State v. Minyard

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-962

Filed 20 June 2023

Burke County, Nos. 09-CRS-4222-4223, 09-CRS-3910-3912, 11-CRS-1471

STATE OF NORTH CAROLINA

v.

JAMES ALLEN MINYARD

Appeal by defendant from order entered 22 December 2021 by Judge Robert C.

Ervin in Burke County Superior Court. Heard in the Court of Appeals 24 May 2023.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Sherri
Horner Lawrence, for the State.

Wake Forest University School of Law Appellate Advocacy Clinic, by John J.
Korzen, for defendant-appellant.

TYSON, Judge.

This Court allowed James Allen Minyard’s (“Defendant”) Petition for Writ of

Certiorari (“PWC”) on 12 August 2022 to review the 22 December order of the Burke

County Superior Court, allowing in part and denying in part Defendant’s motion for

appropriate relief (“MAR”). We affirm and remand.

I. Background

This Court’s prior opinion sets forth the facts underlying this case in greater

detail. See State v. Minyard, 231 N.C. App. 605, 606, 753 S.E.2d 176, 179, disc. rev.

denied, 367 N.C. 495, 797 S.E.2d 914 (2014) (R. N. Hunter, J.). This Court
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Opinion of the Court

unanimously held “the trial court did not err in denying Defendant’s motions to

dismiss, nor in choosing not to conduct a sua sponte competency hearing after

Defendant voluntarily intoxicated himself and waived his right to be present during

a portion of the proceedings.” Id. at 627, 753 S.E.2d at 191-92.

Facts pertinent to Defendant’s MAR are: Defendant was indicted for first-

degree sexual offense and six counts of taking indecent liberties with a minor on 14

September 2009. Defendant was also indicted as attaining habitual felon status on

13 June 2011. The cases proceeded to trial on 13 August 2012. The trial court

dismissed one count of taking indecent liberties with a minor and the first-degree

sexual offense charge after the close of the State’s evidence. The trial court allowed

the charge of attempted first-degree sexual offense and the five remaining charges of

taking indecent liberties with a minor to proceed to trial. Defendant testified for over

thirty-five minutes immediately before the defense rested its case-in-chief on 15

August 2012. After closing arguments, after instructing and submitting the case to

the jury, the trial court instructed Defendant to remain inside the courtroom, unless

he needed to speak with his attorney, while the jury was deliberating.

The trial court recessed from 2:10 p.m. until 2:38 p.m., when the jury asked for

a transcript of the victim’s recorded interview. As the trial court was reconvening to

bring the jury back into the courtroom, Defendant’s counsel informed the trial court

that Defendant was “having a little problem.” With Defendant present in the

courtroom the trial court informed all parties he would respond to the jury’s question

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by stating no written transcript existed of the victim’s interview on the DVD they

were shown. The jury returned to their deliberations.

Around this time Defendant was having problems staying “vertical” and the

trial court advised as follows:

[Defendant] you’ve been able to join us all the way through
this. And let me suggest to you that you continue to do
that. If you go out on us, I very likely will revoke your
conditions of release. I’ll order you arrested. We’ll call
emergency medical services; we’ll let them examine you. If
you’re healthy, you’ll be here laid out on a stretcher if need
be. If you’re not healthy, we will continue on without you,
whether you’re here or not. So do you very best to stay
vertical, stay conscious, stay with us.

The trial court recessed until the jury requested to re-watch the last ten

minutes of the DVD. The trial court informed the parties it would allow this request.

The trial court resumed proceedings and noted:

All right, all counsel, all parties are present. Defendant is
present, and the Defendant is not - - is in the courtroom but
is not joining us at the defense table, and has not come up
at the request of the Court. I have a report that he has
overdosed. That is, he has taken medication, so much
medication that he’s at a point where he might not be
functioning very well.

