Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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The defendant was found guilty of criminal contempt relating to his unauthorized Facebook livestreaming of Macon County criminal superior court proceedings. The trial judge sentenced the defendant to 30 days in jail but suspended the sentence on numerous conditions. One condition required the defendant to compose a 2,000-3,000-word essay on respect for the judicial system and to post it to his social media. He was further ordered to monitor the posts of the essay on social media and delete any negative or disparaging remarks made by third parties. The defendant was not allowed to return to court in the district until the essay was posted online. On appeal, the defendant argued that his sentence was illegal and not authorized by the contempt statutes.
As summarized here, the Court of Appeals determined that the trial court had the discretion to suspend a contempt sentence and that the terms of probation were reasonably related to the nature of the offense (and therefore within the trial court’s discretion). Judge Brook dissented in part, noting the potential First Amendment problems with compelling the defendant to delete the comments of third parties on social media. He would have vacated that condition as not reasonably related to the offense or circumstances of the defendant. Based on that partial dissent, the defendant appealed to the North Carolina Supreme Court. In a per curiam order, the North Carolina Supreme Court affirmed. [Jonathan Holbrook blogged in part about the Court of Appeals decision in the case here.]
In this Harnett County case, defendant appealed the trial court order finding him in direct criminal contempt, arguing that his actions did not represent a contemptuous act. The Court of Appeals agreed, reversing the order.
In October of 2022, defendant was summoned for jury duty at the Harnett County Courthouse; during this time, a local emergency order allowed presiding judges to decide whether masks were required in their courtrooms. When defendant assembled with other jurors in the jury assembly room, a court employee told him to wear a mask. Defendant refused, and he was then removed from the jury assembly room and taken to a courtroom in front of the judge. Defendant again declined to wear a mask, even after the judge informed him it was a requirement and that if he refused he would be subject to contempt of court. The judge entered an order finding that defendant refused to wear a mask after being ordered to do so three times and imposed a 24-hour jail sentence.
The exclusive grounds for criminal contempt are outlined in G.S. 5A-11, and “direct” criminal contempt is defined in G.S. 5A-13(a). Here, the trial court’s order pointed to G.S. 5A-11(a)(1)-(2), finding that defendant’s actions interrupted the trial court's proceedings and impaired the respect due its authority. The Court of Appeals disagreed, noting that defendant “was not a participant in ongoing proceedings in a courtroom,” and “the judge summoned Defendant from the jury assembly room to his courtroom.” Slip Op. at 9. The court saw no disruption in defendant’s actions, noting he responded to the judge’s inquiries and “was respectful to the trial court.” Id. This led the court to conclude defendant’s refusal “was not a contemptuous act.” Id.
The court then moved to the State’s arguments that G.S. 5A-11(a)(3) or (7) applied, considering whether defendant could be held in contempt “for willful disobedience of the trial court’s lawful process, order, directive, or instruction pursuant to a valid local emergency order.” Id. at 10. This required the court to consider the validity of the local emergency order, and the court concluded “[t]he authority underlying the local emergency order at issue was revoked” as the Chief Justice of the North Carolina Supreme Court revoked the emergency directive authorizing local officials to address face coverings in June of 2021. Id. at 12.
Finally, the court determined defendant’s actions were not willful, noting “a misapplication of the local emergency order served as the impetus of the conflict” as the local order made masks optional in meeting rooms, and defendant had not yet been called to the courtroom to serve as a juror. Id. at 13. The court explained “[t]here are no findings, nor evidence in the record sufficient to support findings, that Defendant could have known his discussion with the courthouse employee in the jury assembly room might directly interrupt proceedings or interfere with the court’s order or business.” Id. at 14.
Judge Griffin concurred in the result by separate opinion, and would have held that defendant’s actions were not likely to interrupt or interfere with matters before the trial court.
In this Davidson County case, the defendant pled guilty to a drug offense and received 12 months of supervised probation. His probation officer filed a violation report alleging positive drug screens and other violations. At the violation hearing, the defendant chose to represent himself. The court found a willful violation and agreed to extend probation by six months and to hold the defendant in custody for up to two weeks until he could begin drug treatment at a treatment center. The defendant said “that’s crazy,” accused the court of activating his sentence, and suggested that the court be “f—king honest with [him].” After being warned about his language, he accused his probation officer of “start[ing] this sh— all over again.” The court began contempt proceedings, found the defendant in direct criminal contempt and sentenced him to 30 days. He sought appellate review.
As to the probation modification, the Court of Appeals first found that he had no right to appeal. In criminal cases, appellate rights are provided entirely by statute, and G.S. 15A-1347(a) allows an appeal of a probation violation only when the court activates a sentence or imposes special probation. The trial court did neither in this case.
The defendant therefore sought certiorari review. The lead opinion, relying on State v. Edgerson, 164 N.C. App. 712 (2004), concluded that certiorari review is not available for probation modifications. Two judges concurred separately, each disagreeing with the lead opinion on that point, but the panel was unanimous that even if such authority exists, the defendant’s petition was “wholly frivolous” and so certiorari review should be denied.
As to the contempt finding, the Court agreed to review the matter under its certiorari jurisdiction. After finding the defendant in contempt, the trial court stated, “Enter notice of appeal for his contempt citation,” to which the defendant responded, “Thank you.” Although this was not a proper notice of appeal, the defendant’s intent to appeal was obvious so certiorari review was justified. The court proceeded to uphold the contempt conviction, finding that the defendant’s “words and actions willfully interrupted the proceedings and impaired the respect due the [trial] Court’s authority” in violation of G.S. 5A-11(a).
In this Gaston County case, the defendant was summarily found in direct criminal contempt by a magistrate. The contempt order arose out of a situation where the defendant came to the magistrate’s office to report a death threat she had received on her cell phone. The magistrate declined to look at the phone because cell phones were not permitted in the courtroom. The magistrate then told the defendant “that she needed to leave and take the cell phone out or [he] would hold her in contempt.” ¶ 5. The magistrate sat in silence for two or three minutes while the defendant repeated her claim, and then shut the blinds to the magistrate’s window, saying “we’re finished.” Id. The defendant left and made it to her car, but by that point the magistrate had informed the sheriff’s office that he was holding the defendant in contempt. Officers returned the defendant to the courtroom where the magistrate, without any additional proceedings, passed the contempt order through the window and gave it to the defendant. On appeal, the superior court found, among other things, that the magistrate told the defendant “that she was going to have to leave the courtroom and stop arguing with him, or he would hold her in contempt of court.” ¶ 8. The superior court concluded that the magistrate twice gave the defendant summary notice of the contempt charge and the conduct on which it was based, and then gave the defendant an opportunity to respond. The superior court entered an order holding the defendant in contempt and sentenced her to 48 hours of time already served.
