Appeal by defendant from judgments entered 8 August 2002 by
Judge W. Douglas Albright in Warren County Superior Court. Heard
in the Court of Appeals 15 October 2003.
Roy A. Cooper, III, Attorney General, by James A. Wellons,
Special Deputy Attorney General, for the State.
William B. Gibson, for defendant-appellant.
MARTIN, Judge.
Defendant Willie Robertson was indicted for two counts of
malicious conduct by a prisoner arising out of an incident in which
he is alleged, while an inmate in the custody of the North Carolina
Department of Correction, to have knowingly and willfully spit in
the face of two prison guards on 12 December 2001 at the Warren
Correction Institute. He was also indicted for an additional count
of malicious conduct by a prisoner and for assault on a government
employee arising out of another incident on 20 January 2002 in
which he is alleged to have knowingly and willfully spit in the
face of a guard and pushed her while she was attempting to escort
him to the recreation area.
The cases were joined for trial, which commenced on 5 August
2002. On the first day of trial, defendant became agitated and
violent when he was denied a request for a new attorney. The
defendant turned over the defense counsel's table, shattering the
plate glass top, and then shouted several epithets at the court as
he was escorted out of the courtroom.
On the second day of trial, it was brought to the trial
court's attention that an evaluation as to the defendant's capacity
to proceed, which had been previously ordered by another judge on
6 May 2002, had never been conducted. The trial court ordered that
defendant be immediately sent to Dorothea Dix Hospital for an
evaluation as to his capacity to proceed to trial. He was examined
by Dr. Carla deBeck, a forensic psychiatrist, for one hour and
forty minutes. At a hearing the following day, Dr. deBeck
testified that defendant had borderline intelligence and suffered
from a personality disorder and possible paranoia but was capableof proceeding to trial. Based upon her testimony, the trial court
found defendant was capable of proceeding.
Defense counsel reported to the court that defendant had given
his assurance that he would behave in an appropriate manner and
would not cause any further disruption if he were permitted to
return to the courtroom. Defendant then apologized to the trial
court for the disturbance he had caused and the jury was returned
to the courtroom. Later that day, however, after the State had
presented its case, the defendant fell to the floor upon returning
from a recess, as though he had fainted. Emergency personnel were
called and defendant was transported to the hospital after
complaining of chest pain. No medical infirmities were found at
the scene or later at the hospital. The emergency personnel who
responded testified that defendant had told them, on the previous
occasion when they were treating him after he overturned the
defense counsel's table, “Y'all will probably be right back,
because I'm going to go ahead and pass out.”
The jury found defendant not guilty of one count of malicious
conduct by a prisoner, but guilty as to the other two counts and
guilty of assault on a government employee. The trial court then
conducted a contempt hearing and found defendant guilty of criminal
contempt for his conduct in overturning the table and shouting
epithets at the court on the first day of his trial.
The court sentenced the defendant to thirty days incarceration
for contempt, to be served at the expiration of the sentence
defendant was currently serving. The court then found, as factors
in aggravation of defendant's sentences as to both counts ofmalicious conduct by a prisoner, that the offenses were committed
to hinder the lawful exercise of a governmental function, and that
defendant had breached his assurance of good behavior by faking a
heart problem and “falling out” on the floor on the third day of
trial. The court found no mitigating factors and sentenced
defendant in the aggravated range to a minimum of 49 months and a
maximum of 59 months for each count of malicious conduct by a
prisoner. He was also sentenced to a term of 150 days for assault
on a government employee, all of the sentences to be served
consecutively. Defendant appeals from these judgments.
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I.
[1] In his first assignment of error, the defendant argues
that the competency determination in this case violated G.S. §§
15A-1001
et seq. and the defendant's constitutional right to due
process of law. There is no indication in the record that
defendant objected at trial to the court's ruling that he had
capacity to proceed; thus, defendant has failed to preserve this
argument for review. N.C. Gen. Stat. § 15A-1446(a) (2001); N.C. R.
App. P. 10(b)(1). We elect, however, to address his arguments in
the exercise of our discretion under N.C. R. App. P. 2.
