State v. Hollars ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-932
Filed: 6 August 2019
Watauga County, Nos. 13 CRS 2118-2121
STATE OF NORTH CAROLINA
v.
JACK HOWARD HOLLARS
Appeal by Defendant from Judgments entered 12 January 2018 by Judge
William H. Coward in Watauga County Superior Court. Heard in the Court of
Appeals 28 March 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Josephine N. Tetteh, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
Gomez, for defendant-appellant.
HAMPSON, Judge.
Factual and Procedural Background
Jack Howard Hollars (Defendant) appeals from his convictions for three counts
of Indecent Liberties with a Child and three counts of Second-Degree Sexual Offense.
The Record and evidence presented at trial tend to show the following:
Defendant was arrested in connection with this case on 10 February 2012. On
3 September 2013, Defendant was indicted by a Watauga County Grand Jury for one
count of Statutory Sexual Offense of a Person Who Is Under 13 Years of Age, three
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Opinion of the Court
counts of Statutory Sexual Offense of a Person Who Is 13–15 Years of Age, and four
counts of Indecent Liberties with a Child. Subsequently, on 4 May 2015, superseding
indictments were entered on these offenses, charging Defendant with three counts of
Indecent Liberties with a Child and three counts of Second-Degree Sexual Offense.
These indictments stemmed from incidents that occurred between 1977 and 1981.
Although Defendant initially waived his right to court-appointed counsel, on
23 April 2012, the trial court in its discretion decided to provide Defendant with court-
appointed counsel because Defendant “was not responsive to [the] Court’s questions”
during his initial appearance. On 4 May 2012, Defendant’s counsel filed a motion to
have Defendant evaluated because of Defendant’s behavior on 1 May 2012. On that
date, Defendant’s counsel met with Defendant at the Watauga County Jail for
approximately one hour. During this visit, “Defendant’s thought process [was]
scattered and random[,] and he [was] unable to focus.” Defendant claimed to have no
memory of the events leading to his current charges because “God closed the door and
I cannot see.” Further, Defendant stated that he would not take any medication
because “chemicals in the water at Parris Island in 1968 when he was in the Marine
Corps ‘messed up [his] brain.’ ”
On 7 May 2012, Defendant underwent a forensic evaluation by Daymark
Recovery Services, which rendered a report on Defendant’s capacity to proceed to trial
two days later (Daymark Report). The Daymark Report noted some of the same
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Opinion of the Court
concerns that Defendant’s counsel had expressed previously about Defendant’s
behavior, such as “religious concerns and ideas to an extent that suggested a
dysfunctional preoccupation”; Defendant’s unwillingness to discuss the nature of the
charges that he was facing; and Defendant’s aversion to taking his medications. The
Daymark Report concluded by stating:
It is the opinion of the Certified Forensic Evaluator that
[Defendant] is not competent to stand trial, and is impaired in
providing the expected ability to assist in his defense.
[Defendant] showed limited ability to cooperate in even basic
discussion of his case with the undersigned despite a history of
cooperative interaction over many years. [Defendant] appears
psychotic and delusional, and in need of medication and
treatment to relieve his condition. It seems likely, given
[Defendant’s] history, that a reestablishment of his psychotropic
medication regimen would reestablish his capacity to proceed to
trial. However, it also appears unlikely that he will allow this
voluntarily in his current state of mind.
The Daymark Report also recommended further assessment and inpatient treatment
of Defendant.
Based on the Daymark Report, the trial court entered an order committing
Defendant to Central Regional Hospital for an examination on his capacity to
proceed. On 25 July 2012, Dr. David Bartholomew (Dr. Bartholomew) of Central
Regional Hospital evaluated Defendant and found him incapable to proceed in a
written report dated 9 August 2012 (First Dr. Bartholomew Report). Dr.
Bartholomew based his Report on, inter alia, Defendant’s prior medical records, the
Daymark Report, and a 75-minute in-person evaluation of Defendant. The First Dr.
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Opinion of the Court
Bartholomew Report contained many of the same concerns as the Daymark Report
and concluded that:
[Defendant] has a history of significant mental health
problems including psychosis and depression. He is currently not
receiving any treatment for his conditions. He is quite impaired
at the present time as a result of symptoms of his mental illness.
He is unable to describe a reasonable understanding of the nature
and objects of the proceedings against him. He is not rational
about his place in regards to the proceedings. He is unable to
assist his attorney in a reasonable manner. [Defendant] is not
capable to proceed.
