State v. Payne

• Decision Date: 21 November 2017
• Docket Number: No. COA16-1193,COA16-1193
• Citation: 256 N.C.App. 572,808 S.E.2d 476
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Tina Stamey PAYNE

256 N.C.App. 572

808 S.E.2d 476

STATE of North Carolina

v.Tina Stamey PAYNE

No. COA16-1193

Court of Appeals of North Carolina.

Filed: November 21, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N. Bolton, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for Defendant.

McGEE, Chief Judge.

Tina Stamey Payne ("Defendant") appeals from the trial court's order finding her not guilty by reason of insanity ("NGRI") of one count of attempted first-degree murder and one count of assault with a deadly weapon inflicting serious injury. On appeal, Defendant asserts that she was denied her constitutional right to assistance of counsel when her defense lawyer pursued a pretrial defense of NGRI against her wishes.

I. Background

Evidence presented at multiple pretrial hearings, based in part on court-ordered psychological reports, tended to show the following: On 4 August 2013, Defendant was at her home when she pointed a .22 caliber handgun at A.P., her fifteen-year-old daughter, and said: "I'm sorry." A.P. screamed for her brother and Defendant's twenty-eight-year-old son, R.P., ran into the room and wrestled the gun from Defendant. During the struggle, the gun discharged twice. A.P. was hit in her left shoulder by a bullet, and R.P. was hit in his right hand. Defendant then "went outside with a knife and tried to get hit by a car, and then began cutting her wrists." Defendant was arrested that day, and indicted for attempted first-degree murder and assault with a deadly weapon inflicting serious injury on 19 August 2013.

The day after the incident, on 5 August 2013, a forensic nurse practitioner conducted a psychiatric consultation with Defendant and diagnosed her as suffering from psychosis

or being psychotic at the time of the 4 August 2013 incident. Defendant's Counsel filed an ex parte motion on 9 September 2013, requesting the trial court to approve funds to retain a mental health expert to examine Defendant in order "to determine whether or not [ ] Defendant has any defenses based upon [ ] psychological, mental, emotional and personality problems." Defendant's counsel's motion was granted, and Defendant was evaluated by an expert retained by her counsel. Defendant's counsel filed a motion on 8 April 2014 stating that Defendant "hereby notifies the State of [her] intention to use at trial defenses of, but not limited to alibi, mental infirmity, diminished capacity, self-defense, mistake of fact, insanity and/or accident."

A. Initial Capacity Hearings

At a 6 November 2014 hearing, the trial court was informed by the State that the defense expert had completed his mental health evaluation of Defendant. The State requested that Defendant be committed to Central Region Hospital for evaluation by State experts on capacity and insanity issues. Defendant's counsel did not object. Defendant stated: "I understand the State wants a second opinion for an evaluation, and I agree with that, if that's what the State feels like they need[.]" However, she also informed the trial court: "My attorney and I do not agree on a lot of things. He's made a lot of decisions without even talking to me about it." Defendant further stated:

I let [my attorney] know on August the 18th of [2013] that I wanted to plead not guilty because it was an accident. [My attorney] waited until April of this year and put in a plea for insanity. He told me the truth was not good enough, it was not going to work. He thought an insanity plea was the best. But I know what happened because I was there, and my children were there. I didn't try to murder anybody and I did not shoot anyone. And I know this and my children know this.

....

I know I didn't make a confession, I didn't do it. I did not try to murder anybody and I didn't shoot anybody. You don't confess to that. I don't know why my attorney keeps trying to do this insanity plea when I've made it clear to him that it was an accident, the truth was gonna have to be good enough.

The trial court noted that Defendant sounded "very lucid, very rational," but that it had a petition that said Defendant had mental health issues and a history of paranoia, as well as "two lawyers telling [the court] that they think that [Defendant] need[s] to be examined by another psychiatrist," and so the trial court granted the State's request to commit Defendant for further evaluation to determine her capacity to proceed.

Defendant's capacity to proceed was evaluated at a 21 July 2015 hearing. At that hearing, Defendant stated she had told her counsel she wanted a trial by jury, but that he had not gotten back in contact with her about the matter. Based upon the evidence presented, Defendant was again ordered to be "involuntarily committed ... for appropriate treatment until such time as she be rendered competent in this matter."

