North Carolina § 15A-1002 - Determination of incapacity to proceed; evidence; temporary commitment; temporary orders.

§ 15A-1002. Determination of incapacity to proceed; evidence; temporary commitment; temporary orders.

The question of the capacity of the defendant to proceed may be raised at any time on motion by the prosecutor, the defendant, the defense counsel, or the court. The motion shall detail the specific conduct that leads the moving party to question the defendant's capacity to proceed. When the capacity of the defendant to proceed is questioned, the court shall hold a hearing to determine the defendant's capacity to proceed. If an examination is ordered pursuant to subdivision (1a) or (2) of this subsection, the hearing shall be held after the examination. Reasonable notice shall be given to the defendant and prosecutor, and the State and the defendant may introduce evidence. (b) (1) When the capacity of the defendant to proceed is questioned, the court shall hold a hearing to determine the defendant's capacity to proceed. If an examination is ordered pursuant to subdivision (1a) or (2) of this subsection, the hearing shall be held after the examination. Reasonable notice shall be given to the defendant and prosecutor, and the State and the defendant may introduce evidence. In the case of a defendant charged with a misdemeanor or felony, the court may appoint one or more impartial medical experts, including forensic evaluators approved under rules of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, to examine the defendant and return a written report describing the present state of the defendant's mental health. Reports so prepared are admissible at the hearing. The court may call any expert so appointed to testify at the hearing with or without the request of either party. At any time in the case of a defendant charged with a felony, the court may order the defendant to a State facility for the mentally ill for observation and treatment for the period, not to exceed 60 days, necessary to determine the defendant's capacity to proceed. If a defendant is ordered to a State facility without first having an examination pursuant to subsection (b)(1a) of this section, the judge shall make a finding that an examination pursuant to this subsection would be more appropriate to determine the defendant's capacity. The sheriff shall return the defendant to the county when notified that the evaluation has been completed. The director of the facility shall direct his report on defendant's condition to the defense attorney and to the clerk of superior court, who shall bring it to the attention of the court. The report is admissible at the hearing. Repealed by Session Laws 1989, c. 486, s. 1. A presiding district or superior court judge of this State who orders an examination pursuant to subdivision (1a) or (2) of this subsection shall order the release of relevant confidential information to the examiner, including, but not limited to, the warrant or indictment, arrest records, the law enforcement incident report, the defendant's criminal record, jail records, any prior medical and mental health records of the defendant, and any school records of the defendant after providing the defendant with reasonable notice and an opportunity to be heard and then determining that the information is relevant and necessary to the hearing of the matter before the court and unavailable from any other source. This subdivision shall not be construed to relieve any court of its duty to conduct hearings and make findings required under relevant federal law before ordering the release of any private medical or mental health information or records related to substance abuse or HIV status or treatment. The records may be surrendered to the court for in camera review if surrender is necessary to make the required determinations. The records shall be withheld from public inspection and, except as provided in this subdivision, may be examined only by order of the court. The order of the court shall contain findings of fact to support its determination of the defendant's capacity to proceed. The parties may stipulate that the defendant is capable of proceeding but shall not be allowed to stipulate that the defendant lacks capacity to proceed. If the court concludes that the defendant lacks capacity to proceed, proceedings for involuntary civil commitment under Chapter 122C of the General Statutes may be instituted on the basis of the report in either the county where the criminal proceedings are pending or, if the defendant is hospitalized, in the county in which the defendant is hospitalized. Reports made to the court pursuant to this section shall be completed and provided to the court as follows: The report in a case of a defendant charged with a misdemeanor shall be completed and provided to the court no later than 10 days following the completion of the examination for a defendant who was in custody at the time the examination order was entered and no later than 20 days following the completion of the examination for a defendant who was not in custody at the time the examination order was entered. The report in the case of a defendant charged with a felony shall be completed and provided to the court no later than 30 days following the completion of the examination. In cases where the defendant challenges the determination made by the court-ordered examiner or the State facility and the court orders an independent psychiatric examination, that examination and report to the court must be completed within 60 days of the entry of the order by the court. The court may make appropriate temporary orders for the confinement or security of the defendant pending the hearing or ruling of the court on the question of the capacity of the defendant to proceed. Any report made to the court pursuant to this section shall be forwarded to the clerk of superior court in a sealed envelope addressed to the attention of a presiding judge, with a covering statement to the clerk of the fact of the examination of the defendant and any conclusion as to whether the defendant has or lacks capacity to proceed. If the defendant is being held in the custody of the sheriff, the clerk shall send a copy of the covering statement to the sheriff. The sheriff and any persons employed by the sheriff shall maintain the copy of the covering statement as a confidential record. A copy of the full report shall be forwarded to defense counsel or to the defendant