State v. Payne, ___ N.C. App. ___, 808 S.E.2d 476 (Nov. 21, 2017)

In a case where the trial court made a pretrial determination of not guilty by reason of insanity (NGRI), the defendant’s constitutional right to effective assistance of counsel was violated when the trial court allowed defense counsel to pursue a pretrial insanity defense against her wishes. Against the defendant’s express wishes, counsel moved for a pretrial determination of NGRI pursuant to G.S. 15A-959. The State consented and the trial court agreed, purportedly dismissing the charges based on its determination that the defendant was NGRI. The court noted that the issue whether a competent defendant has a right to refuse to pursue a defense of NGRI is a question of first impression in North Carolina. It determined:

By ignoring Defendant’s clearly stated desire to proceed to trial rather than moving for a pretrial verdict of NGRI pursuant to N.C.G.S. § 15A-959(c), the trial court allowed — absent Defendant’s consent and over her express objection — the “waiver” of her fundamental rights, including the right to decide “what plea to enter, whether to waive a jury trial and whether to testify in [her] own defense[,]” as well as “the right to a fair trial as provided by the Sixth Amendment[,] . . . the right to hold the government to proof beyond a reasonable doubt[,] . . . [and] the right of confrontation[.]” These rights may not be denied a competent defendant, even when the defendant’s choice to exercise them may not be in the defendant’s best interests. In the present case, Defendant had the same right to direct her counsel in fundamental matters, such as what plea to enter, as she had to forego counsel altogether and represent herself, even when Defendant’s choices were made against her counsel’s best judgment. (citations omitted)

It went on to hold:

[B]ecause the decision of whether to plead not guilty by reason of insanity is part of the decision of “what plea to enter,” the right to make that decision “is a substantial right belonging to the defendant.” Therefore, by allowing Defendant’s counsel to seek and accept a pretrial disposition of NGRI, the trial court “deprived [Defendant] of [her] constitutional right to conduct [her] own defense.” We are not called upon to determine how that right should be protected when asserted by a defendant’s counsel at trial but, at a minimum, a defendant’s affirmative declaration that the defendant does not wish to move for a pretrial determination of NGRI must be respected. (quotation and footnote omitted).

The court went on to reject the State’s argument that the defendant could not show prejudice because she was subject to periodic hearings pertaining to her commitment.