Opinion
No. COA09-1427
Filed 15 June 2010 This case not for publication
Appeal by defendant from judgments entered 19 March 2009 by Judge Paul C. Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 13 April 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State. L. Jayne Stowers, for defendant-appellant.
Wake County Nos. 08 CRS 5798, 6459-61, 30197.
Terrence Wayne Lytle ("defendant") appeals judgments entered upon jury verdicts finding him guilty of felonious possession of stolen goods, two counts of breaking and entering, three counts of felonious larceny, and attaining the status of an habitual felon. We find no error.
I. BACKGROUND
On 30 January 2008 at approximately 9:30 a.m., James C. Ransdell ("Ransdell") drove by his farm property on Dwight Rowland Road in Fuquay-Varina, Wake County, North Carolina. As he was driving by the property, he saw a red Ford pickup truck parked behind a barn near his office building during a time when "[n]ormally there is nobody up there." Ransdell first noted that the truck was "out of place," especially considering the house on the property was unoccupied, no farming activity took place on the property in January, and two "no trespassing signs" were posted at the entrance to the property. Ransdell also saw a man, later identified as defendant, exiting the office building. Defendant did not have permission to be on Ransdell's property. As Ransdell approached, defendant "started forward . . . in a fast pace . . . jumped in his truck [and] took off." Ransdell contacted the Wake County Sheriff's Department ("WCSD") and provided them with the truck's license plate number. When law enforcement officers arrived at the property, Ransdell and the officers discovered the office door had been "jimmied" open with a screwdriver or similar device. Ransdell entered the office building and discovered that his replica revolver was missing.
Later that same day, at approximately 4:30 p.m., James Linden Stephenson ("Stephenson") arrived at his home at 7128 Mount Pleasant Road in Willow Springs, North Carolina. Stephenson noticed that his garage door "opened funny and pried up." Stephenson then observed that the back door of his home had been kicked open and a red Ford pickup truck was in his garage. Stephenson noticed that his gray 2000 Silverado pickup truck, which had been parked in his driveway, was missing along with tools and compact discs Stephenson kept inside the truck. He then contacted the WCSD. When the officers arrived, Stephenson accompanied the officers, searched the house, and discovered that Stephenson's Colt .380 semiautomatic handgun was missing, along with, inter alia, his daughter's laptop computer, jewelry, and sunglasses. Neither Stephenson nor his daughter gave anyone permission to enter their home to borrow or take any of the missing items.
At approximately 8:45 p.m. that evening, Detective Ben Farrell ("Detective Farrell") and Officer Whitehurst of the Morrisville Police Department ("MPD") responded to a 911 call directing them to the Extended Stay America hotel ("the hotel") in Morrisville, North Carolina. When Detective Farrell entered the lobby, a man identified as Mr. Morrison ("Morrison") approached him and told him that a man, later identified as defendant, was staying with him in the hotel room. Morrison stated that when he returned from work that day, he discovered defendant "had personal property that he didn't have that morning." Morrison believed the property did not belong to anyone in the room. Morrison gave his consent for Detective Farrell and Officer Whitehurst to enter the hotel room and investigate further.
When Detective Farrell entered the room, he saw defendant sitting in a chair. Detective Farrell identified himself and told defendant that he was investigating the ownership of items in the room. Detective Farrell asked defendant whether there were any items in the room that did not belong to him. Defendant said "yes," then produced a laptop computer with power cords. Detective Farrell asked defendant to help him find the owner of the property so that it could be returned. Defendant then "dropped his head" and stated, "either way you are going to arrest me. What's the difference?" Detective Farrell also asked defendant if any other property in the room beside the laptop did not belong to him. Defendant replied in the affirmative and produced jewelry, a set of car keys, tools, and compact discs.
Defendant was arrested and indicted on three counts of felonious larceny, two counts of felonious breaking and entering, and possession of stolen goods. Defendant was subsequently indicted on the charge of attaining the status of an habitual felon for prior felony judgments. On 13 October 2008, following a hearing, the trial court granted defendant's motion to allow him to proceed pro se, and appointed James Bell as standby counsel.
On 23 December 2008, defendant filed a motion to dismiss the indictments "on grounds of fatal variance." On 24 December 2008, defendant filed a "Subpoena," "Request for Production of Documents by Subpoena," and subsequently a "Motion to Compel Subpoena," attempting to obtain his mental health records from Dorothea Dix Hospital, Johnston County Mental Health, Johnston County Jail, the North Carolina Department of Correction ("DOC"), Nash County Jail, and Wake County Jail. At a hearing on 13 February 2009, defendant denied being incompetent, but informed the trial court that he had psychotic tendencies.
