State v. Young

• Decision Date: 31 January 1977
• Docket Number: No. 1,1
• Citation: 291 N.C. 562,231 S.E.2d 577
• Parties: STATE of North Carolina v. Charles Dewitt YOUNG.
• Court: North Carolina Supreme Court

Page 577

231 S.E.2d 577

291 N.C. 562

STATE of North Carolina v. Charles Dewitt YOUNG.

No. 1.

Supreme Court of North Carolina.

Jan. 31, 1977.

Rufus L. Edmisten, Atty. Gen., by David S. Crump, Associate Atty., Raleigh, for State of N.C.

Reuben L. Moore, Jr., Elizabethtown, for defendant-appellant.

HUSKINS, Justice:

Defendant contends in his first assignment of error that the trial court erred in failing to hold a hearing to determine his capacity to proceed as mandated by G.S. 15A--1002 (Cum.Supp.1975). That statute reads in relevant part:

'(a) The question of the capacity of the defendant to proceed may be raised at any time by the prosecutor, the defendant, the defense counsel, or the court on its own motion.

(b) When the capacity of the defendant to proceed is questioned, the court:

(1) May appoint one or more impartial medical experts to examine the defendant and return a written report describing the present state of the defendant's mental health. . . .

(2) May commit the defendant to a State mental health facility for observation and treatment for the period necessary to determine the defendant's capacity to proceed. . . .

(3) Must hold a hearing to determine the defendant's capacity to proceed. If examination is ordered pursuant to subdivision (1) or (2), the hearing must be held after the examination. Reasonable notice must be given to the defendant and to the prosecutor and the State and the defendant may introduce evidence.'

We find in the record the following events relevant to this assignment of error. On 6 October 1975, defense counsel made a motion stating that in his Opinion 'the defendant may be mentally incapable of answering the charges against him, and that the undersigned has a serious question concerning the ability of the defendant to make an intelligent decision concerning a plea in connection with the charges pending against him and believes that the defendant may be mentally incapable of entering such a plea and that a determination should be made concerning the defendant's sanity and further concerning his ability to understand the probable consequences of his acts.'

Pursuant to this motion the trial judge, on that same day, ordered the defendant committed to the State Hospital in Raleigh to undergo psychiatric and other examinations incident to the provisions of G.S. 15A--1002. On 21 October 1975 the North Carolina Department of Mental Health (Dorothea Dix Hospital) issued a Diagnostic Conference Report and Discharge Summary which contained the following findings:

'PSYCHOLOGICAL TESTING: Mr. Young, according to the Slosson Intelligence Test, is presently functioning in the mild range of mental retardation with an IQ of 67. He gained a score of 25 on the Competency Screening Test which demonstrates his present competency to stand trial according to National Institute of Mental Health Standards.

SOCIAL HISTORY: Mr. Young relates a long history of excessive drinking, averaging one-fifth of alcohol per day. He was able to describe the events of the alleged crime.

PSYCHIATRIC OPINIONS: Mr. Young is competent to stand trial in that he understands the charges against him, knows the consequences if convicted, and is able to cooperate with his attorney. In my opinion, Mr. Young was responsible for his actions at the time of the alleged crime. According to Mr. Young's account, he was intoxicated to some degree at the time of the alleged crime.'

There was no finding or evidence of incapacity. Apparently no hearing was held subsequent to the defendant's commitment and there is no evidence that defendant or defense counsel demanded one or that either objected to the failure of the trial judge to hold such a hearing.

Defendant now, for the first time, objects to the failure of the trial court to hold the hearing prescribed by G.S. 15A--1002(b)(3) (Cum.Supp.1975). He first contends that the hearing was mandatory under the statute and that failure to hold such a hearing constitutes reversible error Per se.

It is true that the statute requires the court to hold a hearing to determine defendant's capacity to proceed if the question is raised. However, as stated in State v. Gaiten, 277 N.C. 236, 176 S.E.2d 778 (1970), 'it is a general rule that a defendant may waive the benefit of statutory or constitutional provisions by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.' Further, this Court held in State v. Parks, 290 N.C. 748, 228 S.E.2d 248 (1976), a recent decision dealing with a failure to hold a hearing on a request for habeas corpus, that:

'A corollary to this rule is that, generally, in order for an appellant to assert a constitutional or statutory right in the appellate courts, the right must have been asserted and the issue raised before the trial court. Further, it must affirmatively appear on the record that the issue was passed upon by the trial court.'