A defense witness, Evelyn Gantt, informed the trial court Defendant had

consumed eight Alprazolam pills because: “He was just worried about the outcome

and I don’t know why he took the pills.” Defendant was taken into custody and the

trial court ordered for him to be examined by emergency medical services. Defendant

was led from the courtroom to receive medical attention. Subsequently, the jury had

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another question. Before the jury was brought back into open court, the trial court

allowed both sides an opportunity to be heard. The trial court found Defendant had

disrupted the proceedings by leaving the courtroom against the instructions of trial

court and had voluntarily overdosed on drugs, based upon the following findings of

facts:

The Court finds Defendant left the courtroom without his
lawyer.

The Court finds that while the jury was in deliberation —
the jury had a question concerning an issue in the case —
and prior to the jurors being returned to the courtroom for
a determination of the question, the Court directed the
Defendant to — who was in the courtroom at that point —
to return to the Defendant’s table with his counsel.
Defendant refused, but remained in the courtroom. The
Court permitted that.

The Court noticed that after the question was resolved with
the juror, that while the jury was out in deliberations
working on Defendant’s case, the Defendant took an
overdose of Xanax. While he was here in the courtroom
and while the jury was still out in deliberations, Defendant
became lethargic and slumped over in the courtroom.

....

The Court finds that outside of the jury’s presence the
Court noted that Defendant was stuporous and refused to
cooperate with the Court and refused reasonable requests
by bailiffs.

....

The Court finds that Defendant’s conduct on the occasion
disrupted the proceedings of the Court and took a
substantial amount of time to resolve how the Court should
proceed. The Court finally ordered that Defendant’s

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conditions of pretrial release be revoked and ordered the
Defendant into the custody of the sheriff, requesting the
sheriff to get a medical evaluation of the Defendant.

The Court finds that Defendant, by his own conduct,
voluntarily disrupted the proceedings in this matter by
stopping the proceedings for a period of time so the Court
might resolve the issue of his overdose.

The Court notes that the — with the consent of the State
and Defendant’s counsel that the jurors continued in
deliberation and continued to review matters that were
requested by them by way of question.

The Court infers from Defendant’s conduct on the occasion
that it was an attempt by him to garner sympathy from the
jurors. However, the Court notes that all of Defendant’s
conduct that was observable was outside of the jury’s
presence.

The Court notes that both State and Defendant prefer that
the Court not instruct jurors about Defendant’s absence.
And the Court made no reference to Defendant being
absent when jurors came in with response to — or in
response to question or questions that had been asked.

When the jury returned to the courtroom, the trial court instructed the jurors

Defendant’s absence should not be considered in weighing evidence or determining

guilt. The trial court allowed the jury’s requests to review portions of the victim’s

interview preserved on the DVD.

A jury found Defendant guilty of five counts of taking indecent liberties with a

child, one count of attempted first-degree sexual offense, and of attaining habitual

felon status. After the jury entered its verdict, the trial court amended its prior

findings after emergency medical services indicated Defendant had purportedly

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consumed “fifteen Klonopin” and two forty-ounce alcoholic beverages. Defendant

returned to the courtroom the next morning and was present and declined to testify

at the habitual felon proceeding and the sentencing phases of the other charges.

Defendant was sentenced to concurrent sentences of 225 to 279 months

imprisonment as a habitual felon for the attempted first-degree sexual offense and

121 to 155 months for the five counts of taking indecent liberties with a child on 15

August 2012.

On prior appeal, Defendant’s appellate counsel argued, inter alia, the trial

court erred by not pausing the trial and conducting a sua sponte competency hearing

when Defendant passed out after ingesting eight Alprazolam or possibly fifteen

Clonazepam pills and two forty-ounce alcoholic beverages during a break in the

proceedings. On 7 January 2014 this Court filed a unanimous opinion holding no

error had occurred at trial. The North Carolina Supreme Court denied Defendant’s

petition for discretionary review.

Defendant wrote a letter to Superior Court Judge Jerry Cash Martin, which

the trial court received on 2 October 2015. Defendant asserted he was a diabetic and

he had been temporarily affected by low blood sugar at his trial. Defendant argued

“under the 5th, 8th, and 14th amendment[s] the trial should have been stopped and a

mental health hearing should have been scheduled at a later date to see if [he] was

fit to continue or not.” Judge Robert C. Ervin treated Defendant’s 2 October 2015

letter as a MAR and denied the MAR by order entered 5 October 2015.