At a pre-trial hearing on 20 February 2009, various motions made by defendant, his standby counsel, James Bell, and the State were heard by the trial court. The trial court granted defendant's request for production of his mental health records, involuntary commitments, in-patient and out-patient records. In addition, the trial court ordered all of the appropriate agencies to produce the records on or before 16 March 2009.
Defendant's case was called for trial on 16 March 2009 in Wake County Criminal Superior Court. Defendant orally moved the trial court to continue the trial to subpoena a witness and to obtain the records that were ordered regarding his diminished capacity and other mitigating factors. The court denied defendant's motion. On 17 March 2009, defendant received all of the records he requested. The court also granted defendant's request to subpoena five witnesses to appear on his behalf on 19 March.
At trial, the State asked the court to view the addresses in the indictments for case numbers 08 CRS 6460 and 6461 as well as the description of the building as a "residence" in case number 08 CRS 6460 as surplusage, and then moved to amend the indictments. Defendant objected. On 18 March, after the State rested its case, the trial court granted the State's request to amend the indictments. However, the trial court denied defendant's motion to dismiss the charges based on insufficiency of the evidence. Defendant presented no evidence. Defendant again moved to dismiss the State's case due to the insufficiency of the evidence and the trial court denied defendant's motion. The trial court also denied defendant's previous 23 December 2008 motion to dismiss the indictments.
The jury returned verdicts finding defendant guilty on all charges. The court arrested judgment on the charge of possession of stolen property. The court consolidated judgment on the remaining charges and sentenced defendant as a Class C habitual felon to two consecutive terms of a minimum term of 120 months to a maximum term of 153 months in the custody of the DOC. Defendant appeals.
II. INDICTMENTS
Defendant argues that the court erred in allowing the State to amend the indictments in case number 08 CRS 6460 and case number 08 CRS 6461 on the two counts of felonious breaking and entering, because the amendments constituted a fatal variance between the indictments and the evidence presented at trial. We disagree.
"Jurisdiction to try an accused for a felony depends upon a valid bill of indictment guaranteed by Article I, Section 22 of the North Carolina Constitution." State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996). A bill of indictment must contain:
A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.
N.C. Gen. Stat. § 15A-924(a)(5) (2009).
Whether an indictment is sufficient on its face is a separate issue from whether there is a variance between the indictment and the evidence presented at trial, although both issues are based upon the same concerns. A variance occurs where the allegations in an indictment, although they may be sufficiently specific on their face, do not conform to the evidence actually established at trial.
State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002) (citation omitted). "Nonetheless, both issues are based upon the same concerns: to insure that the defendant is able to prepare his defense against the crime with which he is charged, and to protect the defendant from another prosecution for the same incident." Id.
"In order for a variance [in an indictment] to warrant reversal, the variance must be material." Id. (citing State v. McDowell, 1 N.C. App. 361, 365, 161 S.E.2d 769, 771 (1968)). "A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged." Id. Further, "[a] bill of indictment may not be amended." N.C. Gen. Stat. § 15A-923(e) (2009). However, our Supreme Court has interpreted the term "amendment" under N.C. Gen. Stat. § 15A-923(e) to mean "any change in the indictment which would substantially alter the charge set forth in the indictment." State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984) (citation and quotation omitted).
"`To support a conviction for felonious breaking and entering under [N.C. Gen. Stat.] § 14-54(a), there must exist substantial evidence of each of the following elements: (1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein.'" State v. Jones, 188 N.C. App. 562, 564-65, 655 S.E.2d 915, 917 (2008) (quoting State v. Walton, 90 N.C. App. 532, 533, 369 S.E.2d 101, 102 (1988)). The meaning of the word "building" as used in N.C. Gen. Stat. § 14-54 "shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property." N.C. Gen. Stat. § 14-54(c) (2009).
"Moreover, if an indictment contains an averment unnecessary to charge the offense, such averment may be disregarded as inconsequential surplusage." State v. Grady, 136 N.C. App. 394, 396-97, 524 S.E.2d 75, 77 (2000) (citation omitted). However,
[i]n an indictment under G.S. 14-54 punishing the breaking and entering of buildings, a building must be described as to show that it is within the language of the statute and so as to identify it with reasonable particularity so as to enable the defendant to prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense.
State v. Sellars, 273 N.C. 641, 650, 161 S.E.2d 15, 21 (1968) (citation omitted). "Ideally, an indictment for violation of N.C. Gen. Stat. § 14-54 should `identify the subject premises by street address, highway address, or other clear designation.'" Norman, 149 N.C. App. at 592, 562 S.E.2d at 456 (quoting State v. Melton, 7 N.C. App. 721, 724, 173 S.E.2d 610, 613 (1970)). However, "[o]ccupancy of the `building' is not an element of the offense of felonious breaking and entering." Jones, 188 N.C. App. at 565, 655 S.E.2d at 917.
