NEW APPELLATE CASES

With the advent of the internet, opinions can be obtained very quickly after a decision in the appellate courts is rendered. What I hope to do with this page is to highlight a few of the recent decisions with a brief statement of the facts of the case, together with the court's holding. I will also provide a link to the complete text of the case. If the highlights pique your interest, you should be able to retrieve the entire case with single mouse click.

Remember these summaries are what I've gleaned from any given case. Please read the case in its entirety to arrive at your own conclusion.

Below are the cases that I have considered. If you think of a way that either content or format might be improved, let me know.

Note: The cases that are initially posted on the AOC web site are not "FINAL" versions. The early web site versions are those used for the synopses below. The mandate of the court issues twenty days after the written opinion has been filed and the holding then becomes final, unless the court directs otherwise. Revisions to the language of the opinions are possible until it is marked "FINAL" on the Internet; the final version in print form appears in the hardbound volume.

North Carolina Appellate Opinions

STATE V. ROSE  (May 17, 2005)  (Checkpoints – Search & Seizure)

Posted on the site (5/20/05)

FACTS: Defendant and two companions were stopped at a checkpoint set up by the Onslow County Sheriff’s Department. One of the officers noticed that the passenger in the back seat “seemed nervous.” The officer asked the passenger about the green backpack that he had. The defendant and passenger said that it contained dirty clothes. The officer asked permission to look in the backpack and was ultimately allowed to do so. The officer found marijuana and a revolver. The defendant acknowledged that the gun and marijuana were his. Defendant was charged with various drug offenses and possession of a fire arm by a felon. At trial, defendant moved to suppress the evidence, which motion was denied. Defendant was convicted and appealed that conviction.

QUESTION: Did the trial court err in denying the defendant’s motion to suppress?

HOLDING:  Initially, the State argued that defendant waived his right to argue this issue on appeal because, following the trial court’s denial of the motion to suppress, defendant did not renew his objection when the evidence was actually offered at trial. The COA pointed out that a recent amendment (effective October 1, 2003) to Rule 103 of the Rules of Evidence provides: “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” The trial court’s ruling took place 2 months after this amendment to Rule 103 took effect.

The N.C Supreme Court has acknowledged in prior rulings that police officers effectuate a seizure when they stop a vehicle at a checkpoint. As with all seizures, checkpoints conform with the Fourth Amendment only if they are reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. The Supreme Court has, however, allowed brief, suspicionless seizures at fixed checkpoints designed to intercept illegal aliens; at sobriety checkpoints; and at checkpoints to verify drivers’ licenses. The U.S. Supreme Court has declined to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes.

DETERMINATION OF PROGRAMMATIC PURPOSE

A trial judge must first examine the available evidence to determine the primary purpose of the checkpoint program. The trial court may not simply accept the State’s invocation of a proper purpose, but instead must “carry out a close review of the scheme at issue.” The court must consider all of the available evidence in order to determine the relevant primary purpose. In this case, the record does not reflect that the court conducted this review in reaching it decision. The “purpose inquiry” is to be conducted only at the programmatic level and is not an invitation to probe the minds of the individual offices acting at the scene. In this case, however, the trial court simply accepted, without comment, the field officers’ label of the checkpoint as a license and registration checkpoint. There is no finding as to the programmatic purpose. The State has the burden of establishing that the primary programmatic objective (not the subjective intent of the participating officers) for initiating a suspicionless vehicle stop procedure was not merely to further general crime control. Further, the trial court cannot avoid making a determination of the primary programmatic purpose simply by finding that a checkpoint had at least one lawful purpose. This case is not a case in which all of the evidence suggested that the checkpoint was for the constitutional purpose of examining licenses and registrations. There was no evidence of purpose offered other than that of the individual officers acting at the scene. The evidence that was presented would support a finding that the programmatic purpose, to the extent one existed at all, may well have been general crime detection. (4 of the 5 officers involved in the checkpoint were narcotics officers). The COA remanded for findings about the programmatic purpose of the checkpoint.

REASONABLENESS OF THE CHECKPOINT

Even if the trial court on remand finds that the primary programmatic purpose was checking licenses, its inquiry doesn’t end with that finding. The court must also judge the reasonableness of the checkpoint and hence its constitutionality, on the basis of individual circumstances. To determine whether a seizure at a checkpoint is reasonable requires a balancing of the public’s interest and an individual’s privacy interest. In judging reasonableness we look to: 1.) the gravity of the public concerns served by the seizure, 2.) the degree to which the seizure advances the public interest and 3.) the severity of the interference with individual liberty. Based on the COA’s review of the trial court’s order, it appears that the trial court concluded that the checkpoint was reasonable based solely on the purpose of the checkpoint and the fact that the officers stopped every car. In doing so, the court addressed the fist prong and the third prong of the 3-prong test. The court made no findings regarding the tailoring of the checkpoint to the purpose (prong 2) and failed to consider all of the circumstances relating to the discretion afforded the officers in conducting the checkpoint (prong 3). Accordingly, the case is remanded for further findings as to each of the 3 prongs of the reasonableness test and a weighing of those factors to determine whether the checkpoint was reasonable.

Reversed and Remanded (Opinion by Geer – Tyson concurs – Timmons-Goodson concurs in the result only in a separate opinion)

BENNETT V.  HAWKS  (May 17, 2005)  (Child Custody)

  Posted on the site (5/20/05)

FACTS: Plaintiff (wife) and defendant (husband) separated in 1996 and at that time placed their minor child in the care of the defendant’s parents (intervenors) while plaintiff and defendant dealt with the dissolution of their marriage. The plaintiff and defendant agreed that the grandparents would keep the child until plaintiff could “get on her feet.” In June of 2001, plaintiff filed this action seeking permanent custody of the child and child support from the defendant. The grandparents filed a motion to intervene in the custody action, seeking custody of the child. Plaintiff and defendant consented to the grandparents joining the action as intervenors. The trial court issued an order containing several finding of fact and the following conclusions of law:

“2. All parties are fit and proper persons to exercise legal custody of the minor child. The plaintiff and defendant have acted inconsistently with their constitutionally protected status as parents.

3. The best interests of the minor child will be served by residing primarily with the Intervenors.”

The court ordered joint legal custody of the child to all parties and granted primary physical custody to intervenors. Plaintiff appeals.

QUESTION: Did the trial court apply the clear and convincing standard of proof in deciding that plaintiff’s conduct was inconsistent with her constitutionally protected status as a natural parent?

HOLDING:  The COA found that a natural parent may lose his constitutionally protected right to the control of his children in one of two ways: 1.) by a finding of unfitness of the natural parent, or 2.) where the natural parent’s conduct is inconsistent with his or her constitutionally protected status. Where the trial court finds that a parent is fit to have custody, it does not preclude the trial court from granting joint or paramount custody to a nonparent where the trial court finds that the parent’s conduct was inconsistent with her constitutionally protected status. A trial court’s determination that a parent’s conduct is inconsistent with his or her constitutionally protected status must be supported by clear and convincing evidence. The order in this case does not indicate which standard of proof the trial court applied in consideration of the plaintiff’s constitutionally protected status a s a natural parent. This is critical because while the general standard of proof in child custody cases is by a preponderance of the evidence, the N.C. Supreme court has announced in prior decisions that where the natural parent’s constitutionally protected status is at issue, the standard of proof is clear and convincing. Absent an indication that the trial court applied the clear and convincing standard in this case, the order is reversed and remanded.

Affirmed  (Opinion by Timmons-Goodson – Hudson  & Steelman concur)

IN RE: M.A.B.  (May 3, 2005)  (Juvenile Punishment)

Posted on the site (5/4/05)

FACTS: Juvenile admitted the offense of assault inflicting serious injury, for striking another student in the back of the head. The trial court ordered M.A.B. to “1.) Pay restitution “in an amount to be determined.” 2.) “Cooperate and participate in a residential treatment program as directed by the court counselor or mental health agency.” The juvenile appealed, contending that the trial court impermissibly delegated its authority by allowing others to determine the amount of restitution and the specifics of the residential treatment program.

QUESTION: Did the trial court impermissibly delegate its authority with the 2 dispositional provisions noted above?

