State v. PayneÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1193
Filed: 21 November 2017
Gaston County, Nos. 13 CRS 59589-90
STATE OF NORTH CAROLINA
v.
TINA STAMEY PAYNE
Appeal by Defendant from order entered 19 May 2016 by Judge Robert T.
Sumner in Superior Court, Gaston County. Heard in the Court of Appeals 5 June
2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N.
Bolton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
Grant, for Defendant.
McGEE, Chief Judge.
Tina Stamey Payne (“Defendant”) appeals from the trial court’s order finding
her not guilty by reason of insanity (“NGRI”) of one count of attempted first-degree
murder and one count of assault with a deadly weapon inflicting serious injury. On
appeal, Defendant asserts that she was denied her constitutional right to assistance
of counsel when her defense lawyer pursued a pretrial defense of NGRI against her
wishes.
I. Background
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Opinion of the Court
Evidence presented at multiple pretrial hearings, based in part on court-
ordered psychological reports, tended to show the following: On 4 August 2013,
Defendant was at her home when she pointed a .22 caliber handgun at A.P., her
fifteen-year-old daughter, and said: “I’m sorry.” A.P. screamed for her brother and
Defendant’s twenty-eight-year-old son, R.P., ran into the room and wrestled the gun
from Defendant. During the struggle, the gun discharged twice. A.P. was hit in her
left shoulder by a bullet, and R.P. was hit in his right hand. Defendant then “went
outside with a knife and tried to get hit by a car, and then began cutting her wrists.”
Defendant was arrested that day, and indicted for attempted first-degree murder and
assault with a deadly weapon inflicting serious injury on 19 August 2013.
The day after the incident, on 5 August 2013, a forensic nurse practitioner
conducted a psychiatric consultation with Defendant and diagnosed her as suffering
from psychosis or being psychotic at the time of the 4 August 2013 incident.
Defendant’s Counsel filed an ex parte motion on 9 September 2013, requesting the
trial court to approve funds to retain a mental health expert to examine Defendant
in order “to determine whether or not [] Defendant has any defenses based upon []
psychological, mental, emotional and personality problems.” Defendant’s counsel’s
motion was granted, and Defendant was evaluated by an expert retained by her
counsel. Defendant’s counsel filed a motion on 8 April 2014 stating that Defendant
“hereby notifies the State of [her] intention to use at trial defenses of, but not limited
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to alibi, mental infirmity, diminished capacity, self-defense, mistake of fact, insanity
and/or accident.”
A. Initial Capacity Hearings
At a 6 November 2014 hearing, the trial court was informed by the State that
the defense expert had completed his mental health evaluation of Defendant. The
State requested that Defendant be committed to Central Region Hospital for
evaluation by State experts on capacity and insanity issues. Defendant’s counsel did
not object. Defendant stated: “I understand the State wants a second opinion for an
evaluation, and I agree with that, if that’s what the State feels like they need[.]”
However, she also informed the trial court: “My attorney and I do not agree on a lot
of things. He’s made a lot of decisions without even talking to me about it.”
Defendant further stated:
I let [my attorney] know on August the 18th of [2013] that
I wanted to plead not guilty because it was an accident.
[My attorney] waited until April of this year and put in a
plea for insanity. He told me the truth was not good
enough, it was not going to work. He thought an insanity
plea was the best. But I know what happened because I
was there, and my children were there. I didn’t try to
murder anybody and I did not shoot anyone. And I know
this and my children know this.
....
I know I didn’t make a confession, I didn’t do it. I did not
try to murder anybody and I didn’t shoot anybody. You
don’t confess to that. I don’t know why my attorney keeps
trying to do this insanity plea when I’ve made it clear to
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him that it was an accident, the truth was gonna have to
be good enough.
The trial court noted that Defendant sounded “very lucid, very rational,” but that it
had a petition that said Defendant had mental health issues and a history of
paranoia, as well as “two lawyers telling [the court] that they think that [Defendant]
need[s] to be examined by another psychiatrist,” and so the trial court granted the
State’s request to commit Defendant for further evaluation to determine her capacity
to proceed.
Defendant’s capacity to proceed was evaluated at a 21 July 2015 hearing. At
that hearing, Defendant stated she had told her counsel she wanted a trial by jury,
but that he had not gotten back in contact with her about the matter. Based upon
the evidence presented, Defendant was again ordered to be “involuntarily committed
. . . for appropriate treatment until such time as she be rendered competent in this
matter.”
B. Pretrial Determination of NGRI
Another hearing was conducted on 7 April 2016, which the State explained to
the trial court was for the following two purposes:
Your Honor, we put this on the calendar specifically for this
afternoon to address the defense of insanity pretrial. As
we were reviewing the court file and all of the
evaluations that have been done [Defendant’s counsel]
and I discovered that there has not been a finding of
capacity at this point. So we will need to address that
first. And once that determination has been made then
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Opinion of the Court
move to a pretrial hearing as to the defense of insanity
and whether or not it would apply to [Defendant’s]
cases that are pending.