"Where an indictment alleges the particular place where an act took place, and such allegation is not descriptive of the offense, and is not required to be proved as laid in order to show the court's jurisdiction because such jurisdiction is established by other evidence admissible under other allegations, a variance which does not mislead accused or expose him to double jeopardy is not material."
State v. Martin, 270 N.C. 286, 288, 154 S.E.2d 96, 98 (1967) (quoting 42 C.J.S., Indictments and Informations, § 256, p. 1276).
In the instant case, the indictment for felonious breaking and entering in case number 08 CRS 6460 stated, in pertinent part:
The jurors for the State upon their oath present that on or about January 30, 2008, in Wake County, the defendant . . . unlawfully, willfully and feloniously did break and enter a building occupied by James Crawford Ransdell and used as a residence, located at 6336 Dwight Rowland Road, Fuquay-Varina, North Carolina, with the intent to commit a felony therein. This act was done in violation of N.C.G.S. 14-54(a).
At trial, Ransdell testified that the correct address of the property was 6347, not 6336, Dwight Rowland Road. This address was that of an office building and one of approximately twenty-two buildings that also included three dwellings on the farm. The indictment for felonious breaking and entering in case number 08 CRS 6461 repeated the same language verbatim, with the exception of the name "James Lendon Stephenson" substituted in place of "James Crawford Ransdell." The evidence at trial showed that Stephenson's house was located at 7128 Mount Pleasant Road in Willow Springs, North Carolina. Before the State rested, it moved to amend the indictments to correct the addresses, arguing the addresses and the description of Ransdell's building as a "residence" should be considered surplusage. The court granted the State's motion to amend the addresses and to strike the words "used as a residence" in case number 08 CRS 6460.
The words "used as a residence" are clearly surplusage, as "[o]ccupancy of the `building' is not an element of the offense of felonious breaking and entering." Jones, 188 N.C. App. at 565, 655 S.E.2d at 917. Therefore, no material variance exists between the indictment and the evidence presented at trial due to this language. Martin, 270 N.C. at 288, 154 S.E.2d at 98; see also Grady, 136 N.C. App. at 396-97, 524 S.E.2d at 77.
Since the address of the office building is not an essential element of N.C. Gen. Stat. § 14-54(a), then the variance between the address in the indictment and the address stated at trial is not material and is also not fatal. The evidence at trial shows that the office building was described with "reasonable particularity" so as to enable defendant to prepare his defense. While there was more than one building on Ransdell's property, the evidence shows that only one building was broken into, and that Ransdell identified defendant as the man he saw leaving that building. Defendant has not shown that the amendment to the indictment prejudiced him in such a way that "he relied upon the allegations in the original indictment to his detriment in preparing his case. . . ." State v. Silas, 360 N.C. 377, 382, 627 S.E.2d 604, 608 (2006).
In addition, defendant has not shown prejudice from the amendment to the indictment in case number 08 CRS 6461. The warrant for defendant's arrest in that case stated that on or about 30 January 2008, defendant "[u]nlawfully, willfully and feloniously did break and enter a building occupied by James Lendon Stephenson . . . located at 7128 Mt. Pleasant Rd., Willow Springs, N.C." (emphasis added). The evidence at trial clearly showed that defendant broke and entered into an office building on Ransdell's property, and then drove approximately five miles to Stephenson's property, where the second breaking and entering offense occurred. At trial, Stephenson identified the items missing from his property that were found in defendant's possession at the hotel room. Although the address of Stephenson's home in the indictment did not match the address stated at trial, the address of the property is not an essential element of N.C. Gen. Stat. § 14-54(a). Therefore, the variance is not material and it is also not fatal. Based on these facts, defendant could not have been prejudiced or misled by the incorrect address.
Furthermore, by comparing the address on the indictment for case number 08 CRS 6460 to the address on the indictment for case number 08 CRS 6461, it is obvious that the address in case number 08 CRS 6461 was a clerical error. "It is the general rule that an indictment is not vitiated by mistakes which are merely clerical, where they do not destroy the sense of the indictment, and the meaning is apparent." State v. Hawkins, 155 N.C. 466, 470, 71 S.E. 326, 327 (1911) (quotations and citation omitted). "If the defendant . . . had been in doubt as to the identity of the building[s] he was charged with having feloniously broken into and entered, he could have called for a bill of particulars." Sellars, 273 N.C. at 650, 161 S.E.2d at 22. Amending the indictment in case number 08 CRS 6461 to correct a clerical error was not a substantial alteration, and defendant has shown no prejudice. The exact street numbers were not a required element of N.C. Gen. Stat. § 14-54(a), and defendant was not impaired in preparing his defense. Grady, 136 N.C. App. at 398, 524 S.E.2d at 78. Defendant was not prejudiced or misled by the addresses, and the amendments did not substantially alter the charges set forth. Therefore, the trial court did not err in allowing the State to amend the indictments. Defendant's assignments of error are overruled.
