in the Court of Appeals 24 April 2019.
by Defendant from judgments entered 11 November 2017 by Judge
Beecher R. Gray in Cabarrus County Nos. 15CRS001292, -1293,
Attorney General Josh Stein, by Special Deputy Attorney
General Keith Clayton, for the State-Appellee.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Wyatt Orsbon, for Defendant-Appellant.
appeals from judgments entered upon jury verdicts finding her
guilty of three counts of felony embezzlement following trial
in early November 2017. Defendant contends that the trial
court erred by (1) failing to conduct a competency hearing
before proceeding with the trial in her absence following her
mid-trial ingestion of intoxicants, and (2) amending the
judgments to reflect a different date for the commission of
the relevant crimes in her absence. We discern no error.
July 2015, Defendant was indicted by a Cabarrus County Grand
Jury on four counts of felony embezzlement. On 30 November
2015, superseding indictments were issued. The State
dismissed one of the counts on 4 May 2017, leaving Defendant
charged with two Class C and one Class H counts of felony
trial began on 6 November 2017. Defendant was present in the
courtroom on that date, as well as on 7 and 8 November 2017,
as the State presented its case-in-chief. During those first
three days of the trial, Defendant conferred with her trial
counsel on multiple occasions, and neither Defendant nor her
counsel raised the issue of Defendant's competency to the
evening of 8 November 2017, Defendant ingested 60
one-milligram Xanax tablets in an apparent intentional
overdose, and was taken to the hospital for treatment. The
trial court was made aware of this fact on the morning of 9
November 2017 before the trial resumed. The trial court told
the jury there would be a delay and sent them to the jury
room. The parties and the trial court then discussed the
impact of Defendant's overdose on the proceedings with
reference to a petition for involuntary commitment by which
the treating physician sought to keep Defendant for
observation and further evaluation. In the petition for
involuntary commitment, the physician opined that Defendant
was "mentally ill and dangerous to self or others or
mentally ill and in need of treatment in order to prevent
further disability or deterioration that would predictably
result in dangerousness" and "ha[d] been
experiencing worsening depression and increased thoughts of
self-harm." The trial court asked the parties to draft
an order for the release of Defendant's medical records
and to research the legal import of a defendant's absence
from trial under such circumstances, and recessed the
the proceedings resumed later that afternoon, the State's
attorney stated that he had found case law that he believed
allowed the trial to proceed in Defendant's absence,
directing the trial court's attention to State v.
Minyard, 231 N.C.App. 605, 753 S.E.2d 176 (2014),
discussed below. But "in an abundance of caution, "
the State's attorney suggested continuing the proceedings
until the beginning of the following week in case Defendant
was able by that time to return to the courtroom. The trial
court agreed, and released the jury. Later that afternoon,
the trial court signed the order for the release of
Defendant's medical records, revoked Defendant's
bond, and issued an order for Defendant's arrest once she
left the hospital.
the proceedings resumed on 13 November 2017, Defendant was
again absent from the courtroom and, according to her trial
counsel, remained in the hospital undergoing evaluation and
treatment. The trial court asked Defendant's trial
counsel: "Up [until] the time that this matter occurred,
Mr. Russell, you have not observed anything of [Defendant]
that would indicate [Defendant] lacked competency to proceed
in this trial, would that be a fair statement?"
Defendant's trial counsel agreed. The trial court then
ruled that the trial would proceed in Defendant's absence
because Defendant "voluntarily by her own actions made
herself absent from the trial[.]" Defendant's trial
counsel noted an objection to the ruling on voluntary
absence, but did not ask the trial court to conduct a
competency hearing or object to the trial court's
decision to proceed without conducting a competency hearing.
bringing the jury into the courtroom and proceeding with the
trial, the trial court admitted Defendant's medical
records (which it had received over the weekend) and the
petition for involuntary commitment, and noted for the record
that it had considered this evidence in deciding to proceed.
