No. COA07-689.North Carolina Court of Appeals.
Filed February 19, 2008.
Stanly No. 07 CRS 373.
Appeal by defendant from judgment entered 20 February 2007 by Judge W. David Lee in Stanly County Superior Court. Heard in the Court of Appeals 21 January 2008.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.
Richard E. Jester for defendant-appellant.
GEER, Judge.
Defendant appeals from the judgment of the trial court holding him in willful contempt of the directives of the court. Defendant contends that the trial court erred in holding him in contempt because his comments — attributing lies to the assistant district attorney — were truthful and because he was not given an opportunity to respond. We disagree with defendant’s contentions and affirm the decision of the trial court.
Facts
Defendant, who was appearing pro se, was called to trial on 19 February 2007 on several criminal charges. Judge W. David Lee began by hearing numerous pretrial motions. The State argued that a previous order entered by Judge Michael Beale, following an evidentiary hearing, might preclude some of the issues raised in defendant’s pretrial motions. When Judge Lee observed that he did not see anything in Judge Beale’s order specifically addressing the pretrial motions, defendant interrupted the judge to say that he could point out to the court where the prosecutor “just lied to the Court.” Judge Lee warned defendant that he did not tolerate being interrupted and would hold defendant in contempt if he did it again. The trial court informed defendant of the consequences of contempt, including that it could result in punishment of up to 30 days, a $500.00 fine, or both.
During the argument relating to defendant’s motion to compel discovery, Judge Lee asked defendant what items of discovery he had not received, and the following exchange took place:
[MR. WILLIAMS:] I want the videotape from the stop., And I want the 911 dispatcher’s logs transcribed. The, same thing I requested for five days after my arrest, Your Honor. And I need it. It is crucial to my, defense, despite on what — despite these arguments the, State’s making, Your Honor. I have strict evidence to, the contrary of what she’s been stating to you. I, would like a chance to present this. Not only — even, though she just got into this case, I’ll give her a, little leeway. Maybe she doesn’t know, maybe she, hasn’t recorded it. But if she continues to make these, outrageous lies to the Court, Your Honor, I’m gonna be, forced to call her to the stand.
THE COURT: Okay, I’m not going to tolerate your, referring to the prosecutor as a liar. That’s not, going to happen. Do you understand that?
MR. WILLIAMS: Yes.
THE COURT: If you make that kind of comment or, that insinuation again, again, I’ll hold you in, contempt.
MR. WILLIAMS: Yes, sir, Your Honor.
THE COURT: I’ll take such further action as the, law permits in that regard. You may have a seat.
Subsequently, when Judge Lee gave defendant an opportunity to make a brief rebuttal argument, defendant stated:
MR. WILLIAMS: Your Honor, I have been. And I, appreciate — like you asked me, I politely tried to, not interrupt you. But this is clearly relevant to the, discovery. I’m trying to argue that she cannot tell me, what kind of case I can put on. She has not presented, no evidence to this Court that this — that this, discovery that I’m requesting has not been properly, asked for. She’s had — she’s got her chance. She wants, the Court to summarily dismiss this, which would be, really unfair because she hasn’t did nothing but stand, up and speak.
She’s had these motions for two years. She’s not, filed a motion. She’s not presented no evidence. She, got up there and she did a little speech, but that’s, no good. I can’t cross examine her speech, Your, Honor. You won’t even let me contest call — if — some, of the things she’s lied to the Court about, I would, say I really want to display.
(Emphasis added.) Judge Lee immediately responded to the reference to lies by warning: “No, sir, I’m not going to tolerate that.” When defendant attempted to use a euphemism for “lie,” Judge Lee again said, “No.”
Despite the trial court’s warning, in the course of the arguments on the remaining motions, defendant continued to make statements implying the prosecutor was lying. Defendant argued that the prosecutor was “plainly ? making statements not based in fact, nor can she have an iota of an idea that she actually believes what she just stood and told this Court. . . .” Defendant then requested that the prosecutor “quit making arguments that are not based in fact. . . .” With respect to other motions, defendant asserted: “[F]or her to sit up here and continue to make arguments on stuff she has no idea of, she don’t know herself if it happened . . . [is] simply outrageous.” He stated that “she’s making arguments before this Court, as she has continued to do all day, based on things she has not [sic] knowledge of, things she’s presented no facts to, things she’s not even filed a motion to.”