III. MOTION TO CONTINUE
Defendant argues that the trial court erred in denying his motion to continue (1) in order for him to subpoena witnesses and records for his defense, and (2) because defendant had not received certain mental health records which defendant argued were necessary for his defense. We disagree.
"Traditionally, the decision to grant or deny a continuance rests within the discretion of the trial court. However, that discretion does not extend to the point of permitting the denial of a continuance that results in a violation of a defendant's right to due process." State v. Tunstall, 334 N.C. 320, 328, 432 S.E.2d 331, 336 (1993) (internal citations omitted). "The denial of a motion to continue, even when the motion raises a constitutional issue, is grounds for a new trial only upon a showing by the defendant that the denial was erroneous and also that his case was prejudiced as a result of the error." State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982).
The constitutional guarantees of due process, assistance of counsel and confrontation of witnesses unquestionably include the right of a defendant to have a reasonable time to investigate and prepare his case. No precise time limits are fixed, however, and what constitutes a reasonable length of time for the preparation of a defense must be determined upon the facts of each case.
Id. at 104-05, 291 S.E.2d at 656. "Inadequate time to prepare may be shown by defendant through either a showing of how his case would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion." State v. Bethea, 173 N.C. App. 43, 47, 617 S.E.2d 687, 691 (2005) (internal citation and quotation omitted). Further, "[c]ontinuances should not be granted unless the reasons therefor are fully established. Hence, a motion for a continuance should be supported by an affidavit showing sufficient grounds." State v. Cradle, 281 N.C. 198, 208, 188 S.E.2d 296, 303 (1972) (quotations and citations omitted).
As an initial matter, we note that in the instant case, the record does not contain an affidavit from defendant showing sufficient grounds for his motion for a continuance. According to the record, defendant denied being incapable of standing trial. At the 13 February hearing on his efforts to subpoena his medical records, defendant stated, "I'm saying that I am able to stand trial. I just, I wanted the Court to be aware about psychotic tendencies and what the drugs do causing that to be enhanced. . . ." At the 20 February hearing, defendant stated that his mental health records were to "show my frame of mind and the scope of my mental condition at the time of the arrest." (emphasis added).
At the 9 March hearing, defendant's standby counsel explained to the court that he had "gotten a bunch of information back, which I just handed [defendant], and there's still a little bit left to get. . . ." At trial on 16 March 2009, the State told the court that its understanding was that defendant had "the vast majority of the records that he has requested," and an additional record was to be faxed the next day. Defendant claimed he needed the mental health records to show diminished capacity and to show a mitigating factor for sentencing purposes. On 17 March 2009, the trial court received defendant's medical records from Johnston County.
"[T]he offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists." N.C. Gen. Stat. § 15A-1340.16(a) (2009). Among the mitigating factors are:
(1) The defendant committed the offense under duress, coercion, threat, or compulsion that was insufficient to constitute a defense but significantly reduced the defendant's culpability.
. . .
(3) The defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but significantly reduced the defendant's culpability for the offense.
N.C. Gen. Stat. § 15A-1340.16(e)(1), (3) (2009). "Alcoholism or drug addiction, while not itself a statutorily enumerated mitigating factor, may properly be found to mitigate an offense under the rubric of the statutory factor contained in [N.C. Gen. Stat. § 15A-1340.16(e)]. . . ." State v. Barts, 321 N.C. 170, 183, 362 S.E.2d 235, 242 (1987). "The burden of proving that the condition reduced his culpability is upon defendant." Id. at 184, 362 S.E.2d at 243.
The statute cited in Barts, N.C. Gen. Stat. § 15A-1340.4(a)(2)(d), was repealed in 1993 and replaced by N.C. Gen. Stat. § 15A-1340.16(e) using the same language.
In the instant case, despite the fact that defendant had most, if not all, of his mental health records, he presented no evidence of his frame of mind and the scope of his mental condition at the time of his criminal acts. Defendant presented evidence that he may have been under the influence of heroin at the time of his arrest. However, the statutory mitigating factor that a defendant was suffering from a physical condition which was insufficient to constitute a defense, but which significantly reduced his culpability for the offense, must be present "at the time of the offense." State v. Leroux, 326 N.C. 368, 385-86, 390 S.E.2d 314, 326 (1990).
