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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.

NO. COA07-971


Filed: 3 June 2008


Cleveland County

No. 05 CRS 56711


Appeal by defendant from judgment entered 20 March 2007 by
Judge Timothy L. Patti in Cleveland County Superior Court. Heard
in the Court of Appeals 6 February 2008.

Attorney General Roy Cooper, by Special Deputy Attorney
General James A. Wellons, for the State.

Russell J. Hollers, III, for defendant.

ELMORE, Judge.

A grand jury indicted Billy M. Johnson (defendant) for robbery
with a dangerous weapon in 2005. Following defendant’s conviction
after a jury trial, the trial court sentenced defendant to 103
months’ to 133 months’ imprisonment. Defendant now appeals.
Three days after police arrested defendant, a district court
judge entered a safekeeping order removing defendant from the
county facilities to the Department of Corrections. The court’s
decision, which was based on defendant’s refusal of necessary
dialysis treatment, came after the court received a nurse’s report
that defendant was refusing to cooperate with the staff, was on
suicide watch, and had been throwing feces and urine. One month later, the trial court granted defense counsel’s
motion to have defendant examined for the purposes of determining
his competency to stand trial. Following the November 2005
examination, the forensic examiner concluded that defendant was
“capable of proceeding to trial at this time.”
Defendant, acting pro se, filed notice of his intent to rely
on an insanity defense on 11 May 2006. On 25 September 2006,
defendant’s trial counsel filed a motion with the court requesting
a continuance. The motion stated that although defendant had “from
time to time” indicated that he planned to raise the defense of
insanity, he had “expressed multiple intentions as to how he would
ultimately proceed in this case.” However, the motion indicated
“[t]hat on September 22, 2006 the Defendant indicated to counsel
his serious intend [sic] to proceed with an insanity defense in
this matter.” Stating that she was not prepared to present that
defense, defendant’s attorney requested a continuance “to allow for
a mental health examination.” The trial court granted the motion
in an order entered 25 October 2006, ordering “that the Defendant
shall be evaluated by the appropriate state facility . . . .”
On 20 February 2006, defendant again filed a handwritten pro
document with the trial court, this time requesting leave to
terminate his court appointed attorney. The court took no action
on defendant’s request.
On 12 March 2007, the court called defendant’s case for trial.
Neither defendant nor his attorney mentioned anything about
defendant’s capacity to stand trial or his desire to terminate hisattorney when the trial court asked if there were any matters that
needed to be addressed. Throughout the trial, defendant was
cooperative and appeared to be actively engaged in his defense.
Defendant held a discussion with the court regarding his decision
not to testify in his own defense, he requested that his attorney
ask the trial court for an instruction on a lesser included
offense, and he testified on his own behalf at his sentencing
hearing. At the sentencing hearing, defendant’s trial counsel
stated that defendant had always treated her respectfully, and that
defendant “helped me a great deal in his defense with his ideas and
opinions about things.”
On appeal, defendant first argues that “the trial court erred
in failing to conduct a hearing on [his] capacity to proceed.” We
We find this Court’s recent decision in State v. Staten, 172
N.C. App. 673, 616 S.E.2d 650 (2005), particularly helpful in our
analysis. The defendant in that case, a mentally retarded man,
argued that the court should have ordered a competency hearing sua
. Id. at 677, 616 S.E.2d at 654. As in this case, a mental
health professional found that the Staten defendant was competent
prior to trial. Id. at 676-77, 616 S.E.2d at 653. The Staten
court stated,

The question of capacity may be raised at any
time by motion of the prosecutor, the
defendant or defense counsel, or the court.
Once a defendant’s capacity to stand trial is
questioned, the trial court must hold a
hearing pursuant to N.C. Gen. Stat. §
15A-1002(b) (2003). A defendant has theburden of proof to show incapacity or that he
is not competent to stand trial.

Id. at 678, 616 S.E.2d at 654 (quotations and citations omitted).
No one requested a hearing in Staten; the same is true in the
present case. However, as we acknowledged in Staten,
[a] trial court has a constitutional duty to
institute, sua sponte, a competency hearing if
there is substantial evidence that the accused
may be mentally incompetent
. In other words,
a trial judge is required to hold a competency
hearing when there is a bona fide doubt as to
the defendant’s competency even absent a

Id. at 678, 616 S.E.2d at 654-55 (quotations and citations omitted)
(emphasis in original). The issue therefore becomes whether there
was bona fide doubt as to defendant’s competency in this case. We
hold that there was not.
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. There
are, of course, no fixed or immutable signs
which invariably indicate the need for further
inquiry to determine fitness to proceed; the
question is often a difficult one in which a
wide range of manifestations and subtle
nuances are implicated.

Id. at 678-79, 616 S.E.2d at 655 (quotations and citations
omitted). In this case, as in Staten, defendant’s actions and
courtroom behavior did not indicate that defendant was incompetent.
He participated in the proceedings, his demeanor was appropriate,
and his trial counsel represented that he was competent. See id.
at 678, 616 S.E.2d at 654 (“[T]he court gives significant weight to
defense counsel’s representation that a client is competent, since
counsel is usually in the best position to determine if his clientis able to understand the proceedings and assist in his defense.”)
(quotations and citations omitted). Moreover, the only examination
conducted as to defendant’s capacity resulted in a determination
that he was fit to stand trial. As we stated in Staten, “where, as
here, the defendant has been . . . examined relative 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.” Id. at 684, 616
S.E.2d at 658 (quotations and citations omitted) (alteration in
original). The trial court did not err by choosing not to conduct
a hearing.
We also disagree with defendant’s contention that the trial
court should have allowed him to represent himself. Contrary to
defendant’s argument, this case is not controlled by this Court’s
decision in State v. Walters, 182 N.C. App. 285, 641 S.E.2d 758
(2007). In Walters, the defendant “clearly and unequivocally
declared before trial that he wanted to represent himself and did
not want assistance of counsel when he stated, ‘I’d rather just go
ahead and represent myself.’” Id. at 291, 641 S.E.2d at 761.
Defendant in the present case merely requested that the trial court
terminate his appointed attorney; at no time did he request to
represent himself.
Defendant attempts to persuade this Court that any ambiguity
is the fault of the trial court. Defendant argues that had the
trial court conducted a hearing as defendant requested, it would
have been abundantly clear that he did, in fact, wish to representhimself, and that he should not be penalized for the trial court’s
failure to conduct such a hearing. We are not convinced.
Defendant had ample opportunity to state to the trial court that he
wished to represent himself. He failed to do so. His written
request that his attorney be terminated does not amount to a
request to represent himself. As our Supreme Court has
established, “[s]tatements of a desire not to be represented by
court-appointed counsel do not amount to expressions of an
intention to represent oneself.” State v. Hutchins, 303 N.C. 321,
339, 279 S.E.2d 788, 800 (1981) (citations omitted). The trial
court did not err.
Having conducted a thorough review of the briefs and record in
this case, we find no error.
No error.
Judges MCCULLOUGH and ARROWOOD concur.

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