State v. Davis

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

A p p e l l a t e P r o c e d u r e .

NO. COA13-857

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Iredell County

No. 09 CRS 59431

CHERYLE DHONYALE DAVIS

Appeal by Defendant from judgment entered 20 July 2012 by

Judge Joe Crosswhite in Iredell County Superior Court. Heard in

the Court of Appeals 8 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney

General Sandra Wallace-Smith, for the State.

Appellate Defender Staples S. Hughes, by Assistant

Appellate Defender Anne M. Gomez, for Defendant.

STEPHENS, Judge.

Procedural History and Evidence

Defendant Cheryle Dhonyale Davis appeals from the judgment

entered upon her conviction of second-degree murder in

connection with the death of her romantic partner, Rodney

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Herron. As discussed herein, we find no error in Defendant’s

trial.

Defendant and Herron had been engaged in a highly volatile,

occasionally violent relationship on and off since 2001, with

Herron sometimes living with Defendant. In February 2009,

following an incident in which Herron choked her, Defendant

bought a handgun. In November 2009, Herron and Defendant were

living together. On the evening of 26 November, Defendant was

sleeping when she heard a voice say several times, “This is your

final hour.” Defendant was unsure where the voice was coming

from or whether she was dreaming, but as she woke up, she heard

the voice tell her to start an argument with Herron. Defendant

went into the living room and began shouting at Herron. An

argument ensued. Eventually, Herron went into the bedroom while

Defendant remained on the sofa in the living room. At some

point, Herron came to the door of the bedroom, standing about

four feet from Defendant. As he turned to walk back into the

bedroom, Defendant, holding the handgun under a pillow, shot

Herron in the back. Defendant called 911, upset and distraught.

When police officers responded to the scene, Defendant was

screaming hysterically and waving the handgun in the air. One

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officer was able to disarm Defendant and place her under arrest.

Herron died as a result of the single gunshot.

Defendant remained in jail from the time of her arrest

until being released on bail in late July 2010. She neither

sought nor received any mental health services during that time,

and there were no reports of any bizarre behavior on her part

during her incarceration. However, in June 2011, Defendant’s

mother drove her to Davis Regional Medical Center (“DRMC”)

because Defendant was talking in the third person and claiming

that the “Holy Ghost” speaking through her. Defendant was

diagnosed with psychotic disorder, prescribed medication, and

referred to a walk-in clinic for aftercare. However, Defendant

did not follow up with outpatient treatment. In October 2011,

Defendant’s family took her to Broughton Hospital. She reported

symptoms of depression, hearing voices, and a belief that Herron

sometimes possessed her body. Defendant was diagnosed with

anxiety disorder, her medication was discontinued, and she was

discharged with instructions to seek outpatient follow-up care.

On 10 March 2012, two days before her murder trial was

scheduled to begin, Defendant went to the emergency room of

DRMC, reporting symptoms of depression and psychosis. She was

involuntarily committed and taken to Broughton Hospital for

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further evaluation, but was released after two days. Following

a 13 March 2012 hearing, the trial court ordered an evaluation

of Defendant’s capacity to proceed to trial pursuant to N.C.

Gen. Stat. § 15A-1002(b)(1) (2011) (“When the capacity of the

defendant to proceed is questioned, the court shall hold a

hearing to determine the defendant’s capacity to proceed.”).

Following her evaluation and a competency hearing in May 2012,

Defendant was found capable of proceeding to trial.

Defendant’s case came on for trial two months later on 9

July 2012. On the morning of 17 July, during presentation of

the State’s case, the State offered Defendant a plea to

voluntary manslaughter with a mitigated sentence. Because

Defendant wanted to discuss the offer with family members who

were not then in court, the testimony continued. After

Defendant spontaneously said, “She stood and she’s going to

continue to stain[,]”1 the trial court called a recess so that

Defendant could confer with defense counsel. Following a brief

discussion, defense counsel reported that Defendant had asked

defense counsel to make a motion to withdraw. Defense counsel

reported to the trial court that Defendant was upset with

1

The meaning of Defendant’s comment is unclear. It is quoted

here exactly as it appears in the trial transcript.