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Defendant filed a pro se” kitchen sink” second MAR on 24 February 2018

arguing: (1) he was denied a speedy trial; (2) he received ineffective assistance of

counsel; (3) the trial court engaged in misconduct by stating Defendant was “drunk

and over-dos[ed]” and by failing to conduct a competency hearing; (4) his sentence

violated double-jeopardy; (5) a witness for the State committed perjury; (6)

prosecutorial misconduct; (7) he was entitled to an instruction on a lesser-included

offense; and, (8) he was convicted of an offense that no longer exists. Jennings v.

Sheppard, 2:21-cv-00449-JFA-MGB (D.S.C. Feb. 22, 2022) (referring to the

defendant’s MAR as a “kitchen sink”).

Judge Ervin denied Defendant’s MAR by order entered 21 March 2018 holding,

inter alia, Defendant had failed to establish he was prejudiced by being voluntarily

absent from a portion of his trial. This Court denied Defendant’s PWC by order

entered 24 January 2019. The Supreme Court of North Carolina denied Defendant’s

PWC by order entered 1 April 2020.

Defendant filed yet another MAR in Burke County Superior Court on 21 May

2021. Defendant asserted he was entitled to a new trial based on the Supreme Court

of North Carolina’s opinion in State v. Sides, 376 N.C. 449, 852 S.E.2d 170 (2020).

Defendant argued the trial court erred by failing sua sponte to inquire, without

motion or inquiry from counsel, into his competency after he purportedly fell into a

stupor during jury deliberations due to overdosing on benzodiazepines. Judge Ervin

requested briefing on four issues: (1) whether Sides applies to this case; (2) if so,

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Opinion of the Court

whether Sides is legally distinguishable; (3) if not, whether the trial court’s actions

constituted a competency hearing; and, (4) if not, whether Defendant has to show the

trial court’s failure to hold a competency hearing prejudiced him. The trial court

appointed counsel for Defendant and held a hearing on the MAR on 20 December

2021.

Judge Ervin entered an order allowing in part and denying in part the MAR

on 22 December 2021. Judge Ervin concluded the trial court’s failure to conduct a

competency proceeding prior to the habitual felon and sentencing phases was

prejudicial error and vacated Defendant’s habitual felon verdict. Judge Ervin held,

although Sides applied to Defendant’s case and substantial evidence could raise a

bona fide doubt of Defendant’s competency, “[t]he failure to conduct a sua sponte

capacity evaluation was harmless error in th[at] portion of the proceeding [after jury

deliberations had begun]” and denied Defendant’s claim for a new trial.

Defendant filed another PWC on 26 May 2022. This Court allowed Defendant’s

PWC to review Judge Ervin’s 22 December 2021 order denying in part Defendant’s

MAR. The State did not cross-appeal nor seek further review of the order.

II. Jurisdiction

This Court possesses jurisdiction pursuant to N.C. Gen. Stat. §§ 15A-

1422(c)(3), 7A-32(c) (2021) and N.C. R. App. P. 21(a).

III. Issues

Defendant argues the trial court erred in denying him a new trial based upon

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Sides, and also holding the trial court’s error did not occur during a “critical phase”

of trial, and is subject to harmless error review.

IV. Award of a New Trial

A. Standard of Review

This Court reviews a trial court’s ruling on a MAR “to determine whether the

findings of fact are supported by evidence, whether the findings of fact support the

conclusions of law, and whether the conclusions of law support the order entered by

the trial court.” State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982).

“When a trial court’s findings on a motion for appropriate relief are reviewed, these

findings are binding if they are supported by competent evidence and may be

disturbed only upon a showing of manifest abuse of discretion. However, the trial

court’s conclusions are fully reviewable on appeal.” State v. Lutz, 177 N.C. App. 140,

142, 628 S.E.2d 34, 35 (2006) (citation omitted).

B. Analysis

Criminal defendants possess a Constitutional right to be present at all stages

of their trial. See Kentucky v. Stincer, 482 U.S. 730, 745, 96 L. Ed. 2d 631, 647 (1987).

