IN THE MATTER OF:
H.D.
Harnett County
No. 05 J 226
Attorney General Roy A. Cooper III, by Assistant Attorney
General Vaughn S. Monroe, for the State.
Haakon Thorsen, for respondent-juvenile-appellant.
JACKSON, Judge.
H.D. (“juvenile”) appeals her disposition after having been
found responsible for misdemeanor assault and misdemeanor breaking
and entering. We affirm.
On 19 December 2005, the State filed a petition alleging that
the thirteen-year-old juvenile was delinquent for assaulting her
mother by striking her mother in the chest with her fist, and on 3
January 2006, the State filed a second petition alleging that the
juvenile was delinquent for breaking and entering a neighbor's
trailer. The juvenile's attorney filed a motion questioning the
juvenile's capacity to proceed, stating that the juvenile “did not
seem to appreciate the charges against her and the possibledisposition of her case.” While the juvenile's attorney
acknowledged that the juvenile “was willing to follow counsel's
recommendations, . . . it was not clear that she understood the
reasons, so that her participation might not be 'voluntary, knowing
and intelligent.'”
On 17 February 2006, the trial court held a competency hearing
to determine the juvenile's capacity to proceed. The State called
Amy Brown (“Brown”), a licensed clinical social worker and
certified forensic screener evaluator. The State tendered Brown as
an expert, to which the juvenile did not object, and the trial
court accepted Brown as an expert in the field of forensic
evaluation.
Brown testified that she interviewed the juvenile on 10
January 2006. During this evaluation, which lasted anywhere from
thirty minutes to two hours, Brown determined that the juvenile had
a very good understanding of the specific charges against her, as
well as the potential consequences of those charges. The juvenile
even explained to Brown that she desired probation, acknowledging
that “she had poor judgment in the past and that she knew that she
needed some supervision in order to have someone watching her to
help her make good decisions.” The juvenile seemed to have a
better-than-average understanding for her age of court proceedings,
as Brown noted that the juvenile “was able to identify the role of
all of the individuals in the court as far as her attorney, the
district attorney, a judge, jury all _ all components of a trial.”
Finally, the juvenile indicated to Brown that she was able andwilling to cooperate with her attorney, that she trusted him, and
that she thought that he was working in her best interest.
The juvenile called Gloria Anderson (“Anderson”), a behavioral
program specialist at the New Horizon treatment facility, where the
juvenile, along with other individuals with behavioral problems,
received residential care. Anderson had the opportunity to observe
the juvenile for approximately eight hours per day from 28 January
2006 until 6 February 2006. The juvenile did not attempt to offer
Anderson as an expert witness, but instead attempted to have
Anderson testify as a lay witness who had the opportunity to
observe, evaluate, and form an opinion as to whether the juvenile
understood the nature of her legal proceedings. The trial court
disallowed the testimony and the juvenile did not make an offer of
proof as to the substance of Anderson's testimony.
The juvenile's attorney also requested to offer his own
observations as to the juvenile's competency. The trial court,
however, required the juvenile's attorney to withdraw before it
would permit such testimony. Although he refused to withdraw, the
juvenile's attorney nevertheless explained to the trial court that
“it's apparent to me that _ she is not competent,” which the trial
court twice stated was not admissible.
Following Anderson's testimony and the juvenile's attorney's
attempt at offering his opinion on the juvenile's competency, the
trial court found the juvenile competent and able to proceed to
trial.
She understands the nature of these charges.
She's able to cooperate with her attorney. She understands the consequences and the role
of the Court and she is ably [sic] able to
cooperate with her defense.
Therefore, the Court at this time, based
upon the evidence presented, finds that she is
competent to stand trial.
The case then proceeded to trial, and the court adjudicated the
juvenile delinquent for both simple assault and misdemeanor
breaking and entering.
On appeal, the juvenile only contests her competency hearing
and not her adjudication or disposition. Specifically, the
juvenile first contends that the trial court erred in denying her
right to due process when the trial court conducted a competency
hearing but did not allow either Anderson to fully testify or the
juvenile's attorney to explain his reasons for questioning her
competency. The juvenile, however, failed to object on this ground
before the trial court, and it is well-established that
“[c]onstitutional issues not raised and passed upon at trial will
not be considered for the first time on appeal.” State v. Taylor,
__ N.C. App. __, __, 632 S.E.2d 218, 231 (2006). An exception is
provided where “plain error” is specifically and distinctly alleged
and argued on appeal. See N.C. R. App. P. 10(c)(4) (2006).