The trial court then brought the jury back into the
courtroom, instructed the jurors not to consider
Defendant's absence in weighing the evidence or
determining guilt, and allowed the State to continue to
present its case.
close of the State's evidence, Defendant moved to
dismiss. Defendant argued that the State had presented
insufficient evidence to convict, but did not argue for
dismissal based upon either Defendant's absence from the
trial or the fact that the trial court had not conducted a
competency hearing before proceeding. The trial court denied
put on no evidence, rested, and renewed its motion to dismiss
for insufficient evidence. Defendant again did not argue as
bases for dismissal either Defendant's absence from the
trial or the fact that the trial court had not conducted a
competency hearing before proceeding. The trial court again
denied Defendant's motion. The jury deliberated and
ultimately found Defendant guilty of all three charges later
returned to the courtroom on 16 November 2017 for sentencing,
and testified on her own behalf, providing a lengthy personal
statement accepting responsibility for her actions and
responding to the questions of her trial counsel and the
State's attorney without difficulty. The trial court then
entered judgment against Defendant: (1) imposing consecutive
presumptive-range sentences of 60 to 84 months'
imprisonment for the Class C felonies; (2) imposing a
presumptive-range sentence of 6 to 17 months'
imprisonment for the Class H felony, which the trial court
suspended for 60 months of supervised probation; and (3)
ordering Defendant to pay $364, 194.43 in restitution.
filed a written notice of appeal on 28 November 2017.
Sometime before 28 December 2017, the trial court entered
amended judgments in response to a request for clarification
from the Combined Records Section of the North Carolina
Department of Public Safety, changing the "Offense
Date[s]" on each of the judgments, and the Cabarrus
County Clerk of Superior Court filed Combined Records'
request with a response thereto noting that the trial court
had committed "clerical error, only." Defendant was
not present when the judgments were amended.
contends that the trial court erred by (1) failing to conduct
a competency hearing before proceeding with the trial in her
absence following her overdose and (2) amending the judgments
in her absence. We address each argument in turn.
is well established that the Due Process Clause of the
Fourteenth Amendment prohibits the criminal prosecution of a
defendant who is not competent to stand trial."
Medina v. California, 505 U.S. 437, 439 (1992);
see State v. Young, 291 N.C. 562, 568, 231 S.E.2d
577, 581 (1977) ("a conviction cannot stand where
defendant lacks capacity to defend himself"). A
defendant is competent to stand trial when he has
"sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding" and
has "a rational as well as factual understanding of the
proceedings against him." Dusky v. United
States, 362 U.S. 402, 402 (1960); see State v.
Badgett, 361 N.C. 234, 259, 644 S.E.2d 206, 221 (2007)
North Carolina, a trial court has a statutory duty to hold a
hearing to resolve questions of a defendant's competency
if the issue is raised by any party. N.C. Gen. Stat. §
15A-1002(b) (2017). In this case, Defendant never asserted
her statutory right to a competency hearing at trial, and
therefore waived that right. Badgett, 361 N.C. at
259, 644 S.E.2d at 221 ("[T]he statutory right to a
competency hearing is waived by the failure to assert that
right at trial.").
the statutory duty, a "trial court has a constitutional
duty to institute, sua sponte, a competency hearing
if there is substantial evidence before the court indicating
that the accused may be mentally incompetent."
Young, 291 N.C at 568, 231 S.E.2d at 581 (quotation
marks, emphasis, and citation omitted); see Godinez v
Moran, 509 U.S. 389, 401 n13 (1993) ("[A]
competency determination is necessary only when a court has
reason to doubt the defendant's competence") Put
another way, the trial court "is required to hold a
competency hearing when there is a bona fide doubt as to the
defendant's competency" State v Staten, 172
NC App 673, 678, 616 S.E.2d 650, 654 (2005) The need for a
competency hearing may arise at any point during the
proceeding, "from the time of arraignment through the
return of a verdict" Moran, 509 U.S. at 403
(Kennedy, J, concurring). "[E]vidence of a
defendant's irrational behavior, his demeanor at trial,
and any prior medical opinion on competence to stand trial
are all relevant" to the determination of whether a
hearing is required. Drope v. Missouri, 420 U.S.