The evidence showed that on 30 January 2008, defendant drove a red Ford pickup truck to Ransdell's farm, where he used a screwdriver or a similar device to "jimmy" open the office door. Once inside, defendant took a firearm that did not belong to him. He then drove the red Ford pickup truck to Stephenson's home, parked it inside Stephenson's garage and took Stephenson's truck. Defendant also took guns, a computer, jewelry, tools, and compact discs. Then defendant drove to a hotel room where he stored some of the stolen items and attempted to trade or sell the remainder of the items for controlled substances.
These facts indicate that defendant's actions were purposeful and intentional and not the result of diminished capacity or a mental disease or defect. Defendant did not meet his burden of proving by a preponderance of the evidence that his drug use "significantly reduced [his] culpability" for the offenses charged. From the evidence presented at trial, the trial court could properly conclude that defendant's drug abuse did not affect his presence of mind, his ability to appreciate the nature of his own actions, or his understanding that his conduct was wrong. See Barts, 321 N.C. at 184, 362 S.E.2d at 243.
Defendant failed to establish any reasons and presented no evidence to show how he "would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion." Bethea, 173 N.C. App. at 49, 617 S.E.2d at 692 (internal quotations and citations omitted). As our Supreme Court stated in Cradle, "[t]he oral motion for continuance is not supported by affidavit or other proof. In fact, the record suggests only a natural reluctance to go to trial. . . . We are left with the thought that [defendant] suffered more from lack of a defense than from lack of time." 281 N.C. at 208, 188 S.E.2d at 303. Since defendant had a reasonable time to investigate, prepare, and present his defense, the trial court's denial of defendant's motion to continue did not violate his rights under the United States and North Carolina constitutions. Defendant's assignments of error are overruled.
IV. SUBPOENA REQUEST
Defendant argues that the trial court erred by denying his request to subpoena a witness. We disagree.
"`The right to compulsory process is not absolute, and a state may require that a defendant requesting such process at state expense establish some colorable need for the person to be summoned, lest the right be abused by those who would make frivolous requests.'" State v. Carroll, 17 N.C. App. 691, 693, 195 S.E.2d 306, 308 (1973) (quoting Hoskins v. Wainwright, 440 F.2d 69, 71 (5th Cir. 1971)). "Further, the trial court at all times has the discretion to exclude `needless presentation of cumulative evidence,' even where the evidence is arguably relevant. . . ." State v. Pallas, 144 N.C. App. 277, 281, 548 S.E.2d 773, 778 (2001) (quoting N.C. Gen. Stat. § 8C-1, Rule 403 (1999)).
On 17 March 2009, the second day of trial, defendant requested that the trial court issue a subpoena for Patricia Tinsley ("Tinsley") of the DOC to produce his missing 1996 mental health records from Central Prison, to appear and to testify. Defendant conceded that Tinsley "sent the certified record stating that she stipulates that this is a true certified copy" of defendant's mental health records. In the certified copy, Tinsley stated that defendant had no mental health records for 1996. Defendant stated, "Don't forget about the politics and the dishonesty, you know. This is going — this goes to grounds for can we really trust what's being said and what's being presented because here she is a sworn officer of the Department of Corrections or the North Carolina government. . . ." Defendant also argued that he needed the records "if need be [to] present mental disease, mental defect and diminished capacity." The trial court denied defendant's request to issue the subpoena on the bases that the DOC delivered the records and that Tinsley's testimony of how defendant received the records was immaterial.
Based upon this evidence, the trial court's action was proper because defendant did not show a "colorable need" for Tinsley to be summoned. Carroll, 17 N.C. App. at 693, 195 S.E.2d at 308. Since Tinsley had already submitted a certified copy of all of defendant's mental health records from Central Prison, her testimony would have been merely cumulative. Defendant's assignment of error is overruled.
V. DEFENDANT'S COMPETENCY
Defendant argues that the trial court erred by failing to have him examined for competency to stand trial and to waive counsel and proceed pro se, even though he did not request a competency hearing. Defendant argues that his rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution were violated when the trial court failed to ensure that he had the mental capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in preparing his defense during all phases of the trial. We disagree.
A. Statutory Challenges to Defendant's Competency
"N.C. Gen. Stat. § 15A-1001(a) governs the determination of a defendant's capacity to proceed. . . ." State v. Badgett, 361 N.C. 234, 258, 644 S.E.2d 206, 220 (2007). That statute provides, in part:
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.
N.C. Gen. Stat. § 15A-1001(a) (2009). N.C. Gen. Stat. § 15A-1002(a) states that, "[t]he 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[,]" as long as the motion "detail[s] the specific conduct that leads the moving party to question the defendant's capacity to proceed." N.C. Gen. Stat. § 15A-1002(a) (2009). Furthermore, N.C. Gen. Stat. § 15A-1002(b) states that "[w]hen the capacity of the defendant to proceed is questioned [pursuant to N.C. Gen. Stat. § 15A-1001(a)], the court shall hold a hearing to determine the defendant's capacity to proceed." N.C. Gen. Stat. § 15A-1002(b) (2009).