However, the juvenile has not alleged plain error, and accordingly,
we dismiss the juvenile's first argument. See State v. Dennison,
359 N.C. 312, 312.13, 608 S.E.2d 756, 757 (2005) (per curiam).
In her second argument, the juvenile contends that the trial
court erred in denying her rights pursuant to North Carolina
General Statutes, section 15A-1002, when the trial court conducteda competency hearing but did not allow either Anderson to fully
testify or the juvenile's attorney to offer his own view of the
juvenile's competency.
“A defendant has the burden of proof to show incapacity or
that he is not competent to stand trial. Once defendant's capacity
to proceed is questioned, the court must hold a hearing to
determine this issue.” State v. O'Neal, 116 N.C. App. 390, 395, 448
S.E.2d 306, 310 (internal citation omitted), disc. rev. denied, 338
N.C. 522, 452 S.E.2d 821 (1994). Pursuant to North Carolina
General Statutes, section 15A-1001(a),
(See footnote 1)
[n]o 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) (2005). “When the trial judge
conducts the inquiry [pursuant to section 15A-1001(a)] without a
jury, the court's findings of fact, if supported by competent
evidence, are conclusive on appeal.” State v. Jackson, 302 N.C.
101, 104, 273 S.E.2d 666, 669 (1981); see also O'Neal, 116 N.C.
App. at 395, 448 S.E.2d at 310.11 (noting that the trial court's
findings are binding “even if there is evidence to the contrary”). The juvenile first argues that Anderson should have been
permitted to testify, based upon her observations of the juvenile,
on the issue of whether the juvenile was competent to stand trial.
The juvenile further contends that such error was prejudicial
because the only other evidence as to the juvenile's competency was
from Brown _ “someone who saw H.D. for a brief time and made a
very brief and limited review of relevant records.”
As our Supreme Court has held,
[a] lay witness may testify, upon a proper
foundation, on the issue of a defendant's
capacity to stand trial. “A lay witness who
has observed, conversed, or dealt with another
person and who has had a reasonable
opportunity to form an opinion satisfactory to
the witness as to that person's mental
condition may testify as to the witness's
opinion.”
State v. Silvers, 323 N.C. 646, 653, 374 S.E.2d 858, 863 (1989)
(quoting State v. Smith, 310 N.C. 108, 114, 310 S.E.2d 320, 324
(1984)).
In the case sub judice, just as in Silvers, the juvenile's
witness was “asked proper questions after sufficient foundation had
been established.” Id. at 654, 374 S.E.2d at 863. The juvenile's
attorney did not ask Anderson for a legal conclusion, but rather,
he sought to ask her whether she could provide an opinion as to
whether the juvenile “is able to understand the nature and object
of the proceedings, or comprehend . . . her own situation in
reference to the proceedings, or assist in . . . her defense in a
rational and reasonable way.” Id. (citing Smith, 310 N.C. 108, 310S.E.2d 320). As the juvenile's attorney explained to the trial
court,
I asked her if she formed an opinion as to
whether or not [the juvenile] had an
understanding of the nature of the legal
proceeding, not whether or not she was legally
competent. That's just one of multiple
factors that goes into a determination of
competency which is ultimately for the trier
of fact.
The trial court, nevertheless, refused to allow Anderson to give
her opinion in response to the juvenile's attorney's question. In
fact, Anderson was precluded from giving her opinion as to any of
the factors in the competency analysis.
DEFENSE COUNSEL: Okay. And during that time,
did you form an opinion as to whether or not
[the juvenile] understands the nature of her
legal proceedings?
DISTRICT ATTORNEY: Objection.
COURT: Sustained.
. . . .
DEFENSE COUNSEL: Did you . . . talk about her
attorney with her and the role of the attorney
in court?
ANDERSON: Yes, sir, we did.
DEFENSE COUNSEL: Okay. And what did she _ and
tell me about _ tell the Court about that
discussion.
DISTRICT ATTORNEY: Objection.
COURT: Sustained.
DEFENSE COUNSEL: Did [the juvenile] indicate
that she thought that I had the power to put
her on probation?
DISTRICT ATTORNEY: Objection.
COURT: Sustained.
DEFENSE COUNSEL: When you discussed the
possible outcome of any court proceedings with
[the juvenile], did you talk about the role of
the Judge at all?
DISTRICT ATTORNEY: Objection.
COURT: Sustained.
DEFENSE COUNSEL: Did you have conversations
with [the juvenile] about whether or not she
felt like there was a conspiracy against her?
