in the Court of Appeals 5 June 2017.
by Defendant from order entered 19 May 2016 by Judge Robert
T. Sumner in Superior Court, Gaston County No. 13 CRS
Attorney General Joshua H. Stein, by Assistant Attorney
General Kathleen N. Bolton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender James R. Grant, for Defendant.
Stamey Payne ("Defendant") appeals from the trial
court's order finding her not guilty by reason of
insanity ("NGRI") of one count of attempted
first-degree murder and one count of assault with a deadly
weapon inflicting serious injury. On appeal, Defendant
asserts that she was denied her constitutional right to
assistance of counsel when her defense lawyer pursued a
pretrial defense of NGRI against her wishes.
presented at multiple pretrial hearings, based in part on
court-ordered psychological reports, tended to show the
following: On 4 August 2013, Defendant was at her home when
she pointed a .22 caliber handgun at A.P., her
fifteen-year-old daughter, and said: "I'm
sorry." A.P. screamed for her brother and
Defendant's twenty-eight-year-old son, R.P., ran into the
room and wrestled the gun from Defendant. During the
struggle, the gun discharged twice. A.P. was hit in her left
shoulder by a bullet, and R.P. was hit in his right hand.
Defendant then "went outside with a knife and tried to
get hit by a car, and then began cutting her wrists."
Defendant was arrested that day, and indicted for attempted
first-degree murder and assault with a deadly weapon
inflicting serious injury on 19 August 2013.
after the incident, on 5 August 2013, a forensic nurse
practitioner conducted a psychiatric consultation with
Defendant and diagnosed her as suffering from psychosis or
being psychotic at the time of the 4 August 2013 incident.
Defendant's Counsel filed an ex parte motion on 9
September 2013, requesting the trial court to approve funds
to retain a mental health expert to examine Defendant in
order "to determine whether or not  Defendant has any
defenses based upon  psychological, mental, emotional and
personality problems." Defendant's counsel's
motion was granted, and Defendant was evaluated by an expert
retained by her counsel. Defendant's counsel filed a
motion on 8 April 2014 stating that Defendant "hereby
notifies the State of [her] intention to use at trial
defenses of, but not limited to alibi, mental infirmity,
diminished capacity, self-defense, mistake of fact, insanity
Initial Capacity Hearings
At a 6
November 2014 hearing, the trial court was informed by the
State that the defense expert had completed his mental health
evaluation of Defendant. The State requested that Defendant
be committed to Central Region Hospital for evaluation by
State experts on capacity and insanity issues.
Defendant's counsel did not object. Defendant stated:
"I understand the State wants a second opinion for an
evaluation, and I agree with that, if that's what the
State feels like they need[.]" However, she also
informed the trial court: "My attorney and I do not
agree on a lot of things. He's made a lot of decisions
without even talking to me about it." Defendant further
I let [my attorney] know on August the 18th of  that I
wanted to plead not guilty because it was an accident. [My
attorney] waited until April of this year and put in a plea
for insanity. He told me the truth was not good enough, it
was not going to work. He thought an insanity plea was the
best. But I know what happened because I was there, and my
children were there. I didn't try to murder anybody and I
did not shoot anyone. And I know this and my children know
. . . .
I know I didn't make a confession, I didn't do it. I
did not try to murder anybody and I didn't shoot anybody.
You don't confess to that. I don't know why my
attorney keeps trying to do this insanity plea when I've
made it clear to him that it was an accident, the truth was
gonna have to be good enough.
trial court noted that Defendant sounded "very lucid,
very rational, " but that it had a petition that said
Defendant had mental health issues and a history of paranoia,
as well as "two lawyers telling [the court] that they
think that [Defendant] need[s] to be examined by another
psychiatrist, " and so the trial court granted the
State's request to commit Defendant for further
evaluation to determine her capacity to proceed.
capacity to proceed was evaluated at a 21 July 2015 hearing.
