130.2Determining Capacity to Proceed

Overview

When a prosecutor, defense counsel, or defendant makes a pretrial motion questioning defendant's capacity to proceed to trial, G.S. 15A-1002(a) requires that the moving party give specific reasons why defendant's capacity should be examined. See AOC-CR-207B and AOC-CR-208B. A defendant has no automatic right to a pretrial mental health examination. State v. See, 301 N.C. 388 (1980). Instead, the judge determines whether the defendant should be examined. G.S. 15A-1002(b); State v. Taylor, 298 N.C. 405 (1979). See generally State v. Aytche, 98 N.C. App. 358 (1990) (statute does not authorize examination for physical problems); State v. Bacon, 326 N.C. 404 (1990) (statute only concerns mental capacity).

If the court finds that defendant’s capacity should be examined, it will appoint an impartial medical expert to examine the defendant and return a report describing the defendant’s present mental health. See G.S. 15A-1002(b)(1a); AOC-CR-207B (Motion and Order Appointing Local Certified Forensic Evaluator). For felony offenses only, the court may instead commit the defendant to a state facility for the mentally ill for observation and examination, but if the court does not first order a local examination, then the judge must make a finding that an examination at the Central Regional Hospital-Butner Campus is more appropriate. See G.S. 15A-1002(b)(2); AOC-CR-208B (Motion and Order Committing Defendant to Central Regional Hospital-Butner Campus for Examination on Capacity to Proceed).

An indigent defendant does not have an automatic right to be examined by court-appointed mental health expert of his or her own choosing, or to an examination by a private mental health expert instead of, or in addition to, an examination at a state-designated hospital. State v. Robinson, 327 N.C. 346 (1990); State v. Easterling, 300 N.C. 594 (1980). A defendant also does not have a Sixth Amendment right to have counsel present during an evaluation concerning the capacity to proceed. State v. Davis, 349 N.C. 1 (1998).

For more information, and a discussion of the issues presented by Ake v. Oklahoma, 470 U.S. 68 (1985) (indigent criminal defendant is entitled to court-appointed psychiatrist when sanity at time of offense is to be a significant factor at trial), please see the related entries on Right to Counsel – Waiver or Forfeiture and Right to Counsel – Related Services. 

When Hearing and Findings on Capacity Are Required

When a defendant’s capacity to proceed is questioned by the defendant or either party, the court must hold a hearing to determine defendant’s capacity to proceed. See G.S. 15A-1002(b); State v. McGuire, 297 N.C. 69 (1979); Pate v. Robinson, 383 U.S. 375 (1966); State v. McCrae, 139 N.C. App. 387 (2000); see also State v. Leyshon, 211 N.C. App. 511 (2011) (G.S. 15A-1002 does not require trial judge to conduct a hearing before the examination; a defendant may request a hearing after examination, but the failure to do so—as happened here—constituted a waiver). Even in the absence of a motion, the court has a duty to inquire sua sponte into the defendant’s capacity to proceed if there is substantial evidence indicating that the accused may lack capacity to proceed, or the court has a bona fide doubt as to the defendant’s capacity. See State v. Whitted, 209 N.C. App. 522 (2011) (trial court erred by failing to sua sponte inquire into capacity based on defendant’s history of mental illness, irrational behavior in the courtroom, and comments regarding her defense counsel working for the state); State v. McRae, 139 N.C.App. 387 (2000) (quoting Drope v. Missouri, 420 U.S. 162 (1975)); but see State v. Sander, 2021-NCCOA-566, 865 S.E.2d 358 (2021) (trial court did not err in failing to order competency hearing sua sponte, where the defendant had already undergone "two competency evaluations that focused on the same conduct that later arose at trial" and been found competent).

The court may issue appropriate temporary orders for the confinement or security of the defendant pending the hearing or ruling of the court on the question of defendant’s capacity to proceed. See G.S. 15A-1002(c).