HOLDING:  Since this was a Level 1 disposition under 7B-2506, the trial court could consider various alternatives for punishment listed in subsections (1)-(13)  G.S. 7B-2506 provides, in part; (3) order the juvenile to cooperate with…. A residential or nonresidential treatment program. And (4) require restitution, full or partial, up to five hundred dollars. The court may determine the amount, terms and conditions of restitution.  The COA found that the trial court did not impermissibly delegate its authority. Instead the trial court ordered the juvenile to pay restitution, but left the amount to be determined until medical bills were provided to the court. Thus, the trial court did not delegate whether restitution would be paid, but only left the amount undetermined. This comports with the statute which provides that the “court may determine the amount of restitution.” As to the residential treatment program, the court ordered the juvenile to cooperate and participate in a residential treatment program as directed by court counselor or mental health agency.” The determination of the juvenile’s participation was made by the court, but the specifics of the day-to-day program were left to the counsel and Mental Health agency. The trial court, not another person or entity exercised its discretion. The trial court did not impermissibly delegate its authority.

Affirmed  (Opinion by Wynn - Tyson & Elmore concur)

IN THE MATTER OF: B.N.H.  (May 3, 2005)  (Appeal – Permanency Planning Hearing)

Posted on the site (5/4/05)

FACTS: In July of 2003, the minor child was adjudicated neglected and continued in the custody of the DSS with physical placement with the child’s grandmother. In October, 2003, a review was held and the DSS was directed to continue to try to reunify child with respondent-mother. In a January, 2004 order the court directed the DSS to cease efforts to reunify the child with his mother. Respondent did not appeal this order. In February, 2004, and initial permanency planning hearing was conducted and the trial court approved a permanent plan of adoption. The child again remained in the physical custody of the grandmother. From this order the respondent appealed.

QUESTION: Should the appeal from the permanency planning order be dismissed as interlocutory?

HOLDING:  The COA cites G.S. 7B-1001, which says that an appeal may be taken from “any final order of the court in a juvenile matter. “ The statute defines “final order” to include 1.) any order finding absence of jurisdiction; 2.) any order which in effect determines the action and prevents a judgment from which appeal might be taken; 3.) any order of disposition after an adjudication that a juvenile is abused; 4.) any order modifying custodial rights. DSS asserted that a permanency planning order that does not modify custodial rights is not appealable and that an initial permanency planning order is not an “order of disposition after an adjudication that a child is abused.” The COA found that the language of G.S. 7B-1001(3), referring to an “order of disposition after an adjudication that a juvenile is abused, neglected or dependent” means the dispositional order that is entered after an adjudication under G.S. 7B-905 and doe not mean every permanency planning review or other type of order entered at some unspecified point following such a disposition.

Appeal Dismissed (Opinion by Levinson - McCullough & Elmore concur)

STATE V. BOYD  (March 15, 2005)  (motion to suppress)

  Posted on the site (4/1/05)

FACTS: State appeals from the trial court’s decision to grant defendant’s motion to suppress the evidence. At a pretrial hearing, the State presented a witness which tended to show that the police responded to a 911 call and heard a fight in progress with a woman screaming, inside an apartment. The officer knocked on the door, but the door wasn’t opened. After about 15 minutes, Carrie McDonald came to the door and allowed the police to enter. When they did, they heard a sliding glass door open and believe someone exited the apartment. The police were unable to find a suspect. Ms. McDonald identified the person she was fighting with as “James Murphy”. The office, due to her evasive answers, didn’t believe Ms. McDonald. The office noticed a Ford Explorer parked near the rear of the apartment with the rear hatch ajar. Ms. McDonald said that the vehicle belonged to the suspect, however, prior to giving consent to search the vehicle, Ms. McDonald claimed that the suspect did not drive and that his aunt rented the vehicle for him. The officer searched the vehicle and found a jacket with a jail release in the defendant’s name. The officer also found cocaine, heroin and marijuana. The officer also found a document that indicated that Angela Brunson, the defendant’s former wife, rented the vehicle. The State argued that the defendant’s motion to suppress was untimely filed and that he lacked standing.

QUESTION: Did the trial court err in granting the defendant’s motion to suppress the evidence found in the Ford Explorer?

HOLDING:  The Fourth Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” To have standing to contest a search, a defendant must have a legitimate expectation of privacy in the thing to be searched. He must demonstrate that any rights alleged to have been violated were his rights and not someone else’s. The burden of showing this ownership or possessory interest is on the person who claims that his rights have been infringed. In this case the issue is whether the defendant has standing to challenge the search of the vehicle that he did not own and did not lease, where the defendant also fled from the police after leaving the vehicle open at the scene of an assault. The COA found that the defendant had no standing to contest the search of the vehicle. Temporary occupancy or temporary use of property does not automatically create an expectation of privacy in that property. Furthermore, “there is a diminished expectation of privacy in a motor vehicle.” In this case, the defendant did no own, rent or lease the vehicle. Even if he had permission to use the vehicle, he relinquished possession and control when, in an effort to avert the police, he fled from the scene of an assault, leaving the vehicle open and ajar. Under these circumstances, the defendant would not have the right to exclude others from the vehicle.

Reversed and Remanded (Opinion by McCullough – Martin and Steelman concur)

STATE V. SUTTON  (March 15, 2005)  (confrontation clause)

Posted on the site (4/1/05)

FACTS: The defendant was found guilty by a jury of first-degree murder, attempted robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury. One of the victims of the crimes did not testify. She had mental disabilities and refused to come to North Carolina and testify. The State moved to admit her statement, given to officers at the crime scene, into evidence as an exited utterance [Rule 803(2)]. Defendant did not object to the admission of the statement and the court admitted the statement into evidence.

QUESTION: Was the defendant’s Sixth Amendment right to confront witnesses against him violated when the victim’s statement was allowed into evidence when she didn’t testify at trial?

HOLDING:  The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. The Confrontation Clause is primarily concerned with “testimonial statements”. Statements are testimonial if they were made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use at a later trial. “Statements taken by police officers in the course of interrogations are…testimonial under even a narrow standard.” Testimonial statements of witnesses absent from trial may only be admitted if the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the witness. In this case it was clear that the defendant did not have a prior opportunity to cross-examine the witness. The issue then is whether the statement of the witness is “testimonial”.  When a police officer questions the victim of a crime, that officer clearly has “an eye toward trial” and to allow such testimony to be admitted at trial without affording the defendant the opportunity to cross-examine the witness does present an opportunity for abuse. The Court of Appeals has previously held that police questioning of a witness was testimonial and thus implicated the Crawford v. Washington decision. In this case the witness was approached by the officers and her statement was neither spontaneous nor unsolicited. An objective witness would reasonably believe on these facts that the statement would be available for use at trial. In this case the statement of the witness was found to be “testimonial” and that the admission of the statement under the excited utterance exception to the hearsay rule violated the Confrontation Clause of the Sixth Amendment.

However, in this case the defendant failed to object to the introduction of the statement and the Court of Appeals is limited in its review to whether the improper admission amounted to plain error. In deciding whether an error by the trial court constituted plain error, “the appellate court must examine the entire record and determine if the error had a probable impact on t he jury’s finding of guilt”. In light of all the other evidence against the defendant in this case the COA found that the defendant had failed to meet his burden of proving plain error.

No Prejudicial Error (Opinion by Steelman – Calabria and Geer concur)

COLUMBUS COUNTY V. DAVIS  (February 17, 2004)  (chain of evidence)

Posted on the site (2/19/04)

FACTS: Plaintiff DSS filed a complaint against the defendant seeking adjudication of paternity, continuing support and maintenance for the child and reimbursement of public assistance payments expended. Over the defendant’s objection at trial, the DNA expert testified that the defendant could not be excluded from paternity and that there was a 99.62% probability that the defendant was the child’s father. By his objection, defendant took issue with whether there had been a proper showing of the chain of custody for the blood specimens. In offering his opinion, the expert relied on the following:

• #1 Client Authorization form for blood sample collection and testing for paternity evaluation for child and defendant.

• #2 Client Authorization form for blood sample collection and testing for paternity evaluation for mother.

• #3 Affidavits of receipt of Genetic Specimens Chain of Custody for child and defendant.

• #4 Affidavits of receipt of Genetic Specimens chain of custody for mother.

• #5 Chain of custody verification for collected and packed specimens for child and defendant.