In applying these statutory provisions, our Supreme Court has recognized that "the trial court is only required to `hold a hearing to determine the defendant's capacity to proceed if the question is raised.'" Badgett, 361 N.C. at 259, 644 S.E.2d at 221 (quoting State v. King, 353 N.C. 457, 466, 546 S.E.2d 575, 584 (2001)). "Therefore, the statutory right to a competency hearing is waived by the failure to assert that right at trial." Id. In the instant case, nothing in the record indicates that "the prosecutors, defense counsel, defendant, or the court raised the question of defendant's capacity to proceed at any point during the proceedings, nor was there any motion made detailing the specific conduct supporting such an allegation." Id. In fact, both the State and defendant specifically stated that they were not asking for an evaluation. Therefore, defendant waived his statutory right to a competency hearing by his failure to assert that right at trial.
B. Constitutional Challenges to Defendant's Competency 1. Competency to Stand Trial
"[U]nder the Due Process Clause of the United States Constitution, `[a] criminal defendant may not be tried unless he is competent.'" Badgett, 361 N.C. at 259, 644 S.E.2d at 221 (quoting Godinez v. Moran, 509 U.S. 389, 396, 113 S. Ct. 2680, 2685, 125 L. Ed. 2d 321, 330 (1993)). "`[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.'" State v. Young, 291 N.C. 562, 568, 231 S.E.2d 577, 581 (1977) (quoting Crenshaw v. Wolff, 504 F.2d 377 (8th Cir. 1974)) (italics omitted). "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." Badgett, 361 N.C. at 259, 644 S.E.2d at 221 (internal quotations and citations omitted).
"Article I, § 19 of the North Carolina Constitution is synonymous with `due process of law' as that term is applied under the Fourteenth Amendment to the federal Constitution." State v. Young, 140 N.C. App. 1, 6, 535 S.E.2d 380, 383 (2000) (internal quotation and citation omitted).
"`[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 a bona fide doubt inquiry." State v. McRae, 139 N.C. App. 387, 390, 533 S.E.2d 557, 559 (2000) (quoting Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 908, 43 L. Ed. 2d 103, 118 (1975)). "There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated." Drope, 420 U.S. at 180, 95 S. Ct. at 908, 43 L. Ed. 2d at 118.
Defendant points to evidence in the record indicating that he: (1) "displayed a paranoid distrust of counsel and others and refused to cooperate with and talk to counsel;" (2) "had difficulty focusing," and "made rambling statements;" (3) "[c]ontinued to focus on irrelevant matters" and had an "inability to move on or to understand they were irrelevant;" (4) "[d]id not understand the purpose of evidence and the trial process;" and (5) "[g]ave notice he had mental illness, mental disease or defect and extensive treatment."
Initially, we note that in the instant case, defendant had no fewer than eight separate hearings from October 2008 to March 2009 before seven separate superior court judges. During hearings on 13 February and 20 February 2009, the State explicitly brought the issue of defendant's competency to the trial court's attention. At trial, before an eighth superior court judge, defendant stated that he had suffered from "psychotic episodes." Defendant moved to continue the trial because he had not received certain mental health records which he contended were relevant to a defense of diminished capacity and to show "mental disease or defect" mitigating evidence. Despite all of this, not one of the trial court judges ordered a competency hearing. We find it difficult to substitute our judgment for that of the trial court judges, especially considering that the trial judge is often "best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant." Indiana v. Edwards, ___ U.S. ___, ___, 128 S. Ct. 2379, 2387, 171 L. Ed. 2d 345, 357 (2008).
Defendant presented no evidence that he suffered from paranoia, much less a paranoid distrust of lawyers, and cites no authority for his proposition that a paranoid distrust of lawyers is a ground for a court to sua sponte order a competency hearing. Indeed, a paranoid distrust of lawyers does not undermine a trial court's findings of a defendant's competency to stand trial. State v. Were, 118 Ohio St. 3d 448, 455, 890 N.E.2d 263, 276, cert. denied sub nom. Were v. Ohio, ___ U.S. ___, 129 S. Ct. 606, 172 L. Ed. 2d 464 (2008). Distrust of lawyers goes back to the time of our Nation's founding. See Faretta v. California, 422 U.S. 806, 826-27, 95 S. Ct. 2525, 2537, 45 L. Ed. 2d 562, 576-77 (1975).