Although no written motion is included in the record, it appears Defendant’s counsel
did move, pursuant to N.C. Gen. Stat. § 15A-959(c) (2015), for a pretrial
determination by the trial court that Defendant was NGRI of the crimes charged.
During the 7 April 2016 hearing, the State, Defendant’s counsel, and Defendant
herself, agreed Defendant was competent to assist her attorney and proceed to trial.
The trial court ruled that Defendant was competent to proceed, and a hearing
pursuant to N.C.G.S. § 15A-959(c) was then conducted.
The State requested that the trial court “move forward to address specifically
the second portion of the purpose of us being here today, which is in regard to whether
or not insanity would be a viable defense for [Defendant] . . . at trial proceedings”
pursuant to N.C.G.S. § 15A-959(c). The trial court next heard testimony concerning
Defendant’s motion for pretrial determination of insanity. Defendant’s expert
witness testified that, in her opinion, Defendant suffered from schizophrenia at the
time of the offenses and that Defendant “understood the action of what she was doing
but not the wrongfulness of the action.” After this testimony, which constituted the
entirety of the evidence presented, Defendant asked, and was permitted, to make a
statement to the trial court.
[DEFENDANT]: Your Honor, [my attorney] had spoke[n]
to me when I was informed of all of my options for a plea,
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when I was in the hospital for four months. I took
restorative classes and that was an extensive explanation
of the court system and process and the pleas that were
available to me for the accusations made against me.
[My attorney] and I discussed that. And I expressed to [my
attorney] that I did not want him to file a motion for a
NGRI plea, that I realized it wasn’t an option to me. But
basically for it to be heard without hearing all of the
evidence to be disputed and to have a proper jury hearing
to find me guilty of the crimes I’m alleged to have
committed. That it was an admission of guilt with an
excuse and that I would prefer – I did not want him to give
that plea, enter the motion for the use of that plea.
But [my attorney] did that without my knowledge, and he
only informed me of it on last Friday, April the 1st he
informed me of that. And that was pretty much it. But as
far as it being used in a trial, I have no problem with that.
But to be used without a proper trial to dispute any
evidence against me I feel like that would violate my rights.
THE COURT: Okay
[DEFENDANT]: And I’d ask that you would enter – that
you would deny an entry of a NGRI plea today before a
proper hearing and proper trial to establish guilt because
it hasn’t been established I committed a crime. I haven’t
been convicted of a crime to be found not guilty of.
THE COURT: All right. Thank you.
Defendant’s counsel then immediately argued that, based on the evidence
presented, the trial court should find Defendant “insane and . . . not guilty[.]” The
State agreed with the recommendation of Defendant’s counsel, but requested that the
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trial court “make this a dismissal with leave so that the State then is responsible and
aware of any future actions as it relates to [Defendant].” (emphasis added).
Following the hearing, the trial court concluded:
[D]efendant has a serious mental illness, schizophrenia,
was psychotic at the time of the alleged crimes on August
4, 2013 and due to her psychosis, was unable to understand
the wrongfulness of her actions at the time they were
allegedly committed.
[D]efendant has a valid defense of insanity and the charges
arising out of the occurrences on August 4, 2013 should be
dismissed with leave as a matter of law.
The trial court entered an order on 19 May 2016, which ordered “the charges against
[D]efendant be dismissed with leave by the State based on the [trial court’s]
determination that under N.C.G.S. § 15A-959, [D]efendant was insane at the time
the acts for which she is charged were committed.” Defendant appeals.
II. Appellate Review
The State filed a motion to dismiss Defendant’s appeal based upon its
contention that no right of appeal exists from the order ruling that Defendant was
NGRI. Defendant acknowledges that her only potential avenue for appellate review
is for this Court to grant the petition for writ of certiorari, which she filed 25 January
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2017. We grant Defendant’s petition for writ of certiorari and deny the State’s motion
to dismiss.1 We therefore address the merits of Defendant’s appeal.
III. Analysis
In Defendant’s first argument, she contends “the trial court erred and denied
[her] constitutional right to the assistance of counsel when it allowed her lawyer to
pursue a pre-trial insanity defense against her wishes,” and requests that this Court
“vacate the trial court’s NGRI order and remand for appropriate proceedings.” We
agree.
“This Court reviews alleged violations of constitutional rights de novo.” State
v. Jones, 220 N.C. App. 392, 394, 725 S.E.2d 415, 416 (2012) (citations omitted). As
our Supreme Court has stated:
The right to counsel in a serious criminal prosecution is
guaranteed by the sixth amendment to the Constitution of
the United States. The attorney-client relationship
rests on principles of agency, and not guardian and
ward. While an attorney has implied authority to make
stipulations and decisions in the management or
prosecution of an action, such authority is usually
limited to matters of procedure, and, in the absence of
special authority, ordinarily a stipulation operating as
a surrender of a substantial right of the client will not
be upheld.