This Report also noted Defendant “may gain capacity if he receives mental health
treatment.”
Based on the First Dr. Bartholomew Report, the trial court entered an order
on 18 September 2012, finding Defendant incapable to proceed and involuntarily
committing Defendant to Broughton Hospital. Defendant would remain at
Broughton Hospital until, and throughout, his trial in January of 2018. During this
time period, Defendant would undergo several other forensic evaluations with
differing results.
On 14 May 2013, Dr. Bartholomew entered another report, based on a forensic
evaluation from the previous month, finding Defendant competent to stand trial
(Second Dr. Bartholomew Report). This Second Dr. Bartholomew Report found that
Defendant’s “mental health condition has improved with medication” but
recommended continued psychiatric treatment of Defendant.
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Opinion of the Court
On 31 March 2015, Dr. Bartholomew conducted a third forensic evaluation of
Defendant and entered a written report on 14 April 2015 (Third Dr. Bartholomew
Report). Although this Report concluded Defendant was capable to proceed, Dr.
Bartholomew noted that Defendant “has a longstanding mental illness which has
been labeled as schizophrenia, schizoaffective disorder, or bipolar disorder by various
clinicians.” The Report further recommended that:
Given his dementia, [Defendant] may not function well at the
jail and may likely decompensate again if housed overnight in the
jail. If [Defendant’s] future court visits will take more than one
day, I would recommend that, if possible, he stay at Broughton
Hospital each night and be transported to court each morning or
day. It is also possible his condition may deteriorate with the
stress of a trial so vigilance is suggested if his case proceeds in a
trial.
On 5 May 2015, the trial court held a competency hearing where Dr.
Bartholomew testified that in his opinion Defendant was competent. However, the
trial court had reservations regarding Defendant’s capacity and ordered Defendant
to undergo an additional psychiatric evaluation before determining Defendant’s
capacity to stand trial. On 23 July 2015, the trial court appointed Dr. James E.
Bellard (Dr. Bellard) to conduct this evaluation.
On 9 October 2015, Dr. Bellard held a forensic interview with Defendant;
thereafter, Dr. Bellard found Defendant incompetent to proceed and reduced his
findings to a written report on 4 November 2015 (Dr. Bellard Report). The Dr. Bellard
Report found Defendant suffered from hallucinations and diagnosed him with
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Opinion of the Court
schizophrenia and mild neurocognitive disorder. In the Report, Dr. Bellard expressed
that “[he] simply cannot see [Defendant] as competent to stand trial” and that if
Defendant proceeded to trial, he “would have difficulty refraining from irrational or
unmanageable behavior during a trial.”
On 7 March 2016, the trial court entered an Order on Defendant’s Incapacity
to Proceed (Incapacity Order) finding Defendant “lacks capacity to proceed.” In the
Incapacity Order, the trial court found that “Defendant suffers from Schizophrenia
and experiences auditory hallucinations . . . on a regular basis.” The trial court also
found Defendant had a mild neurocognitive disorder that “impacts his daily life and
competency[.]” Lastly, the trial court noted—“Defendant’s difficulty maintaining
mental stability upon transfer to the jail suggests that he would have difficulty
tolerating stress at a trial or while awaiting trial, and he would have difficulty
refraining from irrational or unmanageable behavior during a trial.”
On 8 December 2016, Dr. Bartholomew conducted another forensic evaluation
of Defendant and found he was capable to proceed, based on Defendant’s progress
with his treatment and continued medication. On 15 August 2017, Dr. Bartholomew
and Dr. Reem Utterback (Dr. Utterback) examined Defendant and found him
competent in a report dated 24 August 2017 (Final Dr. Bartholomew Report). This
Report concluded that “it is reasonable to assume [Defendant] will maintain this
[level of] functioning in the foreseeable future and during a trial.”
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Opinion of the Court
Thereafter, the trial court held a competency hearing on 5 September 2017,
finding Defendant competent to stand trial. On 2 January 2018, Defendant filed a
Motion to Dismiss citing the delay in prosecuting his case. Defendant contended
there was “no physical evidence whatsoever that any crime ever occurred[.]”