• #6 DNA test results.

Jury adjudged defendant to be the father and defendant appealed.

QUESTION: Did the trial court err in admitting into evidence the DNA paternity test results?

HOLDING:  The dispositive issue on appeal is whether a proper chain of custody was established to admit the DNA test results. Both parties agree that the DNA test was not court-ordered. Defendant argued that it was error to admit these exhibits without requiring testimony from the people involved in the collection of the samples and who performed the tests. COA agreed with defendant. In an instance in which the court orders DNA testing, G.S. 8-50.1(b1) provides a less formal procedure for admitting DNA test result into evidence. “Verified documentary evidence of the chain of custody of the blood specimens obtained pursuant to this subsection shall be competent evidence to establish the chain of custody. Any party objecting to or contesting the procedures or results of the blood or genetic marker tests shall file with the court written objections setting forth the basis for the objections and shall serve copies thereof upon all other parties not less than 10 days prior to any hearing at which the results may be introduced into evidence….if no …objections are filed within the time and manner prescribed, the test results are admissible as evidence of paternity without the need for foundation testimony or other proof of authenticity or accuracy.” If the blood test is not ordered by the court upon motion by a party, the standard in G.S. 8-50.1(b1) will not apply and the party seeking to admit the test must present independent evidence of the chain of custody. In order to establish the relevancy of blood test results, plaintiff is required to lay a foundation …by way of expert testimony, explaining the way the test is conducted, attesting its scientific reliability and vouching for its correct administration. The substance analyzed must be accurately identified by proving a chain of custody to insure that the substance came from the source claimed and its condition was unchanged. The chain of custody can be established by sworn affidavits or witness testimony from the people involved in the various stages of specimen collection and handling [see Lombroia v. Peek, 107 N.C. App. 745 (1992)].  In this case, the expert witness had no personal knowledge of the DNA sample collections or the samples’ chain of custody. Thus to establish a foundation for the DNA test results’ admissibility, plaintiff was required to present affidavits or witness testimony for each link in the chain of custody for each DNA sample. Because the chain of custody for the DNA samples was not complete, COA concluded that a proper foundation was not established for the admission of the DNA test results. Thus the trial court improperly admitted the test results.

Reversed (Opinion by Timmons-Goodson – Wynn and Elmore concur)

STATE V. BRANCH  (February 17, 2004)  (search and seizure)

  Posted on the site (2/19/04)

FACTS: Defendant was stopped at a “license and registration “ checkpoint by a deputy sheriff. Defendant produced a duplicate driver’s license and a registration. The officer was suspicious of the duplicate license and suspected that defendant had outstanding warrants based on his prior knowledge of the defendant. The officer pulled defendant out of the license check and called in a license and warrant check. The deputy called over another deputy to make inquiry of the defendant while the checks were being performed. The other deputy, a K-9 officer, walked his dog around the perimeter of the defendant’s car. The dog alerted to the presence of narcotics. Marijuana stems and butts were found in the ashtray. Marijuana was found in a purse located in the front seat of the vehicle. A female officer was brought in to search the defendant and a packet of cocaine was found on her person. At no time did the defendant consent to any of the searches. A motion to suppress was denied by the trial court.

QUESTION: Did the trial court err in denying the defendant’s motion to suppress?

HOLDING:  Defendant argued that her seizure at an unconstitutional checkpoint and illegal detention following her presentation of a valid driver’s license deprived her of her freedom from unreasonable searches and seizure under both the North Carolina and U.S. Constitutions. The COA has upheld the constitutionality of a checkpoint, which stops for a specified purpose every vehicle that passes, so long as the checks are not random, and subject to the officer’s unbridled discretion.  The checkpoint in question was a checkpoint designated to check licenses and registrations, and if further evidence was detected of impaired driving or illegal activity, further investigation was conducted according to the instructions given the officers. The checkpoint was within constitutional mandates. It is proper for an officer’s prior knowledge of a defendant, combined with present observations and not taken alone, to constitute a reasonable suspicion justifying further investigations. In this case the prior knowledge and the present observations of the officers were not sufficient to justify a dog sniff and search of the defendant’s car, but were enough to justify the license check. Both deputies suspected that the defendant was carrying a duplicate license because in their memory she had been charged with an offense, which would result in the revocation of her license. They had observed in their experience that sometimes when an individual’s license had been revoked, the individual may drive with an invalid duplicate which was made prior to the revocation. Prior knowledge of the defendant alone would not constitute such a reasonable suspicion. Neither would presentation of a duplicate license, standing alone. Both together, however, may form reasonable suspicion to justify investigation of the validity of the license. Such was the case here, and the suspicion related to her driving privileges alone. At that point there we no further observations indicating other illegal conduct. Once the officers had stopped defendant and she had given them her valid license and registration, some further particularized suspicion was necessary to justify a longer detention. In addition, a reasonable and articulable suspicion is required before a dog sniff, even though it is not a search, is valid. Since the canine sniff would not be appropriate beyond the detention because the defendant presented what proved to be a valid license and registration, the canine sniff during the time the license and registration check were conducted is also inappropriate. The time need to verify defendant’s credential is not a time during which officers may investigate any possible criminal activity while the defendant is immobilized. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. The initial stop was justified. There was error in the trial court’s finding that no reasonable suspicion was necessary to conduct the dog sniff and subsequent searches.

Reversed - (Opinion by Elmore – Bryant and Calabria concur)

STATE V. JACOBS  (January 20, 2004)  (reasonable suspicion to stop)

  Posted on the site (1/22/04)

FACTS: At 1:43 a.m. on November 8, 2001, a Burlington Police officer observed a car with a Tennessee license plate continuously weaving back and forth in its lane over a distance of ¾ mile. There were several bars in the area where the officer spotted the car. The officers check of the car’s tags revealed a Johnson City Tennessee owner. That fact caused the officer concern for two reasons. First, the FBI and the Johnson City Police Department had notified the Burlington Police that a suspect in a Johnson City murder was in Burlington. Second, the officer had been advised by vice officers that a substantial amount of drug trafficking occurred between Burlington and Johnson City. The officer stopped the defendant’s car and called for back-up. He ordered the defendant out of the car and conducted a pat down search. The stop ultimately lead to defendant’s arrest for trafficking. Defendant moved to suppress the evidence resulting from the stop. The trial court denied the motion to suppress. Defendant appealed.

QUESTION: Did the trial court err in denying the defendant’s motion to suppress due to lack of reasonable suspicion to stop the defendant’s vehicle?

HOLDING:  Before an officer may stop a vehicle and detain its occupants without a warrant, the officer much have a reasonable suspicion that criminal activity may be occurring. “Reasonable suspicion” requires that the stop…be based on specific and articulable facts as well as the rational inferences from those facts as viewed through the eyes of a reasonably cautious officer, guided by his experience and training.” All that is required is a “minimum” level of objective justification, something more than an “unparticularized suspicion or hunch.” A court must consider the totality of the circumstances in determining whether a reasonable suspicion to make an investigatory stop existed. The trial court found that the stop occurred at 1:43 a.m. and that he defendant’s vehicle was “slowly weaving within its lane of travel, touching the designated lane markers on each side” prior to the stop. Based on these findings, the court concluded that the officer “had a reasonable, articulable suspicion to believe the operator of the vehicle was committing an implied consent offense.” The COA has previously concluded that facts comparable to these are sufficient to establish reasonable suspicion [State v. Watson, 122 N.C. App. 596 (1996)] The officer’s observation of the defendant’s weaving within his lane for ¾ of a mile at 1:43 a.m. in an area near bars was sufficient to establish a reasonable suspicion of impaired driving. Although defendant’s weaving within his lane is not a crime, that conduct combined with the unusual hour and the location was sufficient to raise a reasonable suspicion of impaired driving.

Affirmed – (Opinion by Geer – Eagles and Hunter concur)

The COA also discussed the legality of the length of the investigatory stop in this case. I have chosen not to include that discussion in the synopsis, above. - SJB

STATE V. CATHEY  (January 20, 2004)  (amendment of indictment) 

Posted on the site (1/22/04)

FACTS: Local police responded to an alarm at the Faith Temple Church of God-High Point, Inc. When they arrived, the officers observed a suspect about 10 feet away from the church, carrying a large black bag. The officers were unable to see the suspect’s face. After the officers shined a flashlight on the suspect, he stopped, went into a line of bushes that ran parallel to the church and ran away. One officer gave chase and, after a short pursuit, the defendant was arrested and charged with breaking or entering and larceny. The officers recovered the black back from the thicket. Defendant was convicted and gave notice of appeal.