The attorney is bound to comply with her client’s lawful
1
Recognizing the complicated issues concerning the appealability of the 19 May 2016 order,
we grant to the extent necessary, if at all, Defendant’s petition pursuant to the authority granted this
Court by N.C. Gen. Stat. § 7A-32(c) (2015) and Rule 2 of the North Carolina Rules of Appellate
Procedure. See State v. Ledbetter, __ N.C. App. __, 794 S.E.2d 551 (2016).
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instructions, “and her actions are restricted to the scope of
the authority conferred.” “No person can be compelled to
take the advice of his attorney.”
State v. Ali, 329 N.C. 394, 403, 407 S.E.2d 183, 189 (1991) (citations omitted).
The following statute sets forth the requirements for a trial court’s pretrial
determination finding a defendant not guilty by reason of insanity:
Upon motion of the defendant and with the consent of the
State the [trial] court may conduct a hearing prior to the
trial with regard to the defense of insanity at the time of
the offense. If the [trial] court determines that the
defendant has a valid defense of insanity with regard to
any criminal charge, it may dismiss that charge, with
prejudice, upon making a finding to that effect.
N.C.G.S. § 15A-959(c) (emphasis added). Defendant argued at her hearing that she
did not consent to any motion for a pretrial determination of NGRI:
And I’d ask that you would enter – that you would deny an
entry of a NGRI plea today before a proper hearing and
proper trial to establish guilt because it hasn’t been
established I committed a crime. I haven’t been convicted
of a crime to be found not guilty of.
Defendant also stated to the trial court: “But as far as [the defense of NGRI] being
used in a trial, I have no problem with that. But to be used without a proper trial to
dispute any evidence against me I feel like that would violate my rights.” However,
against Defendant’s express wishes, Defendant’s counsel moved for a pretrial
determination of NGRI pursuant to N.C.G.S. § 15A-959(c), the State consented, and
the trial court agreed – purportedly dismissing the charges against Defendant based
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upon its determination that she was NGRI. The trial court also entered “an order
finding that [D]efendant ha[d] been found not guilty by reason of insanity of a crime
and committ[ed her] to a Forensic Unit operated by the Department of Health and
Human Services,” until such time as Defendant should be released “in accordance
with Chapter 122C of the General Statutes.” N.C. Gen. Stat. § 15A-1321(b) (2015).
A. Competency to Stand Trial
After initially being found incompetent to assist in her defense, Defendant was
found competent to proceed on 7 April 2016. Defendant agrees that she was
competent to proceed on 7 April 2016.
According to N.C. Gen. Stat. § 15A-1001 (2015):
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. This condition is
hereinafter referred to as “incapacity to proceed.”
N.C.G.S. § 15A-1001(a) (emphasis added). As explained by this Court:
“The test for capacity to stand trial is whether a defendant
has capacity to comprehend his position, to understand the
nature of the proceedings against him, to conduct his
defense in a rational manner and to cooperate with his
counsel[.]” “Evidence that a defendant suffers from mental
illness is not dispositive on the issue of competency.” Our
Supreme Court has noted that
a defendant does not have to be at the highest stage of
mental alertness to be competent to be tried. So long as
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a defendant can confer with his or her attorney so that
the attorney may interpose any available defenses for
him or her, the defendant is able to assist his or her
defense in a rational manner. It is the attorney who
must make the subtle distinctions as to the trial.
State v. Coley, 193 N.C. App. 458, 463–64, 668 S.E.2d 46, 50 (2008) (citations omitted).
We therefore proceed with our analysis operating under the legal presumption that
Defendant was “[]able to understand the nature and object of the proceedings against
[her], to comprehend [her] own situation in reference to the proceedings, [and] to
assist in [her] defense in a rational or reasonable manner.” N.C.G.S. § 15A-1001(a).
B. Defendant’s Right to Choose Trial Strategy
Although the 19 May 2016 order purports to have acquitted Defendant of the
charges filed against her, we must still determine whether Defendant’s rights were
violated when the trial court proceeded with a pretrial hearing pursuant to N.C.G.S.
§ 15A-959(c), against her express wishes, upon the motion of her counsel and the
consent of the State. Whether a competent defendant has the right to refuse to
pursue a defense of NGRI is a question of first impression in North Carolina.