On appeal to the Court of Appeals, the defendant argued that some of the trial judge’s findings of fact were not supported by the evidence. The Court of Appeals agreed, concluding that the evidence did not support the finding that the magistrate told the defendant to stop arguing with him. Rather, the magistrate told the defendant to leave the courtroom on account of the phone, and did not say anything further before ultimately closing the window blinds. Additionally, the Court concluded that there was insufficient evidence to support the trial court’s finding that the defendant continued to argue with the magistrate in response to being given notice that she would be held in contempt. To the contrary, the magistrate’s own testimony indicated that the defendant was repeating her claim about the underlying death threat, not arguing with the magistrate’s contempt warning.
The Court went on to note that the superior court appeared to be reviewing validity of the proceedings leading up to the magistrate’s order rather than conducting a de novo review. Moreover, the Court noted that summary contempt proceedings by the magistrate were not appropriate in any event where the contempt was not imposed substantially contemporaneously with the offending acts. Here, the magistrate effectively closed court by closing the window blinds and did not actually hold the defendant in summary contempt until she had left the courtroom for her car. Once court was closed, there was no proceeding to be delayed or disrupted, and summary contempt proceedings were therefore inappropriate.
The Court reversed the trial court’s order.
The defendant was served with subpoenas for her and her children to testify in a murder trial. She was first served by telephone by the Watauga County Sheriff’s deputy and later served personally. The defendant and her children did not appear as commanded. (This led to an improperly declared mistrial and ultimately resulted in a double jeopardy violation. See State v. Resendiz-Merlos, 268 N.C. App. 109 (Oct. 15, 2019)). The day before failing to appear as required by the subpoena, the defendant met with the prosecutor and acknowledged her obligation to appear and testify. After the trial, the defendant acknowledged to law enforcement that she had purposefully failed to comply with the subpoena. A show cause order was issued, and the defendant was found in criminal contempt. She was sentenced to an active term of 30 days and appealed.
(1) The subpoena personally served on the defendant only had one page of the AOC subpoena form (AOC-G-100). Page two of that document lists the rights and protections for a person under subpoena, and the defendant argued this rendered the process invalid. The Court of Appeals agreed that the subpoena personally served on the defendant did not comply with the requirements for service of a subpoena, but found the subpoena served by telephone was proper.
(2) The defendant also argued that the trial court lacked jurisdiction to find her in contempt based on the invalid subpoena. Because the telephone subpoena was properly served, the trial court had jurisdiction to enforce it. Contempt under these circumstances was permissible as a matter of Rule 45 of the North Carolina Rules of Civil Procedure or under G.S. 5A-11 (Criminal contempt). A show cause order alleging failure to comply with a court order and referencing the prior order gives a trial court jurisdiction for the trial court to act, and the show cause order here did so. In the court’s words:
[B]ecause the trial court entered a show cause order requiring defendant to appear in court and explain why she failed to appear in accordance with the subpoena served upon her, it was fully authorized to find her in criminal contempt of court. Gonzalez Slip op. at 9.
(3) An additional argument that the trial court failed to apply the beyond-a-reasonable-doubt standard to her contempt conviction was likewise rejected. The trial court announced in open court its use of that standard but failed to check the appropriate box on the form order. The oral pronouncement was sufficient to indicate the trial court’s application of the correct standard of proof, and the district court’s judgment was therefore affirmed in all respects. Judges Carpenter and Arrowood concurred.
The defendant in this case was found in criminal contempt after failing to appear as a witness at an assault on a female trial involving her husband where she was the alleged victim. The court first determined that failing to appear as a witness when subpoenaed is punishable as criminal contempt because it constitutes willful disobedience of, resistance to, or interference with a court’s lawful process. The court then rejected the defendant’s jurisdictional argument that the show cause order issued by the district court was facially defective for failing to comply with G.S. 15A-924(5), explaining that the statute’s requirements for pleadings in criminal cases in superior court do not apply to proceedings for criminal contempt. The court concluded by rejecting the following arguments advanced by the defendant: (1) that the district court’s failure to indicate that it used the reasonable doubt standard of proof deprived the superior court of jurisdiction on appeal from the district court’s order; (2) that it was error for the superior court to allow the district court judge to testify in the de novo hearing on appeal from the district court’s order; and (3) that competent evidence did not support the trial court’s findings of fact related to the defendant’s failure to appear.
Judge Berger concurred in a separate opinion, expressing his view that the majority should not have considered the defendant’s argument under Evidence Rule 605 regarding the competency of the district court judge as a witness, as well as his view that the majority should not have engaged in plain error review of the witness competency issue as it was a matter within the trial court’s sound discretion.
In this direct criminal contempt case involving summary proceedings where the defendant was sentenced for two instances of contempt, the Court of Appeals determined as a matter of first impression that the defendant did not have a statutory right to appointed counsel under G.S. 7A-451(a)(1). The court explained that precedent from the United States Supreme Court and the North Carolina Supreme Court establishes that there is no Sixth Amendment right to counsel in summary proceedings for direct criminal contempt. The court further explained that discussion in Jolly v. Wright, 300 N.C. 83 (1980), overruled on other grounds by McBride v. McBride, 334 N.C. 124 (1993), suggested that the language in G.S. 7A-451(a)(1) entitling an indigent defendant to appointed counsel in “any case” in which imprisonment or a fine of $500 or more is likely to be adjudged should be construed to refer to “any criminal case to which Sixth Amendment protections apply.” The court went on to point out that the contemporaneous nature of summary proceedings for direct criminal contempt where the trial court acts on its own first-hand observations supported the conclusion that the statutory right to counsel does not apply, but cautioned trial courts to exercise restraint in such proceedings.
The court remanded the matter to the trial court to correct a clerical error regarding the length of one of the defendant’s contempt sentences. The court also found that the trial court’s written judgment ordering that one of the sentences run consecutive to the other violated the defendant’s right to be present at sentencing because the trial court did not specify the consecutive nature of the sentence when rendering it orally while the defendant was present in the courtroom, and remanded for the entry of a new judgment in the defendant’s presence.