QUESTION: Did the trial court err in allowing the State to amend a fatally defective larceny indictment?

HOLDING:  It is well established that “a valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.” The purpose of an indictment is to give a defendant notice of the crime for which he is being charged. The statutes state that “a bill of indictment may not be amended”, which the Supreme Court has held to mean that “an indictment may not be amended in a way which would substantially alter the charge set forth in the indictment.” In this case the original indictment stated that the defendant took several items being the “personal property of Faith Temple Church of God…” Defendant contended this indictment was fatally defective because it did not allege ownership of the property in a legal entity capable of owning property. Although commonly know as Faith Temple Church of God, the church is incorporated as “Faith Temple Church – High point, Incorporated.” An indictment for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning property is fatally defective. If a bill of indictment does not allege that an incorporated legal entity is a corporation or the name of the legal entity does not import that it is a corporation, the indictment is fatally defective. Therefore, the indictment in this case is fatally defective. As the owner of the property in question is an essential element of larceny, the larceny indictment in this case did not comply with the provisions of G.S. 15A-924(a)(5) In this case, the trial court allowed the State to amend the larceny indictment to read the correct name of the church. Following established case law, the COA held this amendment to be a substantial alteration of the indictment and therefore prohibited by G.S. 15A-923(e). The trial court should have dismissed the indictment

Vacate conviction on larceny charge (remanded for resentencing due to mistake in class of crime sentenced) (Opinion by Wynn – McCullough and Timmons-Goodson concur)

The defendant raised other issues on appeal regarding his breaking or entering charge. These are not discussed in the synopsis above and the  conviction for breaking and entering was upheld by the Court of Appeals. - SJB

STATE V. YATES  (January 6, 2004)  (warrantless search based on smell)

Posted on the site (1/15/04)

FACTS: Defendant, smelling of marijuana, walked by two off-duty officers in a restaurant. One officer asked the defendant if he could speak with him for a minute. The other officer engaged the defendant’s two female companions in conversation. The officer told the defendant that he smelled marijuana on the defendant and he needed to know if the defendant had anything in his pockets. The defendant said he did not, but the started emptying the contents of his pockets. Defendant raised his hands whereupon the officer searched defendant’s waistband and proceeded to defendant's inside coat pocket. Defendant grabbed the officer’s hand from the outside of his coat, trapping the officer’s hand in the pocket. The officer struggled with the defendant to free his hand. During this struggle, small white pills fell out of the defendant’s pocket and onto the ground . When the defendant was restrained, the officers found four bindles of heroin and a white powder substance in defendant’s hand. Defendant was arrested and ultimately convicted of controlled substance charges after the court denied the motion in limine filed by the defendant to suppress the evidence discovered.

QUESTION: Did the trial court err in denying the defendant’s motion in limine?

HOLDING:  Defendant contends the evidence obtained from the officer’s search of his pocket should have been suppressed because no probable cause and exigent circumstances justified the warrantless search. The governing premise of the Fourth Amendment is that a governmental search and seizure of private property, unaccompanied by prior judicial approval in the form of a warrant, is per se unreasonable unless the search falls within a well-delineated exception to the warrant requirement. One such exception exists when there are exigent circumstances, the existence of which are factual determinations that must be made on a case by case basis. Probable cause has been defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.” The N. C. Supreme Court has held the odor of marijuana to be sufficient to establish probable cause to search for the contraband drug in an automobile. No NC court has addressed the issue of a warrantless search of a person based solely on smell. The COA found that based on the facts of this case, probable cause existed. The remaining question is that of exigent circumstances. In this case, because the other officer was engaged in a consent search of the vehicle while the defendant was being searched and because the narcotics could be easily and quickly hidden or destroyed, especially after defendant received notice of the officers’ intent to discover whether defendant was in possession of marijuana, the COA concluded that there were sufficient exigent circumstances justifying an immediate warrantless search.

No error (remanded for re-sentencing due to mistake in class of crime sentenced) (Opinion by Bryant – McCullough and Tyson concur)

TRIVETTE V. TRIVETTE  (January 6, 2004)  (Contempt)

Posted on the site (1/15/04)

FACTS: Plaintiff and defendant separated in June of 2000. In January of 2001, a mediated consent judgment was entered by the court, addressing issues of custody, child support and equitable distribution. Defendant was ordered to pay $500.00 per month in child support for the parties 3 minor children. In May of 2001, plaintiff filed a motion seeking a finding that the defendant was in willful contempt for his failure to perform his obligations pursuant to the mediated consent judgment.  At the time of the hearing, the defendant failed to appear and the court proceeded to find him in contempt of court for failure to pay his child support payments. Defendant filed Rule 59 & 60 motions that were denied.

QUESTION: In the contempt hearing, did the trial court erroneously place the burden of proof on the defendant?

HOLDING:  Effective December 1, 1999, the legislature amended G.S. 5A-23 by adding a subsection that provided that proceedings for civil contempt may be initiated by motion of an aggrieved party, giving notice to the alleged contemnor to appear before a court for a hearing on whether the alleged contemnor should be held in civil contempt. The section of the statute states that “The burden of proof in a hearing pursuant to this subsection shall be on the aggrieved party.” In addition to permitting a contempt proceeding to be initiated by order or notice of a judicial official issued upon a finding of probable cause, the statute as amended also allows a contempt proceeding to be initiated upon motion and notice by an alleged aggrieved party without a judicial finding of probable cause. The contempt action in this case was initiated by motion and notice and not an order to show cause. Thus, there is no basis to shift the burden of proof to the alleged contemnor in this case [see Plott v. Plott, 74 N.C. App. 82 (1985)] In this case, the trial judge, in his order, found that because the defendant did not show cause as to why his failure to pay his child support obligations was not willful, the defendant was per se willfully in contempt of the mediated consent order. Because the trial court erroneously placed the burden on the defendant to prove a lack of willful contempt, the trial court’s finding of fact does not support its conclusion of law.

Contempt Vacated (Opinion by Martin –Eagles and Levinson concur)

This case involved other issues including adequacy of  notice, substantial change of circumstances and the appropriateness of the trial court's denial of the defendant's motions pursuant to Rule 59 & 60. I have chosen not to discuss these issues in the synopsis, above.

STATE V. JONES  (December 16, 2003)  (Search and Seizure)

Posted on the site (12/17/03)

FACTS: On night of February 4, 2000, members of the Durham County Sheriff’s Department took part in a street interdiction operation in Durham. The officers were driving in the area of Hyde Park Avenue when they saw a number of people gathered around a car stopped the middle of the street. The people dispersed when the officers approached. The defendant, who had been among the group gathered around the car, began walking toward a red Mustang parked on the side of the street. Defendant went around the rear of the car, opened the passenger door, got into the Mustang’s back seat and shut the door. While the officers watched, the defendant took off the leather jacket he was wearing and set in on the back seat. Defendant then got out of the car wearing only a tee shirt, despite the freezing winter weather. The drug-sniffing dog was summoned and the dog “very strongly “ alerted on the passenger side of the car where the defendant had gotten out of the car. At about the same time another man emerged from a nearby house and told the officers that the mustang belonged to his wife and that he was in charge of the car. The officers asked him for permission to search the car and he gave his consent to the search. An officer unlocked the car and retrieved the defendant’s jacket from the back seat. The officer found among other things, 43 grams of crack cocaine.  Defendant was arrested and made a statement after being advised of his Miranda rights. He denied ownership of the cocaine. Defendant was tried, convicted and gave notice of appeal.

QUESTION:  Did the trial court err in denying defendant’s motion to suppress the evidence?