1. Federal Courts
A defendant’s right to refuse a plea of NGRI has not always been decided
consistently in other jurisdictions. In one of the seminal opinions addressing this
issue, from the United States Court of Appeals for the D.C. Circuit, that Court
initially held that “a defendant may not keep the issue of insanity out of the case
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altogether. He may, if he wishes, refuse to raise the issue of insanity, but he may not,
in a proper case, prevent the court from injecting it.” Whalem v. United States, 346
F.2d 812, 818 (D.C. Cir. 1965) (citations omitted), overruled by U.S. v. Marble, 940
F.2d 1543 (D.C. Cir. 1991). However, the D.C. Circuit eventually overruled its
decision in Whalem, in part because Congress had, post-Whalem, made NGRI an
affirmative defense in federal courts, and thereby removed the affirmative burden of
the State to prove a defendant’s mental responsibility beyond a reasonable doubt in
every trial.2 Marble, 940 F.2d at 1546. The D.C. Circuit also recognized that “[n]o
other federal court of appeals has imposed a duty upon the district court to raise the
insanity defense; indeed, only a few have even considered the issue.” Id. at 1545(citations omitted). The Marble Court further relied upon the following reasoning
based upon two opinions of the United States Supreme Court:
The [Supreme] Court has also held that the Sixth
Amendment guarantees a defendant the right to conduct
his own defense. In so doing the Court reaffirmed the
“nearly universal conviction . . . that forcing a lawyer upon
an unwilling defendant is contrary to his basic right to
defend himself if he truly wants to do so.” The Court
explained that “[t]he Sixth Amendment does not provide
merely that a defense shall be made for the accused; it
grants to the accused personally the right to make his
defense.”
The Whalem line of cases is in substantial tension with
both Alford and Faretta insofar as it precludes a district
court from simply deferring to the choice of a competent
2Insanity is also an affirmative defense in North Carolina that must be asserted prior to trial.
N.C.G.S. § 15A-959(a).
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defendant not to plead insanity, and may at times require
the court to override that choice. Alford stands clearly for
the proposition that a court may defer to a defendant’s
strategic choice to accept criminal responsibility even if his
actual culpability is neither proven nor admitted. This
seriously undermines the Whalem rationale that the law
does not countenance the punishment of a person whose
crime has been proved beyond a reasonable doubt but
whose mental responsibility (although not denied) is
objectively in doubt.
[T]o impose a particular defense upon an accused, in
essence to force him to affirm that he is insane, makes not
only appointed counsel but the defendant himself “an
organ of the State.” “Unless the accused has acquiesced
. . . ., the defense presented is not the defense guaranteed
him by the Constitution, for, in a very real sense, it is not
his defense.”
Id. at 1546 (citations omitted). After noting “the Supreme Court’s deference,
expressed in Faretta and Alford, to a competent defendant’s strategic decisions,” id.
at 1547, the Marble Court stated that they could “no longer distinguish the decision
not to plead insanity from other aspects of a defendant’s right . . . to direct his own
defense[,]” id., and concluded: “[W]e hold that a district court must allow a competent
defendant to accept responsibility for a crime committed when he may have been
suffering from a mental disease. Insofar as they hold to the contrary, Whalem and
its progeny are overruled.” Id.3
3 Marble has been followed in some jurisdictions, and rejected – in whole or in part – in others.
See United States v. Wattleton, 296 F.3d 1184, 1194 (11th Cir. 2002) (“we agree with [the defendant]
that whether to raise the insanity defense is a decision for the defendant and his counsel”); Petrovich
v. Leonardo, 229 F.3d 384, 386 (2d Cir. 2000) (“[t]he decision to assert an affirmative defense is akin
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2. North Carolina
The United States Supreme Court has recognized the fundamental right of a
Defendant to represent herself, without the assistance of counsel, and thereby make
all trial decisions unrestrained by the intervention of a third party:
The Sixth Amendment does not provide merely that a
defense shall be made for the accused; it grants to the
accused personally the right to make h[er] defense. It is
the accused, not counsel, who must be “informed of the
nature and cause of the accusation,” who must be
“confronted with the witnesses against h[er],” and who
must be accorded “compulsory process for obtaining
witnesses in h[er] favor.” Although not stated in the
Amendment in so many words, the right to self-
representation—to make one’s own defense personally—is
thus necessarily implied by the structure of the
Amendment. The right to defend is given directly to the
accused; for it is [she] who suffers the consequences if the
defense fails.
The counsel provision supplements this design. It speaks
of the “assistance” of counsel, and an assistant, however
expert, is still an assistant. The language and spirit of the
Sixth Amendment contemplate that counsel, like the other
defense tools guaranteed by the Amendment, shall be an
aid to a willing defendant—not an organ of the State
interposed between an unwilling defendant and h[er] right
to defend h[er]self personally. To thrust counsel upon the
accused, against h[er] considered wish, thus violates the
logic of the Amendment. In such a case, counsel is not an
to other, fundamental trial decisions, such as the decision to plead to a lesser charge or to assert a plea
of insanity”); State v. Gorthy, 145 A.3d 146, 157 (2016) (“Accordingly, if the trial court has made a
finding of competency, it should not interpose its own judgment for that of the defendant, but should
respect the defendant’s choice [to reject a defense of NGRI].”); but see People v. Laeke, 271 P.3d 1111,
1116 (Colo. 2012) (statute allowing a competent defendant’s counsel to seek NGRI over the defendant’s
objection is constitutional so long as the trial court determined that the defendant’s competence was
not sufficient to independently make the decision to abandon NGRI defense).
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assistant, but a master; and the right to make a defense is
stripped of the personal character upon which the
Amendment insists.