Ultimately, during arguments on the State’s motion for joinder, defendant responded to the State by making the following statement that prompted the trial court to find him in contempt:
MR. WILLIAMS: Rebuttal, Your Honor. Once again, Andrea Lee Blackwell, as you just read the appellate, brief standing right there, here again, the State is, misleading the Court as to the facts. The case with, Andrea Lee Blackwell, you just read the appellate, brief, said plainly it was from Stanly County, if I’m, not correct, Your Honor. Either I can’t read, or, either the State is intentionally misleading this, Court. It’s not from Union County. It’s from Stanly, County. It arised while I was in jail in Stanly County, from the detective opening my outgoing mail, Your, Honor.
No, Jamie Pope didn’t have nothing to do. Jamie Pope, wasn’t even in the jailhouse when I was supposedly, arrested or charged with this marijuana. I’ve got the, transcript from January 5th where she actually gave, you. Jamie Pope testified on January 5th he ain’t had, no knowledge of that, Your Honor. It’s in the, transcript before you. And I don’t know why the State, keeps providing these false facts to you, what she, would consider to put the okie-doke on, Your Honor., Because she knows sitting right there that my, conviction for Andrea Lee Blackwell, which I’m, incarcerated in, was from Stanly County. Detective, John Broadway was one of the testifying detectives. It, happened right here in this courtroom. Wanda Holt was, there. Melissa Strader transcribed, the court, reporter. Why would she sit here and tell these, blatant lies to the Court. I’m just — Your Honor, I’m, not calling her a liar, but I got —
THE COURT: I believe you just did, Mr. Williams. I, believe you finally crossed the line about the third, time.
MR. WILLIAMS: Your Honor, why is she saying, these things that are not true, that she knows, are not true to the Court?
THE COURT: The sad part of it is, Mr. Williams, is that I’m going to grant your motion or grant, your request. . . .
I’m also going to find that you are in willful, contempt of the directives of this Court after you’ve, been repeatedly warned on at least two prior occasions, this date not to refer to the district attorney as, lying or as a liar. That you have persisted, and, indeed, after as much effort as I know how to make to, keep you from doing that, you did it nonetheless. So I, find that you are in willful contempt of Court. Find, that beyond a reasonable doubt.
It’s the judgment of the Court this defendant be, imprisoned for a term of 10 days, that sentence to run, at the expiration of any other sentence that he is, serving.
Defendant immediately asked to give notice of appeal.
Defendant first challenges the trial court’s finding of willfulness on the grounds that (1) defendant was not willfully disobedient or disrespectful to the trial court; (2) he reasonably and appropriately believed the prosecutor was making incorrect statements to the court; and (3) his apologetic tone in the final exchange showed that he was not willful, but was honestly upset by the misstated facts being presented. We disagree that these contentions negate willfulness.
Criminal contempt is governed by N.C. Gen. Stat. § 5A-11
(2005), which provides an exclusive list of grounds for contempt. The trial court in this case found defendant in violation of subsections (a)(2) (“[w]illful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority”) and (a)(3) (“[w]illful disobedience of, resistance to, or interference with a court’s lawful process, order, directive, or instruction or its execution”). N.C. Gen. Stat. § 5A-11(a)(2)-(3). Willfulness denotes an act “done deliberately and purposefully in violation of law, and without authority, justification, or excuse.” State v., Chriscoe, 85 N.C. App. 155, 158, 354 S.E.2d 289, 291
(1987).
If the conduct is committed within the sight or hearing of a presiding judicial official where proceedings are being held, it is considered direct criminal contempt and the presiding judge may punish the offender summarily pursuant to N.C. Gen. Stat. § 5A-14(a) (2005) in order to maintain the dignity and authority of the court. N.C. Gen. Stat. § 5A-13(a) (2005). Formal notice, hearing, and findings of fact are not required in such cases. In re Owens, 128 N.C. App. 577, 581, 496 S.E.2d 592, 595 (1998), aff’d per curiam, 350 N.C. 656, 517 S.E.2d 605 (1999). “It is well settled that in contempt proceedings the trial court’s findings of fact are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency to warrant the judgment.”Glesner v. Dembrosky, 73 N.C. App. 594, 597, 327 S.E.2d 60, 62 (1985). In this case, we hold that the trial court’s finding of willfulness is well supported by the record.