HOLDING: In this case, the defendant concedes that the law enforcement officers had consent from the owner of the car to search the vehicle where he had left his coat. He contends, however, that the owner giving general consent to search the vehicle did not entitle the officers to search the coat on the back seat. Defendant contends that he retained a reasonable expectation of privacy with respect to his coat even after leaving it in the car. Defendant argues that without his consent, the search of his jacket violated his rights under the Fourth Amendment.. The U. S. Supreme Court has held that general consent to the search of an automobile, given without any limitations place on its scope, encompasses the search of “closed containers found within the car that might reasonably hold the object of the search”. The fourth Amendment is satisfied when, under the circumstances, it is objectively reasonable for the officer to believe that the scope of the suspect’s consent permitted him to open a particular container within the automobile.  The court rejected the argument that, after receiving general consent to search a vehicle, the police nonetheless must obtain specific permission to search each container inside the car. In this case the COA concluded that the owner’s husband’s general consent to search the car reasonably included the search of clothing lying on the seats of the car. The COA also rejected defendant’s argument that the owner could not consent to a search of defendant’s coat after defendant left it lying on the back seat of the car. When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it may sow that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.  Citing U.S. v. Matlock, the court said, “The underpinning of third-party consent is assumption of risk. One who shares a house or room or auto with another understands that the partner, may invite strangers and that his privacy is not absolute, but contingent in large measure on the decisions of another. Decisions of either person define the extent of the privacy involved, a principle that does not depend on whether the stranger welcomed into the area turns out to be an agent or other drug dealer. The police did not violate the defendant’s constitutional rights by searching his jacket after obtaining the owner’s consent to a search of the vehicle.

Affirmed (Opinion by Levinson – Martin and Steelman concur)

TICCONI V. TICCONI  (December 16, 2003)  (Child Support)

Posted on the site (12/17/03)

FACTS: Plaintiff and defendant are the parents of two children and separated in February, 2001. They entered into a separation agreement which provided that the parties would deviate from the child support guidelines and defendant husband would pay $105.00 per week until the older child attained the age of majority or graduated from high school, whichever occurred later. At that time, the child support obligation would be recalculated. Defendant also agreed to sign a voluntary support agreement and voluntary wage assignment to enable the deduction of the agreed upon amount of child support. Each party was to claim one child as a dependant for Federal and State income tax purposes. In March 2002, plaintiff filed a complaint seeking modification of the visitation and child support provisions previously agreed upon by the parties. Defendant answered and counterclaimed.  In May, 2002 the parties entered into a consent order regarding custody and visitation. At a June, 2002 hearing the trial court determined child support in accordance with the Child Support Guidelines and utilized Worksheet B for calculation of a new child support amount. However, the trial court found that it did not have the authority to modify the income tax deduction provision of the separation agreement. Plaintiff appeals.

QUESTION: Did the trial court err in determining that it lacked authority to modify the income tax deduction provision of the separation agreement?

HOLDING: Plaintiff asserted that the trial court had the authority to modify the provisions of the separation agreement regarding child support because the parties consented by both requesting the court apply the Guidelines. A separation agreement, which is not incorporated into a court judgment, is a contract and cannot be modified absent the consent of the parties. In this case, both parties expressly requested that if visitation was modified that the court modify the child support. After the parties consented to visitation, they submitted the issue of child support to the trial court to be determined in accordance with the Guidelines. Accordingly, each party consented to the court modifying the support obligations by applying the Guidelines. The remaining question is whether the parties’ consent to the court’s application of the Guidelines included modification of the tax dependency deduction. In determining child support, the Guidelines “apply as a rebuttable presumption to all child support orders in North Carolina” and the court may only deviate from the Guidelines “where application would be inequitable to one of the parties or to the child and where the court makes written findings of fact justifying deviation.” With regard to the tax deduction, the Guidelines provide: “It is presumed the custodial parent claims the tax exemptions for the children due support. However if the custodial parent has no income tax liability, the court may consider assigning the exemption for the children to the non-custodial parent and deviate from the Guidelines by increasing the obligor’s child support obligation.” Accordingly, application of the applicable Guidelines included a determination of the tax dependency deduction, despite the fact that the tax dependency deduction is not utilized in the worksheet calculations for child support. The COA said that application of the guidelines is not limited solely to the numbers applied to the worksheet. Where a party requests a recalculation of child support, that request directs the court to apply the entirely of the Child Support Guidelines, including not only the worksheets, but also the commentary.

REVERSED AND REMANDED (Opinion by Calabria – McCullough and Bryant concur)

BRYANT V. WILLIAMS  (December 2, 2003)  (Domestic violence)

Posted on the site (12/8/03)

FACTS: In April of 2002, the parties filed complaints against each other seeking domestic violence protective orders. Ms. Williams ex parte order was granted, Mr. Bryant’s was denied. On the hearing date on Ms. Williams’s ex parte order, a consent order was entered and filed. Thereafter, Ms. Williams filed a rule 60(b) motion seeking relief from the consent order, which was denied. Defendant appealed.

QUESTION: Did the trial court err in entering the consent domestic violence order and in denying defendant’s Rule 60(b) motion?

HOLDING: Ms. Williams asserted on appeal that the trial court lacked subject matter jurisdiction to enter the consent order because the order purported to transfer real property, an action outside the scope of G.S. 50B. The COA did not reach that issue because, as part of the consent, the G.S. 50B complaints were dismissed and therefore the trial court could not enter an order under G.S. 50B. Where the complaint is voluntarily dismissed, plaintiff is returned, “to the legal position enjoyed prior to the filing of the complaint.” Accordingly, no allegation of domestic violence remained. Although the courts are empowered to enter protective orders or approve consent agreements under Chapter 50B, these orders are authorized only “to bring about a cessation of acts of domestic violence.” The court’s authority to enter a protective order or approve a consent agreement is dependent upon finding that an act of domestic violence occurred and that the order furthers the purpose of ceasing acts of domestic violence. (emphasis added) Here the issue is whether, by dismissing the domestic violence complaints, the court loses the authority to enter any domestic violence protective order. The COA ruled that it does lose that authority.

VACATED  (Opinion by Calabria – Hudson concurs, Wynn concurs in the result in a separate opinion)

* Note the language that I underlined above. While arguably dictum in this case, the underlined sentence would seem to indicate that the common practice in this district of entering domestic violence consent orders without specific findings of domestic violence might be contrary to statutory and/or case law. For a differing opinion on whether a finding of domestic violence is a prerequisite to a consent domestic violence order, please read Judge Wynn's concurring opinion. - SJB

FITZGERALD V. FITZGERALD  (December 2, 2003)  (Equitable Distribution)

Posted on the site (12/8/03)

FACTS: Plaintiff and defendant married in 1974 and divorced in 1999. Action included causes for alimony and equitable distribution. The parties stipulated that the plaintiff-husband was a supporting spouse and the defendant-wife was a dependant spouse for the purposes of alimony. The evidence showed that plaintiff had been employed as a general surgeon since 1974 and as of the date of separation had a 50% partnership interest in his surgical practice. Both parties presented expert testimony on the valuation of the plaintiff’s ownership interest in the surgical practice. Plaintiff’s expert valued plaintiff’s interest at $89,500.00 and the defendant’s expert valued the plaintiff’s ownership interest at $170,000.00. The trial court, without making any findings of fact as to how it arrived at its valuation of the surgical practice found plaintiff’s interest to be valued at $125,000.00 on the date of separation.

Plaintiff also offered two appraisals of the marital home. Both valued the home at $395,000.00. Neither party presented evidence as to the fair market value of the house on the date of separation. Again, without making any findings of how it arrived at its figure, the court found that the marital home had a date of separation value of $375,000.00. Additionally, the court made no finding as to the valuation of the marital home on the date of distribution and did not consider any post-separation appreciation in the value of the home as a distributional factor.

Defendant admitted on cross-examination that she had a vested interest in a profit-sharing plan through her employer. Plaintiff introduced information showing the balance of that plan since 1997. Defendant had not listed the profit-sharing plan on her equitable distribution affidavit filed with the court. The trial court made no finding regarding the defendant’s interest in the profit-sharing plan and it was not included in the equitable distribution judgment.

The court found that the defendant needed at least $6,000.00 per month in alimony and the plaintiff was capable of paying that amount. The trial court ordered plaintiff to pay permanent alimony of $6,000.00 per month until defendant’s death, remarriage or cohabitation.

QUESTION: 1. Did the trial court err by failing to consider evidence of defendant’s profit-sharing plan? 2. Did the trial court err by failing to make specific findings regarding its valuation of the marital home on the date of separation and any increase in value as of the date of distribution? 3. Did the trial court err in failing to make specific findings regarding its valuation of plaintiff’s ownership interest in his surgical practice? 4. Was the award of alimony supported by the findings of fact?