Faretta v. California, 422 U.S. 806, 819–20, 45 L. Ed. 2d 562, 572-73 (1975) (citations
omitted).
In North Carolina, because NGRI is an affirmative defense that must be
asserted by the defendant, it is the defendant’s decision whether to pursue NGRI, and
the State has no obligation to address the issue absent the defendant having properly
asserted the defense. N.C.G.S. § 15A-959(a); State v. McDowell, 329 N.C. 363, 375,
407 S.E.2d 200, 206–07 (1991). Relying on the Sixth Amendment, this Court has
repeatedly held:
“Like the decision regarding how to plead, the decision
whether to testify is a substantial right belonging to the
defendant. While strategic decisions regarding witnesses
to call, whether and how to conduct cross-examinations,
. . . and what trial motions to make are ultimately the
province of the lawyer, certain other decisions represent
more than mere trial tactics and are for the defendant.
These decisions include what plea to enter, whether to
waive a jury trial and whether to testify in one’s own
defense.”
State v. Chappelle, 193 N.C. App. 313, 332, 667 S.E.2d 327, 338 (2008) (citations
omitted) (emphasis added). Our Supreme Court has held:
A defendant’s right to plead “not guilty” has been carefully
guarded by the courts. When a defendant enters a plea of
“not guilty”, he preserves two fundamental rights. First,
he preserves the right to a fair trial as provided by the
Sixth Amendment. Second, he preserves the right to hold
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the government to proof beyond a reasonable doubt.
A plea decision must be made exclusively by the defendant.
“A plea of guilty or no contest involves the waiver of various
fundamental rights such as the privilege against self-
incrimination, the right of confrontation and the right to
trial by jury.” Because of the gravity of the consequences,
a decision to plead guilty must be made knowingly and
voluntarily by the defendant after full appraisal of the
consequences.
This Court is cognizant of situations where the evidence is
so overwhelming that a plea of guilty is the best trial
strategy. However, the gravity of the consequences
demands that the decision to plead guilty remain in the
defendant’s hands. When counsel admits his client’s guilt
without first obtaining the client’s consent, the client’s
rights to a fair trial and to put the State to the burden of
proof are completely swept away. The practical effect is the
same as if counsel had entered a plea of guilty without the
client’s consent. Counsel in such situations denies the
client’s right to have the issue of guilt or innocence decided
by a jury.
State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985) (citations omitted).
We recognize: “A claim of insanity is an affirmative defense to a crime and does not
require a formal inquiry as set forth in N.C.G.S. § 15A–1022, even when a defendant
decides to waive his right to plead not guilty.” McDowell, 329 N.C. at 375, 407 S.E.2d
at 206–07 (citation omitted). Nonetheless, our Supreme Court has stated: “It is
settled law in this State that when . . . the defendant interposes a plea of insanity, he
says by this plea that he did the killing, but the act is one for which he is not
responsible.” State v. Bowser, 214 N.C. 249, 254-55, 199 S.E. 31, 34 (1938) (citations
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omitted).4 More importantly, a pretrial determination of NGRI pursuant to N.C.G.S.
§ 15A-959(c) eliminates a defendant’s ability to demand the constitutional rights
associated with a trial in the same manner as does a guilty plea. The United States
Supreme Court recognized:
A defendant who stands trial is likely to be presented with
choices that entail relinquishment of the same rights that
are relinquished by a defendant who pleads guilty: He will
ordinarily have to decide whether to waive his “privilege
against compulsory self-incrimination” by taking the
witness stand; if the option is available, he may have to
decide whether to waive his “right to trial by jury,” and, in
consultation with counsel, he may have to decide whether
to waive his “right to confront [his] accusers” by declining
to cross-examine witnesses for the prosecution. A
defendant who pleads not guilty, moreover, faces still other
strategic choices: In consultation with his attorney, he may
be called upon to decide, among other things, whether (and
how) to put on a defense and whether to raise one or more
affirmative defenses. In sum, all criminal defendants—not
merely those who plead guilty—may be required to make
important decisions once criminal proceedings have been
initiated. And while the decision to plead guilty is
undeniably a profound one, it is no more complicated than
the sum total of decisions that a defendant may be called
upon to make during the course of a trial. (The decision to
plead guilty is also made over a shorter period of time,
without the distraction and burden of a trial.).
Godinez v. Moran, 509 U.S. 389, 398–99, 125 L. Ed. 2d 321, 331-32 (1993) (citations
omitted).
4 However, a defendant is permitted to argue both factual innocence and innocence due to a
lack of capacity to have formed criminal intent simultaneously at trial. See State v. Cooper, 286 N.C.
549, 591, 213 S.E.2d 305, 332 (1975) (Sharp, C.J., dissenting), disavowed in part on other grounds by
State v. Leonard, 300 N.C. 223, 266 S.E.2d 631 (1980).
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Nor do we think that a defendant who waives his right to
the assistance of counsel must be more competent than a
defendant who does not, since there is no reason to believe
that the decision to waive counsel requires an appreciably
higher level of mental functioning than the decision to
waive other constitutional rights.