In the case before us we find no indication that the failure to hold a hearing under G.S. 15A--1002(b)(3) (Cum.Supp.1975) was considered or passed upon by the trial judge. Neither defendant nor defense counsel, although present at trial, questioned the correctness of the diagnostic finding that defendant was competent to stand trial, understood the charges and was able to cooperate with his attorney; and neither objected to the failure to hold the hearing. When arraigned, defendant entered a plea of not guilty. The defense of insanity was not raised. On these facts we hold that defendant's statutory right, under G.S. 15A--1002(b)(3) (Cum.Supp.1975), to a hearing subsequent to his commitment, was waived by his failure to assert that right. His conduct was inconsistent with a purpose to insist upon a hearing to determine his capacity to proceed. State v. Gaiten, supra; State v. Parks, supra. But see Featherston v. Clark, 293 F.Supp. 508 (W.D.Texas 1968), Aff'd sub nom. Featherston v. Mitchell, 418 F.2d 582 (5th Cir. 1969), Cert. denied, 397 U.S. 937, 90 S.Ct. 945, 25 L.Ed.2d 117 (1970).

In his second contention under this assignment, defendant argues that failure to hold a hearing deprived him of due process of law. We find this contention unsound. It is true that a conviction cannot stand where defendant lacks capacity to defend himself. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). '(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.' (Emphasis added.) Crenshaw v. Wolff, 504 F.2d 377 (8th Cir. 1974), Cert. denied, 420 U.S. 966, 95 S.Ct. 1361, 43 L.Ed.2d 445 (1975). See Wolf v. United States, 430 F.2d 443 (10th Cir. 1970) ('bona fide doubt' as to competency). However, where, as here, the defendant has been committed and examined relevant 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 subsequent to the commitment proceedings. See United States v. Dworshak, 514 F.2d 716 (8th Cir. 1975); Jones v. Swenson, 469 F.2d 535 (8th Cir. 1972), Cert. denied, 412 U.S. 929, 93 S.Ct. 2756, 37 L.Ed.2d 156 (1973); United States ex rel. Roth v. Zelker, 455 F.2d 1105 (2d Cir. 1972), Cert. denied, 408 U.S. 927, 92 S.Ct. 2512, 33 L.Ed.2d 340 (1972); United States ex rel. Evans v. La Vallee,446 F.2d 782 (2d Cir. 1971), Cert. denied, 404 U.S. 1020, 92 S.Ct. 691, 30 L.Ed.2d 668 (1972); Green v. United States, 128 U.S.App.D.C. 408, 389 F.2d 949 (1967); Accord, United States v. Knohl, 379 F.2d 427 (2d Cir. 1967), Cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967). Therefore this contention is without merit and defendant's first assignment of error is overruled.

Defendant contends the court erred in permitting the private prosecutor to propound eighty-seven leading questions during the course of the trial.

For the sake of brevity, we do not reproduce every question. The following, specifically mentioned by defendant's brief, will suffice as examples:

(1) What, if anything, was Chester Graham doing with respect to closing his place?

(2) Could it have been as late as 2:30 in the morning?

(3) After you got into the car, did you hear Charles Dewitt Young make a statement to you as to where he was going to stay that night?

(4) Were there any savings books in the automobile, and, if so, where were they found?

(5) And was the redness of that cap what attracted your attention to it?

(6) After you lifted or assisted in lifting the deceased in the trunk of his own car, what, if anything, did the defendant, Charles Dewitt Young, then say to you or instruct you to do?

A leading question is one that suggests the desired answer. Frequently, questions that may be answered 'yes' or 'no' are regarded as leading. 1 Stansbury's North Carolina Evidence (Brandis rev. 1973) § 31, and cases cited. Even so, the trial court has discretionary authority to permit leading questions in proper instances, State v. Staten, 271 N.C. 600, 157 S.E.2d 225 (1967); State v. Painter, 265 N.C. 277, 144 S.E.2d 6 (1965), and absent a showing of prejudice the discretionary action of the trial court will not be disturbed. State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Pearson, 258 N.C. 188, 128 S.E.2d 251 (1962); State v. Cranfield, 238 N.C. 110, 76 S.E.2d 353 (1953). If the testimony is competent and there is no abuse of discretion, defendant's exception thereto will not be sustained. State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975); State v. Edwards, 286 N.C. 140, 209 S.E.2d 789 (1974). Here, no abuse of judicial discretion is shown.

Situations in which leading questions are permissible are summarized by Justice Branch in State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974), as follows:

'The trial judge in ruling on leading...