NO. COA04-1185
Appeal by defendant from judgments entered 18 December 2003 by
Judge J. Marlene Hyatt in Buncombe County Superior Court. Heard in
the Court of Appeals 26 September 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Christine Goebel, for the State.
K.E. Krispen Culbertson for defendant-appellant.
GEER, Judge.
Defendant Debra Shelton Jones appeals from the judgment
revoking her probation. Her sole argument on appeal is that the
trial court erred in finding her mentally competent to proceed with
the probation violation hearing. Because the record contains
evidence supporting the trial court's determination that defendant
was competent, we affirm.
Facts
On 2 February 2000, defendant was cited for driving with a
revoked licence, driving without insurance, and driving while
impaired. She was initially tried in district court and, on 3
October 2001, the court entered judgment convicting defendant of
driving while her license was revoked, suspended the 45-daysentence, and placed defendant on 36-months probation. The next
day, the district court entered judgment convicting defendant of
driving while impaired, suspended the two-year sentence, and placed
defendant on 36-months probation, with defendant ordered to serve
an active sentence of 30 days.
Defendant's probation officer subsequently filed a violation
report in each case alleging that defendant failed to: (1) report
to her probation officer; (2) comply with monetary requirements;
(3) provide proof of employment; and (4) provide proof of substance
abuse assessment or treatment. On 7 November 2003, the district
court entered judgments in both cases, revoking defendant's
probation. Defendant appealed to the superior court for a trial
de
novo.
Prior to the probation violation hearing, defendant's attorney
informed the court that defendant displayed a limited understanding
that the revocation of her probation would restrain her liberty and
requested an order for an evaluation of defendant. The trial court
entered an "Order Appointing Local Certified Forensic Examiner" to
determine if defendant had the mental capacity to proceed with the
probation violation hearing.
Staff Psychologist Barbara J. Bailey of the Blue Ridge Center
examined defendant at the detention facility and submitted her
report to the trial court. In her report, Bailey concluded that
"Ms. Jones will have difficulty participating in her defense, due
to her mental condition and impaired memory" and recommended that
defendant "be assessed further for medical and/or neurologicalproblems."
On 18 December 2003, the trial court held a competency
hearing. After hearing testimony from Bailey and defendant's
probation officer, the trial court determined defendant was
competent to proceed. Thereafter, defendant waived reading of the
violation report and admitted the allegations contained therein.
The trial court found defendant to be in violation of her probation
and activated her sentences. Defendant appeals.
Discussion
Defendant contends there was insufficient evidence from which
the court could conclude she was competent to proceed. The test to
determine a defendant's mental capacity to proceed to trial is
found in N.C. Gen. Stat. § 15A-1001(a) (2003), which states:
No person may be tried, convicted, sentenced,
or punished for a crime when by reason of
mental illness or defect [the person] is
unable to understand the nature and object of
the proceedings . . ., to comprehend [the]
situation in reference to the proceedings, or
to assist in his [or her] defense in a
rational or reasonable manner.
A defendant may raise the issue of competency by motion under N.C.
Gen. Stat. § 15A-1002(a) (2003). The defendant bears the burden of
proof on that issue.
State v. Baker, 312 N.C. 34, 43, 320 S.E.2d
670, 677 (1984).
When the capacity of a defendant to proceed is questioned, the
trial court is required to conduct a hearing. N.C. Gen. Stat. §
15A-1002(b). A trial court's determination on the issue of
competency is conclusive on appeal if supported by the evidence.
State v. Willard, 292 N.C. 567, 575, 234 S.E.2d 587, 592 (1977). "Although the better practice is for the trial court to make
findings and conclusions when ruling on a motion under G.S.
15A-1002(b), it is not error for the trial court to fail to do so
where the evidence would have compelled the ruling made."
State v.
Gates, 65 N.C. App. 277, 283, 309 S.E.2d 498, 502 (1983).
Pursuant to defendant's motion in the present case, on 18
December 2003, the trial court conducted a hearing prior to the
probation violation hearing to determine defendant's capacity to
proceed. At the hearing, defendant presented the testimony of
psychologist Bailey while the State presented the testimony of
defendant's probation officer, Lori Owenby. Our Supreme Court has
held that lay witnesses may testify on the issue of competency and
it is error for a trial court to disregard such testimony.
State
v. Silvers, 323 N.C. 646, 654, 374 S.E.2d 858, 864 (1989).
Bailey testified that she evaluated defendant in November
2003; that defendant "didn't seem to understand what revoking
probation meant"; and that defendant "appeared to be perhaps in the
mild [mentally retarded] to borderline range of intelligence." She
ultimately testified as follows:
Q. And you weren't able to formulate an
opinion in this case, were you, other than she
needs further evaluation?
A. Other than she needed further
evaluation, yes.
. . . .
Q. You were able to surmise that she
might potentially be mildly mentally retarded
or borderline?
A. Yes, based on her presentation thatday; but, again, not having any other
information, I would think she would need a
full evaluation to determine that.
Defendant presented no evidence other than the testimony of Bailey.
Defendant's probation officer, Lori Owenby, testified that she
was first assigned to defendant in May 2003. Their first meeting
lasted a half-hour, and Owenby felt that defendant understood what
was going on and what was expected of her. Between that first
meeting and the date of the competency hearing, Owenby met with
defendant seven or eight times. Owenby testified that at each
appointment, defendant responded appropriately to Owenby's
questions, and defendant "would tell me that she would make an
attempt to do whatever [defendant] needed to do to be in compliance
with her probation." Owenby also testified that defendant appeared
"to understand what was going on" at her probation violation
hearing in district court.
Owenby's testimony thus provides competent evidence to support
the trial court's determination. Given Bailey's unwillingness to
express an opinion regarding defendant's competency, we hold that
the trial court did not err in determining that defendant was
mentally competent to proceed, and any error in failing to make
findings of fact and conclusions of law was harmless.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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