Defendant appeals from judgment of Hobgood, J., 25 September 1978 Session, Johnston Superior Court.
Huskins, Justice. Justice Brock did not participate in the consideration or decision of this case.
By his first assignment of error defendant contends the trial court erred in failing to commit defendant for a psychiatric examination prior to holding a hearing to determine defendant's capacity to proceed as mandated by G.S. 15A-1002. That statute provides in relevant part:
"(a) 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. The motion shall detail the specific conduct that leads the moving party to question the defendant's capacity to proceed.
(b) When the capacity of the defendant to proceed is questioned, the court:
(1) May appoint one or more impartial medical experts to examine the defendant and return a written report describing the present state of the defendant's mental health. Reports so prepared are admissible at the hearing and the court may call any expert so appointed to testify at the hearing. In addition, any expert so appointed may be called to testify at the hearing by the court at the request of either party.
(2) May commit the defendant to a State mental health facility for observation and treatment for the period necessary to determine the defendant's capacity to proceed. In no event may the period exceed 60 days. The superintendent of the facility must direct his report on defendant's condition to the defense attorney and to the clerk of superior court, who must bring it to the attention of the court. The report is admissible at the hearing.
a. If the report indicates that the defendant lacks capacity to proceed, proceedings for involuntary civil commitment under Chapter 122 of the General Statutes may be instituted on the basis of the report in either the county where the criminal proceedings are pending or in the county in which the defendant is hospitalized.
b. If the report indicates that the defendant has capacity to proceed, the clerk must direct the sheriff to return him to the county.
(3) Must hold a hearing to determine the defendant's capacity to proceed. If examination is ordered pursuant to subdivision (1) or (2), the hearing must be held after the examination. Reasonable notice must be given to the defendant and to the prosecutor and the State and the defendant may introduce evidence."
It is obvious from the language of the statute itself that the provisions of (b)(1) and (2) are permissible and discretionary whereas the language of (b)(3), requiring a hearing to determine defendant's capacity to proceed, is mandatory. The record reveals that the able trial judge, in accordance with G.S. 15A-1002(b)(3), conducted a pretrial hearing, found facts, and concluded that defendant had the mental capacity to proceed to trial. That conclusion is supported by the findings and the findings are supported by the evidence adduced at the hearing.
We note that defense counsel's motion suggesting defendant's incapacity to proceed did not "detail the specific conduct that [led] the moving party to question the defendant's capacity to proceed." G.S. 15A-1002(a). Rather, defense counsel generally argued that defendant's lengthy criminal record and several statements defendant had made to him had led him to conclude that defendant might not be able to stand trial. Moreover, defendant, in response to questioning from the trial judge, showed himself to be mentally alert and ready to go on with the trial. Finally, the district attorney stated that defendant had been cooperative in his interviews with police officers and "had related the details and the facts of the incidents under investigation very clearly to the officers. . . ." In summary, there was no evidence presented at the pretrial hearing which should
have caused a prudent judge to call for a psychiatric examination or commitment. Accordingly, denial of defense motions for examination or commitment, or both, under G.S. 15A-1002(b)(1) and (2) was entirely proper, and the trial judge did not abuse his discretion in determining that further psychiatric testing was unnecessary. The correctness of this determination was confirmed by defendant's subsequent disruptive behavior during the trial, which said more about his capacity for deliberate mischief than his incapacity to proceed.
Defendant nevertheless contends that the trial court's failure to order a psychiatric examination per se deprived him of a fair trial and amounted to a denial of due process in that it failed to adequately protect his right not to be convicted while incompetent. Essentially, defendant argues that due process requires a trial judge to automatically order a psychiatric examination any time a question is raised concerning defendant's capacity to proceed. This contention is without merit. It is well established, of course, that the conviction of an accused person while he is legally incompetent violates due process and that state procedures must be adequate to protect this right. Drope v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975); Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966). However, the United States Supreme Court has never held any particular procedure, such as the one advanced by defendant, to be constitutionally mandated for the protection of a defendant's right not to be tried or convicted while incompetent to stand trial. See Drope v. Missouri, supra, 402 U.S. at 172. Rather, the Court has generally indicated that in order to comport with due process, the procedure utilized must "jealously guard" a defendant's right to a fair trial. Drope v. Missouri, supra; Pate v. Robinson, supra.
Due consideration of North Carolina's statutory scheme for determining a defendant's capacity to proceed leads us to conclude that it "jealously guards" a defendant's right to a fair trial. The question of defendant's capacity "may be raised at any time on motion by the prosecutor, the defendant, the defense counsel, or the court." G.S. 15A-1002(a). When defendant's capacity to proceed is questioned, the court " [m]ust hold a hearing to determine the defendant's capacity to proceed." G.S. 15A-1002(b)(3). ...