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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1396
            
                                            
NORTH CAROLINA COURT OF APPEALS
        
                                            
Filed: 17 July 2007


STATE OF NORTH CAROLINA

v .                         Wake County
                            No. 04 CRS 89804
KEVIN EDRAL DOUGLAS

    Appeal by defendant from judgment entered 2 December 2005 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 23 May 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.

    Robert W. Ewing, for defendant-appellant.

    LEVINSON, Judge.

    Kevin Douglas (defendant) appeals from judgment entered upon his conviction of resisting, delaying, or obstructing a law enforcement officer. We reverse.
    In February 2004 a warrant was issued for defendant's for his failure to appear in court on a misdemeanor charge unrelated to this appeal. On 27 October 2004 Officers D. S. Taylor and C. P. Penney of the Raleigh Police Department went to defendant's house to serve him with the arrest warrant. They knocked on defendant's door and explained their purpose. Defendant did not open the door, and told the officers that they lacked jurisdiction to arrest him because he had a “pro se” or “pro tem” order demonstrating their lack of jurisdiction. After some time passed, defendant providedthe officers with part of his pro se complaint against the North Carolina Supreme Court by dropping it out a second story window. The complaint was a rambling assemblage of legal terminology that had no relationship to the arrest warrant the officers were trying to serve on defendant. Because defendant refused to come to the door, the law enforcement officers called the Selective Enforcement Unit for assistance. Members of their team broke down the door of defendant's house, and brought him outside where he was arrested without resistance. Defendant was taken to the Law Enforcement Center and charged with violating N.C. Gen. Stat. § 14-223 (2005), which makes it a Class 2 Misdemeanor to “willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office[.]”
    After a district court hearing wherein defendant was convicted of resisting arrest, he appealed to superior court for a trial de novo. The case was set for trial on 29 November 2005. The defendant and his counsel were a few minutes late, and while waiting, the trial court expressed surprise that there was to be a jury trial on a resisting arrest charge. When the prosecutor explained that the defendant had “typed up a document . . . directed to the Supreme Court of North Carolina . . . and he said that [the police] did not have jurisdiction to be at his house because of this document[,]” the trial court asked if defendant had been tested for “mental competence.” Defense counsel arrived, and asked if the prosecutor and the court had been discussing defendant “being sent off for a local evaluation.” The court told counselthat it had “asked about his mental health, because apparently he didn't feel that these officers had jurisdiction over him[.]” Defense counsel observed that she “would like to have him and most of my clients evaluated” but offered the opinion that defendant should not be evaluated because “he'd have to be a snail to not be competent _ I mean according to [Dorothea] Dix [Hospital].” Counsel also told the court that she didn't want to send defendant to Dix Hospital because he had “a brain injury.”
    When the defendant arrived, he told the trial court that on 27 October 2004 there had been “ten or twelve” officers at his house to arrest him. He offered the explanation that he had “filed in Federal Court accusing the [S]tate of corruption and racketeering” and that the State “responded negatively to that accusation.” Defendant said that the police had, on another occasion, arrived at his house “within 12 hours of [his] filing in Federal Court.” Therefore, when the police came to his house to serve the warrant, the defendant “panicked” and started “getting all [his] papers together” because he “assum[ed] [he'd] be shot” by the police. He told the trial court that the arrest warrant was not legitimate, and that people had broken into his house and “moved things around” when he wasn't home. The colloquy between defendant and the court continued:
        THE COURT: . . . But you assumed the police were going to come and shoot you?

        THE DEFENDANT: Yes.

        THE COURT: The Raleigh police?
        THE DEFENDANT: Yes, because I didn't know. I don't know who the Raleigh police are.

        THE COURT: Just because of who you are?

        THE DEFENDANT: Because I accused them of corruption and racketeering, to the tune of several hundred millions of dollars. And the director of _

        THE COURT: So you think these street officers are going to come and execute you and _

        THE DEFENDANT: It would only have to be one of them, especially if there's 12 or 13 of them being _

        THE COURT: Whew.

        . . . .

        THE DEFENDANT: I didn't know. And the only thing that they _ the only thing that I had specifically heard that they yelled up to me after I put the federal filing out [the window] and said that they didn't have jurisdiction because it was under supplemental jurisdiction in Federal Court and that I had a habeas corpus that was in process _ the only thing I heard them saw was 'Well, come out and we'll talk about it.'

