               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-545

                                Filed: 17 January 2017

Gaston County, Nos. 15 CRS 51209, 7229

STATE OF NORTH CAROLINA, Plaintiff,

              v.

JOHNNY DARNELL MOBLEY, Defendant.


        Appeal by defendant from judgment entered 12 February 2016 by Judge Carla

Archie in Gaston County Superior Court. Heard in the Court of Appeals 15 November

2016.


        Attorney General Roy Cooper, by Special Deputy Attorney General David W.
        Boone, for the State.

        Lisa Miles for defendant-appellant.


        ZACHARY, Judge.


        Johnny Darnell Mobley (defendant) appeals from a judgment entered upon his

convictions for trafficking in marijuana by possession and transportation, and for

having attained the status of an habitual felon. On appeal defendant argues that the

trial court erred by failing to appoint an expert to conduct an investigation into

defendant’s competence to proceed to trial, and by denying defendant’s motion to

dismiss the charges against him. After careful consideration of defendant’s

arguments in light of the record and the applicable law, we conclude that, on the facts

of this case, the trial court erred by failing to appoint an expert to investigate
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                                  Opinion of the Court



defendant’s competence to stand trial. Accordingly, we reverse and remand without

reaching the issue of the sufficiency of the evidence to support defendant’s

convictions.

                          I. Factual and Procedural Background

       On 29 January 2015, defendant was arrested on charges of trafficking in more

than ten but fewer than 50 pounds of marijuana by possession and by transportation,

in violation of N.C. Gen. Stat. § 90-95(h)(1) (2015). Counsel was appointed to

represent defendant on 30 January 2015. Defendant was indicted for these offenses

on 2 March 2015, and was indicted on 5 October 2015 for having attained the status

of an habitual felon. The charges against defendant came on for trial at the 10

February 2016 criminal session of Gaston County Superior Court. Prior to the start

of trial, defendant’s counsel expressed concern about defendant’s having fallen asleep

in the courtroom. The trial court conducted a discussion with defendant and counsel,

which is described in detail below, and then ruled that defendant was competent to

proceed to trial.

       The evidence presented by the State at trial tended to show the following: On

28 January 2015, Postal Inspector Justin Crooks inspected a package at the U.S. Post

Office in Mount Holly, North Carolina. The package gave off an odor of marijuana;

accordingly, he obtained assistance from a Charlotte-Mecklenburg Police Detective

who worked with a dog that is trained to identify narcotics. After the dog indicated



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that the suspicious package contained narcotics, Inspector Crooks obtained a federal

search warrant to inspect the contents of the package. Inside the package were two

bundles of green vegetable matter weighing over 23 pounds. The contents appeared

to be marijuana. This was later confirmed by forensic testing and the parties do not

dispute that the package in fact contained marijuana.

      After Inspector Crooks examined the contents of the package, he contacted

Officer E. Kyle Yancey of the Gaston County Police Department, who arranged for a

controlled delivery of the package. The controlled delivery took place on 29 January

2015. Postal Inspector Mark Heath drove a postal service vehicle and wore a mail

carrier’s uniform. When Inspector Heath arrived at the location to which the package

was addressed, he parked at the curb and got out of the postal service vehicle with

the package. As Inspector Heath walked toward the house, he was met by defendant,

who accepted the package and signed a postal form acknowledging delivery of the

package. Upon Inspector Heath’s return to the postal service vehicle, he saw

defendant “placing the package into the cargo area of the Ford Explorer that was

parked there in the driveway.” Inspector Heath radioed law enforcement officers who

were in the area and informed them that defendant had accepted the package before

placing it a vehicle and driving away. A few minutes later the officers stopped

defendant’s vehicle. Defendant was arrested and charged with trafficking in

marijuana by possession and transportation.



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      On 11 February 2016, the jury returned verdicts finding defendant guilty of

trafficking in marijuana by possession and by transportation. Defendant entered a

plea of guilty to having the status of an habitual felon. The trial court consolidated

the offenses for purposes of sentencing, and sentenced defendant to 60 to 84 months’

imprisonment. Defendant gave notice of appeal in open court.

                                 II. Competency to Proceed

      N.C. Gen. Stat. § 15A-1001(a) (2015) provides that:

             No 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.”