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defense counsel’s trial strategy. Following a discussion with

Defendant and defense counsel, the trial court denied the motion

to withdraw, and the trial proceeded, with the jury ultimately

returning a verdict finding Defendant guilty of second-degree

murder. This appeal followed.

Discussion

Defendant’s sole argument on appeal is that the trial court

erred in failing to conduct a second competency hearing sua

sponte during trial. We disagree.

Our General Statutes provide that

[n]o person may be tried, convicted,

sentenced, or punished for a crime when by

reason of mental illness or defect 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. This

condition is hereinafter referred to as

“incapacity to proceed.”

N.C. Gen. Stat. § 15A-1001(a) (2011). The question of a

defendant’s capacity to proceed (also referred to as

“competency”) can “be raised at any time on motion by the

prosecutor, the defendant, the defense counsel, or the court.”

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N.C. Gen. Stat. § 15A-1002(a).2 “When the capacity of the

defendant to proceed is questioned, the court shall hold a

hearing to determine the defendant’s capacity to proceed.” N.C.

Gen. Stat. § 15A-1002(b) (emphasis added). “[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.” State

v. Young, 291 N.C. 562, 568, 231 S.E.2d 577, 581 (1977)

(citation and internal quotation marks omitted).

Further, 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.

In addition, a trial judge is required to

hold a competency hearing when there is a

bona fide doubt as to the defendant’s

2

This statute has been amended with an effective date of 1

December 2013. However, the version quoted and discussed in

this opinion is the version in force and applicable during

Defendant’s trial.

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competency even absent a request. 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.

State v. Whitted, 209 N.C. App. 522, 527, 705 S.E.2d 787, 791

(2011) (citations, internal quotation marks, and brackets

omitted; some italics added).

On appeal, Defendant contends that the trial court was

required to hold a second competency hearing during her trial

because (1) defense counsel questioned Defendant’s competency to

assist in her defense and (2) Defendant’s mental health history

and behavior at trial raised a bona fide doubt about her

competency to proceed. As to defense counsel’s comments, our

careful review of the transcript reveals that defense counsel’s

concern about Defendant’s ability to assist in her defense were

focused on Defendant’s negative attitude toward defense counsel

and her trial strategy, rather than on Defendant’s capacity or

competency. After telling the trial court that Defendant had

asked defense counsel to move to be allowed to withdraw, defense

counsel remarked:

Judge, I have no question about my ability

to continue in this trial. I’m not — I have

had no questions or qualms about what I have

chosen to do strategically in this trial to

this point. My client, however, has

expressed extreme displeasure. I have tried

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to discuss her issues with her. She does

not — she will tell me some of the things

that she has issues with. I tried — I’ve

tried to explain to her why I’m not focusing

on those things and why I have made the

decisions to focus on the issues that I

believe are most important. I think that

she fails to understand or appreciate the

decisions that I have made. She just — I’m

not sure that she’s going to be willing or

able to assist me in the trial of her case.

Not, — I don’t know — we’ve had her — we’ve

had mental health professionals evaluate her

ability to participate in the trial of her

own case and the question of competency was

asked and was answered by the mental health

experts at Central Regional. She was

determined to be competent to stand trial.

However, she is extremely hostile to me, and

I’m not sure why. And, you know, maybe she

can address that a little further with you;

but I’m trying to do the very best I can. I

have prepared witnesses. I am prepared to

put on a defense case. I zealously cross-

examined the witnesses. I have made the

points that I intended to make; and I am

prepared to continue, but she has the right

to participate and, in fact, needs to have

the ability to do that, and I’m just not

sure that she’s able to — because of her

attitude and opinion at this point, able to

assist me in the defense of her case. She

just won’t communicate with me.