HOLDING: 1.) In making an equitable distribution of marital assets, the trial court is required to undertake a 3-step process. 1. To determine which property is marital 2. to calculate the net value of the property and 3. to distribute the property in an equitable manner. In this case, defendant admitted to having a profit-sharing plan and plaintiff introduced evidence to show the balance of that plan. This is property that the court is required to classify value and divide. 2.) In an equitable distribution case, the trial court is to determine the net fair market value of the property based on the evidence offered by the parties. Furthermore, where there is evidence of active or passive appreciation of the marital assets after the date of separation the court must consider the appreciation of the asset as a distributional factor. Nothing in the findings of this case support the trial courts valuation of the house at $375,000.00. Thus, as there is no evidence upon which to base a finding of the fair market value of the house on the date of separation, the case must be remanded for the taking of further evidence and findings on this issue. Even if the trial court properly valued the house on the date of separation, it erred in failing to consider any post-separation increase in value of the property, evidenced by the appraisals, as a distributional factor. 3.) In valuing a marital interest in a business, the task of the trial court is to arrive at a date of separation value which “reasonably approximates” the net value the business interest. A trial court should make specific findings regarding the value of a spouse’s professional practice and the existence and value of its goodwill, and should clearly indicate the evidence on which its valuation is based. Preferably noting the evaluation method or methods on which it relied. In this case, the court apparently rejected both experts’ valuations and without making any findings as to the methodology it applied or the facts, upon which its valuation was based, found plaintiff’s interest in the surgical practice to be $125,000.00. It was error not to identify the evidence on which the court based it valuation or the method it used to reach its figure. 4.) A trial court’s decision on the amount of alimony to be awarded is reviewed for an abuse of discretion. Findings of fact required to support the amount, duration and manner of payment of an alimony award are sufficient if findings of fact have been made on the ultimate facts at issue in the case and the finds of fact show that the trial court properly applied the law in the case. The trial court is also required to set forth the reasons for the amount of alimony award, its duration and manner of payment. In this case the COA concluded that there were sufficient ultimate findings of fact to support its award of alimony. However, the trial court did not make required findings as to the reasons for making the duration of the alimony continuous until defendant dies remarries or cohabits and why it is to be paid directly to the clerk of Superior Court.

REVERSED AND REMANDED (Opinion by Hunter – Timmons-Goodson & Elmore concur)

EMBLER V. EMBLER  (July 15, 2003)  (Equitable Distribution)

Posted on the site (7/22/03)

FACTS: The parties were married in 1976 and had one child. They separated in 1993 and divorced in 1996. Plaintiff is a teacher and earns approximately $35,000.00 per year. The defendant is in management with BellSouth and earns approximately $69,000.00 annually. The trial court awarded 60% of the marital estate to the plaintiff and required the defendant to pay a distributive award of $24,876.00 to the plaintiff in 60 days. Defendant claims that he has no liquid assets from which to pay this award and would incur penalties if he withdrew the necessary sums from his retirement account. Defendant further contends that the court erred in concluding that an unequal division of the property was equitable.

QUESTION: 1.) Did the trial court err awarding the plaintiff a distributive award without first determining if the defendant had liquid assets available that would allow him to pay the award? 2.) Did the court err in concluding that an unequal division of the marital property was equitable?

HOLDING: 1.) A ruling committed to a trial court’s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. The trial court must however, make specific finding of fact regarding each factor specified in G.S. 50-20(c) on which the parties offered evidence. The COA previously remanded a similar case [Shaw v. Shaw, 117 N.C. App. 552 (1995)] to the trial court for a determination whether the defendant had assets other than a thrift plan (tax ramification if w/drawn) from which he could make the distributive award payment. If not, the trial court was required to either provide for some other means by which the defendant could pay the distributive award or determine the consequences of withdrawing the money from the thrift plan and adjust the award from the defendant to the plaintiff to offset the consequences. In this case, although the defendant may, in fact, be able to pay the distributive award, the defendant’s evidence is sufficient to raise the question of where the defendant will obtain the funds for fulfill this obligation. The trial court ordered the defendant to pay the distributive award without pointing to the source of funds from which he could do so even though defendant had no obvious liquid assets. If defendant is ordered to pay the distributive award form a non-liquid asset or by obtaining a loan, the equitable distribution award must be recalculated to take into account any adverse financial ramifications of such an adverse tax consequences.  If the defendant has insufficient liquid assets, then the trial court must determine the means by which defendant is to pay the amount and adjust the award from defendant to plaintiff to offset any adverse financial consequence to using the non-liquid assets. 2.) In order for the Court to conduct proper appellate review of an equitable distribution order, the trial court’s findings must be specific enough that the appellate court can determine from reviewing the record whether the judgment represents a correct application of the law. The trial court must make “specific findings as to the ultimate facts (rather than the evidentiary facts) found by the trial court to support its conclusion regarding equitable distribution.” The COA has previously held that a blanket statement that the trial court considered the distributional factors listed in the statutes is insufficient as a matter of law. In this case, beyond the trial court’s general statement that it “considered the other statutory distributional factors” the court made no specific reference to the factors under G.S. 50-20(c). It is therefore impossible to determine whether the trial court found and relied upon any other statutory factors. Even the factors expressly considered by the trial court lack sufficient details.

Reversed in part and remanded  (Opinion by Geer – Eagles and Martin concur)

MIDDLETON V. MIDDLETON  (July 15, 2003)  (Civil Contempt))

Posted on the site (7/22/03)

FACTS: Parties entered in to a mediated settlement agreement wherein they agreed that the former marital residence and all adjoining property should be listed in priority order with 3 different realtors and put on the market no later than November 1, 2001. The defendant (husband) was to remain in the home and pay all taxes and maintenance on the house until it’s sale. Plaintiff filed order to show cause alleging that the defendant had taken actions to thwart the sale of the home including refusing to allow the house to be shown, draping a pair of the plaintiff’s underwear on a sign outside the house and posting a no trespassing sign outside the house with a list of plaintiff’s putative lovers. The trial court found that the defendant was in contempt. The trial court said that the condition of the house thwarted the sale of the former marital residence and was designed to embarrass the plaintiff. The trial court also concluded that the condition of the house violated the “spirit” of the agreement. Defendant contended that he complied with every provision of the consent agreement.

QUESTION: Did the trial court err in finding the defendant in contempt of court?

HOLDING: The North Carolina Supreme Court has previously stated that the order of the court must be obeyed implicitly, according to its spirit and in good faith. A party must do nothing, directly or indirectly that will render the order ineffectual, either wholly or partially so. Here, the defendant took willful and deliberate action with the intent to make the house unattractive and undesirable to prospective purchasers and thus thwart the sale of the home. Defendant violated the spirit and intent of the order. Accordingly, the trial court properly concluded that the defendant was in contempt of the consent order.

AFFIRMED  (Opinion by Steelman – Wynn and Tyson concur)

RUTH V. RUTH   (May 20, 2003)   (Civil Contempt)

Posted on the site (5/22/03)

FACTS:  Defendant/father had custody of the parties’ two minor children. In accordance with the visitation schedule, the plaintiff/mother picked up the children and took them to her home in West Virginia. While there, plaintiff sought and received a protective order granting her temporary custody of the children based on suspected abuse of the children by the defendant. Plaintiff did not return children at end of court ordered visitation schedule. A North Carolina district court subsequently entered an order requiring the plaintiff to appear and show cause why she should not be held in civil contempt for failing to abide by the ordered visitation. West Virginia dissolved its order and directed the plaintiff to appear in the NC court with the children on a certain date. Plaintiff complied with the orders and appeared before the district court in Rowan County. The children were returned to the defendant at that time. The contempt hearing was continued to a later date. At the contempt hearing the court found the plaintiff to be in willful contempt of the court and its orders and that she had “… the means and ability to purge herself of contempt.” Plaintiff was found in civil contempt of court. The court ordered plaintiff committed to the sheriff’s custody “until such time as she purges herself of contempt” but suspended the commitment “on the condition she purge herself of contempt by paying the sum of $2,637.00 into the defendant’s attorney’s trust account within sixty days.” $252.00 of the total ordered paid was for defendant’s lost wages, $960.00 for the cost of defendant’s West Virginia attorney and $1,425.00 for his NC attorney. Plaintiff appealed.

