in the Court of Appeals 28 March 2019.
by Defendant from Judgments entered 12 January 2018 by Judge
William H. Coward in Watauga County Superior Court Nos. 13
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Josephine N. Tetteh, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
and Procedural Background
Howard Hollars (Defendant) appeals from his convictions for
three counts of Indecent Liberties with a Child and three
counts of Second-Degree Sexual Offense. The Record and
evidence presented at trial tend to show the following:
was arrested in connection with this case on 10 February
2012. On 3 September 2013, Defendant was indicted by a
Watauga County Grand Jury for one count of Statutory Sexual
Offense of a Person Who Is Under 13 Years of Age, three
counts of Statutory Sexual Offense of a Person Who Is 13-15
Years of Age, and four counts of Indecent Liberties with a
Child. Subsequently, on 4 May 2015, superseding indictments
were entered on these offenses, charging Defendant with three
counts of Indecent Liberties with a Child and three counts of
Second-Degree Sexual Offense. These indictments stemmed from
incidents that occurred between 1977 and 1981.
Defendant initially waived his right to court-appointed
counsel, on 23 April 2012, the trial court in its discretion
decided to provide Defendant with court-appointed counsel
because Defendant "was not responsive to [the]
Court's questions" during his initial appearance. On
4 May 2012, Defendant's counsel filed a motion to have
Defendant evaluated because of Defendant's behavior on 1
May 2012. On that date, Defendant's counsel met with
Defendant at the Watauga County Jail for approximately one
hour. During this visit, "Defendant's thought
process [was] scattered and random[, ] and he [was] unable to
focus." Defendant claimed to have no memory of the
events leading to his current charges because "God
closed the door and I cannot see." Further, Defendant
stated that he would not take any medication because
"chemicals in the water at Parris Island in 1968 when he
was in the Marine Corps 'messed up [his] brain.'
May 2012, Defendant underwent a forensic evaluation by
Daymark Recovery Services, which rendered a report on
Defendant's capacity to proceed to trial two days later
(Daymark Report). The Daymark Report noted some of the same
concerns that Defendant's counsel had expressed
previously about Defendant's behavior, such as
"religious concerns and ideas to an extent that
suggested a dysfunctional preoccupation";
Defendant's unwillingness to discuss the nature of the
charges that he was facing; and Defendant's aversion to
taking his medications. The Daymark Report concluded by
It is the opinion of the Certified Forensic Evaluator that
[Defendant] is not competent to stand trial, and is impaired
in providing the expected ability to assist in his defense.
[Defendant] showed limited ability to cooperate in even basic
discussion of his case with the undersigned despite a history
of cooperative interaction over many years. [Defendant]
appears psychotic and delusional, and in need of medication
and treatment to relieve his condition. It seems likely,
given [Defendant's] history, that a reestablishment of
his psychotropic medication regimen would reestablish his
capacity to proceed to trial. However, it also appears
unlikely that he will allow this voluntarily in his current
state of mind.
Daymark Report also recommended further assessment and
inpatient treatment of Defendant.
on the Daymark Report, the trial court entered an order
committing Defendant to Central Regional Hospital for an
examination on his capacity to proceed. On 25 July 2012, Dr.
David Bartholomew (Dr. Bartholomew) of Central Regional
Hospital evaluated Defendant and found him incapable to
proceed in a written report dated 9 August 2012 (First Dr.
Bartholomew Report). Dr. Bartholomew based his Report on,
inter alia, Defendant's prior medical records,
the Daymark Report, and a 75-minute in-person evaluation of
Defendant. The First Dr. Bartholomew Report contained many of
the same concerns as the Daymark Report and concluded that:
[Defendant] has a history of significant mental health
problems including psychosis and depression. He is currently
not receiving any treatment for his conditions. He is quite
impaired at the present time as a result of symptoms of his
mental illness. He is unable to describe a reasonable
understanding of the nature and objects of the proceedings
against him. He is not rational about his place in regards to
the proceedings. He is unable to assist his attorney in a
reasonable manner. [Defendant] is not capable to proceed.
Report also noted Defendant "may gain capacity if he
receives mental health treatment."
on the First Dr. Bartholomew Report, the trial court entered
an order on 18 September 2012, finding Defendant incapable to
proceed and involuntarily committing Defendant to Broughton
Hospital. Defendant would remain at Broughton Hospital until,
and throughout, his trial in January of 2018. During this
time period, Defendant would undergo several other forensic
evaluations with differing results.
May 2013, Dr. Bartholomew entered another report, based on a
forensic evaluation from the previous month, finding
Defendant competent to stand trial (Second Dr. Bartholomew
Report). This Second Dr. Bartholomew Report found that
Defendant's "mental health condition has improved
with medication" but recommended continued psychiatric
treatment of Defendant.
March 2015, Dr. Bartholomew conducted a third forensic
evaluation of Defendant and entered a written report on 14
April 2015 (Third Dr. Bartholomew Report). Although this
Report concluded Defendant was capable to proceed, Dr.
