State v. Fisher

GEER, Judge

dissenting.

Because I believe that the trial court improperly shifted the burden of proof to defendant regarding the voluntariness of his confessions and his competency to waive his Miranda rights, I respectfully dissent. I would reverse and remand for a new hearing on defendant’s motion to suppress.

As the majority notes, a trial court’s findings of fact are conclusive on appeal as long as they are supported by competent evidence, even if the record contains conflicting evidence. State v. Eason, 336 N.C. 730, 445 S.E.2d 917 (1994), cert. denied, 513 U.S. 1096, 130 L. Ed. 2d 661 (1995). When, however, those findings have been made under a misapprehension of the law, they must be set aside and the case remanded so that the evidence may be considered in its true legal light. Helms v. Rea, 282 N.C. 610, 620, 194 S.E.2d 1, 8 (1973). I believe that is the situation here.

The majority states that the burden of proof issue is not the subject of an assignment of error and, therefore, should not be addressed by this Court. I believe that this issue is encompassed within assignments of error 4, 5, and 6. Although those assignments of error are broad, they are no broader than assignments of error routinely assumed to pass muster by this Court in other cases. I see no reason to elect to impose a more rigorous standard for assignments of error in this case than in cases where less is at stake.

While the majority is correct that the burden of proof issue was not specifically briefed, I believe that this case presents a classic example of when this Court should suspend its rules “[t]o prevent manifest injustice to a party.” N.C.R. App. R 2. I can conceive of no more fundamental an error than placing the burden of proof on the wrong party in a criminal case. Given the fundamental nature of the error, the sparseness of the evidence presented by the State on competence when contrasted to the expert evidence of defendant, and the' consequences of this error (life imprisonment without parole), I believe that the Court should address this issue.

I

In denying defendant’s motion to suppress, the trial court concluded: “Defendant has failed to establish that defendant lacked the mental capacity to freely, knowingly, and understanding^ waive his Miranda rights on July 16, 1999.” The trial court thus placed the burden of proof on defendant. The law is, however, unquestionably otherwise.

Both this Court and the Supreme Court have repeatedly confirmed that the State bears the burden of proof as to the voluntariness of a confession and as to the validity of a waiver of Miranda rights. See, e.g., State v. Knight, 340 N.C. 531, 550, 459 S.E.2d 481, 493 (1995) (“The State bears the burden of proving that a defendant made a knowing and intelligent waiver of his rights and that his statement was voluntary.”); State v. Brown, 112 N.C. App. 390, 396, 436 S.E.2d 163, 167 (1993) (“A defendant may waive his Miranda rights, but the State bears the burden of proving that the defendant made a knowing and intelligent waiver.”), disc. review denied, 335 N.C. 561, 441 S.E.2d 124 (1994), and aff'd per curiam, 339 N.C. 606, 453 S.E.2d 165 (1995); State v. Williams, 59 N.C. App. 15, 24, 295 S.E.2d 493, 498 (1982) (“Upon reviewing the evidence before the court on the motion to suppress [based on incompetency], we hold that the State failed to meet its heavy burden to affirmatively demonstrate a knowing and intelligent waiver by defendant.”). The trial court’s requirement that defendant “establish” his lack of mental capacity cannot be reconciled with this well-established principle.

State v. Cheek, 307 N.C. 552, 299 S.E.2d 633 (1983) confirms this conclusion. In Cheek, the defendant argued that “the trial judge impermissibly placed the burden of proving that the statement was not voluntarily made on defendant” by stating at the beginning of the voir dire hearing on the defendant’s motion to suppress, “ ‘The burden is on the defendant on a motion to suppress.’ ” Id. at 556, 299 S.E.2d at 636. In addressing this argument, the Supreme Court first noted that when a trial judge conducts a hearing on the voluntariness of a statement, “the burden is upon the state to demonstrate the admissibility of the challenged evidence; and, in the case of a confession, the state must affirmatively show (1) the confession was voluntarily made, (2) the defendant was fully informed of his rights and (3) the defendant voluntarily waived his rights.” Id. at 557, 299 S.E.2d at 636. To meet this burden, “the state must persuade the trial judge, sitting as the trier of fact, by a preponderance of the evidence that the facts upon which it relies to sustain admissibility and which are at issue are true.” Id., 299 S.E.2d at 636-37.

In determining in Cheek that the trial court did not shift the burden of proof, but rather only placed on defendant the burden of going forward, the Supreme Court stressed that the trial court had not made any statement such as “defendant has failed to show that the statement was not voluntarily given.” Id. at 558, 299 S.E.2d at 637. Such a statement “would have indicated that he impermissibly placed the burden of persuasion on defendant.” Id. In this case, by contrast, the trial court’s order includes precisely such a statement. Conclusion of law number five establishes that the court erroneously shifted the burden of proof to defendant when our case law is clear that the State has the “heavy burden to affirmatively demonstrate a knowing and intelligent waiver by defendant.” Williams, 59 N.C. App. at 24, 295 S.E.2d at 498.

