntarily committed and could not physically be present in court again until she was released. [U]nder the Due Process Clause of the United States Constitution, a criminal defendant may not be tried unless he is competent. As a result, a trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent. In enforcing this constitutional right, the standard for competence to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. Id. (citations, quotation marks, brackets, and emphasis omitted). A defendant has both a constitutional right, see id., and a statutory right as to competency to stand trial: (a) No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner. This condition is hereinafter referred to as “incapacity to proceed.” N.C. Gen. Stat. § 15A-1001 (2017). Capacity to stand trial includes three separate requirements: STATE V. SIDES STROUD, J., dissenting – 21 – This statute provides three separate tests in the disjunctive. If a defendant is deficient under any of these tests he or she does not have the capacity to proceed. The test of a defendant’s mental capacity to stand trial is whether he has, at the time of trial, the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed. State v. Mobley, ___ N.C. App. ___, ___, 795 S.E.2d 437, 439 (2017) (citations, quotation marks, and brackets omitted). A trial judge is required to hold a competency hearing when there is a bona fide doubt as to the defendant’s competency even absent a request. A trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent. Id. at ___, 795 S.E.2d at 439 (citations, quotation marks, and brackets omitted). The State argues, and the majority agrees, that “Defendant voluntarily waived her right to be present – through her own actions inducing the condition of her absence from the trial proceeding[.]” Defendant argues otherwise, and the record does include substantial discussion of defendant’s mental health and competency, although the trial court failed to determine her capacity to stand trial before determining that she voluntarily absented herself from trial by her suicide attempt. On 9 November 2017, the trial court entered its order to obtain medical records, and it appeared the trial court would be considering the issue of capacity to STATE V. SIDES STROUD, J., dissenting – 22 – stand trial after review of the records. But instead of conducting this review, the trial court merely asked defendant’s counsel: “Up till the time that this matter occurred, [defense counsel], you have not observed anything of her that would indicate she lacked competency to proceed in this trial, and would that be a fair statement?” Defense counsel confirmed that he had not previously seen anything causing him to question Ms. Sides’ competency. The trial court then ruled, over defendant’s objection, that defendant was voluntarily absent from trial. Defendant argues, and I agree, that she did raise her statutory right to a hearing as to her capacity to stand trial. If so, this Court should review the trial court’s action de novo. State v. Johnson, ___ N.C. App. ___, ___, 801 S.E.2d 123, 128 (2017) (“When a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court’s action is preserved, notwithstanding defendant’s failure to object at trial. Defendant alleges a violation of a statutory mandate, and alleged statutory errors are questions of law and as such, are reviewed de novo.” (citations, quotation marks, brackets omitted)). But even if the statutory right was waived, defendant had a constitutional right for the trial court “‘to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent.’ Young, 291 NC at 568, 231 S.E.2d at 581[.]” But the majority then skips over the question of the “substantial evidence” that the defendant may be STATE V. SIDES STROUD, J., dissenting – 23 – mentally incompetent, as did the trial court, and moves on to voluntary waiver based upon defendant’s “voluntary” overdose. The majority notes that “the trial court’s conclusion that Defendant voluntarily waived her constitutional right to be present” is reviewed “de novo.” Our Supreme Court has held that we review constitutional issues de novo: It is equally well established, however, that, when such a motion raises a constitutional issue, the trial court’s action upon it involves a question of law which is fully reviewable by an examination of the particular circumstances of each case. State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981). Therefore, I will consider whether the trial court erred as a matter of law in failing to conduct a hearing to determine if defendant was competent to stand trial as of 9 November 2017. Even if the defendant does not raise the issue of competency, the trial court has both a statutory and constitutional duty to inquire if there is “substantial evidence . . . indicating the accused may be mentally incompetent[:]” The trial court has the power on its own motion to make inquiry at any time during a trial regarding defendant’s capacity to proceed. General Statute 15A1002(a) provides that this question may be raised at any time by the prosecutor, the defendant, the defense counsel, or the court on its own motion. Indeed, circumstances could exist where the trial court has a constitutional duty to make such an inquiry. A conviction cannot stand where defendant lacks capacity to defend himself. A trial court has a constitutional duty to institute, sua STATE V. SIDES STROUD, J., dissenting – 24 – sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent. State v. Heptinstall, 309 N.C. 231, 235–36, 306 S.E.2d 109, 112 (1983) (citations, quotation marks, and brackets omitted). Here, the trial court had a duty to hold a competency hearing upon defendant’s involuntary commitment, as this alone is “substantial evidence” that she “may be mentally incompetent.” Id. at 236, 306 S.E.2d at 112. After defendant was seen at the emergency department of Carolinas HealthCare System Dr. Kimberly Stover signed an “AFFIDAVIT AND PETITION FOR INVOLUNTARY COMMITMENT” for defendant, and it was filed in District Court, Cabarrus County.3 Dr. Stover alleged that she had “sufficient knowledge to believe that the respondent is a proper subject for involuntary commitment and alleged defendant is “mentally ill and dangerous to self or others and in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness.” Dr. Stover alleged that defendant presented “after overdosing intentionally on 60 mg of Xanax. She has been experiencing worsening depression and increased thoughts of self-harm. At this time [patient] is not stable and for her safety she will need further evaluation.” A magistrate issued an order for defendant’s involuntary commitment. 3 The petition was filed under North Carolina General Statutes §§ 122C-261, -281. STATE V. SIDES STROUD, J., dissenting – 25 – Under North Carolina General Statute § 122C-266(e), defendant would have had a second examination by a physician “not later than the following regular working day” after her initial commitment to determine if she still met the criteria for involuntary commitment. N.C. Gen. Stat. § 122C-266 (2017). If defendant did not meet the criteria, she should have been released. See generally id. Accordingly, on 9 November 2017, Dr. Rebecca Silver examined defendant and assessed her as follows: Patient presents to the emergency room after a suicide attempt by overdosing on a large number of Xanax tablets. She remains suicidal even today. She is not safe for treatment in the community and requires inpatient stabilization. Defendant’s “Legal Status” is noted as “[i]nvoluntary[.]” Dr. Silver’s disposition was to “Admit for Inpatient” noting “[p]atient requires inpatient psychiatric care, a bed search has been started[.]” On the morning of 9 November 2017, counsel advised the trial court of defendant’s involuntary commitment the prior evening. The trial court and counsel then discussed how to proceed. The trial court reviewed the petition and commitment order and noted: It might be useful to have her record for the last two years or something from the hospital if she has a record of depression and treatment and all that, but that would probably—we’d get to some point where we start to need a medical expert to interpret – [DEFENSE COUNSEL]: Yeah. THE COURT: — what all that means. STATE V. SIDES STROUD, J., dissenting – 26 – After further discussion, as noted above, the trial court entered an Order for Medical Records for release regarding “defendant’s medical treatment for the admittance date of November 8 2017, and any days following this date for the continued treatment of Carolyn Sides.” It is not clear why the trial court did not order release of her prior records as mentioned on the transcript, but the order required only records starting as of 8 November, 2017. The trial court entered the order to obtain the records based upon defendant’s counsel’s concern that the “hospital will not accept her husband’s consent while she is not in a mental state to release any — it’s going to take a court order saying you’ll — the hospital is ordered, but they’re not going to accept his consent, just