Defendant Who Has A Mental Condition Is Not Necessarily Incapable of Proceeding

A defendant who manifests some symptoms of mental illness, but whose condition does not actually prevent the defendant from understanding the nature and object of the proceedings, comprehending the defendant’s own situation in the proceedings, or assisting the defense in a rational/reasonable manner, may be found to have met the standards described in G.S. 15A-1001(a) and thus have the capacity to proceed. State v. Legrande, 346 N.C. 718 (1997) (trial judge did not err in finding that the defendant was competent to proceed and to waive counsel and represent himself, based on forensic psychiatrist’s report that the defendant was competent, as well as the judge’s observations of the defendant in court); State v. Shytle, 323 N.C. 684 (1989) (defendant who had suffered brain damage from self-inflicted gunshot wound was properly found competent to stand trial and to make a confession); State v. Jackson, 302 N.C. 101 (1980) (defendant competent to stand trial even though evidence showed that in stressful situations defendant manifested some symptoms of mental illness - defendant’s expert witness also stated that in his opinion the defendant understood the nature of the proceedings against him); State v. Cooper, 286 N.C. 549 (1975) (court did not err in finding that defendant was competent to plead to murder charges against him and to stand trial, despite fact that defendant had to be given medication during the trial to keep his mental illness under control).

When the Capacity Evaluation May Take Place

The defendant must have capacity to proceed at the time of the criminal proceedings, and a capacity determination should therefore ordinarily be conducted prior to trial. Although a judge will typically make a pretrial determination that defendant has the capacity to proceed, the court may re-examine the defendant’s capacity on its own motion at any phase of the trial, and, if the circumstances have changed, may have a constitutional duty to make such an inquiry. See G.S. 15A-1002(a); State v. Hepinstall, 309 N.C. 231 (1983); Drope v. Missouri, 420 U.S. 162 (1975). In some circumstances, the court may even conduct a retrospective competency hearing (i.e., held after the trial), as long as the court concludes that a meaningful post-trial competency hearing can still be conducted. See State v. Blancher, 170 N.C. App. 171 (2005) (after conviction but before sentencing hearing nine months later, trial judge conducted a retrospective competency hearing and found the defendant had been competent to stand trial – based on the facts set out in the court’s opinion, the court ruled that the trial judge did not abuse his discretion in determining that a meaningful post-trial competency hearing could be held, and concluding that the defendant did have the capacity to proceed at the time of his trial); State v. McRae, 163 N.C. App. 359 (2004) (no error in conducting retrospective competency hearing).

Evidence and Burden of Proof

A copy of any evaluation report made must be forwarded to clerk of court and defense counsel (or to the defendant if he or she is not represented by counsel) and, “if the question of defendant’s capacity to proceed is raised at any time, a copy of the full report must be forwarded to the district attorney.” G.S. 15A-1002(d). But note that the contents of the report shall not be revealed except as directed by the court, until the report becomes public record. Id. The doctor-patient privilege is inapplicable, and defendant’s statements to the mental health examiner are admissible at the hearing. See State v. Taylor, 304 N.C. 249 (1981); State v. Mayhand, 298 N.C. 418 (1979). Both expert and lay testimony is admissible to determine the defendant’s capacity to proceed. See State v. Silvers, 323 N.C. 646 (1989).

The defendant has the burden of proving that he or she lacks the capacity to proceed. See State v. Goode, 197 N.C. App. 543 (2009) (“the burden rests upon Defendant to establish his mental incapacity”); State v. Gates, 65 N.C. App. 277 (1983) (“defendant has the burden of persuasion with respect to establishing his incapacity”); see also Medina v. California, 505 U.S. 437 (1992) (a state may constitutionally place the burden of proof on the defendant).

The standard of proof which the defendant must satisfy is a preponderance of evidence. See Cooper v. Oklahoma, 517 U.S. 348 (1996) (“a State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence”); Medina v. California, 505 U.S. 437 (1992); see also State v. O’Shields, 252 N.C. App. 427 (2017) (unpublished) (“a state may, consistent with due process, require a criminal defendant to prove he is incapable to stand trial subject to the preponderance-of-the-evidence standard of proof. […] A state may not, however, impose a more demanding standard, such as clear and convincing evidence.”); State v. Moss, 178 N.C. App. 393 (2006) (unpublished) ("...the trial court applied the appropriate burden of persuasion, i.e., the preponderance of the evidence standard. Accordingly, there is no merit to defendant’s argument that the trial court’s determination was potentially unconstitutionally vague as to the standard applied to determine that defendant was competent.").