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).

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.

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 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.

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.

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.

A criminal contempt order was fatally deficient where it failed to indicate that the standard of proof was proof beyond a reasonable doubt.

(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 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.

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 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. 

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.

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 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 . . . .