162, 180 (1975). But "[t]here are, of course, no fixed
or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed[.]"
appeal, Defendant argues that because of her history of
mental illness and her overdose, the trial court had
substantial evidence following the overdose that Defendant
may have been incompetent to stand trial, and thus the trial
court was constitutionally required to initiate a competency
hearing sua sponte before proceeding, regardless of
the fact that Defendant did not raise the issue. It is true
that since the United States Constitution requires a trial
court to institute a competency hearing sua sponte
upon substantial evidence that the defendant may be mentally
incompetent, Young, 291 N.C. at 568, 231 S.E.2d at
581, it follows that a defendant may not waive her
constitutional right to a competency hearing (when required)
by failing to raise the issue at trial.
held, however, that where a defendant waives their
constitutional right to be present at a non-capital trial, a
sua sponte competency hearing is not required.
Minyard, 231 N.C.App. at 621, 753 S.E.2d at 188. A
defendant waives the right to be present at trial by
voluntarily absenting herself from the trial. State v.
Wilson, 31 N.C.App. 323, 326-27, 229 S.E.2d 314, 317
(1976) (holding that a "defendant's voluntary and
unexplained absence from court after his trial begins
constitutes a waiver of his right to be present");
see Diaz v. United States, 223 U.S. 442, 455 (1912)
("[W]here the offense is not capital and the accused is
not in custody, the prevailing rule has been, that if, after
the trial has begun in his presence, he voluntarily absents
himself, this does not nullify what has been done or prevent
the completion of the trial, but, on the contrary, operates
as a waiver of his right to be present and leaves the court
free to proceed with the trial in like manner and with like
effect as if he were present."). And this Court has held
that a defendant's voluntary ingestion of intoxicants may
result in voluntary absence and thus waiver of the
constitutional right to be present such that a sua
sponte competency hearing is not a prerequisite to
proceeding with the trial. Minyard, 231 N.C.App. at
621, 753 S.E.2d at 188.
Minyard, the defendant intentionally overdosed on
tranquilizers and alcohol during jury deliberations, and
"became lethargic and slumped over in the
courtroom." Id. at 613, 753 S.E.2d at 183. The
trial court asked the defendant to "do [his] very best
to stay vertical, stay conscious, stay with us."
Id. at 612, 753 S.E.2d at 183. But the defendant
became "stuporous and non-responsive[, ]" and the
trial court had the sheriff escort the defendant from the
courtroom to seek medical attention. Id. at 613,
615, 753 S.E.2d at 183-84. The jury subsequently returned
with a guilty verdict, and the defendant appealed.
Id. at 614, 753 S.E.2d at 183.
appeal, the Minyard defendant argued, inter
alia, that the trial court committed reversible error by
failing to institute a competency hearing sua sponte
before proceeding once the defendant became non-responsive.
Id. at 615, 753 S.E.2d at 184. The Minyard
Court noted that the defendant's conduct "provide[d]
ample evidence to raise a bona fide doubt whether [the
d]efendant was competent to stand trial[, ]" and that
"[s]uch conduct would ordinarily necessitate a sua
sponte [competency] hearing." Id. at 626,
753 S.E.2d at 190. The Court also noted, however, that the
defendant "voluntarily ingested large
quantities of intoxicants in a short period of time
apparently with the intent of affecting his competency."
Id. at 626, 753 S.E.2d at 191 (emphasis in
original). Because the ingestion of the intoxicants was
voluntary, the Court held that the defendant had
"voluntarily waived his constitutional right to be
present, " accordingly "disagree[d] with [the
d]efendant that a sua sponte competency hearing was
required, " and concluded that the trial court had not
erred by proceeding without conducting such a hearing.
Id. at 621, 753 S.E.2d at 188.
controls our analysis in this case. Like the Minyard
defendant, Defendant here ingested a large quantity of
intoxicants which rendered her unable to be present at her
trial, and did so because she was concerned about the
anticipated outcome of the trial. Compare id. at
612, 614, 753 S.E.2d at 183 (noting witness testimony that
the defendant took 15 Klonopin because he was "worried
about the outcome" of the trial), with Rule
9(d)(2) Ex. at 88 (attending physician's report that
Defendant "took 60 mgs of Xanax in an attempt to kill
herself to avoid going to jail for Embezzlement"). The
question of whether Defendant's ingestion of the
intoxicants was an attempted suicide rather than an attempt
to render herself non-responsive does not distinguish
Minyard from this case, because in both cases the
defendants ingested a large quantity of intoxicants that
rendered them unable to be present at their
trials. And following Minyard, unless the
trial court erred by concluding that Defendant
voluntarily ingested the intoxicants that caused her
absence, and thereby waived her right to be present at her
trial, the failure to conduct a sua sponte hearing
regarding the competency of the voluntarily-absent Defendant
was not error. Minyard, 231 N.C.App. at 621, 753
S.E.2d at 188.