G.S. § 15A-1001
provides that the State may not proceed
against a criminal defendant if he or she is mentally
incapacitated. N.C. Gen. Stat. § 15A-1001 (2001). When a
defendant's capacity to proceed is questioned by either party or
the court, the trial court must conduct a hearing and “may order
the defendant to a State facility for the mentally ill forobservation and treatment for the period, not to exceed 60 days,
necessary to determine the defendant's capacity to proceed.” N.C.
Gen. Stat. § 15A-1002 (2001).
Defendant argues that G.S. §§ 15A-1001
et seq. were violated
in this case because the original competency evaluation ordered on
6 May 2002 was not carried out, but instead a “hasty” one hour and
forty minute evaluation was conducted on the second day of his
trial. Defendant specifically contends that G.S. § 15A-1002(b)(2),
which states that commitment to a State facility for the mentally
ill for purposes of evaluation shall not exceed a period of 60
days, implicitly contemplates a period of observation greater than
one hour and forty minutes. We are not persuaded by his argument.
“If the language used [in a statute] is clear and unambiguous,
the Court does not engage in judicial construction but must apply
the statute to give effect to the plain and definite meaning of the
language.”
Fowler v. Valencourt, 334 N.C. 345, 348, 435 S.E.2d
530, 532 (1993). It is clear that the plain language of G.S. §
15A-1002 does not establish a minimum period of observation for
competency evaluations. To the contrary, G.S. § 15A-1002 places
the issue of competency within the trial court's discretion.
In re
Robinson, 151 N.C. App. 733, 736, 567 S.E.2d 227, 228 (2002).
Defendant stipulated that Dr. deBeck was an expert forensic
psychiatrist; it is within her field of expertise to determine the
extent of the examination required to reach an opinion as to
defendant's capacity to proceed. His argument that her examination
was insufficient to comply with the requirements set forth in G.S.§§ 15A-1001
et seq. based solely upon the length of its duration is
clearly without merit.
Defendant also argues that the one hour and forty minute
observation period used to make a competency evaluation by Dr.
Carla deBeck was insufficient to comport with the constitutional
requirement of due process. It is a violation of due process to
try and convict a person of a criminal offense while he or she is
mentally incompetent.
Pate v. Robinson, 383 U.S. 375, 385 (1966).
In this case, the trial court made a determination that the
defendant had sufficient mental capacity to stand trial. A trial
court's determination that a defendant is competent to stand trial
is conclusive if supported by the evidence.
In re Robinson, 151
N.C. App. at 736, 567 S.E.2d at 228. The trial court made sixteen
findings of fact, basing its conclusion on the expert opinion of
Dr. Carla deBeck and the court's own observations. The evidence is
more than sufficient to support the trial court's findings.
Accordingly, the defendant's argument that the competency
determination in this case was in violation of due process is also
without merit.
II.
[2] The defendant next argues the trial court improperly
enhanced the defendant's sentences for the two convictions of
malicious conduct by a prisoner because it used evidence necessary
to prove an element of the offense to enhance the sentence in
violation of G.S. § 15A-1340.16(d) and, in addition, violated the
Double Jeopardy Clause of the United States Constitution by
punishing the defendant for contempt by reason of his courtroomconduct and using the same conduct to enhance his sentence. We
find no merit in either argument.
Defendant acknowledges that he failed to object at trial to
the findings in aggravation but nevertheless urges us to exercise
our authority under N.C. R. App. P., Rule 2 to consider the issue.
We need not employ Rule 2 to reach the issue of whether a
sentencing determination “was unauthorized at the time imposed,
exceeded the maximum authorized by law, was illegally imposed, or
is otherwise invalid as a matter of law” because such issues may be
the subject of appellate review “even though no objection,
exception or motion has been made in the trial division.” N.C.
Gen. Stat. § 15A-1446(d)(18)(2001). Thus, despite the defendant's
failure to object to the sentence at trial, the issue is properly
before this Court.