The defendant entered into a plea agreement with the State in superior court, after he appealed for a trial de novo, under which he would plead guilty to misdemeanor larceny and first-degree trespassing and receive a suspended sentence of 180 days, with a split sentence of 30 days. The arrangement also stated that “[u]ltimate sentencing shall be in the discretion of the court[.]” The defendant pled guilty, and the superior court judge imposed an active sentence of imprisonment of 120 days for the larceny and 60 days for the trespass, to run consecutively. The defendant made an unintelligible remark after sentencing, and the judge held him in direct criminal contempt and imposed an additional 30 days in jail. Thereafter, the superior court entered a consent order allowing the defendant to withdraw his plea, vacating the judgment for misdemeanor larceny and first-degree trespass, and allowing the State to proceed on the original plea offer. The appeal concerned the contempt judgment only. The Court of Appeals reversed the contempt judgment, holding that the trial judge failed to give the defendant summary notice and an opportunity to be heard before entering judgment in accordance with G.S. 5A-14(b). Although the findings and order signed by the trial judge contain a preprinted finding that “the contemnor was given summary notice of the charges and summary opportunity to respond,” the Court found that the record directly contradicted the form language and that no notice or opportunity to be heard was given. The Court rejected the State’s argument that because the defendant had already served the contempt sentence, the defendant’s appeal was moot. That argument, if accepted, would allow a defendant to be criminally confined without judicial review so long as the sentence was completed.
The trial judge in this case issued a show cause order for defendant to appear and show cause why he should not be held in criminal contempt for recording the proceedings before the trial judge and posting them on Facebook, contrary to courtroom policy and warnings. (1) The Court of Appeals affirmed the trial judge’s denial of the defendant’s motion to recuse, finding no evidence to suggest that the trial judge could not preside over the contempt hearing in an objective, impartial manner. (2) The evidence supported the trial judge’s finding of criminal contempt; it showed that the defendant understood the courtroom policy and warnings not to record inside the courtroom and willfully disregarded them. (3) The Court of Appeals held that the trial judge was authorized to impose a suspended sentence of imprisonment with conditions of probation, including the condition that the defendant write an essay about respect for the courtroom and publish it on his social media and internet accounts. The dissent found that although this condition had a reasonable relationship to the defendant’s criminal contempt and was permissible, it was impermissible—because not reasonably related to the contempt and potentially a violation of the First Amendment—to require the defendant to monitor comments by third parties on his accounts and delete negative ones.
At the conclusion of a probation revocation hearing, the defendant yelled vulgarities within earshot of the court. The trial court found the defendant in criminal contempt and sentenced him to an additional 30 days, consecutive to his other sentences. The trial court did not give the defendant an opportunity to respond to the alleged contempt, in violation of G.S. 5A-14(b). The judge also struck language from the contempt order that would normally document the fact that the defendant was warned and given an opportunity to be heard. “’[T]he judicial official’s findings in a summary contempt proceeding should clearly reflect that the contemnor was given an opportunity to be heard’ and without that finding, the trial court’s findings do not support the imposition of contempt.” The contempt order and judgment were therefore reversed.
The trial court did not err by holding the defendant in direct criminal contempt for statements he made during closing arguments in this pro se case. On appeal, the defendant argued that his actions were not willful and that willfulness must be considered in the context of his lack of legal knowledge or training. The trial court repeatedly instructed the defendant that he could not testify to matters outside the record during his closing arguments, given that he chose not to testify at trial. The trial court reviewed closing argument procedures with the defendant, stressing that he could not testify during his closing argument, and explaining that he could not tell the jury “Here’s what I say happened.” Although the defendant stated that he understood these instructions, he began his closing arguments by attempting to tell the jury about evidence that he acknowledges was inadmissible. The trial court excused the jury and again admonished the defendant not to discuss anything that was not in evidence. The defendant again told the trial court that he understood its instructions. When the jury returned however the defendant again attempted to discuss matters not in evidence. The trial court excused the jury and gave the defendant a final warning. Once again the defendant informed the trial court that he understood its warnings. However when the jury returned he continued his argument by stating matters that were not in evidence. This final incident served as the basis for the trial court’s finding of criminal contempt. On this record, the trial court did not err by finding that the defendant acted willfully in violation of the trial court’s instructions.
(1) The court rejected the defendant’s argument that the trial court considered inadmissible hearsay in finding him in criminal contempt, reasoning that the evidence was admitted not for the truth of the matter asserted but rather for corroboration. At the show cause hearing the trial court found that the defendant was seen by a testifying State’s witness to have made a hand gesture indicating a gun to his head and shaking his head. This interaction interrupted the State’s direct examination of the witness. At the hearing, the State introduced two transcripts into evidence. The first was a one-page excerpt of the witness’s trial testimony. The second reflected an additional interview with the witness taken after the witness’s trial testimony was completed. Over the defendant’s hearsay objection, the trial court admitted the transcripts. The State further called three witnesses to testify to the events in question, one of whom was the ADA who testified that he saw the defendant make the gesture. The trial court found the defendant to be in willful contempt of court and entered a civil judgment for attorney’s fees and costs. The defendant gave oral notice of appeal. He later filed a petition for a writ of certiorari seeking a belated appeal of the civil judgment. On appeal the defendant argued that he was found in criminal contempt based on inadmissible hearsay. The court rejected this argument, noting that the first transcript was used to illustrate the context in which the incident arose and to corroborate other testimony that the witness seemed agitated and distracted on the stand. The second transcript was used to corroborate the ADA’s testimony. The court concluded: “Because [the transcripts] were used to corroborate the testimony of the State’s witnesses, and were not offered into evidence to prove that Defendant was speaking and making a gun gesture, the trial court did not err when admitting them into evidence.”
(2) The trial court’s findings of fact support its conclusion that the defendant’s conduct was willful. The trial court found, in part, that the defendant’s willful behavior committed during court was intended to interrupt the proceedings and resulted in the witness ceasing testimony and challenging the defendant’s action on the stand in front of the jury. The court held that this finding of fact supported the trial court’s conclusion that the defendant willfully interrupted the proceedings.
(3) The court granted the defendant’s petition for certiorari with respect to review of the civil judgment and held that the trial court erred by entering the civil judgment against the defendant for attorney’s fees without first affording the defendant an opportunity to be heard. Before entering a civil judgment under G.S. 7A-455(b) the defendant must be given notice and an opportunity to be heard. Here, after the defendant was convicted of criminal contempt, the trial court asked defense counsel how much time she spent on the case. After counsel responded that she spent about 9½ hours, the court set a civil judgment in the amount of $570. Because the defendant was present in the courtroom when attorney’s fees were imposed, the defendant received notice. However he was not given an opportunity to be heard. The court vacated the judgment and remanded to the trial court for further proceedings.
The trial court did not err by imposing consecutive sentences for multiple findings of contempt. The trial court had sentenced the defendant to six consecutive 30-day terms of imprisonment based on six findings of direct criminal contempt.
Trial court did not err by holding the defendant in criminal contempt for willfully violating the Consent Order provision which forbade her from allowing the children to be in the presence of a convicted sex offender.
A criminal contempt order was fatally deficient where it failed to indicate that the standard of proof was proof beyond a reasonable doubt.