        . . . .

        THE COURT: So you didn't come out.

        THE DEFENDANT: . . . right when I was on the phone with the news to make sure that there were cameras there when I was being taken out of the house _ I didn't want to be shot. . . .

        THE COURT: You called the news people because you wanted protection against the police because you were afraid the police were going to do something to you?

        THE DEFENDANT: Yes.
The trial court tried several times to explain to defendant that law enforcement officers do not make legal rulings on the validity of a particular arrest warrant. The defendant responded:
        THE DEFENDANT: I can tell you, as far as the officers, if you have _ you have to have a critical mass to be able to have that one person that'll cross the line.

        THE COURT: So you think that _

        THE DEFENDANT: And I've been trying to deal with this for eight months and [I've] contact[ed] Senator John Edward's office. I contacted the chairman of the Judiciary Committee in the Senate. I've contacted _

        THE COURT: Okay.

        THE DEFENDANT: _ the director of the AOC and contacted all kinds of people . . .

At this point the trial court met with the prosecutor and defense counsel in chambers. Thereafter, the court told defendant that it was willing to accept a guilty plea from defendant and assured him that the court would enter a prayer for judgment continued (PJC), and would not enter judgment. When the defendant refused this offer and insisted on a jury trial, the trial court expressed concerns about defendant's competency:
        THE COURT: Mr. Douglas, I'm going to have to send you to Dorothea Dix. You're taking all the cards away from me. I'm trying to persuade you to take a plea. I'm not going to enter judgment. That's a freebie, but if you don't want to do that, then I don't have any other choice. There's not going to be a trial. I guess I've made that choice. Either you're going to go to Dix _

        . . . .
        THE COURT: . . . I'm not a medical guy. I'm not a psychiatrist. So I'm not going to makethat judgment from here and then have some court of appeals tell me he was crazy as a loony tune. . . .

Defense counsel indicated that defendant would be willing to be examined at Dix Hospital, and the trial court approved:
        THE COURT: . . . I'm not about trying a man who's not competent, and, in my judgment, when I talk to him, he worries me. Some of the stuff he's saying doesn't really add up for me. . . . [I]f he wants a trial, then I'm going to have to send him to be examined by the people who say he's competent to stand trial.

Defendant agreed to this plan after being assured that he could have a jury trial if found competent. However, when court reconvened the next day, defense counsel informed the trial court that defendant had not realized that, before he could be examined at Dix, he would have to be booked and spend a night or two in jail. Defendant refused to be examined at Dix Hospital, because he was afraid to be in police custody until the hospital had room for him. The trial court then ruled that defendant could nonetheless stand trial, but could not present a mental status defense.
    At trial, the State presented evidence tending to show that law enforcement officers had come to defendant's house to serve an arrest warrant, and that defendant refused to come outside. After the first day of trial, defendant asked the trial court to allow him to subpoena the Raleigh Police Chief, and told the court that “the most important” question he needed to ask her was “who from the Federal Court called the police department to have the warrant [issued].” The trial court denied defendant's motion, and tried again to explain the limited scope of the issues before the jury:        THE COURT: . . . it has nothing to do with the offense. That's what I've been trying to explain to you. [The jury] do[es]n't need to hear all these constitutional arguments and about conspiracies, because even if it were true, the warrant would still be valid and you're supposed to comply with it. . . .
    Defendant testified that he had discovered an early aptitude for computer studies, and had dropped out of high school to “start working in New York City as a computer programmer.” A few weeks after the events of September 11, 2001, he was beaten by police and suffered a “major head injury.” When the police came to his house on 27 October 2004 to serve an arrest warrant, he had been “working on . . . the continuation of the lawsuit that was alleging that the State of North Carolina was participating in corruption and racketeering.” He panicked because he “had a previous situation where when [he] filed in Federal Court . . . police showed up . . . at six o'clock in the morning the next day.” He dropped a copy of a document pertaining to his federal lawsuit out the window for the law enforcement officers to read, and told them that he “had a filing that was disputing the legitimacy of the warrant; that it was supposed to be under the supplemental jurisdiction of the United States District Court for the Fourth Circuit[.]”
    Following the presentation of evidence, the jury found defendant guilty. The trial court imposed a suspended sentence of forty-five days incarceration, placed defendant on supervised probation, and required him to serve ten days in jail. From this judgment and conviction, defendant appeals.