Id. at 399, 125 L. Ed. 2d 321 at 332.5
Though Harbison dealt with the consequences of a defendant’s attorney
admitting defendant’s guilt to certain charges without the defendant’s consent, in
light of Godinez and other precedent, we find the following reasoning in Harbison
applicable to the present case:
This Court is cognizant of situations where the evidence is
so overwhelming that a plea of guilty [or NGRI] is the best
trial strategy. However, the gravity of the consequences
demands that the decision to plead guilty [or NGRI] remain
in the defendant’s hands. When counsel admits his client’s
guilt [or moves for a pretrial determination of NGRI]
without first obtaining the client’s consent, the client’s
rights to a fair trial and to put the State to the burden of
proof are completely swept away. . . . . Counsel in such
situations denies the client’s right to have the issue of guilt
or innocence decided by a jury.
Harbison, 315 N.C. at 180, 337 S.E.2d at 507 (citation omitted).
By ignoring Defendant’s clearly stated desire to proceed to trial rather than
moving for a pretrial verdict of NGRI pursuant to N.C.G.S. § 15A-959(c), the trial
5 Godinez recognizes that whereas a finding of competence to stand trial establishes a
defendant’s competence to waive fundamental rights at trial and competence to make critical decisions
such as whether to raise affirmative defenses, and waiver of certain rights such as the waiver of right
to counsel or the right to trial by pleading guilty, it also requires assurances that the defendant’s
waiver is “knowing and voluntary.” Godinez, 509 U.S. at 400, 125 L. Ed. 2d at 333 (citations omitted).
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court allowed — absent Defendant’s consent and over her express objection — the
“waiver” of her fundamental rights, including the right to decide “what plea to enter,
whether to waive a jury trial and whether to testify in [her] own defense[,]” Chappelle,
193 N.C. App. at 332, 667 S.E.2d at 338 (citations omitted), as well as “the right to a
fair trial as provided by the Sixth Amendment[,] . . . the right to hold the government
to proof beyond a reasonable doubt[,] . . . [and] the right of confrontation[.]” Harbison,
315 N.C. at 180, 337 S.E.2d at 507 (citations omitted). These rights may not be denied
a competent defendant, even when the defendant’s choice to exercise them may not
be in the defendant’s best interests. In the present case, Defendant had the same
right to direct her counsel in fundamental matters, such as what plea to enter, as she
had to forego counsel altogether and represent herself, even when Defendant’s choices
were made against her counsel’s best judgment. We hold that, because the decision
of whether to plead not guilty by reason of insanity is part of the decision of “what
plea to enter,” the right to make that decision “is a substantial right belonging to the
defendant.” Chappelle, 193 N.C. App. at 332, 667 S.E.2d at 338 (emphasis added).6
Therefore, by allowing Defendant’s counsel to seek and accept a pretrial disposition
of NGRI, the trial court “deprived [Defendant] of [her] constitutional right to conduct
6 For a thorough and thoughtful review of the issues before us, see State v. Handy, 421 N.J.
Super. 559, 25 A.3d 1140 (2011) (“Handy I”); State v. Handy, 215 N.J. 334, 73 A.3d 421 (2013) (“Handy
II”); and State v. Gorthy, 226 N.J. 516, 145 A.3d 146 (2016).
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Opinion of the Court
[her] own defense.” Faretta, 422 U.S. at 836, 45 L. Ed. 2d at 582.7 We are not called
upon to determine how that right should be protected when asserted by a defendant’s
counsel at trial but, at a minimum, a defendant’s affirmative declaration that the
defendant does not wish to move for a pretrial determination of NGRI must be
respected.8
The State argues that Defendant cannot show prejudice because she is subject
to periodic hearings, the first of which would have occurred within fifty days of her
involuntary commitment pursuant to N.C.G.S. § 15A-959(c) and N.C.G.S. § 1321(b).
See N.C. Gen. Stat. § 122C-268.1(a) (2015). However, because the trial court found
Defendant NGRI, Defendant was not only automatically involuntarily committed
pursuant to N.C.G.S. § 15A-1321(b), she was also subject for the entirety of her
commitment to the more onerous conditions specific to commitment pursuant to
N.C.G.S. § 15A-1321(b) that are not applicable to ordinary civil commitment. For
example, the burdens of proof to demonstrate that a defendant is no longer mentally
ill and dangerous are different, depending on whether the defendant was civilly
7 See also Gorthy, 145 A.3d at 157, in which the Supreme Court of New Jersey overruled prior
opinions allowing the trial court to impose an insanity defense over a competent defendant’s informed
objections.
8 The trial court is, of course, encouraged to conduct a more formal inquiry in the nature of
that set forth in N.C. Gen. Stat. § 15A-1022 (2015) to insure a defendant fully understands the
consequences of the defendant’s decision.