For reasons discussed in the opinion, the court affirmed the trial judge’s order finding defense counsel in contempt of court for willfully disobeying a court order regarding permissible inquiry under the Rape Shield statute.
A “complaining witness” in a grand jury proceeding is entitled to the same immunity in an action under 42 U.S.C. §1983 as a witness who testifies at trial.
In this drug trafficking case, the trial court erred by denying the defendant’s motion for appropriate relief (MAR) which asserted ineffective assistance of appellate counsel. Drug were discovered after a vehicle stop. The defendant lost his motion to suppress and after being convicted appealed. On appeal appellate counsel did not challenge the trial court’s findings of fact in connection with the suppression motion, and thus they were binding on appeal. After the Court of Appeals affirmed, the defendant filed a MAR alleging ineffective assistance of appellate counsel. Specifically he asserted that there was no evidence to support the finding of fact that the officer was aware of an inspection violation at the time of the stop. The defendant asserted that if appellate counsel had properly challenged this finding of fact, the court would have reversed the trial court’s denial of the motion to suppress and vacated the convictions. The trial court denied the defendant’s MAR, concluding that to rule favorably would require the court to reverse the order denying the motion to suppress and thus violate the rule that one Superior Court Judge cannot overrule another. The defendant filed a petition for writ of certiorari, which the Court of Appeals granted.
The court began by finding that the rule that one Superior Court Judge cannot overrule another “is generally inapplicable where a judge is tasked with deciding the merits of a defendant’s motion for appropriate relief.” The court noted that such action is authorized by the MAR statute. Thus, the trial court acted under a misapprehension of the law when it denied the defendant’s MAR on grounds that it would impermissibly require the MAR court to overrule another Superior Court Judge.
The court went on to find that the defendant was denied effective assistance of appellate counsel. Appellate counsel’s failure to challenge the trial court’s findings of fact regarding the inspection violation was not a reasonable strategic decision but rather an oversight. In fact, appellate counsel’s affidavit stated that counsel had “missed” the issue. Thus, the defendant satisfied the first prong of his ineffective assistance of counsel claim: deficient performance. The court went on to conclude that the defendant was prejudiced by counsel’s deficient performance. Here, had appellate counsel challenged the trial court’s findings of fact, there is a reasonable probability that the Court of Appeals would have concluded that the trial court’s finding that the stop was initiated because of an inspection violation was not supported by competent evidence and thus could not support the trial court’s conclusion as to the stop’s validity. Specifically, the DMV printout at issue contained no information concerning the vehicle’s inspection status and the officers did not claim any other knowledge of the vehicle’s inspection violation. In light of the actual DMV information presented, the officers could not have known that the vehicle’s inspection was expired at the time of the stop. Given the reasonable probability that the inspection status would not have been found to support the validity of the stop, this court would have proceeded to examine the defendant’s arguments pertaining to the two other grounds upon which the trial court based its denial of his motion to suppress, and it likely would have found for the defendant on both.
In this Cumberland County case, both the State and defendant filed petitions for writ of certiorari after the trial court issued an order to enforce a plea agreement between the parties. The Court of Appeals held that the trial court had jurisdiction to enter the order, but reversed the order’s requirement for specific performance because defendant did not show detrimental reliance on the agreement prior to the State’s withdrawal, remanding for further proceedings.
In March of 2016, defendant was charged with child abuse and first-degree murder in connection with the death of her daughter. Defendant negotiated a plea agreement based upon the argument that her romantic partner caused the injuries to the child, ultimately reaching an agreement to plead guilty to accessory after the fact to first-degree murder. The State requested defendant submit to a polygraph and not to move for bond reduction or seek a probable cause hearing during its investigation, which defendant did. Defendant also submitted to a second interview with investigators. After all this, the State provided a plea agreement for accessory after the fact to first-degree murder, which defendant signed in January 2018, with a plea hearing set for March 2018. However, before the plea hearing, the district attorney’s office cancelled the hearing, and then withdrew as counsel for the State due to a conflict. The newly appointed special prosecutor then cancelled the plea agreement in April 2018 and made a new offer which defendant rejected. Defendant filed a motion to enforce the prior plea agreement, which the trial court denied in November 2018. Defendant proceeded to trial on the charges, and filed a second motion seeking specific performance of the plea agreement. In November 2021, a second judge acting as the trial court granted this second motion to enforce the agreement, leading to the present appeal prior to any judgment in defendant’s case.
The Court of Appeals first took pains to explain the complicated procedural history of the case, noting it arose from an interlocutory order reviewed under N.C. Rule of Appellate Procedure 21(a)(1). The court then moved to the issue of the trial court’s jurisdiction, explaining that the initial ruling of November 2018 was not properly entered in the record. The court turned to State v. Oates, 366 N.C. 264 (2012), for the proposition that in criminal cases a judgment is entered “when the clerk of court records or files the judge’s decision.” Slip Op. at 12. Although the trial court announced a November 2018 ruling in open court, the record did not show any file stamp or entry by the clerk recording the order, leading the court to conclude it was never entered. This meant that the second judge acting as trial court had jurisdiction to enter an order in November 2021.
Having established jurisdiction, the court moved to the enforceability of the plea, concluding that the trial court mistakenly determined defendant’s due process rights were violated. The court reviewed Supreme Court precedent on the issue including State v. Collins, 300 N.C. 142 (1980), and articulated the applicable rule:
The State may be bound to an offer which has not resulted in the actual entry and acceptance of the defendant’s guilty plea only when the defendant is necessarily prejudiced by changing her position in detrimental reliance upon that agreement prior to judicial sanction or the State’s withdrawal.
Slip Op. at 20. Here, the court did not find the necessary detrimental reliance, explaining the terms of the plea agreement did not require defendant to submit to the interview or forego the bond reduction or probable cause hearings, and those events took place prior to the plea agreement offer. The trial court’s findings did not show detrimental reliance by defendant after the presentation of the plea agreement in January 2018, leading the court to conclude it was error to order specific performance of the agreement.
(1) The court rejected the defendant’s argument that on a second trial after a mistrial the second trial judge was bound by the first trial judge’s suppression ruling under the doctrine of law of the case. The court concluded that doctrine only applies to an appellate ruling. However, the court noted that another version of the doctrine provides that when a party fails to appeal from the tribunal’s decision that is not interlocutory, the decision below becomes law of the case and cannot be challenged in subsequent proceedings in the same case. However, the court held that this version of the doctrine did not apply here because the suppression ruling was entered during the first trial and thus the State had no right to appeal it. Moreover, when a defendant is retried after a mistrial, prior evidentiary rulings are not binding. (2) The court rejected the defendant’s argument that the second judge’s ruling was improper because one superior court judge cannot overrule another, noting that once a mistrial was declared, the first trial court’s ruling no longer had any legal effect. (3) The court rejected the defendant’s argument that collateral estoppel barred the State from relitigating the suppression issue, noting that doctrine applies only to an issue of ultimate fact determined by a final judgment.