(Emphasis added). Where a defendant’s “attitude, rather than a

mental illness or defect, prevent[s] him from assisting in his

own defense[,]” competency under section 15A-1002 is not

implicated. State v. Brown, 339 N.C. 426, 433, 451 S.E.2d 181,

186 (1994).

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Likewise, we conclude that, taken as a whole, Defendant’s

mental health history and behavior at trial did not raise a bona

fide doubt regarding her capacity. While Defendant had a

history of mental health issues, including past diagnoses of,

inter alia, post-traumatic stress disorder, psychotic disorder,

and schizophrenia, she was determined to be competent to assist

in her defense only two months before her trial began. Further,

the doctor who evaluated Defendant at that time concluded that

she did not have a severe mental illness.

Moreover, as Defendant herself notes, “a defendant’s

competency to stand trial is not necessarily static, but can

change over even brief periods of time.” Whitted, 209 N.C. App.

at 528-29, 705 S.E.2d at 792. Defendant notes two occasions of

allegedly “irrational behavior” during her trial: First, on the

fourth day of trial, Defendant apparently made some “disruptive”

gestures during playback of a video recording made by one of the

law enforcement officers who responded to her 911 call just

after she shot Herron. The trial transcript does not further

describe the gestures, but they cannot have been loud or overly

disruptive as counsel for the State, who was playing back the

recording and examining a witness at the time, did not even

notice them.

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Second, on the sixth day of trial, during an off-the-record

discussion between two attorneys for the State, Defendant said,

“She stood and she’s going to continue to stain.” After the

jury was sent out of the courtroom, Defendant then said, “She’s

not going to be Miss Davis’[s] lawyer after today, and I’m

telling you-all that Miss Davis has the holy spirit. So you

just better get it through your heads. Get her someone else.

She’s not going to defend her.” Immediately thereafter,

Defendant asked defense counsel to move to be allowed to

withdraw, as discussed supra, and the trial court gave Defendant

an opportunity to be heard:

THE COURT: All right. [Defendant], I will —

with respect to that request on behalf of

your attorney, I’m going to give you an

opportunity to say anything that you want to

say about that. I think [defense counsel]

has made that motion [to withdraw]. I think

she’s made it on your behalf. I certainly

want to give you a chance to add anything to

that that you would like to add to that.

[]DEFENDANT: I’ve been trying to explain to

[defense counsel] that I’m not in control of

the outburst or the episode that happened

just a few minutes ago and that has happened

prior to me being in the court; and I don’t

know how that I can explain it to her, but

she will need to be further educated or have

more knowledge of what is actually happening

with me in order to be able to defend me

professionally and be able to, you know,

exactly what is happening and what I’m going

to need as far as my defense, and that’s all

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I can say. If she does not know that, then I

would rather have someone else to defend me.

THE COURT: Yes, Ma’am. Well, I know that you

have been evaluated by several doctors who

have provided an opinion; and I’m certain

that’s what [defense counsel] is relying on

as well. What I want to do is, I mean it’s

been almost 45 minutes the Court has been

interrupted again at this point. This is the

second time in this trial the Court has been

interrupted. There’s been several other

times that we have given recesses at other

times to let you have a chance to speak with

[defense counsel] or just to collect your

thoughts on this. I told you early on, every

opportunity — if you need to take a break,

let [defense counsel] know, and we’ll

certainly do that. So we have tried every way

we can to accommodate you; and I want you to

understand that I’m trying to give you every

opportunity to be present and participate in

this trial.

This trial is extremely important to you.

It’s extremely important to your family.

They have been here this entire time. They

have stood by you. They have supported you

in this. However, please understand that I

have to be fair to everyone, and I can’t let

these interruptions continue to interrupt the

trial; and there are — I just want you to

understand that we’re going to try to proceed

in a few minutes. If you do consider or do

continue to cause interruptions in court,

then I'm going to consider other options.