Defendant further noted his “Capacity to Proceed has been in question since his
initial arrest in 2012” and various treatment attempts and psychological issues
“account for almost all the delay between Defendant’s initial arrest in 2012 and the
present.” Defendant conceded the delay was “not the fault of the State” but contended
the passage of time, in terms of both witness recollection and Defendant’s progressing
psychological issues, “has worked to substantially prejudice Defendant.” That same
day, Defendant also filed a Motion to Quash Indictments and a second Motion to
Dismiss, citing double jeopardy and other constitutional concerns. On 5 January
2018, Defendant filed a Supplement to his Motion to Dismiss alleging additional
details regarding his mental health.
On 8 January 2018, the matter proceeded to trial, and the trial court did not
hold another competency hearing before commencing this trial. After the State’s first
witness had finished her testimony on 10 January 2018, Defendant’s counsel brought
to the trial court’s attention his concerns regarding Defendant’s competency.
Specifically, Defendant’s counsel stated:
Your Honor, . . . I just had a brief conversation with [Defendant]
during which I began to have some concerns about his capacity
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Opinion of the Court
and I would ask the Court to address him regarding that. . . . I’ve
been asking him how he’s doing and if he knows what’s going on.
And up until just now he’s been able to tell me what’s been going
on. He just told me just a few minutes ago that he didn’t know
what was going on. . . . I asked him if he understood what was
going on. He said, no, he didn’t know what [the witness] was
talking about. And that has not been the way he has been
responding throughout this event, either yesterday or earlier
today. And in light of the history with him, I just want to make
sure. . . . I feel we need to make sure. And I’m not asking for an
evaluation[.] I would just ask for the Court to query him quickly
to make sure . . . I’m seeing something that is not there.
The trial court suggested Defendant’s lack of understanding was likely
attributable to earlier discussions of Rules 403 and 404(b) of the North Carolina Rules
of Evidence, not Defendant’s mental state. Thereafter, the trial court stated it would
address this issue the following morning. The next morning, the ensuing exchange
between the trial court and Defendant’s counsel occurred:
THE COURT: Do you have any more information or arguments
you want to make as to [Defendant’s] capacity this morning?
[DEFENSE COUNSEL]: No, Your Honor. When [Defendant]
came in this morning he greeted me like he has other mornings.
I interacted with him briefly and he interacted like he has been
interacting every morning. And I’ve not had any questions about
his capacity this morning. I just had some yesterday evening
because he kind of looked at me and the look in his face was like
he had no idea who I was.
THE COURT: Yeah, well, any time you get to -- like I said, any
time you get to talking about 404(b) and 403 everybody in the
courtroom is going to look like that but.
[DEFENSE COUNSEL]: I don’t have any concerns this morning.
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Opinion of the Court
THE COURT: Okay.
Neither the trial court nor Defendant’s counsel raised the issue of Defendant’s
competency again at trial. On 12 January 2018, the jury returned verdicts finding
Defendant guilty on all charges. The trial court entered separate Judgments on each
of the charges against Defendant, sentencing Defendant to ten years on each charge
of Indecent Liberties with a Child and 40 years on each charge of Second-Degree
Sexual Offense to run consecutively in the custody of the North Carolina Department
of Adult Correction. Additionally, the trial court entered Judicial Findings and Order
for Sex Offenders on each charge. Defendant appeals.
Issue
The dispositive issue in this case is whether the trial court violated Defendant’s
due-process rights by failing to conduct a competency hearing immediately prior to
or during Defendant’s trial.
Analysis
I. Standard of Review
“[T]he conviction of an accused person while he is legally incompetent violates
due process[.]” State v. Taylor, 298 N.C. 405, 410, 259 S.E.2d 502, 505 (1979)
(citations omitted). “The standard of review for alleged violations of constitutional
rights is de novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444
(2009) (citation omitted).
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Opinion of the Court
II. Lack of Competency Hearing
“It has long been accepted that a person whose mental condition is such that
he lacks the capacity to understand the nature and object of the proceedings against
him, to consult with counsel, and to assist in preparing his defense may not be
subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171, 43 L. Ed. 2d 103, 112-13
(1975). Our North Carolina Supreme Court has held
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. In enforcing this constitutional right, 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.
State v. Badgett, 361 N.C. 234, 259, 644 S.E.2d 206, 221 (2007) (alteration in original)
(citations and quotation marks omitted). In addition, “a trial judge is required to hold
a competency hearing when there is a bona fide doubt as to the defendant’s
competency even absent a request.” State v. Staten, 172 N.C. App. 673, 678, 616
S.E.2d 650, 654-55 (2005) (citation omitted). “[E]vidence of a defendant’s irrational
behavior, his demeanor at trial, and any prior medical opinion on competence to stand
trial are all relevant to a bona fide doubt inquiry.” State v. McRae, 139 N.C. App.