________________________
    The dispositive issue is whether the trial court erred by not conducting a hearing to determine if defendant was competent to stand trial, and, if necessary, have defendant examined by a mental health professional to aid in resolving the issue. We conclude that, on the facts presented in this case, the trial court was required to hold a hearing on the issue of defendant's competence.
        A criminal defendant may not be tried unless he is competent, and he may not waive his right to counsel or plead guilty unless he does so competently and intelligently, we held that the standard for competence to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him.

Godinez v. Moran
, 509 U.S. 389, 396, 125 L. Ed. 2d 321, 330 (1993) (internal quotation marks and citations omitted). Under N.C. Gen. Stat. § 15A-1002(a) (2005), the “question of the capacity of the defendant to proceed may be raised at any time on motion by the prosecutor, the defendant, the defense counsel, or the court.”
    N.C. Gen. Stat. § 15A-1002(b) (2005) states that “[w]hen the capacity of the defendant to proceed is questioned [pursuant to N.C.G.S. § 15A-1001(a)], the court shall hold a hearing to determine the defendant's capacity to proceed.” However, “the trial court is only required to 'hold a hearing to determine the defendant's capacity to proceed' if the question is raised. Therefore, the statutory right to a competency hearing is waived by the failure to assert that right at trial.” State v. Badgett, 361 N.C. 234, 259, 644 S.E.2d 206, 221 (2007) (quoting State v. King,353 N.C. 457, 466, 546 S.E.2d 575, 584 (2001) (internal quotation marks omitted)). In Badgett, the North Carolina Supreme Court also noted that “under the Due Process Clause of the United States Constitution, '[a] criminal defendant may not be tried unless he is competent.' As a result, '[a] trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent.'” Badgett, 361 N.C. at 259, 644 S.E.2d at 221 (quoting Godinez, 509 U.S. at 396, 125 L. Ed. 2d at 330; and King, 353 N.C. at 466, 546 S.E.2d at 584) (citation and internal quotation marks omitted).
    In the instant case, although the defendant did not insist on a hearing to determine his competency, we conclude that there was “substantial evidence before the court indicating that the accused may be mentally incompetent.” King, 353 N.C. at 466, 546 S.E.2d at 584. For example, defendant's “explanation” for the incident giving rise to the instant charges was that (1) he allegedly sued the State of North Carolina for “racketeering and corruption”; (2) an unspecified branch of “Federal Court” had sought his arrest; (3) after filing his federal lawsuit, he was subject to mysterious break-ins where “things were moved” in his house; (4) he had been a victim of police brutality; (5) the Wake County law enforcement officers had no “jurisdiction” to serve an arrest warrant on him, for reasons allegedly related to his “racketeering” lawsuit against the State of North Carolina; (6) he tried to educate the law enforcement officers about the supposed lack of jurisdiction bythrowing pages from a legal document out a second story window; (7) he expected the police to shoot him when he went outside; (8) he called representatives of local news media to ensure there would be “witnesses”; and (9) to “clear up” his legal problems, the defendant contacted numerous state and federal officials whose positions bore no apparent relationship to any appropriate assistance they might offer. Moreover, despite the trial court's repeated efforts, the defendant never evidenced any understanding of the charge against him. Specifically, the trial court was unable to communicate to defendant that, even if true, defendant's theories of conspiracies arising from a multi-million dollar lawsuit supposedly filed against the State were irrelevant to the charge of resisting arrest. Defendant's irrationality, his paranoia, and his inability to understand the limited scope of the factual issues for the jury's determination, all suggest that he may not have been competent to stand trial. As discussed above, the trial court itself expressed grave doubts about defendant's competence. In fact the only reason that the court rescinded its order for a competency examination at Dorothea Dix Hospital was that defendant had an irrational fear of temporarily being in police custody.
    Because there was substantial evidence that defendant may have been incompetent to stand trial, the trial court erred by not conducting a hearing on the issue, and his conviction must be
    Reversed.
    Judges McGEE and JACKSON concur.    Report per Rule 30(e).
    The judges participated in and submitted this opinion for filing prior to 7 July 2007.

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