      “[This] statute provides three separate tests in the disjunctive. If a defendant

is deficient under any of these tests he or she does not have the capacity to proceed.”

State v. Shytle, 323 N.C. 684, 688, 374 S.E.2d 573, 575 (1989) (citations omitted).

“The test of a defendant’s mental capacity to stand trial is whether he has, at the time

of trial, the capacity to comprehend his position, to understand the nature and object

of the proceedings against him, to conduct his defense in a rational manner, and to

cooperate with his counsel to the end that any available defense may be interposed.”

State v. Cooper, 286 N.C. 549, 565, 213 S.E.2d 305, 316 (1975) (citations omitted). In

determining whether a defendant has the capacity to proceed, the fact that a



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defendant has been diagnosed with a mental illness does not, standing alone, require

a finding that the defendant is incompetent to stand trial. In Cooper, our Supreme

Court held that:

             In this instance, there was ample expert medical testimony
             to support the trial court’s finding that the defendant was
             competent to plead to the charges against him and to stand
             trial. The fact that the defendant had to be given
             medication periodically during the trial, in order to prevent
             exacerbation of his mental illness by the tensions of the
             courtroom, does not require a finding that he was not
             competent to stand trial when, as here, the undisputed
             medical testimony is that the medication did not have the
             effect of dulling his mind and that the specified dosage was
             adequate to keep his mental illness in remission.

Cooper, 286 N.C. at 566, 213 S.E.2d at 317.

      “[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 request.” State v. Staten,

172 N.C. App. 673, 678, 616 S.E.2d 650, 654-55, disc. review denied, 360 N.C. 180,

626 S.E.2d 838 (2005). “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. Badgett, 361 N.C. 234, 259, 644

S.E.2d 206, 221 (2007) (internal quotation marks and citations omitted).

                   III. Defendant’s Inability to Remain Awake During Trial

      In the present case, defendant’s trial began on the morning of Wednesday, 10

February 2016.      Prior to the introduction of evidence, the trial court conducted



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pretrial proceedings lasting approximately three hours, including jury selection and

a hearing on defendant’s motion to suppress evidence. Before the trial court took a

lunch recess, defendant’s trial counsel asked to bring a matter to the trial court’s

attention. Following a brief unrecorded bench conference, the trial court asked

defendant to stand, and conducted a colloquy with defendant:

            THE COURT: Your lawyer has raised some concerns with
            the Court about your attention this morning. Are you able
            to hear and understand me?

            THE DEFENDANT: Not really.

            THE COURT: Is it because you are having difficulty
            hearing, you have a hearing problem, or are your thoughts
            somewhere else?

            THE DEFENDANT: Really I don’t even know. I think my
            thoughts are somewhere else.

            THE COURT: All right. Are you under the influence of
            anything, alcohol or drugs?

            THE DEFENDANT: My medication. That’s it.

            THE COURT: All right. What sort of medication do you
            take?

            THE DEFENDANT: A bag full.

            THE COURT: What sort of conditions do the medications
            treat?

            THE DEFENDANT: My heart and my mental illness.

            THE COURT: Your heart, and you have a mental illness?



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THE DEFENDANT: Yes.

THE COURT: And how long have you had your heart
condition?

THE DEFENDANT: Probably since 2007.

THE COURT: And have you been diagnosed with some sort
of mental illness?

THE DEFENDANT: Yes.

THE COURT: What is that?

THE DEFENDANT: Bipolar schizophrenic.

THE COURT: How long ago were you diagnosed?

THE DEFENDANT: Probably about four years.

THE COURT: And do you take medication for both of those
conditions, your heart and your mental illness?

THE DEFENDANT: Yes, ma’am.

THE COURT: How long have you been taking your current
medications?

THE DEFENDANT: Since then; about four years.

THE COURT: And how do those medications affect you?
Are there any side effects?

THE DEFENDANT: Yeah. I sleep less, and like memory
loss. Stuff like that.

THE COURT: How long have you experienced those side
effects?

THE DEFENDANT: Probably since that time.


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             THE COURT: And how have you managed those side
             effects for the last four years?

             THE DEFENDANT: Just go with the flow, I guess. Just
             whatever happens.