DISTRICT ATTORNEY: Objection.
COURT: Sustained.
DEFENSE COUNSEL: Well, Your Honor, if I'm not
going to be able to ask her any questions, I
have no further questions.
Assuming arguendo that the trial court erred in prohibiting
Anderson from testifying as to the juvenile's capacity to stand
trial, we nevertheless hold that this issue is not sufficiently
preserved for appellate review. “It is well established that an
exception to the exclusion of evidence cannot be sustained where
the record fails to show what the witness' testimony would have
been had he been permitted to testify.” State v. Simpson, 314 N.C.
359, 370, 334 S.E.2d 53, 60 (1985). As our Supreme Court has
explained,
in order for a party to preserve for appellate
review the exclusion of evidence, the
significance of the excluded evidence must be
made to appear in the record and a specific
offer of proof is required unless the
significance of the evidence is obvious from
the record. We also held that the essential
content or substance of the witness' testimony
must be shown before we can ascertain whether
prejudicial error occurred.
Id. (citing Currence v. Harden, 296 N.C. 95, 249 S.E.2d 387 (1978))
(emphasis added). In short, the record must disclose what the
excluded testimony of the witness would have been, such as when a
witness answers a question before the opposing party's objection is
sustained
(See footnote 2)
or when opposing counsel stipulates to the existence of
the testimony that the offering party stated it would present.
(See footnote 3)
Here, Anderson did not answer any of the juvenile's attorney's
questions, and the juvenile's attorney never made an offer of
proof. This Court, thus, is left to speculate as to what Anderson
would have said. Without knowing the substance of Anderson's
testimony, this Court cannot review the merits of the juvenile's
argument. Accordingly, this assignment of error is not properly
preserved for appellate review and is, therefore, dismissed.
With respect to the juvenile's argument that her attorney was
not permitted to offer his opinion on the juvenile's capacity to
stand trial, we first note that unlike the questioning of Anderson,
the substance and significance of the juvenile's attorney's
statement is clear from the record.
COURT: Anything else?
DEFENSE COUNSEL: No, Your Honor. Just that my
_ in my _ in my discussions with [the
juvenile], it's apparent to me that _
COURT: That's not admissible.
DEFENSE COUNSEL: _ she is not competent.
Nevertheless, we find no error in the trial court's refusal to
allow the juvenile's attorney to testify as to the juvenile's
capacity to stand trial unless the juvenile's attorney withdrew
from representation. Our courts have observed there is a natural
and justifiable reluctance to allow attorneys to act simultaneously
as advocate and witness. See Simpson, 314 N.C. at 373, 334 S.E.2d
at 62. In fact, “[t]he Supreme Court of North Carolina has
historically discouraged the practice of attorneys testifying on
behalf of clients, and although it has been allowed, in most
instances the lawyer acting as witness for his client has
surrendered his right to participate in the litigation.” Town of
Mebane v. Iowa Mut. Ins. Co., 28 N.C. App. 27, 28.29, 220 S.E.2d
623, 624 (1975). In Town of Mebane v. Iowa Mutual Insurance Co.,
this Court noted that “while it is a breach of professional ethics
for an attorney for a party to testify as to matters other than
formal matters without withdrawing from the litigation, he is not
incompetent so to testify.” Id. at 28, 220 S.E.2d at 624.
Nevertheless, this Court held that it was not error for the trial
court to refuse the attorney's testimony when such testimony would
run afoul of the rules of professional ethics and conduct for
licensed attorneys in North Carolina. See id. at 31, 220 S.E.2d at
626. Similarly, we hold that the trial court did not err in
refusing to allow the juvenile's attorney to testify absent his
withdrawal from representation of the juvenile. Faced with the choice of not testifying or withdrawing from
representation, the juvenile's attorney refused to withdraw and
instead opted to state on the record that he felt the juvenile
lacked the capacity to proceed to trial. The attorney's statement,
however, did not constitute competent evidence. See State v.
Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985) (holding
that the defense counsel's statements relating to his client's
inability to comply with the terms of probation were not competent
evidence). Thus, the only competent evidence of record _ the
testimony of Brown offered by the State _ demonstrated that the
juvenile had the capacity to stand trial. As such, there is no
basis to find that the trial court erred in denying the juvenile's
rights pursuant to section 15A-1001(a) of the North Carolina
General Statutes. Accordingly, the juvenile's assignment of error
is overruled.
In her final argument, the juvenile argues that the trial
court committed reversible error when it allowed Brown _ the
State's expert _ to testify as to the legal conclusion of the
juvenile's competency. While we agree that the trial court erred,
we hold that such error was harmless.
