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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1466


Filed: 19 June 2007


         v.                        Wake County
                                No. 05 CRS 9423

    Appeal by defendant from judgment entered 29 March 2006 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 4 June 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas H. Moore, attorney for the State.

    Bryan Gates, attorney for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was indicted for malicious conduct by a prisoner. On 24 March 2005, defense counsel filed a motion for examination of defendant to determine whether defendant was competent to proceed to trial. The motion was allowed by the trial court on the same date. Following an examination of defendant, a forensic psychiatrist reported that defendant was competent to stand trial. Following a hearing on 26 May 2005, the trial court determined that the defendant was competent to stand trial.
    On 10 January 2006, the date that defendant's trial was scheduled to begin, the trial court decided that another competency examination was necessary. Following this second evaluation, apsychiatrist again concluded that defendant was competent to stand trial and suffered only from “behavioral disorders that do not rise to the level of affecting his capacity.”
    On 28 March 2006, the trial court conducted a hearing on the issue of the defendant's mental capacity. The State offered the psychiatrist's report into evidence and asserted that the defendant was competent to proceed with trial. Following the State's argument, the trial court and defense counsel had the following exchange:
    [DEFENSE COUNSEL]:    Your honor, defendant stipulates to the admissibility of that report, but we don't stipulate to his capacity to proceed, but that he is able.

    THE COURT:         Do you have any evidence that you wish to issue or to . . .

    [DEFENSE COUNSEL]: No, Your Honor.
    After offering the parties an opportunity to be heard further on the matter, the trial court concluded that defendant was competent and proceeded immediately to defendant's trial. Following his conviction by a jury, the trial court sentenced defendant to a prison term of fifteen to eighteen months. In imposing the sentence, the trial court found as a factor in mitigation that the defendant was suffering from a “mental condition that was insufficient to constitute a defense but significantly reduced the defendant's culpability for the offense.”
    Defendant's sole assignment of error on appeal is that the trial court violated N.C.G.S. §§ 15A-1001 and 15A-1002 by adoptingan unsworn report of a non-testifying psychiatrist rather than holding a hearing and making specific findings of fact that the defendant was competent to proceed to trial. N.C. Gen. Stat. §§ 15A-1001, 15A-1002 (2006).
    As an initial matter, we note that defendant not only stipulated to the admission of the psychiatrist's report, but also made no objection to the manner in which the trial court made its competency determination. By failing to raise an objection, to request that the trial court conduct further proceedings pursuant to N.C. Gen. Stat. § 15A-1002, or to offer evidence to contradict the psychiatrist's report, defendant has arguably waived any objection that he might have had in this regard. See State v. King, 353 N.C. 457, 466, 546 S.E.2d 575, 585 (2001) (holding that defendant waived his statutory rights under N.C. Gen. Stat. § 15A-1002(b) by failing to request a competency hearing or to make a motion specifying the basis for believing that defendant was not competent); State v. Young, 291 N.C. 562, 567, 231 S.E.2d 577, 580 (1977) (holding that a defendant may waive a right to a hearing on competency, “by conduct inconsistent with a purpose to insist upon it”) (quoting State v. Gaiten, 277 N.C. 236, 239, 176 S.E.2d 778, 781 (1970)); see also, generally, N.C. R. App. P., Rule 10(b)(1) (requiring that counsel make a timely objection during the proceedings to preserve an error for appellate review).
    Nevertheless, even if the issue had been properly preserved, we conclude that the trial court's determination of defendant's competency was not erroneous. When the capacity of a defendant toproceed 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).
    With no objection from defendant, the State offered the psychiatrist's report, which concluded that while defendant suffered from personality disorder and problems with substance abuse, those “behavioral disorders do not rise to the level of affecting his capacity to proceed to trial.” The psychiatrist specifically reported that defendant understood the “nature and object of the proceedings against him, as well as of his position in relationship to these proceedings” and was “capable of working with his attorney in a rationale and reasonable manner in the preparation of his defense if he so chooses.” Though given an opportunity, defendant offered no evidence in rebuttal to this evidence. Because the report of the psychiatrist was the only evidence of defendant's competence before the trial court, we hold that the trial court did not err in determining that defendant was mentally competent to proceed. Moreover, because the evidence before the trial court would have compelled the ruling made, anyerror in failing to make findings of fact and conclusions of law was harmless. See Gates, 65 N.C. App. at 283, 309 S.E.2d at 502.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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