State v. Owens

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Christopher Owens,       
Appellant.

Appeal From Sumter County

Howard P. King, Circuit Court Judge

Unpublished Opinion No. 2003-UP-669

Submitted October 6, 2003 – Filed November
17, 2003

AFFIRMED

Assistant Appellate Defender Robert M. Dudek, of Columbia,
for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor
Cecil Kelly Jackson, of Sumter, for Respondent.

Per Curiam: 
Christopher Owens was convicted for first-degree burglary, armed robbery, and
conspiracy.  He was sentenced to twenty-five-years imprisonment for burglary,
fifteen-years imprisonment for armed robbery, and five-years imprisonment for
conspiracy, the sentences to run concurrently.   Owens appeals, arguing the
trial court erred by: 1) failing to order a mental evaluation to determine his
competency to stand trial; and 2) excluding testimony regarding his competency
to stand trial.  We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Owens was indicted in 1998
for murder, first-degree burglary, first-degree criminal sexual conduct, robbery,
and conspiracy.  Thereafter, more than two years elapsed before his trial, during
which time Owens changed attorneys on several occasions. 

When the case was called
for trial in 2000, Owens’ newly obtained counsel made a motion for Owens to
undergo a mental evaluation to determine his competency to stand trial.  In
support of this motion, Owens’ counsel argued that although none of Owens’ previous
attorneys had requested a mental evaluation, he was concerned with Owens’ competency
because Owens exhibited signs of mental instability during the previous weekend. 

Owens’ counsel presented two documents to support
his motion.  The first, a medical evaluation in May 1997 by Psychiatrist B.J.
Ramsey, stated Owens was admitted to a psychiatric institute at age fourteen
because he attempted to commit suicide.  The report indicates Owens’ suicide
attempts were based, in part, on Owens’ auditory hallucinations in the form
of discussions with his dead uncle.  The report noted the alleged discussions
did not have negative messages and did not include any suggestions to Owens
that he cause harm to himself or others.

The report also indicated Owens was previously
diagnosed with major depressive disorder and that at discharge Owens was taking
Zoloft, as well as Zyprexa. 

The second report, a January
1998 report by Psychologist Tammy Morris ordered following Owens’ arrest, indicates
Owens was a mildly mentally disabled fifteen-year-old adolescent.  Additionally,
it indicates Owens continues to experience auditory hallucinations in the form
of conversations with his dead uncle.  The report indicates Owens’ conversations
with the dead uncle were positive and did not involve suggestions to Owens to
hurt himself or others.  According to the report, the hallucinations were the
result of depression, and not psychosis.

The report also indicated Owens continues to take
Zoloft and Zyprexa, as well as Vistaril, but further indicates Owens was cooperative,
attentive, focused, responsive to questions, and able to conform his behavior
to acceptable societal norms. 

Following introduction of the reports, the circuit
court conducted an examination of Owens, and, noting the affidavits and its
own questioning of Owens, found a mental evaluation was not required.  The court
observed that Owens was “oriented,” knowledgeable of the charges presented against
him, and able to participate in his own defense. 

After the circuit court
ruled on the motion, Owens’ counsel moved for the first time to hear from Owens’
grandmother, Hattie Owens, on the issue of competency.  The circuit court denied
counsel’s request, citing Rule 18, South Carolina Rules of Criminal Procedure.
[1]  

Owens was subsequently
convicted for first-degree burglary, armed robbery, and conspiracy.  Owens appeals.

LAW/ANALYSIS

I.       Mental Evaluation

Owens argues the circuit
court erred by failing to order a mental evaluation pursuant to South Carolina
Code Annotated section 44-23-410 (2002).  We disagree.

Due process prohibits the conviction of a person
who is mentally incompetent.  Jeter v. State, 308 S.C. 230, 232, 417
S.E.2d 594, 595 (1992).  Accordingly our legislature has established procedures
to determine when an individual must undergo mental evaluations to determine
their competency to stand trial.  See S.C. Code Ann. § 44-23-410.   
Section 44-23-410 provides “[w]henever a judge . . . has reason to believe that
a person on trial before him . . . is not fit to stand trial because the person
lacks the capacity to understand the proceedings against him or to assist in
his own defense as a result of a lack of mental capacity, the judge shall .
. .” order a mental evaluation. 

“The statutory injunction, that an examination
be ordered when the circuit judge ‘has reason to believe’ that a defendant is
not mentally competent to stand trial, involves the exercise of the discretion
of the trial judge in evaluating the facts presented on the question of competency.” 
State v. Drayton, 270 S.C. 582, 584, 243 S.E.2d 458, 459 (1978).  A refusal
to grant an evaluation will not be disturbed on appeal absent a clear showing
of an abuse of discretion. Id.; State v. Singleton, 322 S.C. 480,
483, 472 S.E.2d 640, 642 (Ct. App. 1996).  