The Supreme Court of the United States has also held a defendant may waive his

right, in non-capital cases, to be present where he “voluntarily absents” himself. See

Taylor v. United States, 414 U.S. 17, 19, 38 L. Ed. 2d 174, 177 (1973).

The Supreme Court of North Carolina has recognized a “[t]rial court has a

constitutional duty to institute, sua sponte [sic], a competency hearing if there is

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substantial evidence before the court indicating that the accused may be mentally

incompetent.” State v. Young, 291 N.C. 562, 568, 231 S.E.2d 577, 581 (1977); see also

N.C. Gen. Stat. § 15A-1002 (2021). “Substantial evidence is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” State v.

Denny, 361 N.C. 662, 664-65, 652 S.E.2d 212, 213 (2007) (citation and quotation

marks omitted).

When a defendant’s capacity to proceed is questioned during the trial, the court

must determine whether a hearing is necessary, and must decide “whether there was

substantial evidence before the trial court as to [the defendant’s] lack of capacity to

truly make such a voluntarily decision” to absent himself from the trial. Sides, 376

N.C. at 459, 852 S.E.2d at 177. A trial judge must conduct a fact-intensive inquiry

when evaluating whether a sua sponte competency hearing is necessary. See Id. “The

method of inquiry [rests] within the discretion of the trial judge, the only requirement

being that [the] defendant be accorded due process of law.” State v. Gates, 65 N.C.

App. 277, 281, 309 S.E.2d 498, 501 (1983).

A defendant “must be aware of the processes taking place, of his right and of

his obligation to be present, and he must have no sound reason for remaining away”

in order to voluntarily waive his right to be present at trial. Taylor, 414 U.S. at 17

n.3, 38 L. Ed. 2d at 177 n.3 (citation omitted).

This Court has previously held: “[e]vidence of a defendant’s irrational behavior,

his demeanor at trial, and any prior medical opinion on competence to stand trial are

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all relevant” to an inquiry into a defendant’s competency. State v. McRae, 139 N.C.

App. 387, 390, 533 S.E.2d 557, 559 (2000).

Defendant’s MAR allegations and the trial court’s granting in part and denying

in part of relief was based upon its application of State v. Sides. In Sides, the Supreme

Court reviewed a defendant’s appeal, who was charged with four counts of felony

embezzlement. After the first three days of trial, the defendant intentionally ingested

sixty Xanax tablets. Id. at 450, 852 S.E.2d at 172. A doctor evaluated the defendant

and recommended she be involuntarily committed, checking the box on the petition

form describing her as “‘mentally ill and dangerous to self or others or mentally ill

and in need of treatment in order to prevent further disability or deterioration that

would predictably result in dangerousness.’” Id.

A magistrate found reasonable grounds to conclude the defendant required

involuntary commitment, and she began a period of commitment. Id. at 451, 852

S.E.2d at 172. A psychiatrist evaluated her the next day, and noted the defendant

remained suicidal and required inpatient stabilization. Id.

Our Supreme Court held the trial court erred by presuming the defendant’s

suicide attempt was a voluntary waiver of her right to be present at the trial. After

her attempt, the trial court sought information on whether the absence was voluntary

or involuntary. Id. at 451, 852 S.E.2d at 173. The trial court recessed the proceedings

after reviewing draft orders from the State. Id. at 452, 852 S.E.2d at 173.

The trial court in Sides intended to wait until the following Monday, when the

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defendant would be released or the trial court would have access to her medical

records. Id. at 452-53, 852 S.E.2d at 173-74. Proceedings resumed on the following

Monday, while the defendant remained hospitalized. Id. at 453, 852 S.E.2d at 174.

The trial court read the defendant’s medical records, which included the

recommendation from doctors for her to remain hospitalized, as well as information

about her mood disorder history and her pharmacy of prescriptions: Haldol for

agitation, Vistaril for anxiety, Trazodone to aid sleep, and 100 milligrams of Zoloft

daily. The trial court reviewed the medical records and confirmed with defense

counsel that they had not observed anything, which would indicate the defendant

lacked competency to proceed at trial. Id. The trial court ruled defendant

“voluntarily by her own actions made herself absent from the trial” over defense

counsel’s objection. Id. at 454-455, 852 S.E.2d at 174.