387, 390, 533 S.E.2d 557, 559 (2000) (alteration in original) (emphasis added)
(citation and quotation marks omitted).
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Opinion of the Court
Defendant contends the trial court erred by failing to conduct sua sponte a
competency hearing either immediately before or during the trial because substantial
evidence existed before the trial court that indicated Defendant may have been
incompetent. We agree with Defendant and believe McRae controls our analysis.
In McRae, the defendant suffered from schizophrenia and psychosis and had
undergone at least six psychiatric evaluations over a seventeen-month period leading
up to his first trial, which evaluations had differing results regarding the defendant’s
competency. Id. at 390-91, 533 S.E.2d at 559-60. Immediately following a
competency hearing finding him competent, the defendant went to trial; however,
this trial resulted in a mistrial. Id. at 391, 533 S.E.2d at 560. Thereafter, Defendant
underwent an additional evaluation finding him competent, and five days later, the
defendant’s second trial began. Id. Noting “concern[s] about the temporal nature of
[the] defendant’s competency[,]” this Court held that the trial court erred in failing to
conduct a competency hearing immediately prior to the second trial. Id. (citation
omitted); see also Meeks v. Smith, 512 F. Supp. 335, 338-39 (W.D.N.C. 1981) (finding
a bona fide doubt existed as to the defendant’s competency where defendant was
diagnosed as schizophrenic and underwent seven psychiatric evaluations yielding
different conclusions as to defendant’s competency).
Here, the trial court was presented with substantial evidence raising a bona
fide doubt as to Defendant’s competency to stand trial in January of 2018. First, on
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Opinion of the Court
8 January 2018, the trial court had access to Defendant’s seven prior forensic
evaluations. These evaluations found Defendant was psychotic at times, suffered
from hallucinations, and had been diagnosed with schizophrenia, schizoaffective
disorder, bipolar disorder, and mild neurocognitive disorder. Several of these
evaluations also noted a temporal aspect to Defendant’s mental ability to stand trial.
For instance, the Third Dr. Bartholomew Report noted, “It is also possible his
condition may deteriorate with the stress of a trial so vigilance is suggested if his case
proceeds in a trial.” Dr. Bellard expressed similar concerns in his report as well. Our
Court has recognized that “[e]vidence of . . . any prior medical opinion on competence
to stand trial [is] relevant to a bona fide doubt inquiry.” McRae, 139 N.C. App. at
390, 533 S.E.2d at 559 (citation and quotation marks omitted).
In addition, Defendant’s last forensic evaluation was conducted on 15 August
2017 and reduced to writing on 24 August 2017—the Final Dr. Bartholomew Report.
Based on this Report, the trial court conducted a competency hearing and determined
Defendant to be competent to stand trial on 5 September 2017. However, Defendant’s
trial did not begin until 8 January 2018, a full five months after Defendant’s
competency hearing and almost six months after Defendant’s last forensic evaluation.
Given the temporal nature of Defendant’s mental illness, the appropriate time to
conduct a competency hearing was immediately prior to trial. See id. at 391, 533
S.E.2d at 560; Meeks, 512 F. Supp. at 338-39; see also State v. Cooper, 286 N.C. 549,
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Opinion of the Court
565, 213 S.E.2d 305, 316 (1975) (stating a defendant’s competency must be assessed
“at the time of trial” (citations omitted)).
In a similar vein, we find it significant that Defendant’s prior medical records
disclosed numerous concerns about the potential for Defendant’s mental stability to
drastically deteriorate over a brief period of time and with the stress of trial. Dr.
Bartholomew correctly indicated that “vigilance is suggested if [Defendant’s] case
proceeds in a trial[,]” as “a defendant’s competency to stand trial is not necessarily
static, but can change over even brief periods of time.” State v. Whitted, 209 N.C.
App. 522, 528-29, 705 S.E.2d 787, 792 (2011) (citation omitted). Because these
forensic evaluations suggested a “temporal nature of [Defendant’s] competency[,]” the
trial court should have conducted a competency hearing. See McRae, 139 N.C. App.
at 391, 533 S.E.2d at 560 (citation omitted). Therefore, we conclude the trial court
committed prejudicial error in failing to hold a competency hearing.
