Heard in the Court of Appeals 3 November 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Appeal by Defendant from judgments entered 28 June
2013 by Judge R. Stuart Albright in Superior Court, Forsyth County.
Forsyth County. Nos. 12 CRS 61993-61994.
Attorney General Roy Cooper, by Special Deputy Attorney General Ryan F. Haigh, for the State.
Kimberly P. Hoppin for Defendant.
McGEE, Chief Judge. Judges HUNTER, Robert C. and BELL concur.
McGEE, Chief Judge.
Raymond Dakim-Harris Joiner (" Defendant" ) was charged with two counts of malicious conduct by a prisoner and having attained habitual felon status on 28 January 2013. Two Forsyth County Sheriff's deputies were attempting to remove Defendant from his holding cell and take him to court on 30 November 2012, when Defendant resisted them and spat in both of their faces. The incident was captured on video.
One month earlier, on 30 October 2012, Defendant had been evaluated by Dr. Charles Vance (" Dr. Vance" ), a forensic psychiatrist at Central Regional Hospital in Butner, in order for Dr. Vance to determine Defendant's competence to participate in a separate criminal proceeding. Dr. Vance later averred in a 27 June 2013 affidavit:
The prison records, all from 2011, consistently reflected a sole mental health diagnosis of Antisocial Personality Disorder. The jail records, from 2012, describe his engaging in extreme behavior, such as smearing feces and flooding his cell. Consideration was given to his having a psychotic disorder, but it was ultimately felt that he was fabricating symptoms or being purposefully manipulative. [Defendant's] reviewed Sick Call Requests likewise did not reflect disordered or psychotic thinking.
Dr. Vance determined that Defendant was competent to stand trial in that separate matter.
In the present case, R. Andrew Keever (" Keever" ) from the Public Defender's Office was appointed to represent Defendant. However, in late 2012, Defendant informed Keever that he wished to represent himself. A hearing was conducted on 22 February 2013, in which Keever informed the trial court that Defendant had asked him to withdraw as his attorney so that Defendant could represent himself. Keever presented the trial court with a psychological evaluation of Defendant, presumably done by Dr. Vance, and the trial court asked Defendant if he wanted to represent himself. Defendant failed to answer many of the trial court's questions in a straightforward manner, but stated multiple times that he did want to represent himself without Keever's assistance. The trial court noted that Defendant's evasive and often bizarre answers to questions appeared " to be some type of malingering like they said in the report." The trial court found that Defendant " understands the courts and the proceedings and the nature of the charges against him," and Defendant was allowed to represent himself. Keever was appointed as Defendant's standby counsel. The trial court explained to Defendant:
Mr. Joiner, the reason I am allowing you to represent yourself is because it appears from the psychological evaluation that you don't suffer from any serious mental illness, although you do have an antisocial personality disorder, and you seem to be of average intelligence and not mentally deficient in any way.
Before the start of trial on 24 June 2013, the trial court revisited Defendant's desire to represent himself. During that hearing, Defendant refused to answer questions and declared that the trial court had no authority to conduct the trial. The trial court repeatedly asked Defendant if he wanted to represent himself, if he understood the charges against him, and if he understood the maximum prison sentence he was facing. Defendant responded to these questions by saying, " no," answering in contradictory ways, or refusing to answer at all. Defendant also yelled obscenities at the trial court and was otherwise extremely disruptive. During the pre-trial hearing, the trial court made eight different findings that Defendant was intentionally attempting to delay the proceedings.
Following this extended colloquy with Defendant, the trial court again ruled that Defendant could represent himself, with Keever as his standby counsel. The trial court made this decision based upon its findings that Defendant understood the nature of the proceedings, could appropriately answer the questions posed to him, but refused to engage appropriately simply as a means of delaying the proceedings. The trial court repeatedly advised Defendant that he could change out of his prison clothes, but Defendant refused to do so. The trial court ordered Defendant's shackles removed, but Defendant resisted, and stated that he was going to punch the judge in the " f***ing face." The trial court then determined that Defendant would remain shackled. Later, the trial court again offered to unshackle Defendant and provide civilian clothes, but Defendant declined.
Defendant refused to leave his cell on the second day of trial and had to be forced out. Defendant threatened to stab an officer, and while Defendant was in a holding cell at the courthouse, he defecated and smeared his feces on the cell walls. The proceedings were delayed approximately one hour and, when Defendant entered the courtroom, he was extremely disruptive and belligerent, including directing obscenities toward the judge. The trial court warned Defendant that if he did not desist in his behavior, he would be gagged. The trial court stated:
The defendant, by my unofficial count, he talked, uninterrupted, continuously for at least 10 minutes. I gave him a warning that he would be gagged if he continued to be so disruptive. Again, he was so loud, in fact yelling, that there was basically nothing the Court could say without creating a muddled record. The Court does intend to gag the defendant if he continues to act like this.
I'm going to ask the sheriff to get the appropriate measures to gag him. Make sure his nostrils are clear so he can breathe.
The trial court took a recess to give Defendant another chance to conduct himself appropriately.
THE COURT: Let the record reflect that we're back in session. We went in -- we took a recess after the defendant's last tirade at approximately 10:57 a.m. It is now approximately 11:43, so I've given the defendant plenty of time to calm down. We'll see how it goes.
He's not in the courtroom yet. We'll bring him here in a minute.
His outstanding standby counsel Mr. Keever has been here the entire time.
Mr. Keever, just so you know, I intend to proceed. If he continues to act as he has been acting, he will be gagged. I will find, I'm going to find that he's waived his right to proceed pro se. You will be representing him. Do you understand?
MR. KEEVER: I understand. I would need to make the appropriate objections at the appropriate time if that happens.
THE COURT: Sure. You object. But the Court is concerned. I want to insure a fair trial. And if he refuses to cooperate, I want someone to be able to work as best he can under the circumstances for the defendant on his behalf. To do otherwise would be to allow every single defendant who wants a mistrial simply to act up and we'd never have a trial. So I'm going to give him another opportunity.
Again, court opened at nine-thirty, just shortly after nine-thirty. It's now almost 11:45, so he has certainly succeeded in delaying this trial for quite a while. The Court has exercised as much forbearance, restraint, and patience as it can. I'm going to proceed. We are going to have a hearing about the restraint in the absence of the jury. But if he ...