"Public dissatisfaction with lawyers is not unknown; neither is public distrust of lawyers." Texas v. New Mexico, 485 U.S. 953, 955, 108 S. Ct. 1212, 1214, 99 L. Ed. 2d 414, 416 (1988) (Blackmun, J., dissenting).
In State v. Brown, our Supreme Court held that based on evidence presented at a competency hearing, including the fact that the defendant distrusted his court-appointed counsel, "the trial court could properly find that defendant did not suffer from a mental incapacity — that his attitude, rather than a mental illness or defect, prevented him from assisting in his own defense. It thus could properly conclude that he was competent to stand trial." 339 N.C. 426, 433, 451 S.E.2d 181, 186 (1994). The Brown Court also concluded that the defendant's mistrust of his attorney "stemmed from defendant's perception, social values and mistrust, not from a basic incapacity." Id. (internal quotations omitted). In the instant case, without any specific evidence of defendant's "paranoia," we determine that defendant's decision to forego representation by trial counsel is insufficient to support a determination of incapacity.
Similarly, defendant's "rambling statements" are not necessarily grounds for a trial court to order a competency hearing for a defendant. See United States v. Nichols, 56 F.3d 403, 413 (2d Cir. 1995) (no basis to overturn trial court's holding that defendant was competent to be sentenced because defendant's rambling statements and other erratic behavior during sentencing hearing were outweighed by other evidence of defendant's competence and the fact that trial court viewed defendant's actions as "calculated fakery").
Even supposing defendant is correct that the various examples of his rambling, marginally relevant speeches cited in his briefing may constitute evidence of some form of mental illness, the record simply does not show that he lacked an understanding of the nature of the proceedings or the ability to assist in his defense.
People v. Koontz, 27 Cal.4th 1041, 1064, 119 Cal. Rptr. 2d 859, 877, 46 P.3d 335, 350 (2002). "[M]ore is required to raise a doubt than mere bizarre actions [] or bizarre statements. . . ." People v. Laudermilk, 67 Cal.2d 272, 285, 61 Cal. Rptr. 644, 653, 431 P.2d 228, 237 (1967) (internal citations omitted); see also Wuornos v. State, 644 So.2d 1012, 1017 (Fla. 1994) (trial court was not required to sua sponte order a competency hearing based on defendant's rambling statements because while such statements "show[ed] some difficulty with the English language" and were consistent with defendant's level of education, they "were thoughtfully organized toward establishing several points").
In State v. Heptinstall, the defendant argued that the trial court erred in failing to sua sponte order competency hearings after his testimony at both the guilt and sentencing phases of his trial. 309 N.C. 231, 235, 306 S.E.2d 109, 111 (1983). The defendant argued that his testimony "was so bizarre and incoherent that the . . . testimony, in and of itself, should have caused the trial court to question the Defendant's capacity to proceed." Id. at 235, 306 S.E.2d at 111-12 (quotations omitted). Our Supreme Court disagreed, stating:
We have carefully examined defendant's testimony at both phases of his trial. Portions of defendant's testimony at both phases were bizarre and nonsensical.
. . .
Viewing defendant's testimony as a whole, in light of some of the purposes for which the testimony was offered, and taking into account defendant's tendency to be manipulative, we conclude the testimony would not have suggested to the trial court that defendant then lacked capacity to proceed. There was, therefore, no duty of the trial court on its own motion to reopen this question.
Id. at 236-37, 306 S.E.2d at 112.
In the instant case, portions of defendant's statements were "bizarre and nonsensical." Defendant rhetorically asked, "can we trust anybody that's in [the courtroom] today?" He contended the State was "dishonest" and wanted to cover up his allegation that the State had given him the wrong medication for ten years for his bipolar and psychotic disorders. Despite such statements, the record as a whole shows that defendant was able to interact appropriately with standby counsel during the trial and that he adequately conducted his own defense. In light of the entire record, defendant's few, isolated, bizarre statements were insufficient to require the trial court to hold a hearing on defendant's capacity to stand trial.
As for defendant's history of mental illness, defendant testified that he was "bipolar psychotic" and stated that he had been treated for his alleged condition in a number of facilities, including Dorothea Dix Hospital and the Johnston County Mental Health Service Center. We are guided by our Supreme Court's decision in King, in which the Court stated:
In the present case, there is some evidence in the record indicating that defendant had received precautionary treatment for depression and suicidal tendencies several months before trial. However, this evidence of past treatment, standing alone, does not constitute substantial evidence before the trial court, indicating that defendant lacked the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense at the time his trial commenced[]. Moreover, the record does not indicate that either defendant or defense counsel raised any questions about defendant's capacity to proceed at any time during defendant's trial and capital sentencing proceeding. Accordingly, the trial court did not err by failing to institute, on its own motion, a hearing to determine defendant's capacity to proceed.
