Appeal by defendant from judgment dated 13 September 2006 by
Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard
in the Court of Appeals 24 September 2007.
No Brief for the State.
D. Tucker Charns, for defendant-appellant.
On 13 September 2006, a jury found Larry Leon Wade,
(defendant) guilty of malicious conduct by a prisoner, disorderly
conduct, and attaining the status of an habitual felon. The trial
court consolidated the offenses for judgment and sentenced
defendant to an active prison term of 151 to 191 months.
The State adduced evidence that defendant was detained in
Cabarrus County Jail on 8 May 2006. While his cell was being
cleaned, he repeatedly tried to leave his cellblock by slipping
through a doorway past Deputy Matthew Paris. Defendant cursed and
taunted Paris, disregarded numerous orders to return to his cell,
and struck an aggressive, fighting posture. With the assistance of
fellow deputy Lewis Peck, Paris coaxed defendant back to thethreshold of his cell door. Defendant stood in the doorway,
staring at Paris with clenched fists, nostrils flaring, and
refused to enter his cell. Sensing a fighting situation ready to
happen, Paris pushed defendant backward into the cell and shut the
door. As Paris was locking the main door to the cellblock,
defendant called his name. When the deputy stuck his head back
around the door, defendant said, I'm going to get you, Paris, and
spat in his face. Paris notified his supervisor of the incident,
washed his face in the bathroom, and consulted with the jail's
On appeal, defendant claims that the trial court erred in
failing to hold a hearing on his motion for a competency evaluation
at Dorothea Dix Hospital, pursuant to N.C. Gen. Stat. § 15A-1002.
The record reflects that defendant filed the motion on the
morning of trial, 12 September 2006. In support of the motion,
counsel advised the trial court that defendant told a judge to
suck [his] dick during a hearing on 26 April 2006. Moreover, in
her months of representing defendant, counsel observed that he
acted very defiantly in trying . . . to prepare his defense.
Counsel ultimately agreed to defendant's request to file the motion
after he asked her, on the morning of his trial, If I were to hurt
you in someway, shouldn't I get a psych exam?
After reading defendant's motion, the trial court asked
counsel if she wish[ed] to be heard further[.] Counsel replied,Nothing further, Your Honor. I certainly would tender [defendant]
for any questions the Court might have of him. The trial court
heard argument from the prosecutor and began to announce its
findings. When defense counsel sought to interject, the trial
court allowed her to go ahead. Counsel expressed grave
concerns about defendant's competency in terms of oppositional
defiance and understanding [of] the nature and scope of what he's
charged with[.] She reiterated that she filed the motion at
defendant's behest, based on the question he posed to her on the
morning of trial.
The trial court observed that there's nothing at all unusual
about a defendant making outrageous statements, making profane
statements, making statements that most people might not
necessarily make perhaps[.] Defense counsel averred that
defendant appeared not to understand that the State could try him
on the instant charges before proceeding on previously-filed
charges of possession of cocaine and possession of a firearm by a
convicted felon. After reviewing defendant's criminal history, the
trial court found that he was well acquainted with the judicial
In denying defendant's request for a competency evaluation,
the trial court found nothing alleged in this motion that
indicates . . . that he's mentally ill or . . . lacks capacity.
The trial court found defendant's conduct to evince instead a lack
of respect for people who might try to help him such as his
attorney[,] as well as an extreme disrespect for the court anda lack of any respect for authority[.] The trial court ordered
that a deputy be seated behind defendant during the trial, in light
of his reference to harming his counsel.
The trial court then addressed defendant, telling him that
every effort would be made to provide him with a fair trial.
Responding to the prosecutor's suggestion that he had filed his
motion in order to delay his trial, defendant stated that he had
been detained for nine months without trial on a charge of
possession of a firearm as a convicted felon, despite his counsel's
possession of a ballistics report from the investigator that
states that the fingerprints found on the gun d[id] not belong to
[defendant]. Defendant affirmed his understanding when the trial
court replied, We're not trying that case today. At the
conclusion of the State's evidence, the trial court engaged
defendant regarding his right to testify. After consulting with
counsel, defendant elected not to testify in order to preserve his
right to the final argument to the jury.
Under N.C. Gen. Stat. § 15A-1002, [t]he question of the
capacity of the defendant to proceed may be raised at any time by
a motion detail[ing] the specific conduct that leads the moving
party to question the defendant's capacity to proceed. N.C. Gen.
Stat. § 15A-1002(a) (2005). The trial court must hold a hearing on
the motion. N.C. Gen. Stat. § 15A-1002(b) (2005); State v. Gates
65 N.C. App. 277, 283, 309 S.E.2d 498, 501 (1983). The trial court
may also appoint one or more experts to evaluate the defendant, or
may order the defendant to a State facility for the mentally illfor observation 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(b)(1)-(2) (2005). In
construing the procedural requirements of N.C. Gen. Stat. § 15A-
1002(b), however, we have held as follows:
Although [N.C. Gen. Stat. § 15A-1002] requires
the court to conduct a hearing when a question
is raised as to a defendant's capacity to
stand trial, no particular procedure is
mandated. The method of inquiry is still
largely within the discretion of the trial
. . .
The hearing requirement of G.S. 15A-1002(b)
appears to be satisfied as long as it appears
from the record that the defendant, upon
making the motion, is provided an opportunity
to present any and all evidence he or she is
prepared to present.
, 65 N.C. App. at 282-83, 309 S.E.2d at 501-02. Once the
hearing requirement is satisfied, the decision to grant a motion
for an evaluation of a defendant's capacity to stand trial remains
within the trial judge's discretion. Id
. at 283, 309 S.E.2d at
502 (citing State v. Woods
, 293 N.C. 58, 235 S.E.2d 47 (1977)).
We find no merit to defendant's assertion that the trial court
failed to hold a hearing on his motion, as required by N.C. Gen.
Stat. § 15A-1002(b). The trial transcript reflects that the trial
court reviewed defendant's motion in open court and allowed his
counsel repeated opportunities to be heard in support thereof. The
trial court's colloquy with counsel reflects its full consideration
of her proffer. Gates
, 65 N.C. App. at 282, 309 S.E.2d at
(citation omitted). Although no evidence was adduced at thehearing, the trial court did not deny defendant the opportunity to
present evidence. Id.
at 282-83, 309 S.E.2d at 502 (citation
omitted). As movant, defendant bore the burden of proving the
existence of grounds for relief. Id.
at 283, 309 S.E.2d at
(citation omitted). Accordingly, we overrule his assignment of
Although defendant does not separately challenge the ruling on
his motion, we find no abuse of discretion by the trial court.
Further, the record on appeal includes additional assignments of
error which are not addressed in defendant's appellate brief.
Pursuant to N.C. R. App. P. 28(b)(6), they are deemed abandoned.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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