The Court in Sides held that while a defendant may voluntarily waive the

constitutional right to be present at trial, the defendant may only waive the right

when she is competent. Id. at 456, 852 S.E.2d at 175. The trial court erred “by

essentially skipping over the issue of competency and simply assuming that [the]

defendant’s suicide attempt was a voluntary act that constituted a waiver of her right

to be present during her trial, [and] both the majority at the Court of Appeals and the

trial court had ‘put the cart before the horse.’” Id. at 457, 852 S.E.2d at 176. “Once

the trial court had substantial evidence that [the] defendant may have been

incompetent, it should have sua sponte [sic] conducted a competency hearing to

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determine whether she had the capacity to voluntarily waive her right to be present

during the remainder of her trial.” Id. (emphasis supplied).

Our Supreme Court held:

In such cases, the issue is whether the trial court is
required to conduct a competency hearing before
proceeding to determine whether the defendant made a
voluntary waiver of her right to be present, or,
alternatively, whether it is permissible for the trial court
to forego a competency hearing and instead assume a
voluntary waiver of the right to be present on the theory
that the defendant’s absence was the result of an
intentional act.

Id. at 457, 852 S.E.2d at 175–76.

Our Supreme Court further held:

[T]he issue of whether substantial evidence of a
defendant’s lack of capacity exists so as to require a sua
sponte competency hearing requires a fact-intensive
inquiry that will hinge on the unique circumstances
presented in each case. Our holding should not be
interpreted as a bright-line rule that a defendant’s suicide
attempt automatically triggers the need for a competency
hearing in every instance. Rather, our decision is based on
our consideration of all the evidence in the record when
viewed in its totality.

Id. at 466, 852 S.E.2d at 182 (emphasis supplied).

Before oral arguments were presented but after briefing was completed in this

case, the Supreme Court of North Carolina reviewed this Court’s unanimous analysis

of a similar issue in State v. Flow, __ N.C. __, __, __ S.E.2d __, __ (2023).

The morning of the sixth day of the trial before the jury was
to be charged, Defendant was being escorted from the

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Gaston County Jail. At some point, Defendant indicated
he had forgotten his glasses in his cell and asked if he could
go and get them. Defendant was standing over the ledge of
the second-floor mezzanine. Detention officers reported to
the second-floor mezzanine after being told Defendant was
“hanging” on the second-floor mezzanine approximately
sixteen feet off of the ground. Detention officers told
Defendant not to jump, but Defendant jumped feet first.
Defendant fell onto a metal table and landed on the ground.
Defendant suffered injuries to his left leg and ribs.
Defendant was transported to the hospital and underwent
surgery to reduce a fracture in his femur.

The trial court conducted a hearing to determine whether
Defendant’s absence was voluntary. The trial court
considered and denied Defendant’s counsel’s motion for the
court to make further inquiry into his capacity to proceed.

The trial court ruled Defendant had voluntarily absented
himself from the proceedings, and the trial would continue
without Defendant present. The jury charge, jury
deliberations, and sentencing commenced without
Defendant present. Defendant’s counsel objected to each
phase proceeding outside of Defendant’s presence.

State v. Flow, 277 N.C. App. 289, 295, 859 S.E.2d 224, 228 (2021).

Unlike in Sides, nothing in the defendant’s prior record, conduct, or actions in

Flow’s had provided the trial court or anyone else with notice or evidence he may

have been incompetent. Our Supreme Court noted:

Although the trial court declined to specifically consider
whether defendant had manifested a “suicidal gesture” at
the time of his jump [from a second floor courthouse
balcony], we do not deem the trial court’s approach to
connote inadequate contemplation by the tribunal of the
evidence presented on defendant’s capacity. Suicidality
does not automatically render one incompetent; conversely,
a defendant may be found incompetent by way of mental

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illness without being determined to be suicidal. However,
a defendant cannot be found to have acted voluntarily if he
lacked capacity at the time of his conduct in question.
Logically, competency is a necessary predicate to
voluntariness. By receiving evidence concerning
defendant’s state of mind leading up to, and at the time of,
his apparent suicide attempt, the trial court was able to
determine whether defendant had acted voluntarily and
had thereby waived his right to be present at all stages of
his trial. Clearly, the trial court considered all information
relative to defendant’s capacity which was presented to it
and found, implicitly at least, that defendant was
competent to proceed to trial. Therefore, the trial court was
not required to make a specific determination regarding
whether defendant’s acts amounted to a suicidal gesture.