Owens produced two reports generated between two and
three years prior to the trial to support his contentions.  Following the introduction
of the reports, the circuit court conducted a hearing, questioning Owens to
determine that he knew the day of the week, his residence, his physical location,
his age, his lawyer’s name, the name of his school, the specific classes he
was taking, and why he was in court.  Owens answered each question correctly
and noted that he was at the courthouse because “[he] was on trial here . .
. [charged with] murder for this elderly woman.”

Based on the evidence presented, the circuit court
declined to order a mental evaluation of Owens, finding Owens was “oriented
as to time and place and the extent of the charges against him.” 

We find no clear abuse of discretion.  The supporting
affidavits presented by Owens indicate that although Owens has some psychological
and mental impairment, Owens was cooperative, attentive, focused, and responsive
to questions during his evaluation.  Furthermore, the circuit court’s hearing
indicates the defendant understood the proceedings against him and was capable
of assisting in his own defense.  This evidence is sufficient to support a finding
Owens’ was competent to stand trial.  See State v. Reed, 332 S.C.
35, 39-40, 503 S.E.2d 747, 749 (1998) (“The test for determining . . . competency
to stand trial is ‘whether . . . [the defendant] has sufficient present ability
to consult with his lawyer with a reasonable degree of rational understanding
and whether he has a rational as well as a factual understanding of the proceedings
against him.’”) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960). 
Thus, the circuit court did not abuse its discretion in declining to order a
mental evaluation pursuant to section 44-23-410.

II.      Opportunity to be heard

Owens argues the circuit
court erred by excluding his grandmother’s testimony. 

The circuit court ruled Owens was competent to
stand trial.  Thereafter, and for the first time, Owens moved to admit his grandmother’s
testimony.  The circuit court denied the motion, and Owens timely objected. 
However, Owens did not proffer the grandmother’s testimony.  Thus, the issue
is not preserved for appellate review.  See State v. Roper, 274
S.C. 14, 20, 260 S.E.2d 705, 708 (1979) (“It is well settled that a reviewing
court may not consider error alleged in [the] exclusion of testimony unless
the record on appeal shows fairly what the rejected testimony would have been.”);
see also State v. Cabbagestalk, 281 S.C. 35, 36, 314 S.E.2d
10, 11 (1984) (failure to make an offer of proof prevents the appellate court
from determining whether the exclusion of testimony is prejudicial and thus
precludes the appellant from raising the issue on appeal). 

Notwithstanding Owens’ failure to make a proffer,
Owens contends his grandmother’s testimony during Owens’ suppression hearing
four days later was sufficient to provide a proffer because her subsequent testimony
was substantially similar to what her testimony would have been during the competency
hearing. 

During the suppression hearing, Owens’ grandmother
testified Owens was mentally and psychologically disabled, as evidenced by his:
suicide attempt, admission to a psychiatric institute, auditory hallucinations,
low reading level, low cognitive level, and prescriptions for several drugs. 
Her testimony also indicates Owens’ mental and psychological impairments were
less severe at the time of trial than they were when the two previously mentioned
reports were generated. 

Assuming we accept Owens’ position, Owens’ grandmother’s
testimony is substantially similar to the information already presented to the
circuit court through the two reports.  Furthermore, the circuit court did not
question the veracity of the reports or their content, and based its decision,
in part, on its own examination of Owens. 

Thus, the testimony was at best cumulative, and
its exclusion, even if error, was not prejudicial error subject to reversal. 
See State v. Gaskins, 284 S.C. 105, 117, 326 S.E.2d 132, 140 (1985)
(“Error in the exclusion of evidence is not prejudicial where its effect would
have been merely cumulative.”); State v. Taylor, 333 S.C. 159, 172, 508
S.E.2d 870, 876 (1998) (holding an appellate court will not reverse a lower
court for improperly admitting or excluding evidence unless the error was prejudicial). 

CONCLUSION

For the foregoing reasons, the decision of the circuit court is

AFFIRMED.
[2]

STILWELL, HOWARD, and KITTREDGE, JJ.,
concurring.

[1] Rule 18(a), South Carolina Rules of Criminal Procedure states:  “Counsel
shall not attempt to further argue any matter after he has been heard and
the ruling of the court has been pronounced.”

[2] Because oral argument would not aid the Court in resolving any issue
on appeal, we decide this case without oral argument pursuant to Rule 215,
SCACR.