Further, we find additional support for this conclusion based on the events at
trial. For instance, Defendant’s counsel questioned Defendant’s capacity on the third
day of trial. Specifically, defense counsel stated, “I just had a brief conversation with
[Defendant] during which I began to have some concerns about his capacity and I
would ask the Court to address him regarding that.” Defense counsel’s concerns
stemmed from Defendant’s responses that he “didn’t know what was going on” and
“didn’t know what [the witness] was talking about.” These concerns were raised
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Opinion of the Court
before the trial court, although a competency hearing was not held at this time.1
However, our Court has observed that a defendant’s demeanor is also relevant to a
bona fide-doubt inquiry. See id. at 390, 533 S.E.2d at 559 (citation and quotation
marks omitted). Moreover, Defendant never had an extended colloquy with the trial
court or testified in a manner that demonstrated he was competent to stand trial. Cf.
Staten, 172 N.C. App. at 679-84, 616 S.E.2d at 655-58 (holding that there was not
substantial evidence of defendant’s incompetence where defendant engaged in a
lengthy voluntariness colloquy with the trial court; defendant’s responses were “lucid
and responsive”; and his testimony was mostly rational).
In light of Defendant’s extensive history of mental illness, including
schizophrenia, schizoaffective disorder, bipolar disorder, and mild neurocognitive
disorder, his seven prior forensic evaluations with divergent findings on his
competency, the five-month gap between his competency hearing and his trial, the
concerns expressed by physicians and other trial judges about the potential for
Defendant to deteriorate during trial and warning of the need for vigilance, the
concerns his counsel raised to the trial court regarding his conduct and demeanor on
the third day of trial, and the fact that the trial court never had an extended colloquy
1 Although by the next morning Defendant’s counsel indicated that he no longer had any
concerns and the trial court proceeded with the trial, in our view, under the totality of the
circumstances—including Defendant’s extensive medical history and the gap between Defendant’s last
competency hearing and trial—there was substantial evidence giving rise to a bona fide doubt
regarding Defendant’s competency, notwithstanding defense counsel’s failure to further pursue a
competency hearing during trial.
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Opinion of the Court
with Defendant, we conclude substantial evidence existed before the trial court that
raised a bona fide doubt as to Defendant’s competency to stand trial. Therefore, the
trial court erred in failing to institute sua sponte a competency hearing for Defendant.
III. Remedy
Because we have found that the trial court erred by failing to hold a
competency hearing immediately prior to or during Defendant’s trial, we follow the
procedure employed in McRae and remand to the trial court for a determination of
whether a meaningful retrospective hearing can be conducted on the issue of
Defendant’s competency at the time of his trial. See McRae, 139 N.C. App. at 392,
533 S.E.2d at 560-61 (“The trial court is in the best position to determine whether it
can make such a retrospective determination of [a] defendant’s competency.”). On
remand,
if the trial court concludes that a retrospective determination is
still possible, a competency hearing will be held, and if the
conclusion is that the defendant was competent, no new trial will
be required. If the trial court determines that a meaningful
hearing is no longer possible, defendant’s conviction must be
reversed and a new trial may be granted when he is competent to
stand trial.
Id. at 392, 533 S.E.2d at 561. In reaching its decision, the trial court must determine
if a retrospective determination is still possible as it relates to (1) Defendant’s
competency immediately prior to trial, (2a) Defendant’s competency during trial, and
(2b) specifically Defendant’s competency during the proceedings on the afternoon of
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Opinion of the Court
10 January 2018 when Defendant’s trial counsel raised concerns over Defendant’s
mental state. If the trial court decides a retrospective determination is possible, the
trial court must make detailed findings of fact and conclusions of law in a written
order. Because it is possible on remand that the trial court concludes Defendant was
not competent and orders a new trial, which would moot Defendant’s arguments in
his Conditional Motion for Appropriate Relief, we dismiss Defendant’s Conditional
Motion for Appropriate Relief without prejudice.
Conclusion
For the foregoing reasons, we remand this case to the trial court for a hearing
to determine Defendant’s competency at the time of trial. Further, we dismiss
Defendant’s Conditional Motion for Appropriate Relief without prejudice.
REMANDED.
Judge MURPHY concurs.
Judge BERGER dissents in a separate opinion.
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No. COA18-932 – State v. Hollars
BERGER, Judge, dissenting in separate opinion.
There was no bona fide doubt as to Defendant’s competence to stand trial, and
there was not substantial evidence before the trial court that Defendant was
incompetent. Thus, the trial court did not err when it began Defendant’s trial, and
proceeded with the trial, without undertaking another competency hearing, and I
respectfully dissent.