The majority claims that Cheek supports the conclusion that any error was harmless beyond a reasonable doubt. I see no meaningful distinction between the conclusion of law in this case — “[defendant has failed to establish that defendant lacked the mental capacity” to waive his rights — and the statement used in Cheek — “defendant has failed to show that the statement was not voluntarily given” — -as an example of a statement demonstrating that the court “impermissibly placed the burden of persuasion on defendant.” Cheek, 307 N.C. at 558, 299 S.E.2d at 637. The lack of any reference to the burden of proof in the findings of fact is not a surprise since the burden of proof is a question of law properly included in the conclusions of law. I am not willing to assume that the trial court applied the correct burden of proof when the written conclusion of law in his order so plainly indicates otherwise.

I also cannot conclude that this fundamental error is harmless beyond a reasonable doubt. Ample evidence exists from which a trial court could have concluded that the State did not meet its burden of demonstrating that defendant properly waived his Miranda rights and voluntarily confessed.

The relevant evidence — left unchallenged by the State and unaddressed by the trial court — includes much of Dr. Wolfe’s testimony regarding defendant and the Dorothea Dix report submitted by defendant. The Dix report was based on interviews with Fisher, review of prior hospital records, and information obtained from Fisher’s attorney, the county jail, the clerk of court, and the district attorney.

The Dix report indicates that Fisher reported his first hospitalization as occurring at age 18 (approximately in 1982) for a suicide attempt. Due to suicide attempts, threats, and “women problems,” he was admitted to psychiatric hospitals in Virginia on three other occasions. In addition, he was assessed at Central State Hospital in Virginia in 1990 because of a concern that he was too depressed to stand trial.

In addition to these hospital admissions, evidence in the record shows that immediately before Fisher was jailed in Virginia in May 1999, he had “a number of manic/psychotic episodes.” He was admitted to the Peninsula Behavioral Center on 14 May 1999 because of bizarre behavior towards his boss, including placing three Christian crosses on his boss’ desk after concluding that his boss was evil, and his becoming belligerent and assaultive in an emergency room. Around this same time, Fisher assaulted his uncle and broke his nose because a voice told Fisher that his uncle was a demon. The Dix report concludes that Fisher had engaged in bizarre behavior and was hyper-religious.

Fisher reported to the Dix team that while he was in jail in 1999 “voices were driving him crazy so he talked to a guard about what happened in North Carolina.” The report also states that the voice of God always talked to Fisher while he was in Virginia.

Dr. Wolfe testified that two months before the confession, defendant was “very psychotic” and required commitment to two different psychiatric hospitals. According to Dr. Wolfe, on 7 July 1999 defendant’s Haldol — an antipsychotic agent — was discontinued. Dr. Wolfe further testified that by 19 July 1999 — three days after the East confession — defendant again “had become quite psychotic, talking about needing to . . . drink urine and eat feces until he died.” He was put back on Haldol.

No medical records exist from 15 or 16 July 1999, but Dr. Wolfe reviewed the records from Liberty Forensic Unit, which indicated that defendant was admitted there on 22 July 1999. She noted that Liberty reported that Fisher “had decompensated psychiatri-cally on 7/15/99.” She explained: “It means that somebody has been doing well and then pretty acutely, pretty suddenly, they’re not doing well at all.”

Although Dr. Wolfe desired additional information — apparently medical records from other states — in order to further assess whether or not defendant was competent when he confessed, Dr. Wolfe testified that when Fisher made his confessions, “he was not mentally stable.” She explained: “That to me means within a week of getting off of the antipsychotic medication, he became psychotic. That date coincides with the date he gave his confession on the 15th. And several days later, he got admitted to the state psychiatric facility where he stayed for almost two months.” The Dix report also flatly concludes: “He became psychotic again on the day of his confession.” Dr. Wolfe explained that “[p]sychosis is a term that we refer to being out of touch with reality. Mr. Fisher has a lot of religious preoccupations. He has been very psychotic on several occasions to the point where he clearly did not know reality from what was in his mind.”

At the hearing below, despite this extensive evidence, the State barely acknowledged the need to determine defendant’s competency to confess or waive his rights. The State did not even bother to address that issue in its argument to the trial court on the motion to suppress. And, when the State’s evidence is placed on the other side of the scale from defendant’s evidence, the scale hardly moves. In opposition to the expert evidence from employees of the State, the prosecution offered only the lay opinion testimony of three law enforcement officers that Fisher appeared depressed, but coherent; that he was able to carry on logical conversations; and that he appeared rational. During the conversation with Agent East, however, Fisher was in paper clothing because of a suicide attempt.