One of those options that I do have to

consider is having you removed from the

courtroom; and I tell you, I don’t want to do

that. That is detrimental to your case. It

is detrimental to [defense counsel]’s ability

to represent you; and I absolutely don’t want

to get there. That’s why I’m continuing to

give you these warnings and give you every

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opportunity. That’s why I let your brother

come back and speak with you for a little

bit. But I want you to understand, I can’t

let those outbursts continue to be disruptive

of the court. That’s not fair to the jury.

It’s not fair to the other people in this

courtroom as well. So I’m doing everything I

can to give you every opportunity to do that.

I also do know at some point this morning, I

don’t even know if there’s been much relevant

discussions on it, I do know there was a new

offer extended by the State. I don’t know if

you’ve had time to discuss that with your

client or with her family. If that’s

something you want to address now or ready to

bring the jury back in and proceed, you know,

but [Defendant], I understand your concern.

I have — I think [defense counsel] is a

wonderful lawyer. Tried several cases with

her. I think she’s doing a great job on your

behalf. But she needs your help. She needs

you to be there and she needs you to help

her. And your family is here to support you,

and you got a lot of people in here to

support you. Okay. So we’re going to try to

continue on. But I guess I’m telling you

that because I don’t want to get to the point

that I have to consider other options, but I

can’t let this matter continue to be

interrupted.

[]DEFENDANT: I understand, Judge.

Trial then proceeded without further interruption that day or

the three remaining days of trial. Defendant gave evidence on

her own behalf and was lucid throughout her testimony. In sum,

Defendant made “gestures” on the fourth day of her trial — the

nature of which are not revealed by the record before this Court

— and spoke a single sentence to herself out loud on one other

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occasion, but otherwise behaved appropriately in court, was able

to respond intelligently to questions from the court, her

counsel, and the State, and displayed no signs of incompetence

or incapacity.

In contrast, in Whitted, where we concluded the trial court

had erred in failing to conduct a competency hearing sua sponte,

the defendant offered the following

substantial evidence indicating that she was

possibly mentally incompetent during her

trial:

• At her first court hearing, the

magistrate noted her past history of mental

illness, specifically paranoid

schizophrenia. Defendant rejected a

favorable pretrial plea offer, remarking

that her appointed counsel worked for the

State.

• After opening statements, the trial

court set a $75,000 cash bond. Defendant

responded with an emotional outburst,

telling the trial court she did not care

whether she got life in prison. She also

told the trial court she was guilty,

stating, “That’s what you want.”

• On the third day of her trial,

Defendant refused to return to the courtroom

because she felt her rights were being

violated, and stated she felt she could rely

on her faith. When Defendant was brought

forcibly into court, handcuffed to a rolling

chair after having been tasered, she chanted

loudly and sang prayers and religious

imprecations, refusing to be silent or

cooperate with trial proceedings.

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• Later, for sentencing, Defendant was

brought back to the courtroom strapped to a

gurney, again singing, crying, screaming[,]

and mumbling as the trial court pronounced

sentence.

Id. at 527-28, 705 S.E.2d at 791-92. Here, Defendant did not

chant, scream, cry hysterically, or have to be restrained like

the defendant in Whitted, nor had she previously been found

incompetent to stand trial. See also State v. McRae, 139 N.C.

App. 387, 533 S.E.2d 557 (2000) (finding the trial court erred

in failing to conduct a competency hearing sua sponte where the

defendant, who suffered from schizophrenia, had been evaluated

at least six times in the preceding year and half and been found

to be competent to stand trial at some points but not at

others).

We conclude that Defendant’s behavior was not substantial

evidence that she might be incompetent such as would raise a

bona fide question about her capacity to proceed. Accordingly,

the trial court did not err in failing to conduct a competency

hearing during Defendant’s trial.

NO ERROR.

Judges STEELMAN and DAVIS concur.

Report per Rule 30(e).