      Defendant told the trial court that despite having a full night’s sleep the night

before, he was having difficulty following the proceedings in court. The trial court

conducted an additional inquiry into defendant’s comprehension of the legal

proceedings. Defendant’s behavior was respectful and appropriate, and his answers

to the court’s questions were not irrational or delusional. Defendant demonstrated a

general, if limited, understanding of the charges against him and of the prior history

of the case. For example, he knew that he was charged with trafficking in marijuana

and being an habitual felon, and that the significance of the habitual felon charge

was that it exposed him to a longer prison sentence. The trial court asked defendant

about the medications he took, and defendant agreed to allow the court to inspect a

bag defendant had brought to court that contained his medications. After reviewing

the contents of the bag, the trial court discussed the medications with defendant:

             THE COURT: All right. Mr. Mobley, I have not reached
             into the bag but I just counted the bottles. And there
             appear to be twenty-five plus bottles of medication in there.
             Do you take all of those every day?

             THE DEFENDANT: Yes; twice a day. I have a list of them
             right here.




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               THE COURT: And have you shared that list of medications
               with your lawyer before today?

               THE DEFENDANT: No.

               THE COURT: And when is the last time you have seen a
               doctor for your heart condition?

               THE DEFENDANT: I go Friday. They gonna put another
               pacemaker in and another stint.

               THE COURT: You go a day after tomorrow?

               THE DEFENDANT: Yes, ma’am.

      Defendant also told the court that he was scheduled to meet with a doctor

regarding his mental illness in about six weeks. The trial court then asked

defendant’s counsel for further input. Defendant’s trial counsel stated that she was

appointed to represent defendant shortly after his arrest. Defense counsel met with

defendant several times to discuss the case, and described defendant as having been

“coherent and able to discuss his case” with counsel. Defendant’s attorney expressed

concern, however, about defendant’s inability to remain awake during the pretrial

proceedings:

               DEFENSE COUNSEL: It was only then during the jury
               selection that he was -- I noticed him snoring, or heard him
               snoring, looked over and he was asleep on more than one
               occasion. I attempted to explain the severity of his case
               and the importance of the jury and what they may think of
               him, simply his demeanor. And to no avail. It continued to
               keep happening, which of course is alarming to me and
               certainly to the State, and obviously to this Court. . . .



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            THE COURT: So is it my understanding -- do I hear you
            saying that you have seen some noticeable deterioration in
            his ability to communicate and participate in his defense
            today that you have not seen before today?

            DEFENSE COUNSEL: I have -- well, first of all, I will say
            this. I have not been seated beside Mr. Mobley for three
            hours straight. So that being said, I’m not sure I would say
            it’s a deterioration, I will say that I have never seen him be
            this lethargic. And I’m not -- I can’t speak to what’s causing
            it, but again, I’ve never been in his -- sitting beside of him
            for three hours.

            THE COURT: Have you noticed some deterioration today
            in the three-hour window that you have been -- has it been
            consistent all day or have you seen his attention span
            decline today?

            DEFENSE COUNSEL: No, I think his attention span has
            been waning. He did appear a little more engaged -- well,
            that’s kind of hard for me to say too, because during the
            testimony I was more focused on the officers instead of him.
            And he did have some things to say to me after the motion.
            I guess that’s hard for me to say. Because what really drew
            my attention to it was the snoring.

            THE COURT: All right.

            DEFENSE COUNSEL: And then I noticed it repeatedly.
            And I noticed the jurors, several of them appeared to be
            noticing it as well. When I spoke to him first thing this
            morning, no, I did not at all get the impression that he was
            in any way impaired by anything. It’s just the sleeping that
            has me concerned.

      At that point, the trial judge told the parties that she would consider the

matter during the lunch recess.     Following the break for lunch, the trial court

addressed counsel and defendant:


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             THE COURT: Okay. . . . [B]efore we broke for lunch,
             defense counsel raised some concerns about the defendant,
             Mr. Mobley. And, Mr. Mobley, we were having a discussion
             right before lunch about what you understood to be the
             charges against you and your physical condition and so
             forth. Do you remember that?

             THE DEFENDANT: Yeah; a little bit.

      Thereafter, the trial court reviewed with defendant the charges against him

and the possible sentences he might receive if convicted. Defendant indicated that

he understood these circumstances, although he had little memory of meeting with

counsel prior to trial. The court then returned to the subject of defendant’s sleeping

in court:

             THE COURT: Now, Mr. Mobley, your lawyer brought to my
             attention that you appeared to be sleeping, she heard you
             snoring, I believe.