the liability in this situation.” At that point, defendant’s counsel was not sure when she would be released, although it was noted she could be released in as soon as 24 or 48 hours. The trial court and counsel for both sides received the medical records, and when court resumed on Monday, 13 November 2017, defendant’s counsel advised the court that defendant was still hospitalized and her family did not know when she would be released. Defendant was still receiving treatment under the terms of her involuntary commitment. The trial court then focused its attention on whether defendant’s absence from court on Monday, 13 November 2017 was voluntary or involuntary and not whether she was competent to stand trial. Defendant’s counsel argued defendant was attempting to end her life, not just her trial: STATE V. SIDES STROUD, J., dissenting – 27 – I contend that it is somewhat of a leap for us as lay people and not doctors to consider that her actions are for the purposes of avoiding jurisdiction of the court or avoiding trial. [Defendant] . . . has quite a number of other factors in her life that are very pressing and from which certain personalities may find overwhelming. I would just contend, Your Honor, that this may be the straw that broke the camel’s back, but I don’t know that her efforts — I think her efforts were to end her life, not to end her trial. And I would contend that we don’t have evidence regarding whether or not she voluntarily absented herself from the trial. We know that she attempted to absent herself from life itself, but I would contend that there is some distinction of that, that she is in custody in a medical facility, and we have not investigated whether or not she chooses or would like to be here. And so we’re making a leap by saying that she voluntarily absented herself from the trial, and we’d like to note our objection to that. The State argued that defendant’s overdose was voluntary, and thus defendant had waived her right to be present at her trial. The trial court ultimately ruled that defendant had “voluntarily by her own actions made herself absent from the trial at this point.” Defendant was not actually released during the remainder of her trial. After the jury returned its verdict, defendant’s counsel noted that she was still hospitalized, and he had not seen her while in the hospital since “they have a one-hour period per day in which she may be visited.” Defense counsel requested that her sentencing be postponed until her release, but he was not certain of when she would be released. After a conference with counsel in chambers, the trial court announced: As far as this trial goes, what’s going to happen next is we will not be doing anything the rest of the day on this STATE V. SIDES STROUD, J., dissenting – 28 – particular case. But we will have – we’ll have the record reflect, following a lengthy conference with both counsel in chambers and we’d spoken to some medical personnel, we will speak with medical personnel again in the morning at 10:30 to update . . . [defendant’s] status, and then we will proceed from there. The Court did not resume on the next day, but instead on Thursday, November 16, for sentencing, and defendant was present. The State argues, based upon State v. Minyard, 231 N.C. App. 605, 753 S.E.2d 176 (2014), that defendant’s overdose was voluntary, and thus defendant had waived her right to be present during the proceedings, and the trial court, and the majority of this Court, agree. But I disagree; one crucial distinction between this case and Minyard is that defendant was involuntarily committed to a psychiatric facility based upon her suicide attempt, and she remained involuntarily committed when her trial resumed, and thus defendant literally could not be present in court. See id. And there are other important distinctions between this case and Minyard. See id. In Minyard, the defendant was on trial for several sexual offenses. Id. at 606, 753 S.E.2d at 179. The defendant was present for trial and testified, but after jury deliberations started, the defendant’s attorney notified the court that Defendant was “having a little problem.” Defendant was asked to “stay vertical” and the trial court told him: [Defendant], you’ve been able to join us all the way through this. And let me suggest to you that you continue to do that. If you go out on us, I very likely will revoke your conditions of release. I’ll order you arrested. We’ll call STATE V. SIDES STROUD, J., dissenting – 29 – emergency medical services; we’ll let them examine you. If you’re healthy, you’ll be here laid out on a stretcher if need be. If you’re not healthy, we will continue on without you, whether you’re here or not. So do your very best to stay vertical, stay conscious, stay with us. Before the jury returned, the trial court received a report that Defendant had “overdosed.” One of Defendant’s witnesses, Evelyn Gantt, told the court that Defendant consumed eight Xanax pills because “[h]e was just worried about the outcome and I don’t know why he took the pills.” Defendant’s counsel and the State did not wish to be heard on the issue and Defendant’s pretrial release was revoked. The sheriff was directed to have Defendant examined by emergency medical services (“EMS”), and Defendant was then escorted from the courtroom. The court then made findings of fact: The Court finds Defendant left the courtroom without his lawyer. The Court finds that while the jury was in deliberation — the jury had a question concerning an issue in the case — and prior to the jurors being returned to the courtroom for a determination of the question, the Court directed the Defendant to — who was in the courtroom at that point — to return to the Defendant’s table with his counsel. Defendant refused, but remained in the courtroom. The Court permitted that. The Court noticed that after the question was resolved with the juror, that while the jury was out in deliberations working on Defendant’s case, the Defendant took an overdose of Xanax. While he was here in the courtroom and while the jury was still out in deliberations, Defendant became lethargic and slumped over in the courtroom. STATE V. SIDES STROUD, J., dissenting – 30 – . . . . The Court finds that outside of the jury’s presence the Court noted that Defendant was stuporous and refused to cooperate with the Court and refused reasonable requests by bailiffs. . . . . The Court finds that Defendant’s conduct on the occasion disrupted the proceedings of the Court and took substantial amount of time to resolve how the Court should proceed. The Court finally ordered that Defendant’s conditions of pretrial release be revoked and ordered the Defendant into the custody of the sheriff, requesting the sheriff to get a medical evaluation of the Defendant. The Court finds that Defendant, by his own conduct, voluntarily disrupted the proceedings in this matter by stopping the proceedings for a period of time so the Court might resolve the issue of his overdose. The Court notes that the — with the consent of the State and Defendant’s counsel that the jurors continued in deliberation and continued to review matters that were requested by them by way of question. The Court infers from Defendant’s conduct on the occasion that it was an attempt by him to garner sympathy from the jurors. However, the Court notes that all of Defendant’s conduct that was observable was outside of the jury’s presence. The Court notes that both State and Defendant prefer that the Court not instruct jurors about Defendant’s absence. And the STATE V. SIDES STROUD, J., dissenting – 31 – Court made no reference to Defendant being absent when jurors came in with response to — or in response to question or questions that had been asked. After the jury entered its verdict, the trial court amended its statement after EMS indicated that Defendant consumed “fifteen Klonopin” and two 40–ounce alcoholic beverages, which the court inferred were from the “two beer cans . . . found in the back of his truck.” Id. at 612–14, 753 S.E.2d at 182–83 (emphasis added). Minyard does not state exactly how long the defendant was absent from the trial when being treated by EMS, but it appears he was absent for no more than a few hours of jury deliberations. See id., 231 N.C. App. 605, 753 S.E.2d 176. The jury was unaware of what had occurred since they were in deliberations during the incident, except for coming into the courtroom regarding questions during deliberations, and the defendant was back in the courtroom the next morning for the habitual felon phase of trial and sentencing. See id. at 613-25, 753 S.E.2d at 183-90. The defendant in Minyard was not involuntarily committed based upon his overdose, nor did he have any additional medical treatment after he was evaluated by EMS. See id., 231 N.C. App. 605, 753 S.E.2d 176. Notably, there was no evidence the defendant in Minyard had any preexisting diagnosis or treatment for depression or other mental illness, as did defendant here, nor is there any indication that the overdose was a suicide attempt. See id. The defendant in