QUESTION: Did the trial court err in finding plaintiff in civil contempt after she had returned the children to the custody of the defendant?

HOLDING: The Court of Appeals concluded that the trial court did not have the authority to impose civil contempt after an individual has complied with a court order, even if the compliance occurs after the party is served with a motion to show cause why he should not be held in contempt of court. Since the children were returned prior to the hearing the trial court’s conclusion that she “is in willful contempt” is not supported by the findings or evidence. Moreover, because there was no longer any purpose to be served by holding the plaintiff in civil contempt, the conclusion was improper as a matter of law. The district court was without authority to adjudge plaintiff “to be in willful civil contempt” or to commit her to the custody of the sheriff even for a suspended sentence. The COA also vacated the trial court’s order with regard to paying the defendant for lost wages, as there is no legal basis up which plaintiff could be required to do so. The COA found the award of counsel fees for the defendant’s NC attorney to be appropriate even though defendant didn’t prevail, because her compliance with the order took place after the show cause order was issued. The attorney’s fees for the West Virginia attorney were disallowed.

AFFIRMED IN PART; VACATED IN PART (Opinion by Martin – Hudson and Elmore concur)

STATE V. CRUDUP  (May 20, 2003)  (Miranda Rights)

Posted on the site (5/22/03)

FACTS:  In February, 2001, James Patterson rented an apartment to defendant with the understanding that defendant would not reside in the apartment. Instead, defendant’s girlfriend and baby would reside there. Patterson asked defendant to move his girlfriend and baby out because of delinquent rent payments. After arguing, Patterson called the police and reported a break-in at the apartment. Officer Marbrey and 5 to 6 other officers went to the apartment to investigate the alleged break-in. As Marbrey prepared to enter the residence, defendant exited the front door. Three officers handcuffed defendant and detained him as a burglary suspect. The house was search and crack cocaine found. Marbrey asked the defendant if he 1.) resided in the house, 2.) was the only resident, and 3.) owned the possessions found on the premises. Defendant answered the questions affirmatively. Defendant was arrested for drug possession. At trial, over defendant’s objections, the inculpatory statements of the defendant were allowed in evidence. Defendant was convicted of cocaine possession. Defendant appealed.

QUESTION: Did the trial court err in allowing defendant’s inculpatory statements into evidence?

HOLDING: Miranda warnings are required only when a defendant is subjected to custodial interrogation. “Custodial interrogation“ is “questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way.” To determine whether the defendant was entitled to Miranda protection the Court must make three inquiries; 1.) was the defendant in custody. 2.) was defendant interrogated and 3.) do any exceptions to the Miranda rule apply. In determining whether the defendant is in custody the court must look at the totality of the circumstances. Was there was a formal arrest or restraint on freedom of movement to the degree associated with a formal arrest? The only relevant inquiry is how a reasonable man in the suspect’s position would have understood this situation. In this case the COA found that the defendant was in custody. He was immediately handcuffed and detained as a possible burglary suspect. While handcuffed, defendant was question while four officers surrounded him. His freedom of movement was restrained to the degree associated with a formal arrest. A reasonable person, under these circumstances would believe that he was under arrest. The COA also found that the defendant was interrogated. “Any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect” constitute an interrogation. In this case the officer knew or should have know that any response to the three questions he asked would have incriminated the defendant. The COA found that the questions posed to the defendant were not routine on-the-scene questions, which would not require reading the Miranda rights. The COA also found that the public safety exception to the reading of the Miranda rights didn’t apply as the defendant, at the time, was handcuffed and surrounded by several officers.

NEW TRIAL (Opinion by Wynn – Timmons-Goodson and Levinson concur)

STATE V. MARTINEZ  (May 20, 2003)  (Investigatory Stop)

  Posted on the site (5/22/03)

FACTS:  At approximately 2:00 a.m. on June 22, 2001, Officer Davis observed and drove past a white male walking north on Trollingwood-Hawfield Road towards I-85. The officer immediately turned around and pulled over to the side of the road behind this pedestrian who, upon seeing the officer, ran toward the woods in the direction of a mobile home park. About 4 minutes later, while Officer Davis was driving through the mobile home park in an unsuccessful attempt to locate the pedestrian, Officer Sharpe contacted Davis by radio and informed him that there was a motor vehicle parked on the right shoulder of Trollingwood-Hawfield Road near the mobile home park. Davis then drove out of the mobile home park and observed a white vehicle leaving the right shoulder of Trollingwood-Hawfield road. The white vehicle was located approximately fifty yards from where officer Davis had observed the pedestrian flee from him earlier. Officer Davis followed this vehicle driven by the defendant, a Hispanic male, and then instigated an investigatory stop by activating his blue light. Davis stopped the vehicle because he believed that the vehicle might be related to the earlier pedestrian who had fled on foot upon the approach of the officer. Davis was “extremely suspicious that a crime had likely occurred, was occurring, or about to occur and that the pedestrian and the vehicle and its occupants may be related thereto.” The trial court found that the area in which defendant was stopped generally has no foot traffic at 2:00 a.m. and that at the time of the stop, there were no other motor vehicles other than defendant’s vehicle and the patrol vehicles in the area. After being stopped and presenting the officer with a Maryland driver’s license, the defendant started “digging” in the glove compartment of his vehicle. The defendant was asked why he pulled off the road and the defendant responded that he was urinating. Defendant continued to dig in his glove compartment and reach around to several areas in the interior of the vehicle, including behind the passenger seat toward the floorboard area. Defendant exhibited a significant degree of nervousness while reaching around the interior of the vehicle. Out of concern for his own safety officer Davis asked the defendant to exit the vehicle. He asked the defendant if he had any weapons and the defendant did not respond. Officer Davis then performed a pat-down search for weapons. During the pat-down officer felt a large bulge in defendant’s pocket and asked the defendant what it was. The defendant responded, “dope.” The officer retrieved a large amount of currency and two bags of cocaine from the defendant’s right pocket. Defendant was charged with several drug-related offenses. At trial, the court denied defendant’s motion to suppress. After a guilty plea in which he preserved his right to appeal the motion to suppress, the defendant appealed.

QUESTION: Did the trial court err in denying defendant’s motion to suppress the evidence?

HOLDING: Unreasonable searches and seizures are prohibited by the Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the NC Constitution. “ An investigatory stop must be justified by a reasonable suspicion, based on objective facts that the individual is involved in criminal activity. In ascertaining whether an officer had a reasonable suspicion to make and investigatory stop, the court must consider the totality of he circumstances. The stop must be based on specific and articulable facts, as well as the rational inference’s from those facts as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. The NC Supreme Court has acknowledged that activity at an unusual hour is a factor that may be considered by a law enforcement officer in formulating a reasonable suspicion. In this case Officer Davis testified that he connected the vehicle pulled off on the side of the road to the subject that ran from him, being in the immediate area of where the individual fled. It was reasonable for the officer to infer that the individual who had fled from him was in some way related to the stopped vehicle located a mere fifty yards from where the fleeing individual had been spotted. Moreover, the fact that the investigatory stop occurred around 2:00 a.m. when there is generally no foot traffic and there were no vehicles on the road except defendant’s vehicle and the patrol vehicle contributed to the officer’s suspicion. Based on the totality of the circumstances, the trial court correctly concluded that the investigatory stop was justified by a reasonable suspicion that the defendant was involved in criminal activity. An officer may conduct a pat-down search, for the purpose of determining whether the personas carrying a weapon, when the officer is justified in believing that the individual is armed and presently dangerous. To determine the reasonableness of a pat-down search, the applicable standard is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.“ During a lawful pat-down search for weapons, if an officer discovers contraband, the officer may seize the item discovered. The officer can make a brief inquiry as to the contents of an object that he felt while conducting a lawful pat-down. The officer properly seized the contraband from the defendant’s pocket after the defendant had indicated that the pocket contained contraband. In this case, the COA concluded that the defendant’s failure to respond when he was asked if he had any weapons and defendant’s nervous “digging” in the vehicle provide ample justification for the limited search of is outer clothing.

  AFFIRMED (Opinion by Hunter – Timmons-Goodson and Elmore concur)

LOMBARDI V. LOMBARDI (May 6, 2003)  (UIFSA - child support)

Posted on the site (5/9/03)

FACTS:  Parties were married in 1963 and divorced in 1984 in New Jersey. The parties have a daughter, born in May of 1964, who is mentally retarded. The divorce judgment required the defendant/father to pay support in the amount of $50.00 per week. A 1988 New Jersey order found that the daughter was unable to be employed full time and therefore was deemed unemancipated. The support obligation was increased to $150.00 per week in 1998, the NJ court again finding that the daughter was unemancipated. After the entry of the 1998 order, plaintiff moved to North Carolina. Defendant moved to Maryland. In 2001, defendant filed in NC a notice of registration of foreign support order with the New Jersey orders attached. He also filed a motion to terminate his child support obligation. Trial court allowed his motion, finding that the daughter was no longer eligible for child support under NC law.

QUESTION: Did the Court of Appeals err in allowing defendant’s motion to terminate his child support?

HOLDING: The Uniform Interstate Family Support Act (UIFSA) sets out procedure for the interstate establishment, enforcement and modification of child and spousal support obligations. UIFSA governs the proceedings involving any foreign support order registered in NC after January 1, 1996. Once a foreign support order has been registered in NC, it can be modified by a NC court only if the issuing state has lost continuing, exclusive jurisdiction over the order. For that to occur, 1.) neither the parties nor the child may still reside in the issuing state, 2.) the party seeking modification must be a nonresident of NC and 3.) the respondent must be subject to the personal jurisdiction of the NC court. All three of these elements are met here, which means that NJ has lost its continuing, exclusive jurisdiction to modify its support order. Once NC has obtained modification jurisdiction, our courts must apply the law of the forum – with one exception. Pursuant to G.S. 52C-6-611(c) a “tribunal of this State may not modify any aspect of a child support order that may not be modified under the law of the issuing state” In other words this statutory section prevents the modification of any final, nonmodifiable aspect of the original order. Here, the only aspect of the NJ order that the plaintiff claims to be final and nonmodifiable is the determination that the daughter was unemancipated. Under NC law, in the absence of an agreement otherwise, a parent is no longer required to pay for child support for a dependent child, regardless of disability, once the child reaches the age of 18 and graduates from secondary school or until the age of 20 if still enrolled in secondary school or its equivalent. NJ law, to the contrary, sets no fixed age at which the obligation to pay child support terminates. The needs of the child, not the age, determine the duty to support. Duration of a child support obligation hinges on the court’s determination of whether or not the child is emancipated. COA, after reviewing NJ law,  does not believe that the NJ courts’ determination that the daughter was unemancipated is a final, nonmodifiable term of the  order. In fact, the NJ courts have specifically held that emancipation is not an immutable concept. When a declaration of emancipation is entered, all a judge has before him are the facts, as they exist at that time. Circumstances may change, altering the court’s determination of emancipation.  COA concluded that since the NJ court’s finding that the daughter was unemancipated is not a final, nonmodifiable part of the order, its determination that the defendant owes support is also modifiable. Pursuant to G.S. 52C-6-611, the NC court can modify the support order to comply with NC laws such that the defendant is no longer required to pay for his daughter’s support. On issuance of an order modifying a child support order issued in another state, a tribunal of this State becomes the tribunal of continuing, exclusive jurisdiction

  AFFIRMED (Opinion by Hudson – Martin and Steelman concur)

EAKETT V. EAKETT  (May 6, 2003)  (grandparental visitation)

Posted on the site (5/9/03)

FACTS:  Plaintiff and defendant are the parents of a minor child. Plaintiff and defendant separated and plaintiff filed an action for custody. Defendant did not appear and was not represented at the hearing on the complaint. Plaintiff was awarded custody by the court. The grandfather/intervenor cared for the child several days a week while the plaintiff worked in Asheville. The plaintiff worked in Asheville after the parties separated.  About three months after the separation, the plaintiff ceased working in Asheville and plaintiff refused to allow the intervenor to contact the child. The grandfather was allowed to intervene and filed motion in the cause for visitation. That motion was dismissed for failure to state a claim upon which relief could be granted.

QUESTION: Did the Court of Appeals err in allowing plaintiff’s 12(b)(6) motion?

HOLDING: Intervenor argues the trial court misapplied the law by requiring intervenor to allege and prove that plaintiff and child were not an intact family or that the underlying custody controversy had become active. Intervenor argues that G.S. 50-13.5(j) allows a grandparent to intervene and request visitation even when the custody for a minor child has been determined and no ongoing custody dispute exists. He contends that upon a showing of changed circumstances, the grandparent should be awarded visitation under that statute in the discretion of the trial court. COA disagrees. There are four statutes that empower grandparents to request visitation rights in different circumstances. G. S. 50-13.5(j) is at issue in this case. That statute reads, in pertinent part, “In any action in which the custody of a minor child has been determined, upon a motion in the case and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitle to such custody or visitation rights as the court, in its discretion, deems appropriate.” In a case that does not involve adoption by a stepparent or other relative, a grandparent must prove that the child’s family is not intact before the grandparent can intervene to request visitation with his grandchild. The statute does not grant grandparents the right to sue for visitation when no custody proceeding is ongoing and the minor’s children’s family is intact. Grandparents have standing to seek visitation with their grandchildren when those children are not living in an “intact family” The intact family rule protects the parental right “to determine with whom his/her child shall associate. A grandparent cannot initiate a lawsuit for visitation rights unless the child’s family is already undergoing some strain on the family relationship such as an adoption or an ongoing custody battle. A single parent and her child can constitute an “intact family” for the purposes of this rule. In his complaint, the intervenor did not allege that is grandchild was not part of an “intact family”. Because of this failure, intervenor’s complaint failed to state a claim upon which relief could be granted. The failure to allege the absence of an “intact family” in his complaint meant that intervenor lacked standing to intervene. The motion to intervene was reversed. The remained of the order was affirmed.

AFFIRMED IN PART, REVERSED IN PART  (Opinion by Eagles – Hunter and Calabria concur)

OWENBY V. YOUNG (May 2, 2003)  (child custody)

Posted on the site (5/2/03)

FACTS:  Defendant (father) and decedent (mother) were married and had two children. In 1993, they divorced and executed a separation agreement, which was later incorporated into a divorce decree. Decedent received primary custody and the defendant received visitation. In April, 2000, the decedent was killed in an airplane crash. The children lived with the defendant for about 4 weeks until the plaintiff (maternal grandmother) filed a complaint and received an ex parte order for custody. Plaintiff said that the defendant was not a fit and proper person to have the custody of the minor children, principally due to a “problem with alcohol abuse”. Plaintiff also alleged that defendant was a “very unstable person. The trial court ultimately determined that plaintiff had not provided the factual basis necessary to override defendant’s constitutionally protected right to the custody of his children. This decision was reversed by the Court of Appeals and the case was remanded for reconsideration The COA concluded that the defendant had acted in a manner inconsistent with his constitutionally protected status as a natural parent and therefore the “best interest” standard should apply. The Supreme Court retained the defendant’s notice of appeal based on a constitutional question and allowed discretionary review.

QUESTION: Did the Court of Appeals err in concluding that the defendant, by his actions, had acted in a manner inconsistent with his constitutionally protected rights as a parent?

HOLDING: The Due Process Clause of the Fourteenth Amendment protects the fundamental rights of parents to make decisions concerning the care, custody and control of their children.  Courts have held many times that “absent a finding that parents are unfit or have neglected the welfare of their children, the constitutionally protected paramount rights of the parents to custody must prevail. This protected liberty is based on a presumption that he or she will act in the best interest of the child. Unless a natural parent’s conduct has been inconsistent with his constitutionally protected status, application of the “best interest of the child” standard in a custody case with a non-parent offends the Due Process Clause of the U. S. Constitution. When a court finds parental conduct inconsistent with the protected status, the parent’s paramount right to custody may be lost. Evidence in this case showed:

·        Defendant had twice been convicted of DWI.

·        Except for those two occasions no evidence of drinking to intoxication.

·        Children were not with defendant on the occasion of either DWI.

·        One incident of defendant driving without a license.

·      &nb