State v. McMillan ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1045
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Hoke County
Nos. 12 CRS 895, 12 CRS 50141,
13 CRS 229
LARRY MCMILLAN
Appeal by Defendant from judgment entered 16 April 2013 by
Judge Claire V. Hill in Superior Court, Hoke County. Heard in
the Court of Appeals 29 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas J. Campbell, for the State.
Gerding Blass, PLLC, by Danielle Blass, for Defendant-
Appellant.
McGEE, Judge.
Larry McMillan (“Defendant”) appeals from judgment imposed
upon jury convictions of felony breaking or entering, larceny of
a firearm, possession of a firearm by a felon, and habitual
breaking or entering. Defendant was sentenced to an active term
of a minimum of thirty-eight months and a maximum of fifty-eight
months. Defendant presents two issues on appeal: (1) whether
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the trial court erred by failing to submit the lesser-included
offense of misdemeanor breaking or entering; and (2) whether the
trial court erred by failing to order, sua sponte, a hearing to
evaluate Defendant’s competence to stand trial. We hold the
trial court did not err.
The State’s evidence tends to show that on 30 January 2012,
Santana Marie Woods (“Ms. Woods”) stopped by the home of her
parents (the house) and heard a noise coming from within the
house. Ms. Woods walked around the outside of the house and saw
Defendant, her first cousin, sticking his head out of the attic.
Ms. Woods called 911. As Ms. Woods waited for law enforcement
officers to arrive, she saw Defendant coming down a ladder
outside the house. Ms. Woods chased Defendant until he ran into
the woods. The doors to the house were locked and Ms. Woods
used her key to open the doors to allow law enforcement officers
to enter the house.
Sergeant Tracy Grady (“Sergeant Grady”) of the Hoke County
Sheriff’s Department entered the house with Ms. Woods. Sergeant
Grady observed that the ladder to the attic was down and that a
twelve-gauge shotgun was laying near the stairs.
Ronnie Woods, Defendant's uncle and the owner of the house,
testified that Defendant did not have permission to enter the
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house that day nor to take or remove anything from the house.
Ronnie Woods further testified that the shotgun found near the
stairs was ordinarily stored under his bed and that a piece of
plywood was affixed to the inside of the attic window.
At trial, Defendant testified he entered the house in which
he formerly resided with his uncle and aunt, to get partially-
smoked cigarettes that he knew his uncle kept in ashtrays.
Defendant admitted he climbed a ladder to enter the house
through the attic and that he took $5.00 in change from a basket
on a dresser. Defendant denied removing the shotgun from
beneath the bed.
At the charge conference, the trial court denied
Defendant’s request to submit the lesser-included offense of
misdemeanor breaking or entering to the jury. Defendant argues
there is evidence in the record, in the form of his testimony
indicating he did not enter the house with the intent to steal
anything, to support submission of the instruction.
Arguments on appeal “challenging the trial court's
decisions regarding jury instructions are reviewed de novo by
this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675
S.E.2d 144, 149 (2009). “An instruction on a lesser-included
offense must be given only if the evidence would permit the jury
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rationally to find defendant guilty of the lesser offense and to
acquit him of the greater.” State v. Millsaps, 356 N.C. 556,
561, 572 S.E.2d 767, 771 (2002).
“The essential elements of felonious breaking or entering
are (1) the breaking or entering (2) of any building (3) with
the intent to commit any felony or larceny therein.” State v.
Mitchell, 109 N.C. App. 222, 224, 426 S.E.2d 443, 444 (1993).
Misdemeanor breaking or entering is a lesser-included offense
and entails the breaking or entering of a building without the
intent to commit a felony or larceny. State v. Dozier, 19 N.C.
App. 740, 742, 200 S.E.2d 348, 349 (1973), cert. denied, 284
N.C. 618, 201 S.E.2d 690 (1974). If an indictment alleges a
defendant broke and entered a building with the intent to commit
larceny, and if there is no evidence of any non-felonious or
non-larcenous purpose for the breaking or entering, an
instruction as to misdemeanor breaking or entering is not
required. State v. Hamilton, 132 N.C. App. 316, 321-22, 512
S.E.2d 80, 85 (1999).
In the present case, the indictment charged that Defendant
entered a building with the intent to commit larceny. The crime
of larceny consists of the taking and carrying away of another’s
property without that person’s consent and with the intent to
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appropriate it to the taker’s own use. State v. Bowers, 273
N.C. 652, 655, 161 S.E.2d 11, 14 (1968). Defendant’s own
testimony established that he intended to take partially-smoked
cigarettes from an ashtray inside the house and convert them to
his own use. All of the evidence established an entry with the
intent to commit larceny. We hold the trial court did not err
by denying the request for the instruction.
Defendant next contends the trial court should have, sua
sponte, ordered a hearing to determine Defendant’s competence to
stand trial. Defendant concedes that, although there is no
evidence in the record that he had a prior mental health
diagnosis or history of mental illness, the trial court should
have held a hearing based upon Defendant’s conduct at trial.