Minyard simply took an overdose of drugs and alcohol in court which made him sufficiently unresponsive that emergency medical assistance was called, STATE V. SIDES STROUD, J., dissenting – 32 – but he needed no further treatment. See id. at 613, 753 S.E.2d at 183. The trial court determined the defendant was seeking sympathy from the jurors and disrupting court proceedings. See id. Defendant did not take her overdose during court, and she did not disrupt court proceedings. Neither the State nor the majority opinion has identified any case in which a defendant who has been involuntarily committed to a psychiatric facility has been treated as “voluntarily” absent from trial despite its reliance on both federal and state cases. Aside from Minyard, the majority relies upon Diaz v. United States, 223 U.S. 442, 445, 56 L. Ed. 500, 501 (1912), wherein the defendant “voluntarily absented himself from the trial, but consented that it should proceed in his absence, but in the presence of his counsel, which it did” and State v. Wilson, 31 N.C. App. 323, 326, 229 S.E.2d 314, 317 (1976), wherein one of two co-defendants was twice absent from trial: once when both defendants were not present “after the court had informed the jury that the defendants had a right not to be present, the codefendant came into the courtroom and the trial proceeded in the absence of defendant” and second when defendant “left for a period of about three minutes” because he had fallen asleep and the deputy sheriff told him “to go out and wash his face.” Neither Diaz nor Wilson are applicable to the issue of a voluntary absence due to involuntary commitment. See Diaz, 223 U.S. 442, 56 L. Ed. 500; Wilson, 31 N.C. App. 323, 229 S.E.2d 314. The majority notes some non-binding cases in a footnote from other jurisdictions where defendants who have attempted suicide during trial have been STATE V. SIDES STROUD, J., dissenting – 33 – held to have voluntarily absented themselves from trial, but all are easily distinguished from this case, and one supports this dissent. In Bottom v. State, 860 S.W. 266 (Tex. Ct. App. 1993), the Texas Court of Appeals held the trial court did not err by determining the defendant had voluntarily absented himself from the trial by attempting suicide, but first, the trial court held a hearing regarding his competency to stand trial: After the State rested, defense counsel informed the court Bottom was not in the courtroom, but in the hospital, because he had attempted suicide, or some harm to himself. Defense counsel requested, and the court denied, a continuance. The court did, however, order a competency hearing from which Bottom was found competent to stand trial. Id. at 267 (emphasis added). If the trial court here had done as the trial court in Bottom did and held a competency hearing in which the defendant was held competent to stand trial, I would agree that defendant voluntarily absented herself from the trial. See id. Suicide attempts present a difficult issue, since all suicides are “voluntary,” in the sense that the person has intentionally taken action to end her own life, but if defendant was mentally ill, as both physicians determined defendant here was at the time of her inpatient treatment, the fact that she intentionally took pills to end her life does not necessarily mean she had the capacity to be “voluntarily” absent from trial. As defendant’s counsel argued, “it is somewhat of a leap for us as lay people and not doctors to consider that her actions are for the purposes of avoiding jurisdiction of the court or avoiding trial.” STATE V. SIDES STROUD, J., dissenting – 34 – The majority opinion also states that “a consideration of the entire record does not convince us that defendant’s overdose was the result of mental illness[,]” but the lack of the proper record and consideration is the very issue at the heart of this case. Our record does not have sufficient information to make a determination regarding mental illness even if this Court were empowered to make the needed findings of fact, which it is not. See generally State v. Chukwu, 230 N.C. App. 553, 570, 749 S.E.2d 910, 922 (2013) (noting it is the trial court’s duty to make findings of fact necessary to determine if a defendant has the mental capacity to stand trial). Because the trial court requested only a few days of defendant’s medical records, and not a more extended period as the trial court actually noted may be needed, our record does not include information regarding defendant’s history of depression noted by the physicians which had escalated into self-harm. This Court cannot determine defendant’s capacity to stand trial, but the record does include “substantial evidence” that defendant “may be mentally incompetent[,]” so the trial court had a duty to hold a hearing to determine the defendant’s competency to stand trial before determining that defendant was voluntarily absent from the trial. Badgett, 361 N.C. 234, 644 S.E.2d 206. Again, I do not speculate as to the result, but the hearing is required before defendant can be found voluntarily absent. See id. The two potential remedies for the trial court’s failure to hold a hearing regarding defendant’s competency are either a new trial or a retrospective competency STATE V. SIDES STROUD, J., dissenting – 35 – hearing. In some cases where we have determined that the trial court should have held a hearing on the defendant’s competence, we have remanded for a determination of whether a retrospective assessment of the defendant’s competence was possible, noting that the trial court is in the best position to determine whether it can make such a retrospective determination of defendant’s competency, Nevertheless, retrospective assessments of competence are a disfavored alternative remedy to a new trial. In McRae I, we specifically noted that we were remanding to the trial court to determine whether a retrospective hearing could be held because that defendant was afforded several hearings before trial, and each time the trial court followed the determination made in the corresponding psychiatric evaluation. In this case, defendant’s competence has never been assessed, let alone at a relevant time. Thus, it is clear that a retrospective determination of defendant’s competence would not be possible here and we do not need to remand for the trial court to make such a determination. Because defendant’s competence to stand trial has never been evaluated and given the inherent difficulties of such a nunc pro tunc determination under the most favorable circumstances, we cannot conclude that such a procedure would be adequate here. Accordingly, we reverse defendant’s convictions for assault on a person employed at a state detention facility and having attained habitual felon status and order a new trial. State v. Ashe, 230 N.C. App. 38, 44, 748 S.E.2d 610, 615 (2013) (citations, quotation marks, and brackets omitted). Since defendant’s competence to stand trial was never assessed “at a relevant time[,]” a “retrospective determination of defendant’s STATE V. SIDES STROUD, J., dissenting – 36 –
IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA18-960 Filed: 1 October 2019 Buncombe County, Nos. 16 CRS 2470, 2472 STATE OF NORTH CAROLINA v. DAVE ROBERT RIEGER Appeal by defendant from judgments entered 12 October 2017 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 9 May 2019. Attorney General Joshua H. Stein, by Assistant Attorney General Deborah M. Greene, for the State. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for the defendant. DIETZ, Judge. Dave Rieger got pulled over for following too closely. Law enforcement found marijuana and marijuana paraphernalia in Rieger’s car and arrested him on two charges: possession of marijuana and possession of marijuana paraphernalia. Rieger took his case to trial and a jury convicted him of both charges. To Rieger, this all seemed like one criminal case against him. But the State filed the two charges against him in two separate charging documents and the trial court entered two separate judgments against him. In each of those judgments, the court assessed court costs, amounting to a total of nearly $800. STATE V. RIEGER Opinion of the Court – 2 – This appeal is about those court costs. The applicable statute authorizes court costs “in every criminal case” in which the defendant is convicted. N.C. Gen. Stat. § 7A-304(a). So the question is this: was what Rieger experienced one criminal case or two? It is not an easy question to answer. Both Rieger and the State offer reasonable but conflicting interpretations of the plain language, the statute’s history, and the spirit and intent underlying the imposition of court costs. Ultimately, we are guided by the General Assembly’s intent that court costs reflect the costs that the justice system actually incurs. Court costs are not intended to be a fine or other form of punishment. With this in mind, we hold that when multiple criminal charges arise from the same underlying event or transaction and are adjudicated together in the same hearing or trial, they are