No. COA12-1353DISTRICT 15A
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)From Alamance County
v.)08-CrS-56590-1
)
WALTER F. DICKENS)
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DEFENDANT-APPELLANT’S BRIEF
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-ii-
SUBJECT INDEX
TABLE OF CASES AND AUTHORITIES...... ii
QUESTIONS PRESENTED...... 1
STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 2
STATEMENT OF THE CASE...... 2
STATEMENT OF THE FACTS...... 3
ARGUMENT:
THE TRIAL COURT ERRED BY FAILING
TO CONDUCT A HEARING ON MR DICKENS’S
CAPACITY TO PROCEED...... 6
CONCLUSION...... 13
CERTIFICATE OF SERVICE...... 14
TABLE OF CASES AND AUTHORITIES
Drope v. Missouri, 420 U.S. 162 (1975)...... 6
Pate v. Robinson, 383 U.S. 375 (1966)...... 6
State v. Ashe, 314 NC 28 (1985)...... 6
State v. McRae, 139 N.C. App. 387 (2000)...... 7-8,10,12
State v. Whitted, ___ N.C. App. ___, 705 S.E.2d 787 (2011)...... 8-10,11,12
N.C.G.S. § 15A-1002...... 7
N.C.G.S. § 15A-1442…...………………………………………………………….7
N.C.G.S. § 1446……...... 7
No. COA12-1353DISTRICT 15A
NORTH CAROLINA COURT OF APPEALS
***************************************
STATE OF NORTH CAROLINA)
)From Alamance County
v.)08-CrS-56590-1
)
WALTER F. DICKENS)
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DEFENDANT-APPELLANT’S BRIEF
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ISSUES PRESENTED
DID THE TRIAL COURT ERRED BY FAILING TO CONDUCT A HEARING ON MR DICKENS’S CAPACITY TO PROCEED?
- 1 -
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
As an appeal from a final judgment of a superior court, this appeal lies of right to the Court of Appeals according to the provisions of N.C.G.S. § 7A-27(b).
STATEMENT OF THE CASE
InSeptember of 2009, an AlamanceCounty grand jury returnedbills of indictment alleging that the appellant, Walter Dickens, had solicited another person to commit felonies. (R pp6-7).
The Hon. Howard Manningpresided over Mr Dickens’sjury trial during the 23 April 2012 criminal session of the superior court of AlamanceCounty. The petit jury found Mr Dickensguilty of the three charges submitted by the trial court. (R pp21-22). The trial court enteredjudgment on the verdicts and committed Mr Dickensto the custody of the North Carolina Department of Corrections fora minimum of sixty-five (65) months to a maximum of eighty-seven(87) months. (R pp 23-26).
Mr Dickens gave notice of appealin open court on 25 April 2012. (T p 228, Rp27). The clerk notified the court reporter of the trial court’s order for the production of the transcript on 26 April 2012,and after extensionsthe court reporterdelivered it to the parties on 15 September 2012.
MrDickensserved a proposed record on appeal on the state on 17 October 2012. (R p 34). The record on appeal was settled on 19 October 2012 and filed on 2 November 2012. (R pp 35, 36).
The Office of the Clerk of the North Carolina Court of Appeals mailed the printed record on appeal on 16 November 2012 and gave notice in writing that same day. By order dated 18 December 2012, this court extended the brief’s deadline to 21 December 2012.
STATEMENT OF THE FACTS
Walter Dickens was something of a “character”. He had a heart attack and heart surgery in 2007, and his personality seemed to change for the worse. (T pp 96-97, 170). He had worked as a paver and grader, cleared land, and as a security guard at a sawmill, and he continued to try and work after his surgery. (T pp 96). His wife, Audrey Dickens, likewise had heart surgery in late May 2009, and her recovery was long and almost lethal. (T pp 97, 98, 114-115). Her sister Nola visited her every day to help with her recovery, and Nola would give Mr Dickens updates. (T p 116).
