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State v. Sides

Court of Appeals of North Carolina

October 1, 2019

STATE OF NORTH CAROLINA,
v.
CAROLYN D. "BONNIE" SIDES, Defendant.

          Heard in the Court of Appeals 24 April 2019.

          Appeal by Defendant from judgments entered 11 November 2017 by Judge Beecher R. Gray in Cabarrus County Nos. 15CRS001292, -1293, Superior Court.

          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.

          COLLINS, JUDGE.

         Defendant 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.

         I. Background

         On 7 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 embezzlement.

         Jury 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 trial court.

         On 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 proceedings.

         When 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.

         When 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.

         Before 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.

         At the 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 Defendant's motion.

         Defendant 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 that afternoon.

         Defendant 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.

         Defendant 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.

          II. Discussion

         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 overdose and (2) amending the judgments in her absence. We address each argument in turn.

         a. Competency Hearing

         "It 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) (applying Dusky).

         In 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.").

         Beyond 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[.]" Id.

         On 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.

         We have 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.

         In 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.

         On 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.

         Minyard 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.[1] 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.

         As 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).

         Defendant's 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 therefore unavailing.

         Defendant 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."

         But a 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 conduct.").

         The 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 ...


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