King, 353 N.C. at 467, 546 S.E.2d at 585 (internal quotations, citations, and brackets omitted). See also Badgett, 361 N.C. at 261, 644 S.E.2d at 222 ("Though the record confirms that defendant was treated for anger management and depression prior to trial, this is insufficient to establish a lack of competency."). In the instant case, despite defendant's past treatment history, the record indicates that defendant, both prior to and at trial, had the capacity to understand the nature and object of the proceedings against him, had the ability to consult with standby counsel about the proceedings, and adequately conducted his own defense. See Badgett, 361 N.C. at 260, 644 S.E.2d at 221.
Viewing defendant's evidence as a whole, we hold that it "did not constitute `substantial evidence' requiring the trial court to institute a competency hearing, and that this evidence was outweighed by substantial evidence indicating that defendant was competent to stand trial." Id. Defendant's assignments of error are overruled.
2. Waiver of Counsel
The Sixth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment, and Article 1, § 23 of the North Carolina Constitution guarantee that every criminal defendant has the right to counsel, either by a retained attorney, an appointed attorney, or the right to self-representation. U.S. Const. amends. VI, XIV; N.C. Const. art. 1, § 23. The standard for competence to stand trial is the same as the standard to waive counsel. Godinez, 509 U.S. at 396-98, 113 S. Ct. at 2685-86, 125 L. Ed. 2d at 330-31. However, "the United States Constitution permits judges to preclude self-representation for defendants adjudged to be `borderline-competent' based on a `realistic account of the particular defendant's mental capacities. . . .'" State v. Lane, 362 N.C. 667, 668, 669 S.E.2d 321, 322 (2008) (quoting Edwards, ___ U.S. at ___, 128 S. Ct. at 2387-88, 171 L. Ed. 2d at 357 (2008), clarified, 363 N.C. 121, ___ S.E.2d ___, and motion granted, ___ N.C. ___, 685 S.E.2d 514 (2009). Such defendants are "gray-area defendants," which are "defined by the Supreme Court of the United States as parties `competent enough to stand trial under Dusky [ v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) ( per curiam)] but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves'[.]" Lane, 362 N.C. at 668, 669 S.E.2d at 322 (quoting Edwards, ___ U.S. at ___, 128 S. Ct. at 2388, 171 L. Ed. 2d at 357). The Dusky standard for competency is whether a defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky, 362 U.S. at 402, 80 S. Ct. at 789, 4 L. Ed. 2d at 825.
A pro se defendant must be able "to carry out the basic tasks needed to present his own defense without the help of counsel." Edwards, ___ U.S. at ___, 128 S. Ct. at 2386, 171 L. Ed. 2d at 356. These basic tasks include, inter alia, "organization of defense, making motions, arguing points of law, participating in voir dire, questioning witnesses, and addressing the court and jury[]." Id. at ___, 128 S. Ct. at 2387, 171 L. Ed. 2d at 356 (citing McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 949, 79 L. Ed. 2d 122, 131 (1984)). "[T]he trial judge . . . will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant." Edwards, ___ U.S. at ___, 128 S. Ct. at 2387, 171 L. Ed. 2d at 357.
Defendant argues that the trial transcript reveals that (1) he "[c]ontinued to focus on irrelevant matters" and had an "inability to move on or to understand they were irrelevant," and (2) he "[d]id not understand the purpose of evidence and the trial process." However, defendant's focus on irrelevant issues and failure to understand the purpose of evidence and the trial process, relate to defendant's legal acumen, not his mental capacity. "[W]hile `[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts,' . . . a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation." Godinez, 509 U.S. at 400, 113 S. Ct. at 2687, 125 L. Ed. 2d at 333 (citation and footnote omitted).
In the instant case, the record shows that defendant was able to interact appropriately with standby counsel during the trial. Defendant prepared his case thoroughly, conducted extensive legal research, and understood procedural matters. Defendant discussed with the trial court the procedures for closing arguments, including the order of arguments and the etiquette for objecting. In addition, he made motions to dismiss and used legal reasoning in those motions. After a discussion with the trial court on the Fifth Amendment privilege against self-incrimination, he rethought his decision on whether to testify on his own behalf and subsequently declined to do so. Defendant also chose not to put on evidence. It is therefore clear that defendant "demonstrated a strong understanding of the proceedings against him, and consistently addressed the trial court with appropriate deference and intelligent responses." Badgett, 361 N.C. at 260, 644 S.E.2d at 221. This assignment of error is overruled.
VI. CONCLUSION
Assignments of error not argued in defendant's brief are abandoned. N.C. R. App. P. 28(b)(6) (2009). Defendant received a fair trial free from error.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).