Mr Dickens wanted his wife to come home. He called the hospital while Audrey was still on a ventilator, demanded that she be returned home by noon, and threatened to come to Cone Hospital in Greensboro and kill her. (T pp 115, 118). He kept calling the hospital and threatening Nola until he got arrested and sent to the mental hospital. (T p 119). While his wife was in the hospital, Mr Dickens bounced in and out the hospital and saw her at her hospital under supervision. After one of his discharges from the hospital, he visited Audrey at Nola’s home, where Audrey was staying, but two weeks later he called again and blamed Nola on Audrey’s poor cardiac health and surgery. (T p 121-123). Mr Dickens’s psychiatrist sent Mrs Dickens a letter explaining that Mr Dickens was angry with her but not a danger to her and that it would be better if she stayed away from Mr Dickens. (T pp 150-151).
In August 2009, Mr Dickens contacted a former co-worker, James Torain, and explained that he was mad with Mrs Dickens and wanted “someone to get rid of her.” (T p 69). Mr Torain “brushed him off” for a while but decided that Mr Dickens might be serious when Mr Dickens said he wanted Nola gone also. (T pp 69-70). Mr Torain contacted the sheriff, and the sheriff wired him up with a recording device that he wore to a meeting with Mr Dickens on 20 August 2009. Mr Dickens repeated his offer of paying $20,000 in exchange for his wife’s and sister-in-law’s deaths. (T p 72). On 24 August 2009, Mr Torain introduced a Roxboro police officer as the “trigger man”, and Mr Dickens again offered $20,000 for the deaths and asked to have Nola’s house burned down. (T pp 74, 81).
The sheriff arrested Mr Dickens in late August 2009. (T pp 160, 162). He remained in the jail or the hospital until his trial, amassing 975 days of jail credit toward his sentence as of the date of judgment, 25 April 2012. (T pp 6-7, R pp 23-26). While in jail, he had three evaluations at Central Regional Hospital of his capacity to proceed to trial. The first two evaluations led to the opinion that Mr Dickens was not competent to stand trial. After a third, longer hospitalization, Mr Dickens came back to the jail with a doctor’s opinion that he was now competent to stand trial. (T p 7).
On 10 February 2011, the trial court held a hearing on Mr Dickens’s capacity to proceed. The trial court reviewed the report from the hospital, incorporated it into its findings of fact, and concluded that Mr Dickens was capable of standing trial/ R pp 8-9). About a year later, Mr Dickens had new counsel appointed to represent him, and his trial started two or three months later, in late April 2012. (T p 7).
Before the start of the trial, the trial court noticed that Mr Dickens was “odd”. (T p 4). The prosecutor explained to the trial court about the competency evaluations and substitution of counsel. (T pp 6-7).
Mr Dickens testified on his own behalf. He was 73 years old and had a fourth-grade education. He was unsure whether he and Mrs Dickens had actually been married and did not remember when they had married. (T pp 168-169). He did not remember when he had undergone heart surgery. He did not know why Mrs Dickens went to the hospital or whether she had surgery. He did not remember visiting his wife in the hospital. (T pp 169-170, 173-174). He acknowledged that he had been to the hospital many times, but could not explain why he had been hospitalized. (T p 173). On cross-examination, he denied talking to Mr Torain about killing his wife and sister-in-law. He denied that it was his voice on the recordings and said it was “a frame-up job.” (T p 174). He admitted meeting the other man on 24 August 2009, but denied asking him to kill anyone. He explained that the man wanted to know where Nola lived because the man wanted to date Nola. (T pp 174-175). He did not know the names of his employees. (T p 176).
ARGUMENT
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A HEARING ON MR DICKENS’S CAPACITY TO PROCEED.
Standard of Review: Failure to conduct a necessary hearing on a defendant’s capacity to proceed is constitutional, structural error. Drope v. Missouri, 420 U.S. 162, 171 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966). Since the trial court violated a statutory mandate, the issue is automatically preserved for appeal without objection. State v. Ashe, 314 NC 28, 39-40 (1985); N.C.G.S. §§ 15A-1442(5b) and -1446(d)(18). This court reviews the trial court’s failure to follow the mandates found in N.C.G.S. § 15A-1002de novo.