part of a single “criminal case” for purposes of the costs statute. Accordingly, we vacate the imposition of costs in one of the two judgments against Rieger. Facts and Procedural History In 2016, after law enforcement discovered various illegal drugs and drug paraphernalia in Dave Robert Rieger’s car during a traffic stop, the State charged Rieger with driving while impaired, driving without an operator’s license, and possession of clonazepam, hydrocodone, marijuana, and marijuana paraphernalia. The case then made its way through the justice system. Although the State brought STATE V. RIEGER Opinion of the Court – 3 – each charge through a separate charging document, at each step in the criminal justice process these charges were heard together in the same court proceeding. Ultimately, in late 2017, after being found guilty on multiple charges in district court, Rieger appealed to superior court and his case went to trial. The jury found Rieger guilty of two charges: possession of marijuana and possession of marijuana paraphernalia. After sentencing, the superior court entered two separate judgments, one for each conviction. In both judgments, the trial court imposed the court costs described in the statute addressing costs in criminal court. This amounted to nearly $800 in court costs. Rieger appealed, challenging the imposition of the same court costs in both judgments. Analysis Rieger argues that the trial court erred by assessing court costs as part of both the criminal judgments. The statute governing criminal costs requires costs “in every criminal case”: In every criminal case in the superior or district court, wherein the defendant is convicted, or enters a plea of guilty or nolo contendere, or when costs are assessed against the prosecuting witness, the following costs shall be assessed and collected. N.C. Gen. Stat. § 7A-304. Rieger contends that, although the court entered two separate judgments, one for each of the two separate charges, those judgments are STATE V. RIEGER Opinion of the Court – 4 – part of the same criminal “case.” This is a question of statutory interpretation that we review de novo. State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d 719, 721 (2011). Our task in statutory interpretation is to “determine the meaning that the legislature intended upon the statute’s enactment.” State v. Rankin, __ N.C. __, __, 821 S.E.2d 787, 792 (2018). “The intent of the General Assembly may be found first from the plain language of the statute, then from the legislative history, the spirit of the act and what the act seeks to accomplish.” Id. We thus begin with the plain language of the statute and, in particular, the meaning of the word “case” in the phrase “in every criminal case.” When examining the plain language of a statute, undefined words in a statute “must be given their common and ordinary meaning.” Appeal of Clayton-Marcus Co., Inc., 286 N.C. 215, 219, 210 S.E.2d 199, 202 (1974). The word “case” is not defined in N.C. Gen. Stat. § 7A-304 and, thus, we use the ordinary and common meaning of that word. Rieger and the State generally agree on the ordinary meaning of the word “case.” Both parties point to various dictionaries that consistently define the word, in this context, as some sort of legal proceeding, action, suit, or controversy. See, e.g., Merriam-Webster’s Dictionary (11th ed. 2003); Black’s Law Dictionary (11th ed. 2019). STATE V. RIEGER Opinion of the Court – 5 – Applying this ordinary meaning, Rieger contends that “case” as used in this statute means all criminal charges “disposed of together” in some legal proceeding. A criminal case, Rieger argues, “quite regularly involves more than one charge from more than one file number, and more than one conviction entered in more than one judgment.” But if those charges are resolved in a single trial or hearing, they are a single “case” under the statute. As support, Rieger points to his own trial transcript, where the court explained to the jury that it had “called for trial the case entitled the State of North Carolina versus Dave Robert Rieger.” The State, by contrast, focuses on the word “case” as meaning a distinct legal action, suit, or proceeding. The State contends that “each charging document is an action that can produce a conviction.” That charging document yields its own case number and is managed separately within the court administrative system. Thus, the State argues, each separately charged offense with its own charging document and case number is a “case” under the ordinary meaning of that word. These are both reasonable interpretations of the statute’s plain text. And they both have their flaws. For example, what if Rieger had pleaded guilty and been sentenced on one of the charges shortly before beginning the trial on the second? Having not been disposed of together, Rieger’s interpretation would treat these as two separate cases. But if they are two separate criminal cases shortly before the trial, why should they transform into one case if they are joined for trial but still STATE V. RIEGER Opinion of the Court – 6 – result in two separate judgments? Nothing in the statute suggests the word “case” possesses this sort of fluidity. The State’s interpretation has similar problems. Suppose a defendant is charged with ten related offenses all stemming from the same underlying incident. After trial, the court enters a consolidated judgment. See N.C. Gen. Stat. § 15A1340.15. Under the State’s view, the court must assess ten sets of court costs in that judgment. This is so because each of those ten charges has its own charging document and separate case number. But there is a single judgment, stemming from charges all arising from the same underlying event, that moved through the justice process together since the outset. To say, in ordinary English usage, that this is ten criminal cases, rather than one, is quite a stretch. When interpreting a word or phrase in a statute, we must also examine how it is used in other parts of the same statute. But again, this yields conflicting results. For example, the statute provides that “[n]o costs may be assessed when a case is dismissed” and “[w]hen a case is reversed on appeal, the defendant shall not be liable for costs.” N.C. Gen. Stat. § 7A-304(a), (b). In our justice system, dismissals and reversals ordinarily are directed at specific charges or claims, not the entire proceeding collectively. This means some charges or claims can be dismissed, or reversed on appeal, while others remain. Indeed, this is routine in criminal proceedings. If the word “case” meant the entire proceeding collectively, the statute STATE V. RIEGER Opinion of the Court – 7 – would fail to address how costs must be assessed in this common situation. This suggests that the General Assembly viewed the word “case” in this statute as meaning individual criminal charges, not all related charges collectively. But the statute also provides that certain crime laboratory costs “shall be assessed only in cases in which [an] expert witness provides testimony about the chemical analysis in the defendant’s trial.” Id. § 7A-304(a)(11)-(13). If the word “case” here meant each individual charge, it would mean that these crime lab costs must be assessed in a multi-count trial even for charges having nothing to do with the chemical analysis and expert testimony. It is far more likely that the word “case,” used here, is intended to mean the collective criminal proceeding that led to a trial. With this textual analysis failing to provide a ready answer, Supreme Court precedent next requires us to look beyond the plain text and to examine “the legislative history” of the statute. Rankin, __ N.C. at __, 821 S.E.2d at 792. There isn’t much to go on. Our modern criminal costs statute was part of the Judicial Department Act of 1965, which reorganized the court system with the creation of the district courts. Act effective Jul. 1, 1965, ch. 310, 1965 N.C. Sess. Laws 310. The Act described the purpose of the newly created costs statutes (both criminal and civil) as “providing for the financial support of the judicial department, and for uniform costs and fees in the trial divisions of the General Court of Justice.” Id. § 7A-2(6). The drafting history STATE V. RIEGER Opinion of the Court – 8 – of the Act, and the accompanying report of the North Carolina Courts Commission, offers no other guidance on the statute’s intent. Nevertheless, the State contends that the act’s original, stated purpose shows an intent to impose costs separately for each separate criminal case file opened by the court system. After all, the judicial department incurs costs to manage a criminal case file regardless of whether the underlying charge is tried separately or with others. Thus, imposing court costs for each separate case file best maximizes the “financial support of the judicial department.” But as Rieger points out, our justice system has long recognized that it costs less to conduct a single hearing or trial than multiple ones. See, e.g., State v. Toole, 106 N.C. 736, 11 S.E. 168 (1890). By