if he is not represented by counsel. If the question of the defendant's capacity to proceed is raised at any time, a copy of the full report must be forwarded to the district attorney, as provided in G.S. 122C-54(b). Until such report becomes a public record, the full report to the court shall be kept under such conditions as are directed by the court, and its contents shall not be revealed except the report and the relevant confidential information previously ordered released under subdivision (b)(4) of this section shall be released as follows: (i) to clinicians at the program where the defendant is receiving capacity restoration; (ii) to clinicians designated by the Secretary of Health and Human Services, and (iii) as directed by the court. Any report made to the court pursuant to this section shall not be a public record unless introduced into evidence. The court may, for good cause shown, extend the time for the provision of the report to the court for up to 30 additional days. The court may renew an extension of time for an additional 30 days upon request of the State or the defendant prior to the expiration of the previous extension. In no case shall the court grant extensions totaling more than 120 days beyond the time periods otherwise provided in this subsection. History (1973, c. 1286, s. 1; 1975, c. 166, ss. 20, 27; 1977, cc. 25, 860; 1979, 2nd Sess., c. 1313; 1985, c. 588; c. 589, s. 9; 1989, c. 486, s. 1; 1991, c. 636, s. 19(b); 1995, c. 299, s. 1; 1995 (Reg. Sess., 1996), c. 742, ss. 13, 14; 2013-18, s. 1; 2017-147, s. 1.) Cross References. - As to the requirements forensic evaluators appointed pursuant to subsection (b) of this section must meet, see G.S. 143B-147(a)(10) . Editor's Note. - The first paragraph of subsection (b) has been designated subdivision (b)(1) and former subdivision (b)(1) has been redesignated subdivision (b)(1a) at the direction of the Revisor of Statutes. In addition, internal references to "subdivision (1)" were changed to "subdivision (1a)" and the reference to "subsection (b)(1) of this section" was changed to "subsection (b)(1a) of this section" also at the direction of the Revisor of Statutes. Session Laws 2017-147, s. 2, provides: "The Department of Health and Human Services shall convene a workgroup to evaluate the laws governing the lack of capacity to proceed process, including the impact of the laws on the limited resources of the community mental health system, hospitals, state psychiatric hospitals, local law enforcement, court system, jails, crime victims, and criminal defendants. The workgroup shall be comprised of criminal justice and mental health experts who work directly with individuals who have been determined to lack the capacity to proceed and shall include at least one representative from each of the following groups, agencies, or organizations: "(1) The Attorney General or his designee. "(2) The Director of the Administrative Office of the Courts or his designee. "(3) The President of the Conference of District Attorneys or his designee. "(4) The President of the Association of Defense Attorneys or his designee. "(5) The President of the Sheriff's Association or his designee. "(6) The President of the District Court Judges Association or his designee. "(7) The President of the Superior Court Judges Association or his designee. "(8) A forensic expert from a State Psychiatric Hospital. "(9) An advocate for individuals who have been determined to lack the capacity to proceed." Session Laws 2017-147, s. 3(a), (b), provides: "(a) Preliminary report. - The Department of Health and Human Services shall present preliminary findings of the workgroup to the following stakeholder organizations: "(1) North Carolina Sheriff's Association. "(2) North Carolina Psychiatric Association. "(3) North Carolina Council of Community Programs. "(4) North Carolina Conference of District Attorneys. "(5) North Carolina Hospital Association. "(6) North Carolina Association of County Commissioners. "(7) National Alliance on Mental Illness. "(8) North Carolina Indigent Defense Services." "(b) Final report. - After consultation with these stakeholder organizations, the workgroup shall finalize recommendations for improvements to the system, including any legislative proposals, and the Department of Health and Human Services shall report to the Joint Legislative Oversight Committees on Health and Human Services and on Justice and Public Safety by February 1, 2018. The report shall include findings and recommendations on the following: "(1) Issues within the system that impact an individual who lacks capacity to proceed to trial and the process to determine capacity. "(2) Issues that create barriers within the system that negatively impact service providers, including jails, courts, hospitals, and law enforcement agencies, in their efforts to serve an individual who lacks the capacity to proceed. "(3) Solutions to reduce the number of persons who lack the capacity to proceed; the number of persons who are referred to the State psychiatric hospitals; and the number of stays in the hospitals beyond the clinical needs of the person who lacks the capacity to proceed." Effect of Amendments. - Session Laws 2013-18, s. 1, effective December 1, 2013, in subdivision (b)(1), deleted "The court" from the end; rewrote subdivisions (b)(1a) and (2); added subdivision (b)(4); rewrote subsection (b1); added subsection (b2); and in subsection (d), added the second and third sentences, divided the former second sentence into the present fourth and fifth sentences, and added 'as provided in G.S. 122C-54(b) " at the end of the fifth sentence. For applicability, see Editor's note. Session Laws 2017-147, s. 1, effective July 20, 2017, inserted "the report and the relevant confidential information previously ordered released under subdivision (b)(4) of this section shall be released as follows: (i) to clinicians at the program where the defendant is receiving capacity restoration; (ii) to clinicians designated by the Secretary of Health and Human Services, and (iii)" in the second to last sentence in subsection (d). Legal Periodicals. - For article, "Review of the Presentence Diagnostic Study Procedure in North Carolina," see 8 N.C. Cent. L.J. 17 (1976). For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980). For article, "Impunity for the Incorrigible Psychopath?: Neurobiological Abnormalities Do Not Exempt Psychopaths from Criminal Responsibility," see 7 Charlotte L. Rev. 239 (2016).