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Opinion of the Court
committed or committed pursuant to NGRI. N.C. Gen. Stat. § 122C-271 (2015).9 The
differences between civil involuntary commitment and commitment pursuant to a
finding of NGRI are substantial and prejudicial to the committed individual if that
person is subject to the requirements of commitment pursuant to NGRI, even if that
person meets the requirements for civil involuntary commitment.
As Defendant argues in her brief, because she was found competent to assist
her counsel and stand trial, she should have been allowed to weigh “(1) the risk of a
conviction and lengthy but definite prison sentence, versus; (2) the risk of an NGRI
verdict and indefinite commitment, versus; (3) the possibility of an outright acquittal,
and ultimately decide that pursuit of a jury trial was the most advantageous
strategy.” The denial of Defendant’s right to counsel advocating for her wishes, which
resulted in the denial of Defendant’s right to trial and her indefinite involuntary
commitment pursuant to N.C.G.S. § 15A-959(c) and N.C.G.S. § 1321(b), constituted
reversible error.
C. Double Jeopardy
Defendant argues that, as a result of the violation of her Sixth Amendment
rights, “the trial court’s NGRI order must be vacated.” Normally, when this Court
9 See also, e.g., N.C. Gen. Stat. § 122C-62(b) (2015) (“[E]ach adult client who is receiving
treatment or habilitation in a 24-hour facility at all times keeps the right to: . . . . (4) Make visits
outside the custody of the facility unless: a. Commitment proceedings were initiated as the result of
the client’s being charged with a violent crime . . . and the respondent was found not guilty by reason
of insanity or incapable of proceeding[.]”).
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vacates a defendant’s judgment the proper course of action is to remand the matter
for a new trial. However, in certain circumstances, remand for a new trial is not
appropriate because retrial would violate the defendant’s double jeopardy rights. The
United States Supreme Court reviewed its double jeopardy jurisprudence in Evans v.
Michigan:
It has been half a century since we first recognized that the
Double Jeopardy Clause bars retrial following a court-
decreed acquittal, even if the acquittal is “based upon an
egregiously erroneous foundation.” Fong Foo v. United
States, 369 U.S. 141[.] A mistaken acquittal is an acquittal
nonetheless, and we have long held that “[a] verdict of
acquittal . . . could not be reviewed, on error or otherwise,
without putting [a defendant] twice in jeopardy, and
thereby violating the Constitution.” Our cases have
applied Fong Foo’s principle broadly. An acquittal is
unreviewable whether a judge directs a jury to return a
verdict of acquittal, or forgoes that formality by entering a
judgment of acquittal herself. And an acquittal precludes
retrial even if it is premised upon an erroneous decision to
exclude evidence; a mistaken understanding of what
evidence would suffice to sustain a conviction; or a
“misconstruction of the statute” defining the requirements
to convict. In all these circumstances, “the fact that the
acquittal may result from erroneous evidentiary rulings or
erroneous interpretations of governing legal principles
affects the accuracy of that determination, but it does not
alter its essential character.”
Evans v. Michigan, 568 U.S. 313, 318, 185 L. Ed. 2d 124, 133 (2013) (citations
omitted).
Certain state appellate courts have treated NGRI determinations as different
than “acquittals” as understood in Evans, and determined that an erroneous NGRI
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Opinion of the Court
determination does not implicate double jeopardy. See, e.g., Gorthy, 145 A.3d at 158
(reversing and remanding for a new trial on stalking charge because the defendant
was forced to present NGRI defense against her will, and she was found NGRI);
Handy II, 73 A.3d at 439 (rejecting the defendant’s argument that, because his
acquittal based upon NGRI was vacated, double jeopardy prevented the state from
trying him on the underlying charges); Handy I, 25 A.3d at 1169 (“Most importantly
for our purposes, double jeopardy did not attach in Lewis, because the judgment there
had declared the defendant not guilty by reason of insanity.”); see also, e.g., State ex
rel. Koster v. Oxenhandler, 491 S.W.3d 576, 606 (Mo. Ct. App. 2016) (“The import of
our disposition is to vacate [the petitioner’s] assertion of, and the State’s and the
underlying trial court’s acceptance of, the NGRI defense; to vacate the underlying
trial court’s July 9, 2007 order and judgment of commitment; and to return [the
petitioner] to the procedural position he was in immediately prior to July 9, 2007.”);
State v. Lewis, 188 S.W.3d 483, 490 (Mo. Ct. App. 2006) (double jeopardy does not
attach to judgment of NGRI later found invalid); State v. Kent, 515 S.W.2d 457, 460–
61 (Mo. 1974) (holding that a verdict of not guilty by reason of mental disease or defect
that is later found to be invalid does not place the defendant in jeopardy of being
found guilty).
