STATE OF NORTH CAROLINA
v. Johnston County
Nos. 01 CRS 53901
RICHARD DARNELL JAMES 02 CRS 7943-45
Roy Cooper, Attorney General, by LaShawn L. Strange, Assistant
Attorney General, for the State.
John T. Hall for defendant-appellant.
STEELMAN, Judge.
Defendant, Richard Darnell James, appeals three judgments
finding him in criminal contempt. For the reasons discussed
herein, we vacate the judgments.
On 31 July 2002, the superior court held a hearing on a
violation report filed by defendant's probation officer. After
hearing the evidence, the court revoked defendant's probation and
activated his suspended sentence for the offense of taking indecent
liberties with a minor. While replying to a question from the
trial judge, defendant unleashed a string of obscenities.
Two days later, on 2 August 2002, the judge who had presided
at the revocation hearing returned defendant to court and engagedhim in the following colloquy:
THE COURT: Mr. James, do you know why I have
sent for you to come back to the courtroom?
DEFENDANT: I have a pretty good idea.
THE COURT: Well, based upon the language that
you directed towards the Court as you were
preparing to leave the courtroom the other day
after I had revoked your probation judgment,
I'm going to find you in direct criminal
contempt of court and give you three
consecutive 30-day sentences for contempt of
court, order that they be served consecutive
to each other, and order they be served
consecutive with the probation judgment that I
revoked. . . .
. . .
I cannot let conduct like that go by, that
kind of disrespect being shown to the Court.
I cannot permit you to lower the dignity of
the Court.
The trial court accepted defendant's apology for his outburst but
entered three judgments of criminal contempt imposing consecutive
thirty-day prison terms.
Defendant now claims that the trial court erred in finding him
in direct criminal contempt of court without notice and an
opportunity to be heard as required by N.C. Gen. Stat. § 5A-15(a).
He further avers that the court failed to support its judgments
with written findings as required by N.C. Gen. Stat. § 5A-15(f),
and exceeded the maximum thirty-day sentence prescribed for
criminal contempt by N.C. Gen. Stat. § 5A-12(a).
The State concedes that having deferred the contempt
proceedings against defendant, the trial court was obliged to
furnish him with notice and an opportunity to be heard. While westrongly condemn defendant's conduct at the 31 July 2002 revocation
hearing, we agree. Under N.C. Gen. Stat. § 5A-15(a):
When a judicial official chooses not to
proceed summarily against a person charged
with direct criminal contempt or when he may
not proceed summarily, he may proceed by an
order directing the person to appear before a
judge at a reasonable time specified in the
order and show cause why he should not be held
in contempt of court. A copy of the order must
be furnished to the person charged. If the
criminal contempt is based upon acts before a
judge which so involve him that his
objectivity may reasonably be questioned, the
order must be returned before a different
judge.
Defendant was entitled to notice of the 2 August 2002 plenary
proceeding. See O'Briant v. O'Briant, 313 N.C. 432, 436, 329
S.E.2d 370, 373 (1985). The record contains no show cause order or
other evidence of notice to defendant of the specific charges
against him, as required by statute. “Having found the notice to
be inadequate, we find it unnecessary to determine whether there
was sufficient evidence to support the contempt adjudications at
issue.” Id. at 441, 329 S.E.2d at 376. Accordingly, we vacate the
judgments of criminal contempt entered by the trial court.
VACATED.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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