At that hearing, Defendant stated she had told her counsel
she wanted a trial by jury, but that he had not gotten back
in contact with her about the matter. Based upon the evidence
presented, Defendant was again ordered to be
"involuntarily committed . . . for appropriate treatment
until such time as she be rendered competent in this
Pretrial Determination of NGRI
hearing was conducted on 7 April 2016, which the State
explained to the trial court was for the following two
Your Honor, we put this on the calendar specifically for this
afternoon to address the defense of insanity pretrial. As we
were reviewing the court file and all of the evaluations that
have been done [Defendant's counsel] and I discovered
that there has not been a finding of capacity at this point.
So we will need to address that first. And once that
determination has been made then move to a pretrial hearing
as to the defense of insanity and whether or not it would
apply to [Defendant's] cases that are pending.
no written motion is included in the record, it appears
Defendant's counsel did move, pursuant to N.C. Gen. Stat.
§ 15A-959(c) (2015), for a pretrial determination by the
trial court that Defendant was NGRI of the crimes charged.
During the 7 April 2016 hearing, the State, Defendant's
counsel, and Defendant herself, agreed Defendant was
competent to assist her attorney and proceed to trial. The
trial court ruled that Defendant was competent to proceed,
and a hearing pursuant to N.C. G.S. § 15A-959(c) was
State requested that the trial court "move forward to
address specifically the second portion of the purpose of us
being here today, which is in regard to whether or not
insanity would be a viable defense for [Defendant] . . . at
trial proceedings" pursuant to N.C. G.S. §
15A-959(c). The trial court next heard testimony concerning
Defendant's motion for pretrial determination of
insanity. Defendant's expert witness testified that, in
her opinion, Defendant suffered from schizophrenia at the
time of the offenses and that Defendant "understood the
action of what she was doing but not the wrongfulness of the
action." After this testimony, which constituted the
entirety of the evidence presented, Defendant asked, and was
permitted, to make a statement to the trial court.
[DEFENDANT]: Your Honor, [my attorney] had spoke[n] to me
when I was informed of all of my options for a plea, when I
was in the hospital for four months. I took restorative
classes and that was an extensive explanation of the court
system and process and the pleas that were available to me
for the accusations made against me.
[My attorney] and I discussed that. And I expressed to [my
attorney] that I did not want him to file a motion for a NGRI
plea, that I realized it wasn't an option to me. But
basically for it to be heard without hearing all of the
evidence to be disputed and to have a proper jury hearing to
find me guilty of the crimes I'm alleged to have
committed. That it was an admission of guilt with an excuse
and that I would prefer - I did not want him to give that
plea, enter the motion for the use of that plea.
But [my attorney] did that without my knowledge, and he only
informed me of it on last Friday, April the 1st he informed
me of that. And that was pretty much it. But as far as it
being used in a trial, I have no problem with that. But to be
used without a proper trial to dispute any evidence against
me I feel like that would violate my rights.
THE COURT: Okay
[DEFENDANT]: And I'd ask that you would enter - that you
would deny an entry of a NGRI plea today before a proper
hearing and proper trial to establish guilt because it
hasn't been established I committed a crime. I
haven't been convicted of a crime to be found not guilty
THE COURT: All right. Thank you.
counsel then immediately argued that, based on the evidence
presented, the trial court should find Defendant "insane
and . . . not guilty[.]" The State agreed with the
recommendation of Defendant's counsel, but requested that
the trial court "make this a dismissal
with leave so that the State then is responsible and
aware of any future actions as it relates to
[Defendant]." (emphasis added).
the hearing, the trial court concluded:
[D]efendant has a serious mental illness, schizophrenia, was
psychotic at the time of the alleged crimes on August 4, 2013
and due to her psychosis, was unable to understand the
wrongfulness of her actions at the time they were allegedly
[D]efendant has a valid defense of insanity and the charges
arising out of the occurrences on August 4, 2013 should be
dismissed with leave as a matter of law.
trial court entered an order on 19 May 2016, which ordered
"the charges against [D]efendant be dismissed with leave
by the State based on the [trial court's] determination
that under N.C. G.S. § 15A-959, [D]efendant was insane
at the time the acts for which she is charged were
committed." Defendant appeals.