The transcript reveals that Judge Lee gave a specific direction to defendant that he not refer to the prosecutor as a liar or insinuate that she was a liar. Judge Lee then warned defendant when he violated that direction. Despite those two warnings, defendant continued to violate the instruction by deliberately using the words “outrageous lies,” “blatant lies,” “false facts,” and “intentionally misleading,” along with several other statements more subtly insinuating that the prosecutor was a liar. Defendant’s repeated failure, despite the trial judge’s warnings, to abide by the directive of the court provides sufficient evidence to support the trial judge’s finding that defendant willfully disobeyed the court’s directive and that by doing so, he willfully did not respect the court’s authority.
Defendant’s focus on the sincerity of his belief that his statements were true is beside the point. Regardless whether his statements were truthful, the trial court directed defendant not to make them, and defendant disobeyed that order.
For this same reason, In re Little, 404 U.S. 553, 30 L. Ed. 2d 708, 92 S. Ct. 659 (1972), cited by defendant, is not supportive of defendant’s appeal. In Little, the defendant, appearing pro se, stated in his closing argument that “the court was biased and had prejudged the case and that petitioner was a political prisoner.” Id.
at 554, 30 L. Ed. 2d at 710, 92 S. Ct. at 660. As a result of the defendant’s comments, the court held him in contempt on the grounds that “these remarks were very disrespectful and tended to subvert and prevent justice” and “reflected on the integrity of the Court and tended to subvert and prevent justice.”Id. In holding that these statements, standing alone, did not constitute criminal contempt, the Supreme Court observed that a court must distinguish between offenses to its sensibilities and obstruction to the administration of justice Id.
In concluding in Little that reversal was mandated by the Court’s prior decision in Holt v. Virginia, 381 U.S. 131, 14 L. Ed. 2d 290, 85 S. Ct. 1375 (1965), the Court, 404 U.S. at 556, 30 L. Ed. 2d at 711, 92 S. Ct. at 661, quote Holt‘s holding: “It is not charged that petitioners here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties. Their convictions rest on nothing whatever except allegations made in motions for change of venue and disqualification of Judge Holladay because of alleged bias on his part.” Holt, 381 U.S. at 136, 14 L. Ed. 2d at 293, 85 S. Ct. at 1377. In this case, in contrast to both Little an Holt, punishment was not imposed simply because the trial court was offended by the statements, but rather because defendant disobeyed a direct order not to make the statements. The trial court was, under these circumstances, entitled to hold defendant in contempt.
Alternatively, defendant argues the trial court erred by failing to give him an opportunity to respond to the charge of criminal contempt as required by N.C. Gen. Stat. § 5A-14. The State argues in response that defendant has failed to preserve this issue for appeal because the argument was not raised in any of defendant’s assignments of error.
The scope of review on appeal is limited to the assignments of error listed in the record on appeal. N.C.R. App. P. 10(a). Defendant specified the following three assignments of error:
1. The trial court erred in its order finding the, defendant in contempt in that the defendant’s, statements to the Court were true and correct. . . .
2. The trial court erred in its order finding the, defendant in criminal contempt in that the defendant’s, conduct does not rise to the level designed to be, punished by criminal contempt sanctions. . . .
3. The trial court erred in its order finding, the defendant in criminal contempt in that the, District Attorney was incorrect in her statements, concerning other offenses, and the defendant’s, response was not contemptuous. . . .
We agree with the State that none of these assignments of error encompasses the issue whether defendant was given an opportunity to respond pursuant to the statute.
Nevertheless, we have reviewed the transcript and believe that the trial judge sufficiently complied with N.C. Gen. Stat. § 5A-14(b), which requires: “Before 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. . . .” There is no dispute that Judge Lee informed defendant that he was being charged with contempt based on his violation of the judge’s directive that he not insinuate that the prosecutor was a liar. Judge Lee had previously explained to defendant the consequences of being held in contempt. After Judge Lee found defendant to be in contempt, the argument did not stop, but rather defendant was allowed to continue with his arguments. Indeed, the transcript continues for another 44 pages. Had defendant wished to be heard on the charge of contempt, he had ample opportunity to set out his position, but he apparently chose not to do so, preferring instead to simply note his appeal. We conclude that defendant has, therefore, presented no persuasive basis for overturning the trial court’s judgment of contempt.
Affirmed.
Judges TYSON and STEPHENS concur.
Report per Rule 30(e).