Flow, __ N.C. at __, __ S.E.2d at __ (emphasis supplied) (internal citations, quotation

marks, and brackets omitted).

Defendant argues a “bona fide doubt of his capacity and competency arose

during trial when he became ‘stuporous’ and non-responsive.” Aside from the act and

side effects brought about by Defendant’s alleged voluntary ingestion of mind and

mood altering sedatives and alcohol, Defendant does not offer any prior history or

evidence, much less substantial evidence, to support his assertions. Defendant did

not exhibit bizarre behavior at any point during his trial or during his 35 minutes of

testimony charging and submitting the case to the jury prior to assertedly ingesting

Alprazolam and consuming two forty-ounce alcoholic beverages.

No substantial evidence tended to alert the court or counsel nor cast doubt on

Defendant’s competency prior to his voluntary actions after all the evidence was

presented, the case was submitted, and the jury had commenced deliberations. The

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trial court was able to observe Defendant over and throughout the course of the trial

and was able to conduct two colloquies directly with Defendant prior to and after the

incident. Unlike in Sides, the trial court was not presented with any evidence of a

history of Defendant’s mental illness. The trial court did not err in denying

Defendant’s MAR.

Judge Ervin’s order from the MAR heading granted Defendant relief for his

attaining habitual status and ordered: “The judgment entered against the defendant

in these cases is vacated and the jury’s verdict determining that the defendant was

an [sic] habitual felon is also vacated. The remainder of the defendant’s Motion for

Appropriate Relief is denied. The defendant’s cases will be rescheduled for further

proceedings concerning his alleged status as an habitual felon and for re-sentencing.”

The State failed to cross appeal or seek further review of the MAR order

vacating Defendant attaining habitual felon status and ordering another habitual

felon status hearing and resentencing on the issue. These unappealed portions of the

order are not before this Court and remain undisturbed.

Neither party cited, briefed, nor filed a Memorandum of Additional Authority

for either this Court’s unanimous opinion in Flow nor the Supreme Court’s affirmance

opinion thereof until three days prior to arguments. See N.C. R. Pro. Conduct

3.3(a)(2) (“A lawyer shall not knowingly: fail to disclose to the tribunal legal authority

in the controlling jurisdiction known to the lawyer to be directly adverse to the

position of the client and not disclosed by opposing counsel[.]”).

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V. Structural and Harmless Error

Presuming, without deciding, the trial court erred by sua sponte not holding a

further competency inquiry or hearing, any purported error is not structural and is

harmless beyond a reasonable doubt.

In Flow, the Supreme Court of North Carolina examined the defendant’s

statutory and due process challenges to his competency to proceed during trial

following his volitional and intentional acts. Defendant here only asserts due process

challenges under the Constitution of the United States and not under the North

Carolina Constitution.

A. Standard of Review

“The standard of review for alleged violations of constitutional rights is de

novo.” State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009) (citation

omitted). “When violations of a defendant’s rights under the United States

Constitution are alleged, harmless error review functions the same way in both

federal and state courts.” State v. Ortiz-Zape, 367 N.C. 1, 13, 743 S.E.2d 156, 164

(2013) (quoting State v. Lawrence, 365 N.C. 506, 513, 723 S.E.2d 326, 331 (2012)).

By enacting N.C. Gen. Stat. § 15A-1443(b), our General Assembly “reflects the

standard of prejudice with regard to violation[s] of the defendant’s rights under the

Constitution of the United States, as set out in the case of Chapman v. California,

386 U.S. 18, 17 L. Ed. 2d 705 (1967).” N.C. Gen. Stat. § 15A-1443 official cmt. (2021).

The burden falls “upon the State to demonstrate, beyond a reasonable doubt, that the

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error was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2021); see also Brecht v.

