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Criminal Practice – Competency – Examination Ordered – Waiver

When defendant was jailed in 2018, his then-counsel requested, and the trial court ordered, a competency evaluation. However, the evaluation did not occur. Defendant was released on bail, hired new counsel and was tried in 2021 without raising the competency issue. On appeal, defendant argues only his right to an evaluation under G.S. § 15A-1002 – not under the constitution. Defendant’s his failure to raise the competency issue before the trial court waived the issue, and it is not preserved for appellate review.

We find no error in defendant’s multiple drug possession offenses.

The due process right to a competency evaluation is not waivable. However, State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977), and a line of cases following it hold that § 15A-1002 is subject to ordinary preservation requirements. Under this controlling precedent, defendant’s competency argument is not preserved for appellate review.

Defendant also argues that the trial court plainly erred in violation of defendant’s constitutional rights by admitting testimony from several law enforcement officers concerning defendant’s silence during the traffic stop and vehicle search that preceded his arrest. Defendant did not object at trial and requests plain error review. However, our Supreme Court has long held that constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal, not even for plain error.

Even if defendant’s argument is subject to plain error review, defendant has not show that, but for the references to his silence, the jury probably would have reached a different result. Nor has he shown that these purported errors were so fundamental, given the weight of the state’s evidence, that they call into question the integrity of our justice system.

No error.

Dissent

(Inman, J.) Our appellate courts have applied Young to hold a defendant waives his statutory rights to a competency hearing under two general fact patterns: (1) when, as in Young, the ordered psychiatric examination reveals the defendant to be competent, and the case proceeds to conviction and sentencing without objection or any indication from the defendant that he may lack competency or (2) when there is no indication of record suggesting incompetency and the question of defendant’s competency is never raised in the trial court.

The majority has not identified, and I cannot find, any case holding that a defendant waives his right to a mandated competency hearing under facts similar to this case, i.e., when (1) the issue of a defendant’s competency is raised, (2) a trial court judicially determines the defendant’s competency to be in question and orders the state submit him to an evaluation, (3) the state ignores the order and no evaluation is conducted and (4) the case proceeds to judgment without any further action to determine the defendant’s competency.

Defendant is entitled to a new trial.

State v. Wilkins (Lawyers Weekly No. 011-250-22, 23 pp.) (Richard Dietz, J.) (Lucy Inman, J., dissenting) Appealed from Caswell County Superior Court (Edwin Wilson, J.) Keith Clayton for the state; Wyatt Orsbon for defendant. 2022-NCCOA-911


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