using a broad word such as “case” as opposed to a more specific word such as “charge” or “conviction,” the General Assembly might have intended for court costs to more accurately reflect the actual costs (and costs savings) incurred as charges make their way through the court system—something that is best accomplished through Rieger’s interpretation. Rieger’s point is exemplified by provisions such as the “courtroom and related judicial facilities” charge. N.C. Gen. Stat. § 7A-304(a)(2). When the various pre-trial hearings for a series of related charges (as well as the trial itself), take place together in the same courtroom facility, assessing multiple courtroom usage costs is needlessly duplicative. STATE V. RIEGER Opinion of the Court – 9 – Having exhausted our analysis of both the statute’s text and history without resolving the ambiguity, we lastly turn to “the spirit of the act and what the act seeks to accomplish.” Rankin, __ N.C. at __, 821 S.E.2d at 792. Of course, we know what the statute seeks to accomplish—as discussed above, the drafters included a statement of purpose. We also know a few other things about costs. First, court costs are not a criminal punishment and are not meant to be punitive. State v. Arrington, 215 N.C. App. 161, 168, 714 S.E.2d 777, 782 (2011). Second, despite this first point, criminal court costs can function like a punishment, particularly for low-income defendants. For example, payment of these costs typically is a condition of a defendant’s probation and willful failure to pay can result in revocation; similarly, defendants who fail to pay their court costs can lose their driver’s license; and unpaid court costs can be converted into a civil judgment that becomes a lien on the defendant’s property. See N.C. Gen. Stat. §§ 15A-1343, 20-24.1, 15A-1365. For many low-income individuals, paying hundreds of dollars in court costs (in this case the courts costs are nearly $800) is beyond their reach. The consequences—possible probation violations, lack of a driver’s license, no access to credit—can lead to a cascade of crises that ultimately return even the most well-intentioned people back to the criminal justice system. STATE V. RIEGER Opinion of the Court – 10 – With this reality in mind, we believe the intent of the General Assembly when it chose to require court costs “in every criminal case” was to have those costs be proportional to the costs that this “criminal case” imposed on the court system. In other words, court costs are meant to reflect the financial burden that a defendant’s interaction with the justice system creates. Were it otherwise—were costs designed solely to generate as much revenue as possible—they would be fines, which are a form of punishment. Richmond County Bd. of Educ. v. Cowell, 243 N.C. App. 116, 119, 776 S.E.2d 244, 246–47 (2015); see also Gonzalez v. Sessions, 894 F.3d 131, 141 (4th Cir. 2018) (discussing the differences between costs and fines under North Carolina law). And we can say with certainty that using court costs as another form of punishment is not the General Assembly’s intent. Thus, when criminal charges are separately adjudicated, court costs can be assessed in the judgment for each charge—even if the charges all stem from the same underlying event or transaction. This is so because adjudicating those charges independently creates separate costs and burdens on the justice system. But the rule is different in cases like this one. When multiple criminal charges arise from the same underlying event or transaction and are adjudicated together in the same hearing or trial, they are part of a single “criminal case” for purposes of N.C. Gen. Stat. § 7A304. In this situation, the trial court may assess costs only once, even if the case involves multiple charges that result in multiple, separate judgments. STATE V. RIEGER Opinion of the Court – 11 – Having announced this rule, we apply it here and hold that Rieger’s two criminal judgments were part of a single “criminal case” for purposes of N.C. Gen. Stat. § 7A-304. Thus, the statute permitted the trial court to assess the statutory court costs only once across those two judgments. Because the court assessed those costs twice, once in each judgment, we vacate the imposition of costs in the judgment in Case No. 16 CRS 2470. Conclusion We vacate the judgment in Case No. 16 CRS 2470 and remand for entry of a new judgment that does not include court costs. VACATED AND REMANDED IN PART. Judges MURPHY and COLLINS concur.
IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA19-24 Filed: 1 October 2019 Vance County, No. 07 CRS 50717, 50725 STATE OF NORTH CAROLINA v. RODNEY MCDONALD WILLIAMS Appeal by defendant from judgments entered 13 June 2018 by Judge Henry W. Hight Jr. in Vance County Superior Court. Heard in the Court of Appeals 4 September 2019. Attorney General Joshua H. Stein, by Special Deputy Attorney General M.A. Kelly Chambers, for the State. Marilyn G. Ozer for defendant-appellant. TYSON, Judge. Rodney McDonald Williams (“Defendant”) appeals from judgments entered after a jury’s verdict found him guilty of first degree murder and guilty of attempted murder. We find no error. I. Background Ms. Shirley Venable (“Venable”) was awakened to someone calling her name outside her home during the early morning of 27 February 2007. Venable testified she heard Defendant say “Ma, open the door.” Venable is Defendant’s mother. When STATE V. WILLIAMS Opinion of the Court – 2 – Venable opened her door, a friend, Leo Ziegler, Jr., (“Ziegler”) ran inside her house. Defendant stood at the doorway and began firing a handgun. Venable was shot in her left side and Ziegler was shot in the chest. Venable and Ziegler attempted to flee through the house, but Venable was shot again in her left hip and Ziegler was shot in the back of his head. Ziegler’s head wound was fatal. After Venable was shot in her hip and fell to the floor, Defendant shot Venable a final time in her right leg. Venable was able to wrestle the gun from Defendant. Defendant fled Venable’s home. First responders arrived and found Venable covered in blood at her backdoor and Ziegler’s body in the kitchen. Officers found Defendant hiding under a nearby automobile and arrested him. On 1 March 2007, the trial court determined Defendant needed emergency medical care for mental illness and issued a safekeeping order. On 12 March 2007, Defendant was indicted on one count of first degree murder of Ziegler and one count of attempted murder of Venable. A. Dr. Williams’ Evaluation Dr. Alton Williams (“Dr. Williams”), (no relation to Defendant), first interviewed Defendant on 3 July 2007. Dr. Williams conducted follow up interviews with Defendant on 7 January 2008 and 10 April 2008. In preparing his report, Dr. Williams also reviewed 190 documents related to Defendant. During these STATE V. WILLIAMS Opinion of the Court – 3 – interviews, Defendant told Dr. Williams he considered deceased Ethiopian leader, Haile Selassie, to be a god and Defendant wanted to be his right-hand-man. Defendant insisted his deceased father had connections to rap music artists and producers. He also discussed his imaginary girlfriend, Champagne. When Dr. Williams inquired about the pending charges, Defendant stated the worst outcome of his case would be the death penalty, but because of his pending tort claim he would not receive a death sentence because it was an act of Congress. Defendant explained the current charges were a prerequisite for him to prevail in the tort claim. Defendant stated he would be receiving his money from his tort claim any day and would be going home. Dr. Williams reported Defendant began using marijuana at age 16, smoking six to seven “blunts” daily. Defendant “first used alcohol at seven or eight years old, but became a regular drinker when he was 16 years old.” Defendant reported he would drink “four to five 40 ounce beers a day.” Defendant self-reported he used crack cocaine twice a week from 2005 through his arrest. Defendant testified that while incarcerated for a prior conviction, he purchased a state tort claim for $5.00 from another inmate named Lock Jordan. Defendant asserted his tort claim was against the State, but required federal government assistance to succeed on his claim. Defendant also stated he received money from a rap music “record deal.” STATE V. WILLIAMS Opinion of the Court – 4 – On 7 July 2008, Dr. Williams submitted a forensic psychiatric evaluation. Dr. Williams diagnosed Defendant with schizophrenia, paranoid type and substance dependence. Dr. Williams concluded that Defendant exhibited deficits, which impaired his ability to rationally and factually understand the trial process. Specifically, Defendant’s delusion that his current criminal charges were related to a tort claim against the State. Dr. Williams further concluded Defendant “does not have the capacity to assist counsel in preparing and implementing a defense.” B. Dr. Vance’s Evaluation In September 2008, Defendant was evaluated by Dr. Charles Vance, M.D., PhD. (“Dr. Vance”). Defendant continued to assert