Abrahamson, 507 U.S. 619, 630, 123 L. Ed. 2d 353, 367 (1993); Chapman, 386 U.S.

at 24; 17 L. Ed. 2d at 710-11; Lawrence, 365 N.C. at 513, 723 S.E.2d at 331.

“[B]efore a federal constitutional error can be held harmless, the court must be

able to declare a belief that [the error] was harmless beyond a reasonable doubt.”

Chapman, 386 U.S. at 24, 17 L. Ed. 2d at 708; see also Davis v. Ayala, 576 U.S. 257,

267, 192 L. Ed. 2d 323, 332-33 (2015); N.C. Gen. Stat. § 15A-1443(b).

B. Analysis

Defendant asserts the trial court’s failure to sua sponte hold additional inquiry

into his competency is “structural error and is reversible per se.” State v. Garcia, 358

N.C. 382, 409, 597 S.E.2d 724, 744 (2004).

The Supreme Court of the United States has made “a distinction between

structural errors, which require automatic reversal, and all other errors, which are

subject to harmless-error analysis. Arnold v. Evatt, 113 F.3d 1352, 1360 (4th Cir.

1997). “The United States Supreme Court emphasizes a strong presumption against

structural error.” State v. Polke, 361 N.C. 65, 74, 638 S.E.2d 189, 195 (citing Neder

v. United States, 527 U.S. 1, 9, 144 L. Ed. 2d 35, 47 (1999)), cert denied, 552 U.S. 836,

169 L. Ed. 2d 55 (2006).

Structural errors are rare Constitutional errors, which prevent a criminal trial

from “reliably serv[ing] its function as a vehicle for determination of guilty or

innocence.” Garcia, 358 N.C. at 409, 597 S.E.2d at 744 (citation omitted).

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The Supreme Court of North Carolina has held:

The United States Supreme Court has identified only six
instances of structural error to date: (1) complete
deprivation of right to counsel, Gideon v. Wainwright, 372
U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); (2) a biased
trial judge, Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71
L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25
Ohio L. Rep. 236 (1927); (3) the unlawful exclusion of grand
jurors of the defendant’s race, Vasquez v. Hillery, 474 U.S.
254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986); (4) denial of
the right to self-representation at trial, McKaskle v.
Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122
(1984); (5) denial of the right to a public trial, Waller v.
Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31
(1984); and[,] (6) constitutionally deficient jury
instructions on reasonable doubt, Sullivan v. Louisiana,
508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182
(1993). See Johnson v. United States, 520 U.S. 461, 468-
69, 117 S. Ct. 1544, 137 L. Ed. 2d 718, 728 (identifying the
six cases in which the United States Supreme Court has
found structural error).

Polke, 361 N.C. at 73, 638 S.E.2d at 194.

The United States Court of Appeals for the Fourth Circuit has warned “judges

should be wary of prescribing new structural errors unless they are certain that the

error’s presence would render every trial in which it occurred unfair.” Arnold, 113

F.3d at 1360. Defendant’s alleged “structural error” does not fall under any of the six

cases in which the Supreme Court of the United States has identified as structural

error. This alleged Constitutional error, like all other Constitutional errors not so

identified by the Supreme Court of the United States, is subject to harmless error

review. Defendant’s per se argument is overruled.

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 STATE V. MINYARD

Opinion of the Court

The State argues any purported error was harmless beyond a reasonable doubt

because Defendant was competent throughout his trial and testimony and any

alleged doubt to his competency did not arise until after all evidence was presented,

closing arguments had been completed, the jury was charged, the case was submitted,

and jury deliberations had begun. Defendant argues a criminal defendant possesses

a Constitutional right to be present at all stages of their trial. See Stincer, 482 U.S.

at 745, 96 L. Ed. 2d at 647.

Defendant had actively participated in his trial and testified extensively on his

own behalf. The trial court noted:

Defendant’s counsel has not suggested anything that the
defendant could have done during the course of responding
to the jury’s requests that would have altered the outcome
of [the] jury’s deliberations and this Court does not believe
that the defendant’s inability to participate in this stage of
this trial would have affected the outcome.