Our Criminal Procedure Act provides that if an accused’s capacity to proceed is in question, “the court shall hold a hearing to determine the defendant’s capacity to proceed.” N.C.G.S. § 15A-1002(b). This question, whether the accused is capable of standing trial, may be raised at any time by any party or by the court. N.C.G.S. § 15A-1002(a).
In State v. McRae, 139 N.C. App. 387 (2000), this court determined that the trial court had erred by failing to hold the required hearing despite the fact that no party made a motion questioning Mr McRae’s capacity to proceed. Before Mr McRae’s first trial, Mr McRae had at least six evaluations regarding his capacity to proceed. Sometimes he was competent, sometimes not. The trial court conducted several hearings on competence, the last being on the first day of Mr McRae’s trial, 27 April 1998. The trial court found him competent to stand trial. Id. at 390-391. The case did not go to verdict and the trial court declared a mistrial. The state set the case on for re-trial on 11 May 1998. Id. at 391.
Between the mistrial and the second trial, on 6 May 1998, Mr McRae had another evaluation by the state’s doctor. Dr Rollins found Mr McRae capable of proceeding to trial.
While the trial court had access to Dr. Rollins’s 11 May 1998 written report, defendant made no pre-trial motion to determine his capacity to proceed to trial and the trial court did not conduct a post-evaluation competency hearing before his second trial. Defendant did not object to the trial court’s failure to hold such a hearing.
Id.
The McRae court held that Mr McRae “was entitled to receive a hearing on this issue of competency” and that his “failure to request a hearing or object to the court’s failure to issue a hearing … does not bar him from seeking relief on appeal. By failing to conduct a hearing with appropriate findings and conclusions, [Mr McRae] was not afforded due process.” Id. (internal citations omitted).
The McRae court fashioned a remedy for this due process violation that fell short of ordering a new trial; it remanded the case and gave the trial court the power to decide whether it would be able to make a retrospective determination of Mr McRae’s capacity to proceed. If the trial court concluded that a retrospective determination was still possible, it would hold a hearing. If the trial court did not so conclude, it would order a new trial for if and when the defendant was competent. Id. at 391-392.
In State v. Whitted, ___ N.C. App. ___, 705 S.E.2d 787 (2011), this court followed the McRae court and ordered a retrospective competency hearing for a woman whose psychiatric history and behavior in court compelled the trial court to hold a competency hearing.
On appeal, Ms Whitted argued that the evidence showed that “she was possibly mentally incompetent during her trial[.]” Id. at S.E.2d 791. The magistrate had noted her mental health history at her first appearance. She had an “emotional outburst” after the trial court revoked her bond. She refused to return to the courtroom during the third day of trial and refused to cooperate once forcibly taken into the courtroom. She exhibited bizarre behavior at sentencing. Id. at S.E.2d 791-792. The Whitted court decided that the statements and mental health history “created a bona fide doubt as to her competency.” Id. at S.E.2d 792.
The state argued that the trial court had in fact conducted a hearing on Ms Whitted’s competency when the trial court examined her about her pain medication on the first day of trial. The Whitted court disagreed and noted that the inquiry was limited to the effects of the pain medication. The court went on:
More importantly, the trial court’s limited inquiry was not timely. The trial court questioned Defendant about the effects of her medication on 11 January 2010, but her refusal to return to the courtroom and resulting outbursts occurred two days later on 13 January 2010. As this Court previously noted in McRae, a defendant’s competency to stand trial is not necessarily static, but can change over even brief periods of time.
Id.
The Whitted court summarized McRae and found it significant that in McRae five days elapsed between the inter-trial evaluation and the start of the second trial without a subsequent judicial determination regarding capacity to proceed. The Whitted court stated, “As recognized by McRae, defendants can be competent at one point in time and not competent at another.” Following McRae, the Whitted court remanded to the trial court for a retrospective competency hearing. Id.