such, the question is not whether there should have been a
competency hearing, but whether the action resulting in the
waiver of Defendant's right to be present was voluntary.
See id. at 626, 753 S.E.2d at 191 ("Voluntary
waiver of one's right to be present is a separate inquiry
from competency, and in a non-capital case, a defendant may
waive the right by their own actions, including actions taken
to destroy competency."). We review the trial
court's conclusion that Defendant voluntarily waived her
constitutional right to be present de novo.
State v. Anderson, 222 N.C.App. 138, 142, 730 S.E.2d
262, 265 (2012) ("The standard of review for alleged
violations of constitutional rights is de
novo." (quotation marks and citation omitted));
cf. State v. Ingram, 242 N.C.App. 173, 184, 774
S.E.2d 433, 442 (2015) (reviewing voluntariness of waiver of
Miranda rights de novo). Whether the action
was voluntary "must be found from a consideration of the
entire record[.]" Ingram, 242 N.C.App. at 184,
774 S.E.2d at 442 (quotation marks and citation omitted).
arguments that she did not voluntarily waive her right to be
present are not supported by the law and are belied by a
holistic review of the record. In her brief, Defendant first
argues that "any determination that a defendant waived
the right to be present at trial is predicated on an
antecedent determination that the defendant is competent to
stand trial." But this argument contradicts the Supreme
Court's guidance that "a competency determination is
necessary only when a court has reason to doubt the
defendant's competence." Moran, 509
U.S. at 401 n.13 (emphasis added); Young, 291 N.C.
at 568, 231 S.E.2d at 581 (a "trial court has a
constitutional duty to institute, sua sponte, a
competency hearing if there is substantial evidence
before the court indicating that the accused may be mentally
incompetent." (emphasis added)). This argument is
also argues that her overdose was not a voluntary act, but
rather the result of mental illness. There is evidence in the
record that Defendant has had mental health issues in the
past, including a "past medical history of
retention" and a "history of a mood disorder[,
]" and was diagnosed by the attending physician
following the overdose with "[a]djustment disorders,
[w]ith mixed anxietyand [sic] depressed mood" and
"[u]nspecified anxiety disorder."
consideration of the entire record does not convince us that
Defendant's overdose was the result of mental illness.
The record reflects that Defendant reported to the attending
physician at the hospital that, prior to the overdose, (1)
she had not been receiving any outpatient mental health
services other than getting prescriptions from her primary
care doctor, (2) she had never before been psychiatrically
hospitalized, and (3) she had never before tried to hurt
herself. Defendant spent the three days she was present at
her trial conferring with her trial counsel, who told the
trial court that he had not observed anything causing him
concern about Defendant's competency prior to the
overdose. And after speaking with Defendant and her stepson
following the overdose, the attending physician noted that
Defendant (1) had "informed her family that she was not
going to go to jail" and "planned to kill herself[,
]" (2) wrote goodbye letters to her grandchildren, and
then (3) ingested an overdose of a powerful intoxicant
"trying to kill herself." The fact that Defendant
was committed involuntarily subsequent to her overdose does
not change our analysis, since Defendant's involuntary
commitment was a direct result of her overdose. N.C. Gen.
Stat. § 15A-1443(c) (2017) ("A defendant is not
prejudiced by . . . error resulting from his own
foregoing facts convince us that Defendant's attempt to
execute a purposeful plan to commit suicide by overdosing on
powerful intoxicants to avoid jail was done voluntarily. As a
result, Defendant voluntarily waived her right to be present
at her trial, and following Minyard, we conclude
that the trial court did not err by proceeding ...