The trial court did not err when during a retrial in a DWI case it instructed the jury that it could consider the defendant’s refusal to take a breath test as evidence of her guilt even though during the first trial a different trial judge had ruled that the instruction was not supported by the evidence. Citing State v. Harris, 198 N.C. App. 371 (2009), the court held that neither collateral estoppel nor the rule prohibiting one superior court judge from overruling another applies to legal rulings in a retrial following a mistrial. It concluded that on retrial de novo, the second judge was not bound by rulings made during the first trial. Moreover, it concluded, collateral estoppel applies only to an issue of ultimate fact determined by a final judgment. Here, the first judge’s ruling involved a question of law, not fact, and there was no final judgment because of the mistrial.
When a mistrial was declared, the judge retrying the case was not bound by rulings made by the judge who presided over the prior trial. Here, the rulings pertained to the admissibility of 404(b) evidence and complete recordation of the trial.
In this Pasquotank County case, defendant appealed his conviction for first-degree murder, arguing the trial court erred in several matters related to the COVID-19 pandemic and by admitting irrelevant and hearsay testimony. The Court of Appeals found no error.
In May of 2018, defendant was in an altercation in Elizabeth City; defendant pulled a gun as the victim ran away and shot him several times in the back. The matter reached trial on January 11, 2021, after delays related to COVID-19. On the first day of trial, defense counsel made a motion to continue, arguing that she did not feel safe proceeding due to COVID-19. The trial court denied the motion to continue. The trial was subject to capacity limitations and modified jury selection procedures to limit the proximity of those in the courtroom, leading to additional issues on appeal.
Defendant first argued that the trial court lacked subject-matter jurisdiction to hear the case, pointing to the emergency orders from then-Chief Justice Beasley issued on December 14, 2020, forbidding jury trials for the next thirty days unless a jury was already empaneled. The Court of Appeals noted that Chief Justice Newby was sworn in on January 1, 2021, and a commission to the superior court hearing the matter was issued on January 5. The new chief justice also issued an order effective January 14, 2021, allowing the emergency directives in question to expire. The court found that the emergency order did not remove the superior court’s jurisdiction, and “[t]he 5 January 2021 AOC commission for this session and the 13 January 2021 order from Chief Justice Newby effectively repudiated and superseded the 14 December 2020 order.” Slip Op. at 9.
Moving to defendant’s trial-related issues, the court first considered denial of the motion to continue, explaining that defendant could not show prejudice justifying a new trial because defense counsel “was legally prepared to try the case, but was solely worried about potential COVID-19 risks,” and defendant made “no showing of any deficient representation throughout trial.” Id. at 14. The court next considered the argument that defense counsel should have been barred under Emergency Directive 2 from the December 14, 2020, emergency orders, as this order forbid persons likely exposed to COVID-19 from entering the courthouse. Rejecting this argument, the court noted that defense counsel did not identify her likely exposure to the clerk or mention it in her motion to continue, meaning she never presented the issue to the court for consideration prior to her motion. Examining defendant’s argument that the courtroom closure for capacity reasons violated his right to a public trial, the court explained that he failed to preserve this issue on appeal and declined to apply Rule of Appellate Procedure 2 to revive it. Finally, the court rejected defendant’s challenge to jury selection, holding:
While the jury selection procedure the court utilized here may have varied the express requirement of N.C. Gen. Stat. § 15A-1214(d) requiring the State to pass a full panel of twelve prospective jurors . . . [d]efendant was not forced to accept any undesirable juror as a result of the passing of less than twelve prospective jurors during jury selection procedure under these circumstances. Id. at 21-22, citing State v. Lawrence, 365 N.C. 506 (2012).
The court last turned to defendant’s challenge to the admission of Exhibits 54, 55, and 57. Exhibits 54 and 55 were Facebook messages, and Exhibit 57 was documentation of a handgun purchase. Noting the exhibits “were probative to issues of [d]efendant’s guilt, [d]efendant’s opportunity to acquire a weapon, and [d]efendant’s possible motive for the killing,” the court rejected defendant’s challenge to relevancy. Slip Op. at 25. The court then looked at the admission of Exhibit 54, a Facebook message exchange between defendant’s sister and the victim’s sister describing a dispute between defendant and the victim over payment for a gun. The court found no error in admitting this exchange, and noted that North Carolina law “permits declarations of one person to be admitted into evidence for the purpose of showing that another person has knowledge or notice of the declared facts and to demonstrate his particular state of mind.” Id. at 27, quoting State v. Swift, 290 N.C. 383, 393 (1976).
The defendant was tried for armed robbery, conspiracy to commit armed robbery, and possession of a firearm by a person previously convicted of a felony. The trial was not over by Friday, and the trial judge called a weekend recess. The trial resumed on the following Monday, the jury convicted the defendant of all charges, and the trial judge sentenced the defendant. (1) The defendant argued that the trial judge failed to extend the session of court in which the trial began, violating the rule against judgments entered out of session. The Court of Appeals rejected this argument in reliance on G.S. 15-167, which allows a trial judge to extend a session if a felony trial is in progress on the last Friday of the session. The Court held that such an extension is valid when the trial judge announces a weekend recess without objection by the parties, as here. Although the trial judge was asked and declined to make written findings to support the extension, her decision not to make findings did not constitute a refusal to extend the session. (2) In response to written questions asked by the jury during deliberations, the trial judge sought clarification by writing out a short message and having the bailiff go to the jury room and read the message. The judge directed the bailiff not to communicate any other information, respond to questions by the jury, or remain for any discussion by the jury. The defendant argued that this procedure violated the requirements of G.S. 15A-1234 and G.S. 15A-1236, which require that responses to jury questions and additional instructions be in open court and which prohibit speaking to the jury. The Court held that assuming the trial judge committed statutory error, the defendant failed to show prejudice. The Court found that the trial judge’s message was clear and unambiguous, did not relate to guilt or innocence, and did not amount to an instruction to the jury. Absent evidence to the contrary, the Court stated that it would presume that both the bailiff and jurors understood and followed the judge’s directive to the bailiff to deliver the message and not to be present for or engage in any colloquy with the jury.