B. Pretrial Determination of NGRI

Another hearing was conducted on 7 April 2016, which the State explained to the trial court was for the following two purposes:

Your Honor, we put this on the calendar specifically for this afternoon to address the defense of insanity pretrial. As we were reviewing the court file and all of the evaluations that have been done [Defendant's counsel] and I discovered that there has not been a finding of capacity at this point. So we will need to address that first. And once that determination has been made then move to a pretrial hearing as to the defense of insanity and whether or not it would apply to [Defendant's] cases that are pending.

Although no written motion is included in the record, it appears Defendant's counsel did move, pursuant to N.C. Gen. Stat. § 15A-959(c) (2015), for a pretrial determination by the trial court that Defendant was NGRI of the crimes charged. During the 7 April 2016 hearing, the State, Defendant's counsel, and Defendant herself, agreed Defendant was competent to assist her attorney and proceed to trial. The trial court ruled that Defendant was competent to proceed, and a hearing pursuant to N.C.G.S. § 15A-959(c) was then conducted.

The State requested that the trial court "move forward to address specifically the second portion of the purpose of us being here today, which is in regard to whether or not insanity would be a viable defense for [Defendant] ... at trial proceedings" pursuant to N.C.G.S. § 15A-959(c). The trial court next heard testimony concerning Defendant's motion for pretrial determination of insanity. Defendant's expert witness testified that, in her opinion, Defendant suffered from schizophrenia

at the time of the offenses and that Defendant "understood the action of what she was doing but not the wrongfulness of the action." After this testimony, which constituted the entirety of the evidence presented, Defendant asked, and was permitted, to make a statement to the trial court.

[DEFENDANT]: Your Honor, [my attorney] had spoke[n] to me when I was informed of all of my options for a plea, when I was in the hospital for four months. I took restorative classes and that was an extensive explanation of the court system and process and the pleas that were available to me for the accusations made against me.

[My attorney] and I discussed that. And I expressed to [my attorney] that I did not want him to file a motion for a NGRI plea, that I realized it wasn't an option to me. But basically for it to be heard without hearing all of the evidence to be disputed and to have a proper jury hearing to find me guilty of the crimes I'm alleged to have committed. That it was an admission of guilt with an excuse and that I would prefer—I did not want him to give that plea, enter the motion for the use of that plea.

But [my attorney] did that without my knowledge, and he only informed me of it on last Friday, April the 1st he informed me of that. And that was pretty much it. But as far as it being used in a trial, I have no problem with that. But to be used without a proper trial to dispute any evidence against me I feel like that would violate my rights.

THE COURT: Okay [DEFENDANT]: And I'd ask that you would enter—that you would deny an entry of a NGRI plea today before a proper hearing and proper trial to establish guilt because it hasn't been established I committed a crime. I haven't been convicted of a crime to be found not guilty of.

THE COURT: All right. Thank you.

Defendant's counsel then immediately argued that, based on the evidence presented, the trial court should find Defendant "insane and ... not guilty[.]" The State agreed with the recommendation of Defendant's counsel, but requested that the trial court "make this a dismissal with leave so that the State then is responsible and aware of any future actions as it relates to [Defendant]." (emphasis added).

Following the hearing, the trial court concluded:

[D]efendant has a serious mental illness, schizophrenia

, was psychotic at the time of the alleged crimes on August 4, 2013 and due to her psychosis, was unable to understand the wrongfulness of her actions at the time they were allegedly committed.

[D]efendant has a valid defense of insanity and the charges arising out of the occurrences on August 4, 2013 should be dismissed with leave as a matter of law.

The trial court entered an order on 19 May 2016, which ordered "the charges against [D]efendant be dismissed with leave by the State based on the [trial court's] determination that under N.C.G.S. § 15A-959, [D]efendant was insane at the time the acts for which she is charged were committed." Defendant appeals.

II. Appellate Review

The State filed a motion to dismiss Defendant's appeal based upon its contention that no right of appeal exists from the order ruling that Defendant was NGRI. Defendant acknowledges that her only potential avenue for appellate review is for this Court to grant the petition for writ of certiorari , which she filed 25 January 2017. We grant Defendant's petition for writ of certiorari and deny the State's motion to dismiss.¹ We therefore address the...