[3] There are five essential elements required to prove a
defendant's guilt of the offense of malicious conduct by a
prisoner:
(1) the defendant threw, emitted, or caused to
be used as a projectile a bodily fluid or
excrement at the victim;
(2) the victim was a State or local government
employee;
(3) the victim was in the performance of his
or her State or local government duties at the
time the fluid or excrement was released;
(4) the defendant acted knowingly and
willfully; and
(5)the defendant was in the custody of the
Department of Correction, the Department of
Juvenile Justice and Delinquency Prevention,
any law enforcement officer, or any local
confinement facility (as defined in G.S.
153A-217, or G.S. 153A-230.1), including
persons pending trial, appellate review, or
presentence diagnostic evaluation, at the time
of the incident.
N.C. Gen. Stat. § 14-258.4 (2001). The trial court found, as a
factor in aggravation of punishment, that “[t]he offense was
committed to hinder the lawful exercise of a governmental function
or the enforcement of laws.”
See N.C. Gen. Stat. § 15A-
1340.16(d)(5) (2001).
N.C. Gen. Stat. § 15A-1340.16(d) (2001) provides that
“[e]vidence necessary to prove an element of the offense shall not
be used to prove any factor in aggravation . . . .” In
State v.
Corbett, the State relied upon evidence tending to show that the
defendant took advantage of a position of trust in order to prove
the element of force in a sexual assault case. 154 N.C. App. 713,
717, 573 S.E.2d 210, 214 (2002). This Court held that it was a
violation of G.S. § 15A-1340.16(d) to subsequently use the same
evidence to prove as an aggravating factor that defendant “took
advantage of a position of trust.”
Id.
However, the underlying offense in this case is a general
intent crime while the aggravating factor involves the finding of
specific intent. Thus, the aggravating factor found by the trial
court required evidence of an element not present in the underlying
offense - the defendant's intent to hinder the prison guard's
lawful exercise of governmental functions.
See State v. Sellers,
155 N.C. App. 51, 57, 574 S.E.2d 101, 105-6 (2002)(use of a firearm
as an element of the crime does prohibit the court from finding as
an aggravating factor that defendant used a weapon that “would
normally be hazardous to the lives of more than one person”). The
mere fact that a defendant knowingly and willfully spit at a prison
guard while he or she was in the performance of his or her dutiesdoes not implicitly presume that the defendant intended to hinder
the duties of the guard. Additional evidence would be required to
prove this specific intent and as such, the trial court did not
violate G.S. § 15A-1340.16(d) when it found as an aggravating
factor that defendant intended to hinder the lawful exercise of a
governmental function when he committed the crime of malicious
conduct by a prisoner.
[4] Next, defendant argues the trial court improperly enhanced
his sentence when it found as a non-statutory aggravating factor in
each of the judgments for malicious conduct by a prisoner that “the
defendant breached his assurance of good behavior.” N.C. Gen.
Stat. § 15A-1340.16(d)(20) (2001) provides that the trial court may
make additional written findings of factors in aggravation. The
defendant argues that this finding violates the Double Jeopardy
Clause of the U.S. Constitution because he had already been
convicted of contempt of court for overturning a table and shouting
expletives at the court. The Double Jeopardy Clause prohibits the
imposition of multiple punishments for the same offense.
Sattazahn
v. Pennsylvania, 537 U.S. 101, 106 (2003). However, the defendant
is not being punished twice for the same offense in this case. The
aggravating factor found by the trial court relates to the
defendant's behavior at trial when he breached his assurance of
good behavior by feigning a heart problem and is entirely separate
from the earlier incident for which he was found in contempt.
Thus, the trial court did not violate the defendant's rights
against being twice put in jeopardy for the same conduct when itenhanced defendant's sentence for breaching his assurance of good
behavior.
The defendant also contends that this finding in aggravation
was in violation of G.S. § 15A-1340.16(d), discussed
supra, because
the evidence necessary for its proof was also necessary for the
defendant's conviction for criminal contempt. This argument is
without merit since the evidence necessary to prove the defendant's
breach of his assurance of good behavior is completely separate and
distinct from the evidence necessary to prove the behavior that
prompted the court to hold the defendant in contempt. Defendant's
assignments of error are overruled.
No error.
Judges STEELMAN and LEVINSON concur.
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