The court held that the trial court had jurisdiction to enter an order denying the defendant’s request for post-conviction DNA testing, rejecting the defendant’s argument that the order was entered out of session and without his consent. Harmonizing State v. Boone, 310 N.C. 284 (1984), State v. Trent, 359 N.C. 583 (2005), and Capital Outdoor Adver., Inc. v. City of Raleigh, 337 N.C. 150 (1994), the court held:
The . . . rule is that the superior court is divested of jurisdiction when it issues an out-of-term order substantially affecting the rights of the parties unless that order is issued with the consent of the parties. If the court issues an order out of session, however, the court is not divested of jurisdiction as long as either section 7A-47.1 or Rule 6(c) is applicable.
Although Rule 6(c) had no bearing on this criminal case, G.S. 7A-47.1 applied and validated the trial court’s out-of-session order.
The Court held that federal law preempted three of four provisions of Arizona’s immigration statute. Four provisions of the Arizona law were at issue. One section made failure to comply with federal alien registration requirements a state misdemeanor. A second section made it a misdemeanor for an unauthorized alien to seek or engage in work in Arizona. A third section authorized officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” A fourth section provided that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government. The Court held that the first three provisions were preempted by federal law but that it was improper to enjoin the fourth provision “before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives.”
In this Guilford County case, the State appealed an order granting dismissal of the assault, interfering with emergency communications, and communicating threats charges against defendant after the district court imposed a $250 secured bond when defendant announced his intention to appeal to superior court. The Court of Appeals reversed the superior court order dismissing the charges, remanding for further findings to support the imposition of a secured cash bond.
In June of 2019, defendant was charged with felony assault by strangulation, interfering with emergency communications, and communicating threats, and received a $2,500 unsecured bond for pretrial release. The State reduced the assault by strangulation charge to simple assault, and a district court bench trial was held in August 2022. Defendant was found guilty on all charges, and given a 150-day suspended sentence. Defendant then gave notice of appeal, at which point the district court modified defendant’s pretrial release to require a $250 secured bond, leading to defendant being taken into custody for a few hours while his family posted the bond. In October 2022, defendant moved at the superior court to dismiss the charges, and the superior court granted the motion, finding the district court did not properly modify defendant’s bond pursuant to statute and the denial of his right to a reasonable bond impermissibly infringed on his Fourth Amendment and Sixth Amendment rights.
Taking up the State’s appeal, the Court of Appeals first looked at the district court’s jurisdiction to modify the pretrial release bond, as defendant argued that the district court was immediately divested of jurisdiction when he announced his appeal. Looking to the language of G.S. 15A-1431, the court concluded “[g]iven that the plain language contained in Section 1431 mandates action from a magistrate or district court following a defendant giving notice of appeal, we conclude that the district court is not immediately divested of jurisdiction following ‘the noting of an appeal.’” Slip Op. at 11. This meant that the district court retained jurisdiction to modify defendant’s pretrial release. The court then looked to G.S. 15A-534 for the requirements to impose a secured cash bond, finding that the district court did not properly record its reasons in writing, meaning the superior court’s order was correct in finding the district court erred.
Having established that the district court erred by imposing a secured bond without written findings, the court moved to the question of whether defendant’s rights were flagrantly violated and whether his case suffered irreparable prejudice to support dismissal of the charges against him under G.S. 15A-954. The court concluded that defendant had not been irreparably prejudiced, looking to the superior court’s own findings, pointing to Finding No. 12 that “the court does not find, that the $250 cash bond and subsequent time in custody affected defendant’s ability to prepare his case in superior court, or otherwise to consult with counsel to be ready for trial.” Id. at 14 (cleaned up). Because the superior court’s own findings showed no prejudice and the findings were not challenged on appeal, the court determined it was error to grant defendant’s motion to dismiss.
A district court judge did not err by failing to follow an administrative order issued by the senior resident superior court judge when that order was not issued in conformity with G.S. 15A-535(a) (issuance of policies on pretrial release). The administrative order provided, in part, that “the obligations of a bondsman or other surety pursuant to any appearance bond for pretrial release are, and shall be, terminated immediately upon the entry of the State and a Defendant into a formal Deferred Prosecution Agreement.” The district court judge was not required to follow the administrative order because the superior court judge issued it without consulting with the chief district court judge or other district court judges within the district.
Due process required that a Pennsylvania Supreme Court Justice recuse himself from the capital defendant’s post-conviction challenge where the justice had been the district attorney who gave his official approval to seek the death penalty in the case. The Court stated: “under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.” It went on to hold that the justice’s authorization to seek the death penalty against the defendant constituted significant, personal involvement in a critical trial decision. Finally, it determined that an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote; as such the error was not subject to harmless error review.
A violation of due process occurred when West Virginia Supreme Court justice Brent Benjamin denied a recusal motion. The Supreme Court of West Virginia reversed a trial court judgment which had entered a jury verdict of $50 million against A.T. Massey Coal Co., Inc. Five justices heard the case, and the vote was 3 to 2. The basis for the recusal motion was that Justice Benjamin had received campaign contributions in an extraordinary amount from, and through the efforts of, Don Blankenship, Massey’s board chairman and principal officer. After the initial verdict in the case, but before the appeal, West Virginia held its 2004 judicial elections. Benjamin was running against an incumbent justice. In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to a political organization opposed to the incumbent and supporting Benjamin. Additionally, Blankenship spent just over $500,000 on independent expenditures—direct mailings and letters soliciting donations as well as television and newspaper advertisements supporting Benjamin. Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Benjamin won, in a close election. In October 2005, before Massey filed its petition for appeal to the West Virginia Supreme Court, the plaintiffs in the underlying action moved to disqualify now-Justice Benjamin based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion. In November 2007, the West Virginia Supreme Court reversed the $50 million verdict against Massey. It did so again on rehearing, after another recusal motion was denied. The U.S. Supreme Court held that “Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear, and true” and that “[o]n these extreme facts, the probability of actual bias rises to an unconstitutional level.”
In this Forsyth County case, defendant appealed the denial of his request for the trial court judge’s recusal due to the judge’s issuance of several tracking and cell site location orders. The Court of Appeals majority affirmed the denial of the request for recusal.
In 2019 and 2020, law enforcement obtained several orders to intercept cell phone calls and conversations between defendant and co-conspirators from a judicial review panel under G.S. 15A-291. After obtaining these orders, law enforcement sought three more orders allowing a GPS tracking device, a pen register and trap and trace device, and cell site location information and call detail records for two target phones relevant to defendant. These three orders were issued in December 2019 and January 2020 by the same judge who would later preside over the trial and form the basis of the request for recusal. After defendant was indicted for trafficking cocaine, he raised the issue of recusal with the trial court, pointing to G.S. 15-291(c). The trial court refused the request for recusal, as “the orders were authorized pursuant to sections 15A-262 and 15A-263 of Article 12, not pursuant to section 15A-291 of Article 16, and [the trial court judge] was not part of a judicial review panel as stated in the plain language of section 15A-291(c).” Slip Op. at 3. After defendant’s conviction, he appealed, arguing recusal was required.