Bartholomew noted that Defendant "has a longstanding
mental illness which has been labeled as schizophrenia,
schizoaffective disorder, or bipolar disorder by various
clinicians." The Report further recommended that:
Given his dementia, [Defendant] may not function well at the
jail and may likely decompensate again if housed overnight in
the jail. If [Defendant's] future court visits will take
more than one day, I would recommend that, if possible, he
stay at Broughton Hospital each night and be transported to
court each morning or day. 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.
May 2015, the trial court held a competency hearing where Dr.
Bartholomew testified that in his opinion Defendant was
competent. However, the trial court had reservations
regarding Defendant's capacity and ordered Defendant to
undergo an additional psychiatric evaluation before
determining Defendant's capacity to stand trial. On 23
July 2015, the trial court appointed Dr. James E. Bellard
(Dr. Bellard) to conduct this evaluation.
October 2015, Dr. Bellard held a forensic interview with
Defendant; thereafter, Dr. Bellard found Defendant
incompetent to proceed and reduced his findings to a written
report on 4 November 2015 (Dr. Bellard Report). The Dr.
Bellard Report found Defendant suffered from hallucinations
and diagnosed him with schizophrenia and mild neurocognitive
disorder. In the Report, Dr. Bellard expressed that
"[he] simply cannot see [Defendant] as competent to
stand trial" and that if Defendant proceeded to trial,
he "would have difficulty refraining from irrational or
unmanageable behavior during a trial."
March 2016, the trial court entered an Order on
Defendant's Incapacity to Proceed (Incapacity Order)
finding Defendant "lacks capacity to proceed." In
the Incapacity Order, the trial court found that
"Defendant suffers from Schizophrenia and experiences
auditory hallucinations . . . on a regular basis." The
trial court also found Defendant had a mild neurocognitive
disorder that "impacts his daily life and
competency[.]" Lastly, the trial court
noted-"Defendant's difficulty maintaining mental
stability upon transfer to the jail suggests that he would
have difficulty tolerating stress at a trial or while
awaiting trial, and he would have difficulty refraining from
irrational or unmanageable behavior during a trial."
December 2016, Dr. Bartholomew conducted another forensic
evaluation of Defendant and found he was capable to proceed,
based on Defendant's progress with his treatment and
continued medication. On 15 August 2017, Dr. Bartholomew and
Dr. Reem Utterback (Dr. Utterback) examined Defendant and
found him competent in a report dated 24 August 2017 (Final
Dr. Bartholomew Report). This Report concluded that "it
is reasonable to assume [Defendant] will maintain this [level
of] functioning in the foreseeable future and during a
the trial court held a competency hearing on 5 September
2017, finding Defendant competent to stand trial. On 2
January 2018, Defendant filed a Motion to Dismiss citing the
delay in prosecuting his case. Defendant contended there was
"no physical evidence whatsoever that any crime ever
occurred[.]" Defendant further noted his "Capacity
to Proceed has been in question since his initial arrest in
2012" and various treatment attempts and psychological
issues "account for almost all the delay between
Defendant's initial arrest in 2012 and the present."
Defendant conceded the delay was "not the fault of the
State" but contended the passage of time, in terms of
both witness recollection and Defendant's progressing
psychological issues, "has worked to substantially
prejudice Defendant." That same day, Defendant also
filed a Motion to Quash Indictments and a second Motion to
Dismiss, citing double jeopardy and other constitutional
concerns. On 5 January 2018, Defendant filed a Supplement to
his Motion to Dismiss alleging additional details regarding
his mental health.
January 2018, the matter proceeded to trial, and the trial
court did not hold another competency hearing before
commencing this trial. After the State's first witness
had finished her testimony on 10 January 2018,
Defendant's counsel brought to the trial court's
attention his concerns regarding Defendant's competency.
Specifically, Defendant's counsel stated:
Your Honor, . . . I just had a brief conversation with
[Defendant] during which I began to have some concerns about
his capacity and I would ask the Court to address him
regarding that. . . . I've been asking him how he's
doing and if he knows what's going on. And up until just
now he's been able to tell me what's been going on.
He just told me just a few minutes ago that he didn't
know what was going on. . . . I asked him if he understood
what was going on. He said, no, he didn't know what [the
witness] was talking about. And that has not been the way he
has been responding throughout this event, either yesterday
or earlier today. And in light of the history with him, I
just want to make sure. . . . I feel we need to make sure.
And I'm not asking for an evaluation[.] I would just ask
for the Court to query him quickly to make sure . . . I'm
seeing something that is not there.
trial court suggested Defendant's lack of understanding
was likely attributable to earlier discussions of Rules 403
and 404(b) of the North Carolina Rules of Evidence, not
Defendant's mental state. Thereafter, the trial court
stated it would address this issue the following morning. The
next morning, the ensuing exchange between the trial court
and Defendant's counsel occurred:
THE COURT: Do you have any more information or arguments you
want to make as to [Defendant's] capacity this morning?
[DEFENSE COUNSEL]: No, Your Honor. When [Defendant] came in
this morning he greeted me like he has other mornings. I
interacted with him briefly and he interacted like he has
been interacting every morning. And I've not had any
questions about his capacity this morning. I just had some
yesterday evening because he kind of looked at me and the
look in his face was like he had no idea who I was.
THE COURT: Yeah, well, any time you get to -- like I said,
any time you get to talking about 404(b) and 403 everybody in