The conduct upon which Defendant’s argument is based
occurred as the trial court recessed at the end of the day,
outside the presence of the jury. Defendant’s counsel advised
the trial court that Defendant had refused plea offers and that,
against the advice of counsel, Defendant desired to address the
trial court. The following then transpired:
THE COURT: All right. Mr. McMillan,
stand up please, sir. Before you say
anything – I would remind you that, before
you say anything, anything you say can and
will be used against you. And evidently
your counsel has advised you not to say
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anything.
What is it – but you need to think
about that as to whether or not you wish to
say anything at this time.
THE DEFENDANT: Yeah. I’m not signing
s---. And I –
THE COURT: Excuse me –
THE BAILIFF: Sir, watch your language.
THE COURT: -- Mr.McMillan.
THE DEFENDANT: That paper –
THE COURT: Mister – Mister –
THE DEFENDANT: No. I -
THE COURT: Mr. McMillan –
THE DEFENDANT: They ain’t got no
fingerprints. You ain’t getting my –
THE COURT: Mr. McMillan, hush.
THE DEFENDANT: I’m telling you what it
is.
THE COURT: Mr. McMillan, do you want
me to hold you in contempt of court right
now?
THE DEFENDANT: I don’t care what you
do, man. You ain’t doing nothing. You
ain’t coming up with no phony-a-- m-----f---
--- papers, no –
THE COURT: Mr. McMillan, you are
disrupting court. You are now held in
contempt of court for the language and
disrupting court. You will be serving 30
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days. If this continues we will try this
case without you being present.
THE DEFENDANT: That’s what you do
then.
THE COURT: Mr. McMillan, all you have
to do is cooperate and be polite. You
wouldn’t do this with your grandmother
sitting here, would you? And she just –
THE DEFENDANT: Why do I –
THE COURT: And she just walked right
out of the courtroom.
THE DEFENDANT: She can walk right back
in here, and then I can do it right here in
front of her. Now, you gonna use them
pictures? Because I have not touched no
f------ gun.
THE COURT: Mr. McMillan –
THE DEFENDANT: You can Mr. McMillan
all you want, bro.
THE COURT: All right. Contempt,
another 30 days. Sixty days. Take him out.
THE DEFENDANT: I’ll do 60 years.
THE BAILIFF: Let’s go.
THE DEFENDANT: You’re gonna look at
them pictures where that gun was loaded –
(The defendant was escorted out of the
courtroom.)
MR. JOHNSON: Your Honor, for the
record, I did do what I believe was due
diligence in discussing with his
grandmother. In a prior health history, she
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indicated he had never taken any psychiatric
meds and only received counseling related to
some grief. But essentially he had no
commitments, no involuntary commitments.
THE COURT: All right. So what are you
saying, Mr. Johnson? You need to turn your
microphone on, please.
MR. JOHNSON: Just relating –
THE COURT: I understand. But are you
– are you trying to say that you have a
question as – that – as to his competency
and his ability to proceed at trial?
MR. JOHNSON: Based upon this, yes.
I’ve had a question.
THE COURT: All right. Well, if you’ve
had a question, why haven’t you previously
done it and filed a motion in order to have
him evaluated?
MR. JOHNSON: Well, I had a question,
and I resolved it as being – him being
competent for trial. He’s been difficult to
deal with.
THE COURT: Well, there’s a difference
between difficult to deal with and a mental
health issue. So –
MR. JOHNSON: And I – as I said, I did
discuss with his grandmother whether he had
any involuntary[y] commitments, whether he
had any psychiatric treatment, things of
that nature. And she indicated, no, that he
never – he’s, I believe, 27, 28 years old –
that he’s never had anything in the way of
that sort of treatment.
I found his behavior difficult but –
and I had, you know, some conversations with
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a number of folks. And it appeared as
though he was competent to stand trial.
THE COURT: So how is his conduct today
any different than what it’s been up until
now?
MR. JOHNSON: It’s been worse today.
THE COURT: And how do you mean
“worse”?
MR. JOHNSON: Well, he has at times
been – cursed me out and not wanting to
follow instruction. But – and I’ve gone to
meet with him most days last week. And he
was somewhat cooperative or more cooperative
than he had been.
THE COURT: But he understands the
nature of the charges?
MR. JOHNSON: He does understand the
charges against him.
THE COURT: And he’s –
MR. JOHNSON: I have made every attempt
to explain them. I’ll say that.
THE COURT: Well, he appears to
understand the charges, and he appears to
understand that there are no fingerprints
and that – I can’t remember what else he
said.
And last week when you met with him, he
cooperated with you in preparing for trial.
Is that correct?
MR. JOHNSON: Several days he was
cooperative. He has a different perspective
on how this trial will proceed. I have
attempted to explain the procedure and
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proper courtroom behavior.
THE COURT: And what did he say when
you told him – or explain – attempted to
explain procedure and proper courtroom
behavior?