The Court of Appeals first explained defendant’s arguments, noting the primary point that Article 16 of G.S. Chapter 15A, and G.S. 15-291 itself, both reference “electronic surveillance,” seemingly showing that the recusal requirement from the statute controls all requests for surveillance involving electronic means. The court rejected this conclusion, explaining “[t]he plain language of section 15A-291(c) only disqualifies judges who enter orders as part of a judicial review panel that authorize ‘any manner related to information gained pursuant to a lawful electronic surveillance order.’” Id. at 7. The court also noted that defendant failed to preserve a challenge to the validity of the orders, meaning its conclusion was solely on the recusal issue.
Judge Hampson concurred by separate opinion, expressing concern about the scope of the order issued by the judge permitting the collection of cell site location information under Article 12 of G.S. Chapter 15A.
Judge Arrowood dissented, and would have held that defendant adequately preserved the challenge to the validity of the orders issued by the judge, and that G.S. 15A-291(c) was applicable to the orders and required the judge’s recusal.
The defendant failed to demonstrate grounds for recusal. The defendant argued that recusal was warranted based on the trial judge’s comments at various hearings and on the fact that “the trial court was often dismissive of defense counsel’s efforts and made a number of rulings unfavorable to the Defendant.” The court cautioned the trial court with respect to the following statement made at trial: “The other thing I want to do is put on the record that I leave to the appellate courts whether or not any recommendation as to discipline should be made to any of the responses or conduct of the attorneys based upon the record in this case as to whether any of the Rules of Practice or Rules of Conduct have been violated.” The court concluded that although it was unclear what issue the trial court meant to address with this statement, “it is the trial court’s responsibility initially to pass on these concerns if the court has them, especially in view of the fact that the trial court is in a better position than a Court of the Appellate Division both to observe and control the trial proceedings. . . . It is not for the trial court to abdicate its role in managing the conduct of trial to an appellate court whose task is to review the cold record” (citation omitted).
In this Onslow County case, the Supreme Court vacated a superior court order disqualifying the prosecutors from the Fifth Prosecutorial District and remanded for further proceedings. The Court determined that the district and superior court orders disqualifying the district attorney and his staff did not identify an actual conflict of interest or legitimate due process concerns.
In 2022, defendant was charged with cyberstalking and making harassing phone calls to the county manager of Onslow County. When the matter came to district court for trial, defendant moved to disqualify the district attorney and his staff, arguing they had a conflict of interest because the county manager had financial and functional links with the district attorney and his staff. The district court granted the motion, and the State appealed to superior court. The superior court left the order intact, leading the State to petition the Court of Appeals, where writ was denied, and ultimately to petition the Supreme Court, leading to the current opinion.
Allowing the State’s petition for writ of certiorari, the Supreme Court first explored the basis for disqualification, looking to State v. Camacho, 329 N.C. 589 (1991), for the appropriate balancing test. The Court noted that Camacho first required the finding of an “actual conflict of interest,” which only exists “when a member of a DA’s office once represented a defendant and obtained confidential information that “may be used to the defendant’s detriment at trial.”” Slip Op. at 11, quoting Camacho at 601. If a court finds an actual conflict, then Camacho calls for a balancing test of the competing interests of the prosecutor and defendant. However, here the Court could not find evidence of a conflict here, concluding “a county manager’s ‘inherent authority’ does not bar a DA from prosecuting a case in which that county manager is the alleged victim.” Id. at 15. As a result, the Court remanded to the superior court for further proceedings in keeping with the opinion.
(1) In a proceeding for removal of an elected district attorney (DA) from office, the trial court did not err by denying the DA’s motion to continue where the statute, G.S. 7A-66, mandated that the matter be heard within 30 days. (2) In the absence of a statutory or rule-based provision for discovery in proceedings under the statute, the DA did not have a right to discovery. (3) Where the trial court put the burden of proof in the removal proceeding on the party who had initiated the action by clear, cogent and convincing evidence, no error occurred. (4) The court held that the trial court’s rulings in the removal proceeding did not violate the DA’s right to due process, noting that the DA had no right to discovery and that the trial court properly allocated the burden of proof. (5) The standard in the relevant provision of the removal statute of conduct prejudicial to the administration of justice which brings the office into disrepute is not unconstitutionally vague. (6) No violation of the prosecutor’s First Amendment free speech rights occurred where the DA’s removal was based on statements she made about a judge. The statements were made with actual malice and thus were not protected speech by the First Amendment. (7) Qualified immunity does not insulate the DA from removal based on statements made with actual malice. (8) Where the matter was heard without a jury, it is presumed that the trial court considered only admissible evidence, and the trial court did not err in admitting lay testimony.
The trial court had inherent authority to order an attorney to pay $500 as a sanction for filing motions in violation of court rules, that were vexatious and without merit, and that were for the improper purpose of harassing the prosecutor. The attorney received proper notice that the sanctions might be imposed and of the alleged grounds for their imposition, as well as an opportunity to be heard.
Where search warrants were unsealed in accordance with procedures set forth in a Senior Resident Superior Court Judge’s administrative order and where the State failed to make a timely motion to extend the period for which the documents were sealed, the trial judge did not err by unsealing the documents. At least 13 search warrants were issued in an investigation. As each was issued, the State moved to have the warrant and return sealed. Various judges granted these motions, ordering the warrants and returns sealed “until further order of the Court.” However, an administrative order in place at the time provided that an order directing that a warrant or other document be sealed “shall expire in 30 days unless a different expiration date is specified in the order.” Subsequently, media organizations made a made a public records request for search warrants more than thirty days old and the State filed motions to extend the orders sealing the documents. A trial judge ordered that search warrants sealed for more than thirty days at the time of the request be unsealed. The State appealed. The court began by rejecting the State’s argument that the trial court erred by failing to give effect to the language in the original orders that the records remain sealed “until further order of the Court.” The court noted the validity of the administrative order and the fact that the trial judge acted in compliance with it. The court also rejected the State’s argument that the trial judge erred by having the previously sealed documents delivered without any motion, hearing, or notice to the State and without findings of fact. The court noted that the administrative order afforded an opportunity and corresponding procedure for the trial court to balance the right of access to records against the governmental interests sought to be protected by the prior orders. Specifically, the State could make a motion to extend the orders. Here, however, the State failed to make a timely motion to extend the orders. Therefore, the court concluded, the administrative order did not require the trial court to balance the right to access against the governmental interests in protecting against premature release. The court further found that the State had sufficient notice given that all relevant officials were aware of the administrative order.