During the competency hearing, the following colloquy took
place:
DISTRICT ATTORNEY: And based on your forensic
evaluation of [the juvenile], do you have an
opinion as to whether she is competent to
stand trial or not?
BROWN: I do.
DEFENSE COUNSEL: Objection.
COURT: Basis.
DEFENSE COUNSEL: Legal conclusion.
COURT: Overruled.
DISTRICT ATTORNEY: Based on your forensic
evaluation _ evaluator specialties, what is
your opinion of [the juvenile]?
BROWN: That she is capable of proceeding to
trial.
DISTRICT ATTORNEY: Thank you. No further
questions.
“Whether a criminally accused is 'competent to stand trial'
or, more appropriately, lacks the mental capacity to proceed, is a
legal conclusion to be drawn by the trial judge upon appropriate
findings of fact.” Smith, 310 N.C. at 114, 310 S.E.2d at 324
(internal citation omitted); see also State v. Aiken, 73 N.C. App.
487, 498, 326 S.E.2d 919, 925 (“We note that in State v. Smith, 310
N.C. 108, 310 S.E.2d 320 (1984), our Supreme Court held that a
witness could not testify as to whether or not a defendant had the
capacity to proceed to trial.”), appeal dismissed and disc. rev.
denied, 313 N.C. 604, 332 S.E.2d 180 (1985). As our Supreme Court
has explained,
North Carolina Rule of Evidence 704 provides
that “[t]estimony in the form of an opinion or
inference is not objectionable because it
embraces an ultimate issue to be decided by
the trier of fact.” Under Rules 701 and 702,
opinions must be helpful to the trier of fact.
Expert testimony as to a legal conclusion or
standard is inadmissible, however, at least
where the standard is a legal term of art
which carries a specific legal meaning not
readily apparent to the expert witness.
State v. Jennings, 333 N.C. 579, 597.98, 430 S.E.2d 188, 196
(internal quotation marks, citations, and alteration omitted)
(emphasis added), cert. denied, 510 U.S. 1028, 126 L. Ed. 2d 602
(1993). Indeed, “'[t]o permit the expert to make this
determination [i.e., as to a legal conclusion] usurps the function
of the judge.'” State v. Fritsch, 351 N.C. 373, 385, 526 S.E.2d
451, 459 (2000) (Martin, J., concurring in part and dissenting in
part) (quoting HAJMM Co. v. House of Raeford Farms, Inc., 328 N.C.
578, 587, 403 S.E.2d 483, 489 (1991)).
Although the trial court erred in overruling the juvenile's
objection and permitting Brown to testify as to the legal
conclusion of the juvenile's competency, it nevertheless is
incumbent upon the juvenile to demonstrate that she was prejudiced
by the admission of such testimony. Pursuant to North Carolina
General Statutes, section 15A-1443(a),
[a] defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when there
is a reasonable possibility that, had the
error in question not been committed, a
different result would have been reached at
the trial out of which the appeal arises. The
burden of showing such prejudice under this
subsection is upon the defendant.
N.C. Gen. Stat. . 15A-1443(a) (2005); see, e.g., In re T.R.B., 157
N.C. App. 609, 614, 582 S.E.2d 279, 283 (2003) (applying harmless
error analysis in an appeal from an adjudication of delinquency),
appeal dismissed and disc. rev. improvidently allowed, 358 N.C.
370, 595 S.E.2d 146 (2004) (per curiam). We reject defendant's contention that there is a reasonable
possibility that had the testimony been excluded, the trial court
would have ruled differently as to the juvenile's competency. As
explained above, this Court is unable to review the merits of the
juvenile's argument with respect to Anderson's testimony based upon
the insufficiency of the record before us. Additionally, we have
held that the trial court did not err in refusing to allow the
juvenile's attorney to testify as to the juvenile's capacity to
stand trial unless the juvenile's attorney withdrew from
representation. Therefore, the only competent evidence of record
related to the juvenile's capacity to stand trial is Brown's
testimony, and based upon Brown's testimony and the lack of
evidence to the contrary, we hold there is not a reasonable
possibility that the trial court would have found the juvenile not
competent to stand trial pursuant to North Carolina General
Statutes, section 15A-1001(a). Accordingly, to the extent that the
trial court erred in overruling the juvenile's objection to Brown's
testimony, we find that such error was harmless beyond a reasonable
doubt.
Affirmed.
Judges HUNTER and TYSON concur.
Report per Rule 30(e).
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