A defendant lacks capacity to proceed when “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.” State v. King, 353 N.C. 457, 465-66, 546 S.E.2d 575, 584 (2001) (citation
omitted), cert. denied, 534 U.S. 1147 (2002). “[A] conviction cannot stand where the
defendant lacks capacity to defend himself.” Id. at 467, 546 S.E.2d at 585 (citation
omitted).
“[A] trial judge is required to hold a competency hearing when there is a bona
fide doubt as to the defendant's competency . . . .” State v. Staten, 172 N.C. App. 673,
678, 616 S.E.2d 650, 654 (2005). “Evidence of a defendant's irrational behavior, his
demeanor at trial, and any prior medical opinion on competence to stand trial are all
relevant to a bona fide doubt inquiry.” Id. at 678, 616 S.E.2d at 655. “[A] trial court
has a constitutional duty to institute, sua sponte, a competency hearing if there is
STATE V. HOLLARS
BERGER, J., dissenting
substantial evidence before the court indicating that the accused may be mentally
incompetent.” Id. at 681, 616 S.E.2d at 656.
“There are, of course, no fixed or immutable signs which invariably indicate
the need for further inquiry to determine fitness to proceed; the question is often a
difficult one in which a wide range of manifestations and subtle nuances are
implicated.” Id. at 679, 616 S.E.2d at 655 (citations omitted). There must be
“evidence before the trial court that defendant was not capable of assisting in his own
defense,” State v. Blancher, 170 N.C. App. 171, 174, 611 S.E.2d 445, 447 (2005), or
otherwise lacked capacity to proceed.
There is no evidence in the record of irrational behavior or change in demeanor
by Defendant at trial. The majority rests its reasoning almost entirely on Defendant’s
prior competency evaluations. While relevant, this factor alone is not controlling.
Defendant underwent multiple competency evaluations prior to trial. The
dates of those evaluations, doctors, and results are set forth below:
May 7, 2012 Dr. Murray Hawkinson Not Competent2
July 25, 2012 Dr. David Bartholomew Not Competent
April 30, 2013 Dr. David Bartholomew Competent
March 31, 2015 Dr. David Bartholomew Competent
October 9, 2015 Dr. James Bellard Not Competent
December 8, 2016 Dr. David Bartholomew Competent
August 15, 2017 Dr. David Bartholomew Competent
Dr. Reem Utterback
2 Dr. Hawkinson conducted a forensic screening at the Watauga County Jail.
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BERGER, J., dissenting
September 5, 2017 Dr. James Bellard Competent3
The reports from evaluations in which Defendant was found not competent
each note that either Defendant was not taking medications to address his mental
health issues, or that his medication dosage had been reduced prior to the evaluation.
There is no such notation for evaluations in which Defendant was deemed competent
to proceed.
In addition, Dr. Bartholomew stated in his report from the December 18, 2016
evaluation that “[g]iven the stability of [Defendant’s] mental status and functioning
for the last year or more at Broughton Hospital, I believe it is reasonable that
[Defendant] will maintain this functioning in the foreseeable future and during a
trial.” A similar notation was made in the report from the August 15, 2017 evaluation
by Drs. Bartholomew and Utterback. This is consistent with prior reports that
Defendant’s condition had improved and that his medication had helped with his
symptoms.
Defendant’s trial began in January, 2018. At a minimum, the trial court had
information that was only four months old that Defendant was competent and would
3 Defendant’s counsel advised the trial court that Dr. Bellard spoke with Defendant that
morning and found him to be competent, and defense counsel conceded to a finding of competence in
open court.
In addition, a report from a June 28, 2017 evaluation by Dr. Bellard exists, but was not filed
with the Watauga County Clerk of Court and not provided to the trial court. In that report, Dr. Bellard
indicates that “[t]he degree to which [Defendant experiences hallucinations] is directly correlated
with” Defendant’s medication.
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STATE V. HOLLARS
BERGER, J., dissenting
remain competent. This information was based on more than a year’s worth of
documentation while Defendant was housed in Broughton Hospital. This alone
distinguishes this case from State v. McRae, 139 N.C. App. 387, 533 S.E.2d 557
(2000), and the majority’s conclusion that there were concerns about the temporal
nature of Defendant’s competency is not reflected in the reports.