State v. Ross, 297 N.C. 137, 254 S.E.2d 10 (1979), discussed by the majority, demonstrates that the evidence before the trial court was sufficient to lead to the conclusion that the State failed to meet its burden of proof.¹ In Ross, the defendant had a history of mental illness with several prior hospitalizations; he had not worked for five years; a week before his confession, he was involved in an incident that led to involuntary commitment; three days before the confession there was a very high likelihood that he was suffering from psychotic conditions; he engaged in bizarre behavior before the confession; he was placed on medication; while in jail, he did not have access to his medication; and three days after the confession, he was diagnosed as suffering from schizophrenia, including delusions and a misinterpretation of reality. Id. at 141-42, 254 S.E.2d at 12-13. The State relied only upon the testimony of a deputy sheriff, present during defendant’s statement, that the defendant was logical and made sense. The Ross Court found the totality of evidence to be “compelling facts” justifying a conclusion of incompetency. Id. at 144, 254 S.E.2d at 14.

The evidence before this Court substantially parallels that of Ross. It suggests that Fisher had a history of mental illness and hospitalizations; that shortly before his confession he engaged in bizarre behavior causing him to be fired, arrested, hospitalized twice, deemed psychotic, and placed on the anti-psychotic medication Haldol; that he confessed while no longer taking his anti-psychotic medication;² that he was psychotic and mentally unstable when making his confessions; and that, immediately following his confession, he again engaged in bizarre behavior and was deemed psychotic to the point of being out of touch with reality. Also, just as in Ross, the only evidence from the State was lay opinion testimony from law enforcement officers regarding Fisher’s behavior during their meetings with him. If such evidence was sufficient in Ross to establish incompetency as a matter of law, it certainly defeats any argument that the trial court’s improper burden shifting was harmless beyond a reasonable doubt.

I agree with the majority that the trial court erred in failing to make factual findings regarding defendant’s competency during his statements to Glover and Wilkins. The majority, however, also holds that the error is harmless because of the admissibility of the 16 July 1999 confession to Agent East. Because I would hold that the trial court erred with respect to the East confession, I would further find that the trial court’s error as to the statements to Glover and Wilkins was not harmless. I would, therefore, remand for a hearing on defendant’s competency to make all three confessions.

II

In addition, I do not believe that the trial court’s findings of fact are adequate under Ross and Blackburn v. Alabama, 361 U.S. 199, 4 L. Ed. 2d 242 (1960) to support its conclusion of law that defendant was competent when he confessed. For this alternative reason, I would also vacate the trial court’s ruling on the motion to suppress and remand for a new hearing.

The only finding of fact purporting to support the conclusion that defendant’s confession to Agent East was made voluntarily and that he properly waived his Miranda rights is finding of fact number fourteen: “He was rational and coherent throughout his conversation with the officers.”³ In Ross, the only evidence was likewise the testimony of a deputy sheriff that the defendant appeared logical and made sense. This evidence was deemed insufficient to establish competency because our Supreme Court was unwilling to “uphold the admission of defendant’s confession on the mere chance that it was made during a lucid interval of the defendant.” Ross, 297 N.C. at 143, 254 S.E.2d at 14. In reaching this conclusion, the Court relied on Blackburn, in which the United States Supreme Court likewise found that testimony of a deputy that defendant talked sensibly, was clear-eyed, and did not appear nervous was insufficient to establish competency. The Court held: “But without any evidence in the record indicating that these observed facts bore any relation to Blackburn’s disease or were symptoms of a remission of his illness, we are quite unable to conclude that such an inference can be drawn.” Blackburn, 361 U.S. at 209, 4 L. Ed. 2d at 249-50.

I cannot agree to affirm the trial court’s ruling when its findings do no more than parrot the same evidence found inadequate in Ross and Blackburn. The majority opinion does not address this issue, which was properly presented by defendant.

For all the foregoing reasons, I would reverse the trial court and remand for a new hearing on the motion to suppress at which the State would bear the burden of proving the admissibility of defendant’s statements.

1 . Ross can even be read as requiring a conclusion of incompetency on appeal, but I believe that the trial court should be given an opportunity to address the question in the first instance employing the proper burden of proof.

2 . Although the majority opinion suggests that a psychiatrist stated that defendant had been stable on Depakote even without Haldol, Dr. Wolfe’s testimony indicates that it was only defendant — hardly a reliable witness as to his own stability — who claimed he had been stable on Depakote. The record contains no expert evidence that he was in fact stable when receiving only Depakote.

3 . While the trial court’s finding of fact number sixteen recites some of Dr. Wolfe’s testimony, it excludes her opinion that Fisher was psychotic and mentally unstable at and around the time of his confession. Her conclusion that defendant was competent to stand trial, rendered in February 2001 (and included in the finding of fact), is irrelevant to whether he was competent when he confessed in July 1999. State v. Reid, 38 N.C. App. 547, 248 S.E.2d 390 (1978) (expert testimony that a defendant was mentally capable to proceed to trial did not establish competency two to three months later), disc. review denied, 296 N.C. 588, 254 S.E.2d 31 (1979).