             THE DEFENDANT: I’m tired right now. I was going to ask
             can I sit back down.

      In response, the trial court explained to defendant that he was charged with

serious offenses for which he might receive a significant prison sentence and that the

jury would be assessing his demeanor:

             THE COURT: . . . But whether or not you testify the jury
             can see you. They can see whether or not you are asleep.
             And so it would be in your best interest to stay awake and
             give the jury the very best impression. Do you understand
             that?




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THE DEFENDANT: Yes. But right now I’m just tired and
beat. This medicine, I just won’t take it tomorrow, or
whatever.

THE COURT: I’m sorry. Say that again.

THE DEFENDANT: My medicine, I just won’t take it
tomorrow, or something.

THE COURT: Well, what has your doctor told you about
taking your medicine, and whether you should ---

THE DEFENDANT: Take it every day.

THE COURT: Are you able to reach your doctor on the
telephone?

THE DEFENDANT: I don’t know. I guess.

THE COURT: How many doctors do you have?

THE DEFENDANT: Seven.

THE COURT: Seven doctors? And what have they told you
would happen if you stopped taking your medication?

THE DEFENDANT: Possibility of like dying.

THE COURT: And so do you think it is wise to stop taking
your medication?

THE DEFENDANT: No.

THE COURT: Do you work normally, Mr. Mobley?

THE DEFENDANT: No, ma’am.

THE COURT: Are you on disability?




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                                 Opinion of the Court



            THE DEFENDANT: No. I just applied for it. I had a aortic
            valve dissection, electronic.

            THE COURT: And how long were you in the hospital?

            THE DEFENDANT: About seven months.

            THE COURT: How long have you been out of the hospital?

            THE DEFENDANT: Now probably about eight months.

                                         ...

            THE COURT: And what do you do during the day?

            THE DEFENDANT: Just stay at home.

            THE COURT: Do you sleep most of the day?

            THE DEFENDANT: Yeah.

            THE COURT: All right. Based upon the Court’s inquiry,
            the Court does not have any concerns about Mr. Mobley’s
            competency to proceed. He appears to understand the
            charges against him and the maximum possible penalties
            of those charges if he is convicted of the same. He also
            appears to understand the importance of his appearance to
            the jury. So the Court is prepared to proceed.

      At this point, several witnesses testified for the State. Before the trial court

recessed court for an afternoon break, defendant’s counsel informed the court that

defendant had continued to sleep during trial:

            THE COURT: Counsel, anything before we break?

            PROSECUTOR: I just would ask that. . . [the witnesses] be
            released off their subpoenas, Your Honor.



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             THE COURT: Any objection?

             DEFENSE COUNSEL: No, Your Honor. And I would just
             state for the record that I have kicked and I have hit Mr.
             Mobley three times during the course of this afternoon, and
             to no avail.

             THE COURT: So noted.

      After the jury found defendant guilty of two counts of trafficking in marijuana,

defendant agreed to plead guilty to having the status of an habitual felon. During

the trial court’s colloquy with defendant regarding his plea of guilty, the subject of

defendant’s mental condition was raised again:

             THE COURT: Are you now under the influence of alcohol,
             drugs, narcotics, medicines, pills, or any other substance?

             THE DEFENDANT: Just medicine.

             THE COURT: That we talked about earlier at the outset?

             THE DEFENDANT: Yes, ma’am.

             THE COURT: Does that affect your ability to understand
             what’s going on today?

             THE DEFENDANT: Sometimes. I’m just ready to get this
             over with.

             THE COURT: Are you thinking clearly today?

             THE DEFENDANT: I hope so. Let’s -- I’m just ready to get
             it over with.

             THE COURT: All right. Sir, I understand that you’re ready
             to get it over with, but are you understanding what is going
             on today?


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             THE DEFENDANT: Yes.

                                       IV. Discussion

      As discussed above, 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.” Badgett, 361 N.C. at 259,

644 S.E.2d at 221. A criminal defendant is incompetent to proceed to trial if 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.” N.C. Gen. Stat. § 15A-1001(a). “[A]

defendant’s competency to stand trial is not necessarily static, but can change over

even brief periods of time.” State v. Whitted, 209 N.C. App. 522, 528-29, 705 S.E.2d

787, 792 (2011) (citing State v. McRae, 139 N.C. App. 387, 533 S.E.2d 557 (2000)).

