State v. Smith, ___ N.C. App. ___, 813 S.E.2d 867 (Apr. 3, 2018)

The court vacated the trial court’s order recusing the District Attorney and all staff of that office from further prosecuting the defendant and five unnamed co-defendants. In 2013, the defendant was indicted for electronic sweepstakes offenses. Those charges resulted in a mistrial. In 2015, the defendant was indicted on multiple charges involving video gaming machines, gambling, and electronic sweepstakes. The State moved to revoke the defendant’s initial bond of $68,750 and set a new secured bond of $500,000. The defendant filed a response to this motion, along with a motion to dismiss all charges for prosecutorial vindictiveness. On the same day, businesses affiliated with the defendant filed a civil complaint against the District Attorney and others. Although a hearing on the State’s motion to increase the bond was set, it was continued by agreement of the parties. Before that hearing occurred, the trial court, sua sponte and without a hearing, entered an order removing the District Attorney and his entire staff from serving as prosecutors in the pending criminal cases. The State sought review. The court noted that under State v. Camacho, 329 N.C. 589 (1991),a prosecutor may not be disqualified unless the trial court determines that an actual conflict of interest exists. Such a conflict arises when a District Attorney or a member of staff has previously represented the defendant on the charges to be prosecuted and, as a result of that attorney-client relationship, the prosecution has obtained confidential information which may be used to the defendant’s detriment at trial. If such a conflict exits, the disqualification order ordinarily should be directed only to individual prosecutors who have been exposed to such information. This holding recognizes the constitutional nature of the office of the District Attorney. The court found the recusal order at issue deficient in several respects. First, Camacho “plainly directs” that a prosecutor may be disqualified only when the trial court finds a conflict of interest because of prior representation of the defendant. Here the trial court made no finding that such a conflict existed, nor was there evidence that would support such a finding. Rather, the trial court based its recusal order on the fact that the civil action created a conflict of interest. The court went on to hold that even assuming some other type of conflict could support a recusal order, the unilateral filing of a civil suit by a criminal defendant cannot, on its own, suffice. It continued: “A conflict of interests sufficient to disqualify a prosecutor cannot arise merely from the unilateral actions of a criminal defendant.” And it added that the trial court’s order included no findings as to how the civil suit created a conflict of interest. Moreover, the court continued, Camacho directs that any order tending to infringe on the constitutional powers and duties of the District Attorney must be narrowly drawn. Here, the trial court’s order disqualifies the District Attorney and the entire office, and applies not only to the defendant but also to five other unnamed co-defendants. The court concluded: “Because the trial court’s order lacks the proper findings sufficient to support the disqualification of the prosecutor or any of his staff, and because the trial court’s order is not narrowly tailored to address any possible conflict of interests, we hold that the trial court exceeded its lawful authority in ordering the recusal of the District Attorney . . . and his entire staff.”