Affirming the trial court’s order denying the plaintiffs’ motion to unseal three returned search warrants and related papers. Holding that although returned search warrants are public records, the trial court did not abuse its discretion by sealing the documents where the release of information would undermine the ongoing investigation, and that sealing for a limited time period was necessary to ensure the interests of maintaining the State’s right to prosecute a defendant, protecting a defendant’s right to a fair trial, and preserving the integrity of an investigation. The court also rejected the plaintiffs’ argument that the orders violated North Carolina common law on the public’s right of access to court records and proceedings, concluding that the public records law had supplanted any common law right and that even if the common law right existed no abuse of discretion occurred. The court rejected the plaintiffs’ First Amendment argument, concluding that because the documents were not historically open to the press and public, the plaintiffs did not have a qualified First Amendment right to access. The court rejected the plaintiff’s argument that the sealing orders violated the open courts provision of Article I, § 18 of the State Constitution. Although the court recognized a qualified right of access to the documents under the open courts provision, it found that right was outweighed by compelling governmental interests. Finally, the court concluded that the trial court’s findings were sufficiently specific, that any alternatives were not feasible, and that by limiting the sealing orders to 30 days the trial court used the least restrictive means of keeping the information confidential.
The Sixth Amendment right to a public trial extends to the voir dire of prospective jurors. Trial courts are required to consider alternatives to closure even when they are not offered by the parties.
In this Union County case, defendant appealed his convictions for attempted first degree murder, going armed to the terror of the people, possession of a handgun by a minor, and discharge of a firearm within city limits, arguing error by insufficient findings to justify closure of the courtroom and by denial of his motion to dismiss the discharge of a firearm charge. The Court of Appeals agreed, remanding the case and vacating the discharge of a firearm conviction.
In August of 2018, defendant was armed and riding in a car with other armed occupants near a neighborhood basketball court. Defendant was seated in the front passenger seat, and when the vehicle passed a group of pedestrians walking to the basketball court, defendant leaned out the window and began shooting. One bullet hit a pedestrian but did not kill him. During the trial, the prosecution moved to close the courtroom during the testimony of two witnesses, the victim and another witness who was present during the shooting, arguing this was necessary to prevent intimidation. The trial court granted this motion over defendant’s objection, but allowed direct relatives of defendant and the lead investigator to be present during the testimony.
The Court of Appeals found that the trial court failed to utilize the four-part test from Waller v. Georgia, 467 U.S. 39 (1984), and failed to make findings sufficient for review to support closing the courtroom. The Waller test required the trial court to determine whether “’the party seeking closure has advanced an overriding interest that is likely to be prejudiced, order closure no broader than necessary to protect that interest, consider reasonable alternatives to closing the procedure, and make findings adequate to support the closure.’” Slip Op. at 4, quoting State v. Jenkins, 115 N.C. App. 520, 525 (1994). In the current case, the trial court did not use this test and made no written findings of fact at all. As a result, the Court of Appeals remanded for a hearing on the propriety of the closure using the Waller test.
Turning to defendant’s motion to dismiss, the court found that the arrest warrant and indictment were both defective as they did not contain the caption of the relevant ordinance. Under G.S. 160A-79(a), “a city ordinance . . . must be pleaded by both section number and caption.” Id. at 8. Here, the charging documents only reference the Monroe city ordinance by number, and failed to include the caption “Firearms and other weapons.” The court found the state failed to prove the ordinance at trial, and vacated defendant’s conviction for the discharge of a firearm within city limits charge.
In a child sexual abuse case, the trial court did not violate the defendant’s right to a public trial by closing the courtroom for part of the victim’s testimony. The trial court made the requisite inquiries under Waller and made appropriate findings of fact supporting closure.
On appeal after a remand for the trial court to conduct a hearing and make appropriate findings of fact and conclusions of law regarding a closure of the courtroom during testimony by a child sexual abuse victim, the court held that the closure of the courtroom was proper and that the defendant’s constitutional right to a public trial was not violated.
In a sexual exploitation of a minor case, the trial court did not violate the defendant’s constitutional right to a public trial by closing the courtroom during the presentation of the sexual images at issue.
The trial court did not err on remand when it conducted a retrospective hearing to determine whether closure of the courtroom during the victim’s testimony was proper under Waller v. Georgia and decided that question in the affirmative. The court rejected the defendant’s argument that the trial court’s findings of fact had to be based solely on evidence presented prior to the State’s motion for closure; it also determined that the evidence supported the trial court’s factual findings.
The trial court did not violate the defendant’s constitutional right to a public trial under Waller v. Georgia by closing the courtroom during a sexual abuse victim’s testimony where the State advanced an overriding interest that was likely to be prejudiced; the closure of the courtroom was no broader than necessary to protect the overriding interest; the trial court considered reasonable alternatives to closing the courtroom; and the trial court made findings adequate to support the closure.
The trial court violated the defendant’s right to a public trial by temporarily closing the courtroom while the victim testified concerning an alleged rape perpetrated by defendant without engaging in the four-part test set forth in Waller v. Georgia, 467 U.S. 39 (1984). The court held that while the trial court need not make exhaustive findings of fact, it must make findings sufficient for the appellate court to review the propriety of the trial court’s decision to close the proceedings. The court cautioned trial courts to avoid making “broad and general” findings that impede appellate review. The court remanded for a hearing on the propriety of the closure:
The trial court must engage in the four-part Waller test and make the appropriate findings of fact regarding the necessity of closure during [the victim’s] testimony in an order. If the trial court determines that the trial should not have been closed during [the victim’s] testimony, then defendant is entitled to a new trial. If the trial court determines that the trial was properly closed during [the victim’s] testimony on remand, then defendant may seek review of the trial court’s order by means of an appeal . . . .
In a child sexual abuse case, the trial court did not err by excluding spectators from the courtroom during the victim’s testimony. The court excluded all spectators except the victim’s mother and stepfather, investigators for each side, and a high school class. Because the defendant did not argue that he was denied a public trial, the requirements of Waller v. Georgia, 467 U.S. 39 (1984), do not apply. The defendant waived any constitutional issues by failing to raise them at trial. The trial court’s action was permissible under G.S. 15-166 (in sexual assault cases the trial judge may, during the victim’s testimony, exclude from the courtroom everyone except the officers of the court, the defendant, and those engaged in the trial of the case). Furthermore, the court noted, G.S. 15A-1034(a) gives the trial court authority to restrict access to the courtroom to ensure orderliness in the proceedings. The State was concerned about the child victim being confronted with “a hostile environment with [defendant's] family sitting behind him;” the trial court was concerned about the potential for outbursts or inappropriate reactions by supporters of both the defendant and the victim. Although it was unusual to allow the high school class to stay, this decision was not unreasonable given that the issue was reactions by family members.