his beliefs in his tort claim and added that other patients were “messing” with him and that he could hear whispered threats. Dr. Vance reported that on one occasion Defendant became violent with hospital staff. On 30 October 2008, Dr. Vance concluded Defendant was not malingering and he met the criteria for a diagnosis of paranoid schizophrenia. Dr. Vance further concluded Defendant’s ability to participate meaningfully in trial “was substantially impaired by his ongoing mental illness.” On 22 December 2008, the court found and concluded Defendant did not have the legal capacity to assist counsel in preparing and implementing a defense to the pending charges. On 8 September 2009, the trial court issued an order finding Defendant incompetent to stand trial. The following day, Defendant’s counsel and STATE V. WILLIAMS Opinion of the Court – 5 – the State entered into a stipulation that Defendant was incompetent to proceed to trial. C. Dr. Messer’s Evaluation In late September 2009, Defendant’s competency to stand trial was reassessed. Dr. Julia Messer, Ph.D (“Dr. Messer”) examined Defendant and prepared the report. Again, she diagnosed Defendant with paranoid schizophrenia. Defendant told the staff that strangers could “derail his lawsuit by standing too close to him and sneezing.” Defendant further reported that former President George W. Bush, then President Barack Obama, and talk show host, Oprah Winfrey, were aware of his situation. Defendant felt his mother may have been a “witch at various times in the past.” Defendant reported having the following hallucinations: seeing shadows that were always present, hearing his deceased father breathing heavily in his closet, and seeing a “big parrot made out of fog.” Defendant also maintained his belief that in order to sue the State he had to kill somebody. On 7 October 2009, Dr. Messer found Defendant’s test scores and behavior were consistent with paranoia, and not attempts to feign or exaggerate mental illness. She concluded Defendant was not competent to stand trial. STATE V. WILLIAMS Opinion of the Court – 6 – On 9 October 2009, the State dismissed the charges with leave, due to Defendant being incapable of proceeding to trial. On 10 March 2014, the State entered a Notice of Reinstatement of Charges. D. Dr. Vance’s Re-Evaluation In October 2015, Defendant reported thoughts of hanging himself because purportedly “the devil told him to hurt himself.” Defendant was prescribed olanzapine, an antipsychotic medication, which appeared to alleviate his psychotic symptoms. Dr. Vance re-evaluated Defendant. During this examination, Defendant did not raise his “tort claim” as a reason for his current legal situation. Defendant stated “it ain’t related” to his current pending criminal charges. Dr. Vance reported Defendant appeared embarrassed by and dismissive of his past claims. Dr. Vance found Defendant’s “presentation during this current evaluation was wholly unexpected.” Dr. Vance further found Defendant “completely disavows those previous psychotic beliefs and shows a very good orientation to the reality of the case, even though he is [presently] receiving lower dose of antipsychotic medication.” Dr. Vance issued a report concluding Defendant was competent to proceed at trial on 4 November 2015. On 4 February 2016 the State entered another Notice of Reinstatement of Charges. E. Dr. Blanks’ Evaluation STATE V. WILLIAMS Opinion of the Court – 7 – On 21 July 2016, Dr. Richard Blanks, J.D., M.D., an Adult and Forensic Psychiatrist, (“Dr. Blanks”) met with Defendant at the Craven Correctional Institution. Dr. Blanks sent a letter to Defendant’s counsel stating that he had also found Defendant was competent to stand trial on 10 October 2016. Upon joint motions regarding Defendant’s competency from Defendant’s counsel and the State, the trial court issued an order finding Defendant competent to stand trial on 23 October 2016. On 9 November 2016 Defendant was found in need of protective custody, due to being an escape risk with anger problems. As the Vance County jail did not have proper facilities to take care of him, a safekeeping order was issued. On 7 December 2017 a further safekeeping order was issued on the grounds that Defendant required mental health treatment, psychiatric care and medication. On 20 April 2018, another safekeeping order was issued due to Defendant’s unpredictable outbursts including violent assaults. Defendant was tried 13 June 2018 through 14 June 2018. Defendant testified and offered evidence at his trial. The jury returned a verdict and found Defendant guilty of first-degree murder and attempted murder. Defendant was sentenced to a mandatory life sentence without parole for the first-degree murder conviction of Ziegler, and not less than 480 months and not more than 585 months for attempted murder of Venable. Defendant gave oral notice of appeal from both judgments. STATE V. WILLIAMS Opinion of the Court – 8 – II. Jurisdiction This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2017). III. Issue Defendant’s sole argument on appeal asserts the trial court erred by not sua sponte ordering a competency assessment to protect his constitutional rights to due process. IV. Analysis A. Standard of Review “[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, 43 L. Ed. 2d 103, 112-113 (1975). “[T]he conviction of an accused person while he is legally incompetent violates due process[.]” State v. Taylor, 298 N.C. 405, 410, 259 S.E.2d 502, 505 (1979) (citations omitted). “The standard of review for alleged violations of constitutional rights is de novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation omitted). B. Competency STATE V. WILLIAMS Opinion of the Court – 9 – Defendant asserts the trial court’s failure to sua sponte order a competency evaluation violates his constitutional right to due process. N.C. Gen. Stat. § 15A1001(a) (2017) provides: No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect he is unable to understand the nature and object of the proceedings against him, to comprehend his own situation in reference to the proceedings, or to assist in his defense in a rational or reasonable manner. “The question of the capacity of the defendant to proceed may be raised at any time on motion by the prosecutor, the defendant, the defense counsel, or the court. N.C. Gen. Stat. § 15A-1002(a) (2017). In State v. Badgett our Supreme Court held: under the Due Process Clause of the United States Constitution, a criminal defendant may not be tried unless he is competent. As a result, a trial court has a constitutional duty to institute, sua sponte, [a] competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent. In enforcing this constitutional right, the standard for competence to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. State v. Badgett, 361 N.C. 234, 259, 644 S.E.2d 206, 221 (2007) (alteration in original) (citations and quotation marks omitted). This Court has stated, “a trial judge is required to hold a competency hearing when there is a bona fide doubt as to the defendant’s competency even absent a STATE V. WILLIAMS Opinion of the Court – 10 – request.” State v. Staten, 172 N.C. App. 673, 678, 616 S.E.2d 650, 654-55 (2005) (citation omitted). “Failure of the trial court to protect a defendant’s right not to be tried or convicted while mentally incompetent deprives him of his due process right to a fair trial.” State v. McRae, 139 N.C. App. 387, 389, 533 S.E.2d 557, 559 (2000) (citations omitted). “Evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant to a bona fide [sic] doubt inquiry.” Id. at 390, 533 S.E.2d at 559 (citation and quotation marks omitted). The transcript and record indicate Defendant did not behave inappropriately or otherwise disrupt the trial court’s proceedings. The facts and Defendant’s conduct before, during, and after trial are contrary to this Court’s holdings in State v. Mobley, State v. Whitted, and State v. Ashe cited by Defendant. In Mobley, the defendant was heavily medicated for serious psychiatric and physical diseases, was unable to remain awake during trial, and was incapable of consulting with his attorney or participating in his defense. State v. Mobley, 251 N.C. App. 665, 795 S.E.2d 437 (2017). In Whitted, the defendant uttered strange outbursts during trial, did not want to come into the courtroom, had to be forcibly brought into court sessions, while reciting incoherent prayers. State v. Whitted, 209 N.C. App. 522, 705 S.E.2d 787 (2011). In Ashe, this Court held the trial court erred when it failed to act sua sponte and order a competency hearing. State v. Ashe, 230 N.C. App. 38, 43-44, S.E.2d 610, STATE V. WILLIAMS Opinion of the Court – 11 – 623 (2013). This Court held substantial evidence the defendant was incompetent due to defendant’s extensive mental illness, the trial court’s and defense counsel’s concerns about the defendant’s ability to control himself during the proceedings, and defendant’s actual conduct during trial. Id. In McRae, our Court considered the appeal of a defendant who suffered from schizophrenia and