In Kent, the Supreme Court of Missouri stated: “We do not believe Fong Foo
. . . controls our disposition of this case because it involved an acquittal on the general
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Opinion of the Court
question of guilt, and not, as here, on the basis of the defense of mental disease and
defect.” Id. at 461. The United States Supreme Court denied the petition for writ of
certiorari filed by the defendant in Kent, Ex parte Kent, 414 U.S. 1077, 38 L. Ed. 2d
484 (1973); however, three justices dissented, arguing the defendant’s double
jeopardy argument should be heard because the defendant’s “double jeopardy claim
is properly reviewable at this point since his objection to standing trial has been
rejected and petitioner has been ordered to stand trial in accordance with the
mandate of the State’s highest court.” Id. at 1078, 38 L. Ed. 2d 484 at 485.
Whether reversal of a judgment of NGRI implicates the double jeopardy clause
has not been settled by the United States Supreme Court, and we find no North
Carolina opinion on point. However, because of the particular facts of the case before
us, we find that we do not have to answer this constitutional question broadly. State
v. Goodman, 298 N.C. 1, 20, 257 S.E.2d 569, 582 (1979) (constitutional questions will
not be decided if there is an alternative basis upon which the decision can be made).
D. N.C.G.S. § 15A-959(c) and the Trial Court’s Order
The language of N.C.G.S. § 15A-959(c) is discretionary, not mandatory:
Upon motion of the defendant and with the consent of the
State the [trial] court may conduct a hearing prior to the
trial with regard to the defense of insanity at the time of
the offense. If the [trial] court determines that the
defendant has a valid defense of insanity with regard to
any criminal charge, it may dismiss that charge, with
prejudice, upon making a finding to that effect.
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Opinion of the Court
N.C.G.S. § 15A-959(c). The trial court is not required to conduct a hearing on a
defendant’s potential defense of insanity, even upon a motion by the defendant and
consent of the State. Id. (emphasis added) (“the [trial] court may conduct a hearing
prior to the trial with regard to the defense of insanity”). Further, even if the trial
court conducts a hearing, and “determines that the defendant has a valid defense of
insanity[,]” it may still decide to deny the defendant’s motion for a pretrial
determination of NGRI. Id. (emphasis added) (“[i]f the [trial] court determines that
the defendant has a valid defense of insanity with regard to any criminal charge, it
may dismiss that charge, with prejudice, upon making a finding to that effect”).
Therefore, unlike a defendant’s right to a fair trial, a defendant has no right to either
a pretrial determination of NGRI, nor the right to have her charges dismissed even if
the trial court makes a pretrial determination of NGRI. However, the language of
N.C.G.S. § 15A-959(c) suggests that, if a trial court decides in its discretion to dismiss
a defendant’s charges based upon a pretrial finding of NGRI, it should do so with
prejudice.10 Id. (“it may dismiss that charge, with prejudice”).
In the present case, the trial court used the following language in the decretal
portion of its 19 May 2016 order: “That the charges against [D]efendant be dismissed
with leave by the State based on the [trial c]ourt’s determination that under N.C.G.S.
10 Because we are not required to do so in this opinion, we do not make any holding concerning
whether N.C.G.S. § 15A-959(c) might allow dismissal without prejudice in certain circumstances, or
in the discretion of the trial court.
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Opinion of the Court
§ 15A-959, [D]efendant was insane at the time the acts for which she is charged were
committed.” This language makes clear the trial court made a determination
pursuant to N.C.G.S. § 15A-959(c) that Defendant was legally “insane” at the time
she allegedly committed the crimes; however, that determination alone did not
compel the trial court to dismiss Defendant’s charges and preclude Defendant from
proceeding to trial. Id. The trial court did purport to dismiss Defendant’s charges;
however, the trial court did not dismiss Defendant’s charges “with prejudice” as
contemplated by N.C.G.S. § 15A-959(c).
We need not, and therefore do not, decide whether the trial court had the
authority to dismiss Defendant’s charges “with leave;” however, the practical effect is
the same. The 19 May 2016 order did not constitute an “acquittal” to which jeopardy
attached. In light of the peculiar and singular nature of a pretrial NGRI hearing, and
on the facts before us, where the trial court purported to dismiss Defendant’s charges,
but with leave we hold that the order in the present case was more akin to a
“procedural dismissal” than a “substantive ruling” as contemplated by Evans, 568
U.S. at 319–20, 185 L. Ed. 2d at 134. As such, double jeopardy concerns do not
prevent this Court from granting the relief Defendant requests, which is to “vacate
the trial court’s NGRI order and remand for appropriate proceedings.” Br26
In light of the substantial amount of time that has passed since Defendant’s
last competency hearing, upon remand the trial court shall order a new competency
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Opinion of the Court
hearing. If Defendant is found not competent to stand trial, the trial court shall
proceed in accordance with Chapter 122C and other relevant sections of our General
Statutes. If, or when, Defendant is found competent to stand trial, she shall be
afforded all the constitutional rights of a competent defendant, including final
decision-making authority over what plea to enter, and whether or not to pursue the
defense of NGRI at trial, or at a pretrial hearing pursuant to N.C.G.S. § 15A-959(c).
VACATED AND REMANDED.
Judges TYSON and INMAN concur.
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