MR. JOHNSON: Well, I advised him to
shave for today, and he did shave. I
advised his grandmother to bring him clothes
for today. He did put on those clothes. I,
you know, told him not to swear, not to act
outrageously in front of a jury, not – to
keep his voice soft. You know, essentially
I gave him a pad to write on and asked him
to whisper. I informed him that the
speakers were fairly sensitive, and we
didn’t want to cause disruption in front of
the jury.
THE COURT: Did he write anything down?
MR. JOHNSON: He did not write anything
down today.
THE COURT: All right. Where is his
grandmother? Do you have contact with her?
MR. JOHNSON: I do.
THE COURT: All right. You need to
call her, and you need to ask her to go and
talk with him. You need to discuss with her
how he acted after she left.
MR. JOHNSON: Yes, ma’am.
The prosecutor then stated for the record that he and
Defendant’s counsel had a conversation prior to trial concerning
Defendant’s behavior and, while counsel may have questioned
Defendant’s intellect, he did not question Defendant’s
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competency to stand trial. Defendant’s counsel concurred with
the prosecutor’s summary of their conversation. Before
officially recessing for the day, the trial court again asked
counsel to speak with Defendant’s grandmother.
The next morning the trial court addressed Defendant:
THE COURT: Mr. McMillan, I know that
you were upset yesterday, and I understand
that this can be very stressful for you.
But I want to give you the opportunity to
remain in the courtroom because I think it’s
important for you to be here during your
trial.
Do you understand?
THE DEFENDANT: Uh-huh.
THE COURT: And so as long as you
behave properly and conduct yourself
properly – you’ve got a notepad. You can
take notes, and you can pass those to Mr.
Johnson. And as long as you, you know, act
properly in front of the jury, then we’ll be
fine. But if at any point in time you
become disruptive, then we have two options.
Either you will be restrained or – and I
don’t want to do that. I don’t want to do
either of these two things. I want you to
be here with us in this courtroom.
Do you understand that?
THE DEFENDANT: Uh-huh.
THE COURT: Or if it’s – if it becomes
necessary, I may have to enter an order that
you be removed from the courtroom. And then
you would be watching the trial on closed-
circuit television. Now, those are two
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options that I don’t want to have to go to.
Do you understand that?
THE DEFENDANT: (Nodding head up and
down.)
THE COURT: Do I have your promise –
and your grandmother’s here today.
Do I have your promise that you’re
going to act properly here today during this
trial?
THE DEFENDANT: Yeah.
THE COURT: Okay. If at any time you
feel like you need a break, just let Mr.
Johnson know. He’ll bring it to my
attention. Okay? Is that fair?
THE DEFENDANT: (Nodding head up and
down.)
THE COURT: Do we have an agreement
before we bring the jury in? Yes or no?
THE DEFENDANT: Yes.
The trial court then brought in the jury and resumed the trial.
No person may be tried, convicted,
sentenced, or punished for a crime when by
reason of mental illness or defect he is
unable to understand the nature and object
of the proceedings against him, to
comprehend his own situation in reference to
the proceedings, or to assist in his defense
in a rational or reasonable manner.
N.C. Gen. Stat. § 15A-1001(a) (2013). Our Supreme Court has
stated:
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[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. In enforcing this
constitutional right, the standard for
competence to stand trial is whether the
defendant 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.
State v. Badgett, 361 N.C. 234, 259, 644 S.E.2d 206, 221, cert.
denied, 552 U.S. 997, 169 L. Ed. 2d 351 (2007) (internal
quotation marks and citations omitted). Relevant indicators of
a possible need for further hearing include evidence of a
defendant’s irrational behavior, his demeanor at trial, or a
prior medical opinion as to defendant’s competency. Drope v.
Missouri, 420 U.S. 162, 180, 43 L. Ed. 2d 103, 118 (1975).
[A]ppellate courts must carefully evaluate
the facts in each case in determining
whether to reverse a trial judge for failure
to conduct sua sponte a competency hearing
where the discretion of the trial judge, as
to the conduct of the hearing and as to the
ultimate ruling on the issue, is manifest.
State v. Staten, 172 N.C. App. 673, 682, 616 S.E.2d 650, 656-57
(2005).
The trial court, by not conducting a formal hearing, sua
sponte, into Defendant’s competence to stand trial, did not
abuse its discretion. The record demonstrates that Defendant
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had “sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding and ha[d] a
rational as well as factual understanding of the proceedings
against him.” Badgett, 361 N.C. at 259, 644 S.E.2d at 221. The
trial court addressed Defendant and determined Defendant had the
ability to follow instructions and to understand the nature of
the charges and the proceedings. At no time did Defendant
indicate, nor does anything in the record suggest, that he did
not understand the trial court’s questions or instructions.
Defendant had been mostly cooperative with counsel, had followed
counsel’s instructions to shave and wear appropriate clothing,
and had answered the trial court’s questions. Information
before the trial court shows, at most, that Defendant may have
received counseling at one time in his life to help him deal
with grief he was experiencing. The record does not show
Defendant had any prior history of mental illness or psychiatric
commitments.
No error.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).