psychosis. McRae, 139 N.C. App. at 387, 533 S.E.2d at 587. The defendant underwent six or more psychiatric evaluations over a seventeen-month period with differing conclusions of whether the defendant was competent to stand trial. Id. at 390-91, 533 S.E.2d at 560. Following a mistrial, the court did not conduct another competency hearing and subsequently retried the charges five days later. Id. at 391, 533 S.E.2d at 560. The defendant was reported to have a high “risk of relapse.” Id. at 390, 533 S.E.2d at 559. This Court noted the defendant’s history of not taking his medication as prescribed. Id. at 392, 533 S.E.2d at 561. Here, using the framework set forth in McRae, the trial court was presented with substantial medical evidence, a joint motion by counsel, and Defendant’s own statements establishing that he was competent to stand trial at the time trial began. The trial court considered the independent opinions of two medical experts, who both had concluded Defendant was competent to stand trial. According to those records, Defendant had been diagnosed as a paranoid schizophrenic with substance abuse STATE V. WILLIAMS Opinion of the Court – 12 – issues. Defendant had consistently been found incompetent to stand trial for over nine years. Following significant changes in Defendant’s behaviors, statements, two evaluations finding Defendant capable to stand trial, and joint motions attesting that Defendant was capable to stand trial, the trial court questioned Defendant and proceeded to trial. While Dr. Vance’s competency evaluation noted he was surprised to see the changes in Defendant’s condition, he made no mention of Defendant’s risk to relapse, only that he could not assure the court Defendant’s “improved mental status will persist indefinitely.” Unlike McRae, where the defendant’s competency was dependent upon medication to attain competency, Defendant was noted by Dr. Vance to be “receiving a lower dose of antipsychotic medication” when Defendant was found competent to stand trial. Here, Defendant, once found competent, was not further found to be incompetent. In State v. Chukwu this Court found irrational beliefs and nonsensible positions were not grounds by themselves to raise a bona fide doubt about the defendant’s competency. State v. Chukwu, 230 N.C. App. 553, 749 S.E.2d 910 (2013). The defendant held himself out to be a Nigerian diplomat and had refused to cooperate with his attorney believing she had a “hidden agenda.” Id. at 563, 749 S.E.2d at 917. Here, Defendant participated in his own defense, made trial decisions STATE V. WILLIAMS Opinion of the Court – 13 – regarding having Dr. Vance testify, and took the stand to testify on his own behalf after making a knowing and voluntary waiver of his right to not testify. On the morning before the second day of trial, Dr. Vance spoke with Defendant before Dr. Vance testified at Defendant’s request. Dr. Vance required Defendant’s permission to testify about prior competency evaluations. Dr. Vance testified he believed Defendant was competent to provide informed consent to his testimony about Defendant’s prior medical history. Defendant argues his trial testimony describing his delusions, under which he conducted the murder, and the testimony of Venable concerning Defendant shows substantial evidence of his incapacity to proceed. Our examination of the record does not indicate Defendant still asserted these delusions nor was unable to assist his attorney at trial. “So long as a defendant can confer with his or her attorneys so that the attorney may interpose any available defenses for him or her, the defendant is able to assist his or her defense in a rational manner.” State v. Shytle, 323 N.C. 684, 689, 374 S.E.2d 573, 575 (1989). The transcript and record reflect Defendant responded to all inquiries and was an active, willing, and lucid participant in his trial. Defendant further argues that his own testimony, Venable’s testimony, and the testimony of the medical experts show substantial evidence of his incompetence. This Court has held a defendant, who had been diagnosed with dementia, and appeared to ramble on the stand through his testimony, did not show substantial STATE V. WILLIAMS Opinion of the Court – 14 – evidence he was mentally incompetent at trial. State v. Coley, 193 N.C. App. 458, 464, 668 S.E.2d 46, 51 (2008). Defendant asserts his own testimony was “jumbled and disorganized” and demonstrated at the time of trial he still believed the government involvement with the lawsuit was “somewhere around here now.” At trial, Defendant testified his father was deceased. Defendant testified Champagne was someone he saw modeling in a magazine and wrote letters to, but received no reciprocal attention from her nor had ever met her in person. In evaluating Defendant’s testimony, we conclude when discussing his delusions at the time the murder occurred, Defendant speaks using the past tense and not the present tense. With regard to the testifying medical experts, Drs. Vance and Messer, Defendant argues their testimony was substantial evidence demonstrating his incompetence. Both experts testified Defendant had suffered from schizophrenia. Both testified Defendant no longer believed that the purported civil lawsuit had impacted his criminal conduct or charges or that he was a famous rap musician. Dr. Vance testified no cure exists for schizophrenia and that treatment needs to be continued for the patient’s lifetime. Defendant continues to receive treatment, Defendant was found to be competent to stand trial by both doctors, and both doctors testified Defendant had not been “aggressive or agitated here in the courtroom.” The STATE V. WILLIAMS Opinion of the Court – 15 – record indicates neither expert testified Defendant was still incompetent prior to trial, during trial or at sentencing. 1. Venable’s Testimony Venable testified she had little contact with Defendant when he was incarcerated at Central Prison. Her only contact with Defendant came when he was housed at Dorthea Dix Hospital and later Central Regional Hospital. Venable further testified that she noticed a difference in Defendant’s mental health after he had been to Central Regional Hospital, and believed his improvement occurred because he was no longer “drinking and drugging.” Venable said that Defendant had gone “off the deep end” after being in solitary confinement. Venable further testified to the following: [Venable]: For real, now, yes. He’s – he’s saying he’s got this big lawsuit, he’s saying he’s getting a lot of money. And nobody won’t even tell him that he’s not getting no money and stuff. That’s why he taking this jury trial, because he been saying they just gonna let him get out so he can spend his money. He think he got all this money and stuff. He think he got record deals, he think he got money. [Prosecutor]: Now, how do you know that? [Venable]: He writes me. I talks to him. He called me yesterday on the phone. Venable never stated that Defendant had told her recently or “yesterday” that he was still under these delusions. These delusions occurred in the past. Venable did not STATE V. WILLIAMS Opinion of the Court – 16 – testify Defendant currently suffered these delusions. While Venable is a victim of one of the incidents Defendant was tried for, she is also Defendant’s mother, who was testifying as a witness for her son, who had plead Not Guilty by Reason of Insanity to both the first degree murder of Ziegler and the attempted murder of her. Venable further testified: [Prosecutor]: Had you every heard him talking about Champagne? [Venable]: All the time. He still talk about it right now. He write me about it. [Prosecutor]: What does he write you? [Venable]: Have I seen her. Is anybody taking care of her. They gonna get married. Again, Venable did not state any time frame when these purported delusions had occurred or when the letters were written. Given her relationship with Defendant, his plea during this trial, and her limited contact with Defendant since his incarceration and institutionalization after his arrest, her testimony does not raise “substantial evidence” of Defendant’s incompetence to stand for and participate at trial. See Young, 291 N.C. at 567, 231 S.E.2d at 581. Our Court recently interpreted State v. McRae in the case of State v. Hollars. In finding evidence of a bona fide doubt of the defendant’s competency to stand trial, this Court reviewed seven prior forensic evaluations with differing results opining to the defendant’s competency. State v. Hollars, ____ N.C. App. ____, ____, ____ S.E.2d STATE V. WILLIAMS Opinion of the Court – 17 – ____, ____, 2019 WL 3558770, *5 (2019). The Court also looked at a forensic psychologist’s report finding “It is also possible his condition may deteriorate with the stress of a trial so vigilance is suggested if his case proceeds in a trial.” Id. at *2. Furthermore, in Hollars the defendant’s competency hearing occurred five months after the defendant’s last forensic examination. Id. at *5. The Court noted there was no extended colloquy between the defendant and the trial court, and the defendant never testified in a manner to demonstrate he was competent to stand trial. 