The State correctly notes Defendant was represented by able and competent

counsel, who was present and did not question or move for further inquiry. Defendant

did not exhibit any bizarre or concerning behaviors during his trial prior to leaving

the courtroom contrary to instruction, and voluntarily ingesting a controlled

substance and alcohol while the jury was deliberating his guilt. No substantial

evidence tended to alert or cast doubt upon Defendant’s competency prior to his

actions at trial in intentional disregard of the trial court’s express instructions for

him to remain in the courtroom unless conferring with counsel.

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 STATE V. MINYARD

Opinion of the Court

The trial court was able to observe Defendant throughout the course of the trial

and was able to conduct two colloquies directly with Defendant in open court with his

counsel present prior to and after the incident. Reviewing the trial transcript, it is

reasonable to infer from the trial court’s observations and statements, and

Defendant’s actions after hearing all the evidence against him and having just

testified at length, Defendant was able to “read the room” and observe the probable

impact of the evidence and his credibility on the jury. Defendant, possibly for the

first time, realized the gravity of his multiple assaults and predatory crimes on a

young boy and the probable consequences and accountability he was facing. This

view is also supported by Gantt, Defendant’s witness, who told the trial court

Defendant had consumed eight Alprazolam pills because, “[h]e was just worried about

the outcome” of an extended prison sentence.

Defendant’s counsel and the State did not wish to be heard on the issue.

Defendant’s pretrial release was revoked, he was taken into custody, examined by

emergency medical personnel at the scene, and taken to the hospital for further

observation and treatment. The laboratory results in the record from the hospital

does not demonstrate elevated or abnormal levels of glucose to support asserted

diabetes nor any debilitating health issue Defendant asserted to explain his

voluntary behaviors.

Defendant was returned to court after his voluntary behaviors and in hospital

medical review. Defendant had been free on bond and release and no evidence

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 STATE V. MINYARD

Opinion of the Court

showed the jury viewed his behaviors. The jury was specifically instructed, with

consent of the State and Defendant’s counsel, not to hold his absence from the

courtroom against him. See State v. Daniels, 337 N.C. 243, 275, 446 S.E.2d 298, 318

(1994), cert denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995) (This Court presumes

that jurors follow the trial court’s instructions.).

VI. Conclusion

It is not the proper role of the trial court judge to sit as a second-chair defense

counsel with his able counsel present. “[I]t’s [the judge’s] job to call balls and strikes

and not to pitch or bat.” Confirmation Hearing on the Nomination of John G. Roberts,

Jr. to be Chief Justice of the United States: Hearing Before the Committee on the

Judiciary United States Senate, 109 Cong. 56 (Statement of John G. Roberts, Jr.).

The trial court was not presented with any evidence of a prior history of

Defendant’s mental illness to provoke sua sponte further inquiry. Sides is

inapplicable to the facts and Defendant’s actions before us. Sides, 376 N.C. at 459,

852 S.E.2d at 177. On the issues before this Court, the trial court properly denied

Defendant’s MAR.

Without prior indications, the trial court was not required in the absence of

motion or inquiry to sua sponte further inquire into Defendant’s capacity to proceed

following his intentional acts to intoxicate himself or to voluntarily absent himself

from trial. Presuming, without deciding, any error occurred under the analysis in

Sides or Flow, the State has shown it was harmless error beyond a reasonable doubt.

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 STATE V. MINYARD

Opinion of the Court

The order denying Defendant’s MAR is affirmed.

In accordance with Judge Ervin’s order on the MAR hearing, including those

portions where no appeal was filed or further review sought by the State: “The

judgment entered against the defendant in these cases is vacated and the jury’s

verdict determining that the [D]efendant was an habitual felon is also vacated. The

remainder of the [D]efendant’s Motion for Appropriate Relief is denied. The

[D]efendant’s cases will be rescheduled for further proceedings concerning his alleged

status as an habitual felon and for re-sentencing.” The jury’s guilty verdicts on the

remaining substantive crimes remain undisturbed. It is so ordered.

AFFIRMED AND REMANDED FOR THE PROCEEDINGS AND FOR

RESENTENCING.

Judges ZACHARY and STADING concur.

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