These two decisions instruct us that there are two important factors a trial court must take into account in deciding whether or not to conduct a hearing on competency on its own motion. First, the trial court must consider the defendant’s mental health history and prior pre-trial competency evaluations, especially if the evaluations have shown different opinions at different times. Second, the trial court must consider the defendant’s behavior in the court room.
In McRae, Mr McRae did not testify and there was no evidence that he disturbed his trial or acted oddly. Instead, the McRae court had before it numerous, conflicting opinions about his capacity to proceed. The McRae court held that these conflicting evaluations, in and of themselves, raised a bona fide doubt as to competency.
The same holds true for Mr Dickens. There were three evaluations, and the first two of the three opined that he was incompetent to stand trial. The third opinion, formed in early 2011, necessarily conflicted with the prior two. These numerous, conflicting opinions, on their own, raised an issue the trial court should have addressed before the start of the trial.
In Whitted, Ms Whitted did not have an evaluation regarding her competency. Instead, her mental health history combined with her behavior raised the doubt that she was not competent to stand trial.
Though Mr Dickens did not behave bizarrely at trial like Ms Whitted did, his testimony indicated that his memory was impaired. His denial of his own voice on the recording and insinuation that the Roxboro police officer wanted to date his sister-in-law made no sense.
The combination of numerous, conflicting competency evaluations and nonsensical, confused testimony raised an issue the trial court should have addressed on its own initiative: did Mr Dickens have the capacity on 23 April 2012 to stand trial?
The fact that the trial court had already decided in February 2011 that Mr Dickens could stand trial did not relieve the trial court of its duty to decide that question again in late April 2012. The McRae and Whitted courts both acknowledged that someone’s mental health is variable over time, and the trial court must take that into account when determining whether to hold a competency hearing.
In McRae, on 27 April 1998 a psychiatrist opined that Mr McRae was competent to stand trial. The trial court had a hearing that same day and let the trial go forward. After mistrial, an evaluation dated 6 May 1998 had the same opinion. Mr McRae’s trial started five days later, without a competency hearing, and the McRae court decided that this gap of time was not timely.
In Whitted, the court had never been presented any evaluation, so there was never any competency hearing. However, the trial court did conduct a hearing on whether Ms Whitted’s medications prevented her from thinking clearly on 11 January 2010. The Whitted court held that, even assuming that the trial court’s 11 January inquiry was related to Ms Whitted’s competency, it was not timely in the sense that it could not have addressed the bona fide question of competency that arose two days later.
In Mr Dickens’s case, there was a gap of some fourteen months between the trial court’s determination that he was capable of proceeding and the start of the trial. The 10 February 2011 determination did not and could not tell the trial court whether Mr Dickens could stand trial on 23 April 2012. If two days is too long, and five days is too long, certainly fourteen months is too long.
The trial court deprived Mr Dickens of his due process rights by failing to conduct a hearing on his capacity to proceed. This court should remand to the superior court andorder a retrospective competency hearing on whether Mr Dickens was capable of standing trial on 23 April 2012.
CONCLUSION
Mr Dickens asks this court to remand his case to the superior court and order a retrospective competency hearing.
This date:21 December 2012.
_____/RJHIII/______
Russell J. Hollers III
P.O. Box 1131
Carrboro, NC 27510
(919) 967-5300
State Bar No. 19071
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 28(j) of the Rules of Appellate Procedure, undersigned counsel certifies that the foregoing brief, prepared in a proportional font, contains fewer than 8,750 words as reported by the word processing software.
_____/RJHIII/______
Russell J. Hollers III
CERTIFICATE OF SERVICE
This is to certify that on the date below, I served the State of North Carolina with the foregoing Defendant-Appellant's Brief by depositing a copy thereof in a postpaid wrapper in a Post Office or official depository under the exclusive care and custody of the United States Post Office Department, addressed toJohn A. Payne, Assistant Attorney General, EnvironmentalDivision, N.C. Department of Justice, P.O. Box 629, Raleigh, NC 27602.
This date:21 December 2012.
_____/RJHIII/______
Russell J. Hollers III