For this reason, a defendant’s competency is assessed “at the time of trial.” Cooper,

286 N.C. at 565, 213 S.E. 2d at 316.

      “Where a defendant demonstrates or where matters before the trial court

indicate that there is a significant possibility that a defendant is incompetent to

proceed with trial, the trial court must appoint an expert or experts to inquire into

the defendant’s mental health[.]” State v. Grooms, 353 N.C. 50, 78, 540 S.E.2d 713,

730 (2000). In the present case, we conclude that the evidence indicated that

defendant was able to “understand the nature and object of the proceedings against


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                                  Opinion of the Court



him, [and] to comprehend his own situation in reference to the proceedings[.]” § 15A-

1001(a). We conclude, however, that “matters before the trial court” indicated more

than a “significant possibility” that defendant, who suffered from serious physical

and mental conditions, was unable to remain awake and therefore was unable to

consult with his attorney or participate in his defense.      This evidence raised a

“significant possibility” that at the time of trial defendant was incompetent.

      We have reached this conclusion based on the specific facts and circumstances

of this case, in which there was evidence before the trial court suggesting that:

             1. Defendant had a serious heart condition, for which he
             had been hospitalized for several months.

             2. Defendant had been diagnosed              with    bipolar
             schizophrenia, a major mental illness.

             3. Defendant took 25 different medications twice daily.

             4. Defendant’s medications had psychoactive side-effects.

             5. Defendant was unable to remain awake in the
             courtroom, even when kicked or prodded by counsel.

      We hold that these circumstances required the trial court to appoint an expert

in order to ascertain whether defendant was competent to proceed to trial. We also

note that no evidence or arguments were presented in court to discredit defendant’s

contentions about his physical and mental condition, and that the trial court did not

make any findings indicating that the court had doubts about defendant’s credibility.




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      “[A] defendant does not have to be at the highest stage of mental alertness to

be competent to be tried. So long as a defendant can confer with his or her attorney .

. . the defendant is able to assist his or her defense in a rational manner.” Shytle, 323

N.C. at 689, 374 S.E.2d at 575. However, as the United States Supreme Court held

more than forty years ago:

             It has long been accepted that a person whose mental
             condition is such that he lacks the capacity to . . . consult
             with counsel, and to assist in preparing his defense may
             not be subjected to a trial. . . . Some have viewed the
             common-law prohibition as a by-product of the ban against
             trials in absentia; the mentally incompetent defendant,
             though physically present in the courtroom, is in reality
             afforded no opportunity to defend himself.

Drope v. Missouri, 420 U.S. 162, 171, 43 L. Ed. 2d 103, 113 (1975) (internal quotation

and citations omitted). It is clear that a defendant who is incapable of remaining

awake is, by definition, unable to “consult with counsel, and to assist in preparing his

defense.”

      We emphasize that our conclusion is based upon the application of long-

standing legal principles to the unusual facts of this case, and should not be

interpreted as articulating a new rule or standard. We do not hold that a trial court

is required to order a competency evaluation in every case in which a criminal

defendant is drowsy or suffers from a mental or physical illness. However, the facts

of the present case raise significant questions about defendant’s competence, and

these questions cannot be answered by reference to the record evidence. Defendant


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represented that he suffered from serious physical and mental conditions, but

defendant’s medical records were not in evidence. It is possible that defendant’s

overwhelming drowsiness simply required an adjustment in medication dosage or

treatment protocol. Defendant’s condition may have been transient, and may have

been either more or less serious than he represented. As a result, our holding is not

based on any opinion or speculation as to the likely result of an investigation into

defendant’s competence or any other factual issue in this case. Nonetheless, when

the trial court was faced with a defendant who ostensibly suffered from serious

mental and physical conditions and could not stay awake during his trial on serious

felony charges, the trial court was constitutionally required to appoint an expert to

investigate the issue of defendant’s capacity to proceed.

      For the reasons discussed above, we conclude that the trial court erred by

failing to determine whether, at the time of trial, defendant was competent to stand

trial and that defendant is entitled to a new trial.

      REVERSED.

      Judges CALABRIA and INMAN concur.




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