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State v. Hollars

Court of Appeals of North Carolina

August 6, 2019


          Heard in the Court of Appeals 28 March 2019.

          Appeal by Defendant from Judgments entered 12 January 2018 by Judge William H. Coward in Watauga County Superior Court Nos. 13 CRS 2118-2121.

          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.

          HAMPSON, JUDGE.

         Factual and Procedural Background

         Jack 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:

         Defendant 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.

         Although 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.' "

         On 7 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 stating:

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.

         The Daymark Report also recommended further assessment and inpatient treatment of Defendant.

         Based 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.

         This Report also noted Defendant "may gain capacity if he receives mental health treatment."

         Based 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.

         On 14 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.

         On 31 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.

         On 5 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.

         On 9 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."

         On 7 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."

         On 8 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 trial."

         Thereafter, 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.

         On 8 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.

         The 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 the ...

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