Thus, there is nothing in the record that would have required the trial court to
conduct another pre-trial hearing. The Bartholomew-Utterback report clearly stated
that Defendant was competent and that he would maintain capacity to proceed for
the foreseeable future. Defense counsel did not alert the trial court to any concerns
at any time between August 15, 2017 and January 8, 2018. To the contrary, defense
counsel informed that Court that Dr. Bellard had determined that Defendant was
competent to proceed in September 2017 and conceded to a finding that Defendant
was competent.
In addition, prior to trial, defense counsel informed the trial court that
[Defendant]’s been diagnosed with bipolar disorder at
various times. He has been - - there are a number of times
where they talk through – in the – where the evaluators in
these evaluations talk about how he may well be actively
psychotic at the point in time in which they were talking to
him. I don’t have any reason to believe he is that way as he
is here today.
Here, “defendant’s actions and courtroom behavior [at that time] did not
indicate that [he] was incompetent. He participated in the proceedings, his demeanor
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BERGER, J., dissenting
was appropriate, and his trial counsel represented that he was competent.” State v.
Johnson, 190 N.C. App. 818, 820, 661 S.E.2d 287, 289 (2008). In addition, “where, as
here, the defendant has been . . . examined relative to his capacity to proceed, and all
evidence before the court indicates that he has that capacity, he is not denied due
process by the failure of the trial judge to hold a hearing.” Id. at 821, 661 S.E.2d at
289 (citation omitted).
Thus, the trial court did not err in not conducting another pretrial competency
hearing because there was no evidence before the trial court that Defendant was
incompetent at the time his trial began in January 2018.
Defendant also contends, and the majority agrees, that the trial court erred by
failing to intervene sua sponte following an exchange between defense counsel and
the trial court. I disagree.
There is nothing in the record that indicates Defendant was acting irrationally,
or otherwise incompetent on January 8 or 9, 2018, or that his attorney or the trial
court had any such concerns. On January 10, 2018, court convened for trial of
Defendant’s case at 9:32 a.m. Jury selection continued until 11:05 a.m. The court
released prospective jurors for a recess at 11:12 a.m., and after the jury left the
courtroom, neither defense counsel nor the prosecutor raised any concerns about
Defendant. Court reconvened at 11:32 a.m. and jury selection continued until 12:27
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STATE V. HOLLARS
BERGER, J., dissenting
p.m. Jurors were released for lunch at 12:35 p.m. After the jury left the courtroom,
there was again no concern raised about Defendant.
After lunch, court resumed at 2:02 p.m. Jury selection was finalized and the
jury impaneled at 3:07 p.m. At 3:16 p.m. the jury left the courtroom for the afternoon
recess. Again, no issues were raised regarding Defendant when the jury left the
courtroom. Court resumed at 3:32 p.m. The trial court provided instructions to the
jurors, and opening statements were given by the prosecutor and defense counsel
until 3:43 p.m. The State thereafter called the victim to testify as its first witness.
While the victim was testifying, defense counsel made an objection and asked
to be heard outside the presence of the jury. The jury was thereafter escorted from
the courtroom at 4:27 p.m. The trial court and counsel then engaged in a discussion
of 404(b) evidence, and the jury returned at 4:34 p.m. The trial court then gave a
limiting instruction to the jury, and the victim continued her testimony. Testimony
continued, and the trial court gave an instruction prior to the jury being released for
the evening at 5:00 p.m.
The trial court then mentioned 404(b) evidence again and a recess was taken
at 5:03 p.m. They went back on the record at 5:03 p.m., at which time, defense counsel
stated the following:
I just had a brief conversation with Mr. Hollars during
which I began to have some concerns about his capacity
and I would ask the Court to address him regarding that.
...
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STATE V. HOLLARS
BERGER, J., dissenting
I asked him -- I've been asking him how he's doing and if
he knows what's going on and up until just now he's been
able to tell me what's been going on. He just told me just a
few minutes ago that he didn't know what was going on.
(Emphasis added).
The trial court replied to defense counsel:
THE COURT: Well, when we start throwing around
404(b) and 403, you'd have to have graduated from law
school to have any inkling of what we're talking about. So
I'm not sure what it is you -- I want you to be more specific.
[Defense counsel]: He said -- I asked him -- he said – I
asked him if he understood what was going on. He said,
no, he didn't know what she was talking about. And that
has not been the way he has been responding throughout
this event, either yesterday or earlier today. And in light
of the history with him, I just want to make sure. I just –
I feel we need to make sure. And I'm not asking for an
evaluation I would just ask for the Court to query him
quickly to make sure that I'm just not -- make sure I'm
seeing something that is not there.