2. Defendant’s Testimony Here, and unlike the facts in Hollars, Defendant engaged in two lengthy colloquies with the trial court and later waived his right not to testify, took the stand and testified lucidly and at length on his own behalf. This last factor leads to the Court’s analysis in State v. Staten. We find the factors in State v. Staten to provide the most guidance. In Staten, the defendant wanted to testify on his own behalf. Staten, 172 N.C. App. at 679, 616 S.E.2d at 655. The trial court conducted the following colloquy to determine the voluntariness of the Staten’s testimony and his understanding of possible outcomes: [The Court]: All right. Mr. Staten, you have talked to your attorney concerning the question of whether or not you should testify or not in this case? [Defendant]: Yes Sir. [The Court]: And you understand that if you do testify the State can ask you a lot of questions on cross-examination STATE V. WILLIAMS Opinion of the Court – 18 – about your prior record and things of that nature? [Defendant]: Yes sir. [The Court]: And you understand that may sway the jury somewhat? Sometimes it does. And it could be that it doesn’t work out to your advantage. [Defendant]: Yes sir. [The Court]: Are you telling me now that even though you understand the consequences of your decision to testify you still want to go through with it? [Defendant]: I want to testify and tell everybody like came [sic] behind me and testified after I already testified and say something about me and I want to testify again to clear up what they have said like we did the last time. Id. at 679-80, 616 S.E.2d at 655. The Court found “the defendant’s replies were lucid and responsive, demonstrating his desire to testify and displaying his understanding of the consequences of doing so.” Id. at 680, 616 S.E.2d at 655. These factors demonstrated the defendant was competent to stand trial. Id. Here, two similar colloquies between the trial court and Defendant occurred. The trial court inquired about Defendant’s permission for his counsel to admit to the jury he had initiated and participated in the death of Ziegler and the injuries to Venable as a part of his insanity plea. The following colloquy occurred: [The Court]: Mr. Williams, if you’ll stand, please, sir. I just want to talk to you about some things. You’ve entered a plea of not guilty by reason of insanity in this case, you STATE V. WILLIAMS Opinion of the Court – 19 – understand that? [Defendant]: Yes, sir. [The Court]: Your attorney needs your permission if he’s to admit to the jury that you, in fact, participated in the death of Mr. Ziegler and the wounding of your mother, Ms. Venable; do you understand that? [Defendant]: Yes, sir. [The Court]: In giving that permission, he’s written down something that would—you will—you may, if you would want to, stipulate to – or, that is, stipulate to by giving him permission to argue to the jury or make this concession on your behalf. And that is, “Rodney McDonald Williams does hereby authorize his attorney, Larry Norman, to state that he fired the weapon that caused the death of Leo Zielger and wounded Shirley Venable on October 27, 2007.” And you do authorize your attorney to state that on your behalf during your trial; do you understand that? [Defendant]: Yes, sir. [The Court]: Now, I want to go over one or two things with you. You understand that you’re charged with First Degree Murder; do you understand that? [Defendant]: Yes, sir. [The Court]: And that the maximum penalty for that is life in prison, do you understand that? [Defendant]: Yes, sir. [The Court]: And you’re charged with Attempted First Degree Murder: do you understand that? STATE V. WILLIAMS Opinion of the Court – 20 – [Defendant]: Yes sir. . . . . [The Court]: The maximum sentence you could receive on that offense would be 483 months and – minimum, and a whole lot of other things, maximum; I haven’t figured that out. Do you understand that? [Defendant]: Yes, sir. [The Court]: Now, knowing that, do you give your permission to your attorney to make these arguments to the jury that you and I went over – or make these admissions? Defendant: Yes, sir. [The Court]: Has anyone threatened you, promised you anything, coerced you in any way to get you to give your attorney these – [Defendant]: No, sir. [The Court]: — this authorization? [Defendant]: No, sir. [The Court]: And you find it to be in your best interest for your attorney to be able to make these admissions to the jury on your behalf; is that correct? [The Defendant]: Yes, sir. [The Court]: Do you have any questions you want to ask me about making – or giving your attorney the authorization to make those admissions on your behalf? [The Defendant]: No, sir. STATE V. WILLIAMS Opinion of the Court – 21 – [The Court]: And as you stand right now, you’re satisfied with your lawyer’s legal services? [Defendant]: Yes, sir. [The Court]: And you and he have discussed the possible defenses you might have to these charges, and the insanity defense is one that you’re comfortable with and you’re satisfied with; is that correct? [Defendant]: Yes, sir. Later, the trial court inquired into Defendant’s desire to testify: [The Court]: Mr. Williams, have you had a chance to talk to Mr. Norman about whether to testify or not? [Defendant]: Yes, sir. [The Court]: And have you come to a decision satisfactory to yourself, with nobody forcing you or promising you anything in any way was to what you think your best interest is? [Defendant]: Yes, sir. [The Court]: And what have you decided to do? [Defendant]: I’d like to go forward with the trial, sir. [The Court]: Well, we’ll go forward with the trial, but the question is whether or not you want to testify or not? [Defendant]: Yes, sir, I want to testify. [The Court]: Okay. That’s fine. Like the exchanges in Staten, these colloquies and Defendant’s answers to the trial court’s questions also demonstrate and support Defendant’s competence. Defendant STATE V. WILLIAMS Opinion of the Court – 22 – engaged in a lengthy colloquy with the trial court, Defendant’s responses were “lucid and responsive,” and his testimony was rational concerning his present beliefs and desire to participate in and testify at his trial. See Staten, 172 N.C. App. at 679-84, 61 S.E.2d at 655-58. Defendant’s arguments are overruled. V. Conclusion Defendant has failed to demonstrate substantial evidence tending to show Defendant’s incompetence at any time during his trial. We hold the trial court did not err by not sua sponte ordering a further competency hearing. Defendant received a fair trial, free from prejudicial errors he preserved and argued. We find no error in the jury’s verdicts or in the judgments entered thereon. It is so ordered. NO ERROR. Judges DIETZ and YOUNG concur.
Broken Windows, Broken Lives
Social scientists and criminologists understand there exists an inverse relationship between crime rates and the lack of enforcement of criminal laws.
It’s called the Broken Windows Theory.
The criminological explanation of the social decline theory goes like this.
Prior to the passage of HB 972, the “Body Camera Bill” in 2015, there were legitimate concerns about the law and how it would be applied.
Given the maelstrom that now exists in the Queen City regarding yet another “officer-involved shooting,” and the lack of transparency in the turning-over of video, reasonable minds may ask, “Do we need to revisit the NC body camera laws?”
The law regarding Law Enforcement Agency Recordings, as set forth in N.C.G.S. 132-1.4A, and its interpretation, has been at best problematic. Police departments only reluctantly turn over video. Officers fail to activate recording equipment.
Charlotte is on track to set a new homicide record in 2019.
While quite a dubious distinction in and of itself, the developing metric fails to express the full nature and extent of a much larger problem in Mecklenburg County.
The overall crime rate and criminality are on the verge of becoming all-consuming issues for citizens, politicians, and the media in our beloved, friendly southern town.
We always want to make sure that if somebody comes into our Carolina criminal defense law office, as a potential client, they are treated like a family member. So often people talk about this being a service industry, and yes, it sounds kind of odd because you think about Carolina criminal lawyers having these diplomas on their wall, and you’re saying to yourself, “Well, he’s probably going to talk down and be very patronizing to their clients.” No. If anything, we’re the listeners. We want to make sure that this person’s opinion is very very valued, and it helps us in defending them.
Can I Dismiss Charges? What Happens If I Don’t Want to Prosecute? Do I Get a Say? Who Decides?
Can you drop the charges? Not really. Can the State choose not to prosecute? Yes, in large measure it’s their decision – Bill Powers
Prosecutors sometimes consider and weigh these case facts before deciding to prosecute an individual: