Opinion
No. COA15–290.
01-05-2016
STATE of North Carolina v. Oakland McCULLOCH.
Roy Cooper, Attorney General, by Ryan C. Zellar, Assistant Attorney General, for the State. The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., for defendant-appellant.
Roy Cooper, Attorney General, by Ryan C. Zellar, Assistant Attorney General, for the State.
The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., for defendant-appellant.
Opinion
Appeal by defendant from order and judgment entered 8 August 2014 by Judge James Floyd Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 21 September 2015.
DAVIS, Judge.
Oakland McCulloch (“Defendant”) appeals from his conviction for criminal contempt. After careful review, we reverse Defendant's conviction.
Factual Background
On 14 January 2014, a bond hearing was held for David Cook (“Cook”) on charges of domestic violence before the Honorable Toni S. King in Cumberland County District Court. During the course of the proceedings, Judge King determined that Cook was a soldier on active duty stationed at Fort Bragg.
Upon making this discovery, Judge King asked the courtroom audience whether anyone present was in Cook's chain of command. Sergeant Julian Akins (“Sergeant Akins”) and Defendant—who at the time was a lieutenant stationed at Fort Bragg—were sitting in the back of the courtroom. In response to Judge King's inquiry, both men stood and came forward.
Judge King “inquired of [Defendant] as to what his position was in Mr. Cook's chain of command” to which Defendant “stated that [Defendant] was [Cook's] squadron or platoon leader.” Defendant then told Judge King that Cook “was a good soldier, that command was supportive of him, [and] that they were well aware of the situation[.]” Based on Defendant's statements to the court, Judge King “issued an unsecured bond and ... released [Cook] to [Defendant] being that [Defendant] was in [Cook's] chain of command and out ranked ... Cook.”
While Judge King was in the process of releasing Cook into Defendant's custody, Assistant District Attorney Elizabeth Gilully (“ADA Gilully”)—who had recognized Defendant—asked to be heard. She informed the court that Defendant had a pending domestic violence charge against him and that the District Attorney's Office “didn't feel comfortable with [Defendant] taking control of anyone with a domestic violence charge against him.” As a result, Judge King decided to release Cook into Sergeant Akins' custody instead.
Finding it odd that Defendant would be Cook's commanding officer at that time given Defendant's pending domestic violence charge, ADA Gilully left the courtroom and proceeded to investigate the matter by calling the office of the Judge Advocate General (“JAG”) at Fort Bragg. Upon providing a JAG officer with Defendant's and Cook's names, ADA Gilully was informed that not only were Defendant and Cook not in the same chain of command but that they were not even in the same unit.
ADA Gilully returned to the courtroom and informed Judge King of Defendant's prior misrepresentation to the court. Defendant and Sergeant Akins had already left the courtroom, so Judge King asked Cook whether Defendant was, in fact, in his chain of command. Cook replied in the negative and stated that he instead knew Defendant and Sergeant Akins from a motorcycle club to which they all belonged.
On 10 February 2014, Judge King issued a show cause order stating, in pertinent part, that “[t]he Court finds probable cause to believe that [Defendant is] in criminal contempt for appearing in Cumberland County District Court ... and falsely representing to the Court that [he was] in David Cook's military chain of command.”
On 28 April 2014, a hearing was held before Judge King on Defendant's contempt charge in Cumberland County District Court. At the conclusion of the hearing, Judge King found Defendant guilty of direct criminal contempt and sentenced him to 30 days imprisonment. Defendant gave notice of appeal of Judge King's judgment to superior court.
On 8 August 2014, a trial de novo was held in Cumberland County Superior Court before the Honorable James Floyd Ammons, Jr. At trial, the State offered testimony from, among other witnesses, Judge King and ADA Gilully. Defendant testified on his own behalf.
Following the trial, Judge Ammons found Defendant guilty of criminal contempt and sentenced him to 30 days imprisonment. The sentence was suspended, and Defendant was placed on 12 months unsupervised probation and ordered to pay court costs as well as a $500.00 fine. Defendant gave oral notice of appeal in open court.
Analysis
We initially address Defendant's argument that the trial court erred in failing to state in its findings that he was guilty beyond a reasonable doubt. Defendant contends that due to this omission his conviction must be reversed. We agree.
An appeal from a summary finding of contempt in district court is reviewed de novo by a superior court. The de novo hearings are plenary proceedings that must be conducted in accordance with N.C. Gen.Stat. § 5A–15 (2003). It has long been held that when reviewing a contempt order de novo, the superior court reviews the facts and law, and additional testimony can be heard. When an appeal proceeds to our Court, the findings of the judge as to the facts are conclusive, and we can only review the law applicable to such state of facts.
State v. Ford, 164 N.C.App. 566, 569, 596 S.E.2d 846, 848–49 (2004) (internal citations omitted).
In the present case, the trial court's contempt order and judgment—in its entirety—stated as follows:
This case came on for hearing as to an appeal of a show cause that the Defendant was found in contempt of court by District Court Judge King. That this Court was personally present during the entire trial and was able to watch the witnesses testify and to examine and judge their credibility. That the Court makes the following findings of fact. That the Defendant in this case, Oakland McCulloch appeared in District Court 3A on January 14th, 2014, at a bond hearing for David Cooke [sic]. That the Honorable Judge Toni King was presiding. That during the bond hearing the Defendant committed direct criminal contempt of court by making material false and misleading statements and representations by his actions and his words to the Honorable Toni King in open court in regard to the defendant David Cooke [sic], to wit: He represented himself to be in the defendant Cooke's [sic] chain of command in order to obtain the release of the defendant under favorable release conditions from custody. That Judge King ordered the release of the defendant David Cooke [sic] from custody under favorable release conditions. The statements did indeed mislead the Court and were indeed false. The statements disrupted the Court's proceedings in that the Court made a release decision based upon false information and thereafter had to rehear and re-examine the release conditions of the defendant David Cooke [sic]. The statements showed disrespect to the Court during the Court's official proceedings. The statements impaired the Court in making a judicial decision because the information was false and misleading. The statements made in open court showed a complete disregard of the importance of the case at hand and a complete disregard of the dignity and respect due to the Court.
The Court finds that the Defendant, Oakland McCulloch, is in contempt of court. The Court orders that the Defendant be incarcerated for 30 days, this sentence is suspended for 12 months unsupervised on the condition that he pay the cost of court and a $500.00 fine. The Defendant is to serve a one day split sentence with credit for time already served.
Nowhere in the order and judgment did the trial court state that it was applying the “beyond a reasonable doubt” standard in reaching its determination that Defendant was in criminal contempt. N.C. Gen.Stat. § 5A–14 and N.C. Gen.Stat. § 5A–15 govern contempt proceedings in North Carolina's district and superior courts. N.C. Gen.Stat. § 5A–14 (governing summary contempt proceedings) states, in pertinent part, that
[b]efore imposing measures under this section, the judicial official must give the person charged with contempt summary notice of the charges and a summary opportunity to respond and must find facts supporting the summary imposition of measures in response to contempt. The facts must be established beyond a reasonable doubt .
N.C. Gen.Stat. § 5A–14(b) (2013) (emphasis added). N.C. Gen.Stat. § 5A–15 (governing plenary contempt proceedings), in turn, provides that “[a]t the conclusion of the hearing, the judge must enter a finding of guilty or not guilty. If the person is found to be in contempt, the judge must make findings of fact and enter judgment. The facts must be established beyond a reasonable doubt .” N.C. Gen.Stat. § 5A–15(f) (2013) (emphasis added). Therefore, in both summary and plenary contempt proceedings, it is incumbent upon the trial court to expressly indicate that it is applying the “beyond a reasonable doubt” standard to its findings.
We addressed a similar issue in State v. Verbal, 41 N.C.App. 306, 254 S.E.2d 794 (1979). In Verbal, the defendant, an attorney, was cited by the trial court for direct contempt for being 18 minutes late in returning to court after a lunch recess. On appeal, our reversal of the trial court's finding of contempt was based, in part, on the ground that the court failed to indicate what standard it had applied in issuing its contempt order. Id. at 306–07, 254 S.E.2d at 795. We held that this violation of N.C. Gen.Stat. § 5A–14(b) rendered the trial court's order of contempt “fatally deficient,” reasoning that “the statute (N.C.Gen.Stats. § 5A–14(b)) clearly requires that the standard should be ‘beyond a reasonable doubt’ and we find implicit in the statute the requirement that the judicial official's findings should indicate that that standard was applied to his findings of fact.” Id. at 307, 254 S.E.2d at 795.
Similarly, in In re Cogdell, 183 N.C.App. 286, 644 S.E.2d 261 (2007), the defendant, an attorney representing his client during a criminal proceeding, asked a detective during cross-examination whether the detective's confidential informant had ever been subjected to a polygraph test about certain statements he had allegedly made. The trial court summarily found the defendant to be in direct criminal contempt for his improper line of inquiry. Id. at 287–88, 644 S.E.2d at 262.
On appeal, the defendant asserted that the trial court had erred by entering a criminal contempt order against him without stating that it was applying the “beyond a reasonable doubt” standard. Id. at 288, 644 S.E.2d at 263. In reversing the trial court's contempt order, we held as follows:
Here, the trial court stated defendant “appeared to be” deliberately trying to introduce inadmissible evidence before the jury and that “[s]uch action is a clear violation of the Rules of Professional Conduct and holdings of the North Carolina Supreme Court and constitutes willful failure by an officer of the Court to perform his duty.” However, the trial court's order failed to indicate that he applied the beyond a reasonable doubt standard to his findings as required by N.C.G.S. § 5A–14(b). Just as in Verbal, we conclude that the order entering judgment on the summary proceedings below is fatally deficient, and cannot be sustained. Defendant's conviction is therefore reversed.
Id. at 290, 644 S.E.2d at 263–64 (internal citations and quotation marks omitted).
Likewise, in Ford, the defendant, who was being tried for driving while impaired, appeared intoxicated in district court. After registering a .08 on an alco-sensor test, the trial court found the defendant guilty of criminal contempt. Ford, 164 N.C.App. at 568, 596 S.E.2d at 848. The defendant appealed to superior court, and the superior court also found her guilty of contempt. Id.
On appeal to this Court, the defendant argued that both the district and superior courts had failed to indicate that they were applying the “beyond a reasonable doubt” standard in rendering their decisions. We reversed the defendant's conviction on this ground. Id.
In the present case, neither the district court's findings in the summary proceeding, nor the superior court's findings in their de novo plenary proceeding, specifically indicate that the “beyond a reasonable doubt” standard of proof required by N.C. Gen.Stat. § 5A–14(b) (for summary proceedings) or N.C. Gen.Stat. § 5A–15(f) (for plenary proceedings) was actually applied .... The State argues that, assuming we find the order did not comply with the principles of Verbal, the error was harmless and there is no reasonable possibility that a different result would have been reached. However, as guided by Verbal's mandate concerning summary contempt proceedings, we hold that a superior court order from a plenary proceeding of contempt must also indicate that the reasonable doubt standard of proof was applied. Failure to make such an indication is fatally deficient[.]
Id. at 570–71, 596 S.E.2d at 849–50 (internal citations omitted); see GE Betz, Inc. v. Conrad, ––– N.C.App. –––, –––, 752 S.E.2d 634, 658–59 (2013) (“[T]he [contempt] order did not set out facts established ‘beyond a reasonable doubt,’ nor did it indicate that a reasonable doubt standard was applied. Failure to make such an indication is fatally deficient.... Therefore, because ... the trial court failed to follow the procedures provided by section 5A–15, we reverse the trial court's judgment without remand.” (internal citations and quotation marks omitted)), disc. review denied, 367 N.C. 786, 766 S.E.2d 837 (2014).
Thus, based on the clear precedents from this Court discussed above, we are compelled to hold that the trial court's order and judgment was fatally defective as a matter of law. We therefore reverse the trial court's order and judgment. See State v. Phillips, ––– N.C.App. ––––, ––––, 750 S.E.2d 43, 46 (2013) (“[T]he trial court's failure to indicate that he applied ‘beyond a reasonable doubt’ as the standard of proof in finding facts, as required by N.C.G.S. § 5A–15(f), renders the contempt order fatally deficient. Accordingly, we must reverse.”), disc. review improvidently allowed, 367 N.C. 715, 766 S.E.2d 340 (2014).
In light of our holding on this issue, we need not address the additional arguments contained in Defendant's brief. See id. at ––––, 750 S.E.2d at 46 (“Because we find this matter dispositive of the appeal, we do not reach the remaining issues.”).
Conclusion
For the reasons stated above, we reverse Defendant's conviction.
REVERSED.
Chief Judge McGEE and Judge ELMORE concur.
Report per Rule 30(e).