State v. Whitted, 209 N.C. App. 522

Background

Whitted was convicted after a jury trial of multiple offenses including felony breaking and entering of a motor vehicle, larceny, financial transaction card theft and fraud, robbery, false pretenses, forgery, uttering forged instruments, conspiracy, and habitual felon status; sentences were aggregated into consecutive terms totaling well over a century but the court remanded for further proceedings.
The convictions stemmed from a 2008 series of encounters in Fayetteville with her niece Malloy and three elderly victims, involving distraction, purse theft, and unauthorized use of stolen credit cards and checks.
Surveillance videos and witness testimony tied Whitted to the thefts and card fraud, and police later found items purchased with a stolen card at Whitted’s home.
Whitted challenged multiple trial issues on appeal, including identification evidence, admission of out-of-court statements, absence during trial phases, waiver of presence, sentencing discretion, competency, due process, and ineffective assistance.
The Court of Appeals ultimately remanded to address Whitted’s competency claim (issue VI) and dismissed or reviewed other issues, affirming most convictions while narrowing remand scope.
The procedural posture involved a trial court that did not conduct a sua sponte competency hearing before trial, prompting appellate remand for a retrospective competency determination.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Competency sua sponte requirement	Whitted exhibited substantial evidence of incompetence (mental illness history; disruptive courtroom conduct).	Defendant's competency was questioned; trial court failed to hold a proper competency hearing.	Remand for retrospective competency determination; if possible, hold a competency hearing; if not, reverse and grant new trial.
Admission of identification evidence	Navarro’s lay identification testimony connected Whitted to surveillance videos.	Identification testimony constitutes plain error.	No plain error; evidence of guilt overwhelming; argument overruled.
Admission of Malloy’s out-of-court statements	Malloy’s statements were admissible as substantive evidence.	Admission constituted plain error.	Dismissed for lack of plain-error showing and preservation.
Whitted’s absence from habitual felon phase	Court improperly handled presence/absence during habitual felon phase.	Whitted voluntarily waived presence when asked to return.	Waiver valid; no §15A-1032 violation; absence did not require instruction.
Oral waiver of right to be present	Waiver by counsel should be permitted under statute.	Statutory requirements for waiver not satisfied.	Waiver valid; statute inapplicable to non-plea trial waivers; no error.
Presumptive range sentencing in equipoise	Court could not impose presumptive range where aggravating and mitigating factors are in equipoise.	Court erred in not recognizing discretion to depart or apply presumptive range.	Overruled; trial court’s discretion properly recognized; no error.
Substantive due process by court constraints (tasers, shackles, etc.)	Criminal procedure violated due process.	Issue preserved for appeal.	Not preserved for review; dismissed.
Effectiveness of counsel	Counsel failed to object or preserve several issues.	Counsel deficient performance affected outcome.	Remand for competency proceedings; otherwise, no reversible impact on outcomes; issues not reversible.

Key Cases Cited

State v. Badgett, 361 N.C. 234, 644 S.E.2d 206 (2007) (competency standard and sua sponte duty to address incompetence)
State v. Staten, 172 N.C.App. 673, 616 S.E.2d 650 (2005) (duty to address bona fide doubt of competency)
State v. McRae, 139 N.C.App. 387, 533 S.E.2d 557 (2000) (temporal changes in competency; retrospective evaluation framework)
State v. Richardson, 330 N.C. 174, 410 S.E.2d 61 (1991) (confrontation right waivable; examples of waiver of presence)
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985) (confrontation right waivable in noncapital felony trials)