THE COURT: Well, I tell you what, it's been a long
day, and I'd rather inquire of Mr. Hollars in the morning
and give everyone a chance to rest. Give you a chance to
talk to him and try to explain to him what's going on,
especially with all of these rule numbers. I don't know if
anybody could explain that to a non-lawyer and have them
understand it.
We could take a poll around here of non-lawyers and
see if they understood it. I doubt many of them would. But,
you know, essentially what is going on is that the victim in
this case has been telling everybody what he did, and that's
about a simple concept as you can imagine. Now, if he
surely does not understand that for some reason, not that
he remembers it or not, or whether he can think of some
defense or something, that is not the case.
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STATE V. HOLLARS
BERGER, J., dissenting
[Defense counsel]: I understand.
THE COURT: But if the information coming from this
woman about what he did, if he can understand that is
what is happening, then I would say that the capacity
situation hasn't changed any. We've got one, two -- I
counted them before, three, four, five, six, capacity
evaluations. The latest one was August 15, 2017, and this
latest one found him capable of proceeding. We'll talk
about it in the morning.
[Defense counsel]: Yes, sir.
THE COURT: Okay, thank you.
There was not substantial evidence before the court at this time, indicating
that Defendant was incapable of proceeding, sufficient to require another competency
hearing. There is nothing in the record that addresses Defendant’s demeanor or
behavior during trial on January 10, 2018 that would indicate or suggest Defendant
was not competent. At the end of the day, defense counsel informed the trial court
that he and Defendant “had a brief conversation” and Defendant told defense counsel
that he did not know what was going on and that Defendant “didn’t know what [the
victim] was talking about.”
As the trial court pointed out, the discussion concerning 404(b) evidence may
have been too complicated for Defendant to understand. The trial court also informed
defense counsel that Defendant’s capacity may be an issue if he did not understand
the victim’s testimony, not merely that Defendant was denying knowledge of the
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STATE V. HOLLARS
BERGER, J., dissenting
content of her testimony, or the ability to think of a defense to her testimony. The
“brief conversation” by Defendant and defense counsel did not produce “substantial
evidence before the court indicating that the accused may be mentally incompetent.”
Staten, 172 N.C. App. at 681, 616 S.E.2d at 656. Rather, at this point in the trial,
there was the very real probability that Defendant did not understand the intricacies
of 404(b) testimony, and that he had in fact heard and understood the victim’s
testimony. Perhaps at this point he fully comprehended the nature of his situation
in relation to the proceedings. While there may be speculation concerning
Defendant’s competence, there is no bona fide doubt as to Defendant’s competence.
On January 11, the trial court asked if there was a need “for any further
inquiry as to Mr. Hollars’ capacity.” Defense counsel indicated there was not.
Presumably defense counsel had more than a “brief conversation” with Defendant
after the conclusion of court on January 10 to better understand Defendant’s
comments in court at the end of the 404(b) discussion. As this Court has noted, trial
courts give “significant weight to defense counsel’s representation that a client is
competent, since counsel is usually in the best position to determine if his client is
able to understand the proceedings and assist in his defense.” Blancher, 170 N.C.
App. at 174, 611 S.E.2d at 447 (citation omitted). Again, there was no substantial
evidence before the court that Defendant may be incompetent at this point in the
trial.
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STATE V. HOLLARS
BERGER, J., dissenting
Even though not required because of the lack of substantial evidence, one could
argue that the trial court’s inquiry of defense counsel on the morning of January 11
satisfied the requirements of conducting a hearing on competence. See N.C. Gen.
Stat. § 15A-1002 (b)(1); See also State v. Gates, 65 N.C. App. 277, 282, 309 S.E.2d 498,
501 (1983) (When a hearing is required concerning Defendant’s capacity to proceed,
“no particular procedure is mandated. The method of inquiry is still largely within
the discretion of the [court].”) The majority implies that the trial court was required
to conduct a colloquy with Defendant at this point. While the trial court may do so,
it is not required to do so.
Thus, because there was no bona fide doubt as to Defendant’s competence to
stand trial, there was not substantial evidence before the trial court that Defendant
was incompetent. I would find the trial court did not err when it began Defendant’s
trial, and proceeded with the trial, without undertaking another competency hearing.
In addition, I would dismiss Defendant’s motion for appropriate relief without
prejudice to his right to file an MAR in the trial court.
10