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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
No. 02 CRS 052903
TIMOTHY SETH PHILLIPS
Appeal by defendant from judgment entered 3 October 2003 by
Judge Christopher M. Collier in Iredell County Superior Court.
Heard in the Court of Appeals 22 March 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jill Ledford Cheek, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
Timothy Seth Phillips (defendant) appeals from judgment
entered after a jury found him to be guilty of first-degree murder
by torture, first-degree felony murder, and felonious child abuse
inflicting serious bodily injury. We find no error.
Defendant is the biological father of three-year-old Bailey
Mallan (Bailey). Bailey lived in foster care beginning in
January 2001 until he was placed in defendant's care on 20 December
2001. Defendant was accorded weekend visitation with his other
children from a previous marriage, a twelve-year-old son, Seth
Phillips (Seth), and a daughter.
A. State's Evidence 1. Emergency Medical Personnel
On 14 January 2002, emergency medical personnel (EMT) were
dispatched to defendant's residence in response to a 911 call from
defendant. Upon arrival, the EMTs found Bailey lying on the
bedroom floor without a pulse. Defendant told the EMTs that: (1)
Bailey had not felt well and had laid down; (2) defendant went to
the mailbox and was gone for about fifteen minutes; (3) upon
returning, he found Bailey in the bed not breathing; and (4) he
called 911. EMT Phyllis Baity spoke with defendant and was told
Bailey had suffered an asthma attack and stopped breathing. When
Bailey arrived at the hospital, he had no pulse, no audible heart
activity, and a core bodily temperature of sixty-nine degrees
Fahrenheit. After three hours of resuscitative attempts and
treatment for hypothermia, Bailey was pronounced dead.
On 25 March 2002, defendant was indicted for first-degree
murder. The trial commenced on 22 September 2003.
2. Seth Phillips
At trial, Seth testified that after Bailey wet his bed
defendant would become very angry and give Bailey a cold bath.
Defendant would direct Seth to run a cold bath and to turn it all
the way cold. Defendant placed Bailey in the tub containing cold
water up to his upper stomach. When Bailey tried to crawl out of
the tub, defendant pushed him back into the water and told Bailey
this was his punishment for wetting his bed.
Seth also testified: (1) defendant would occasionally quit
watching television to make sure Bailey remained in the water forthirty to forty minutes; (2) Bailey would be crying and shivering
when defendant removed him from the water; (3) defendant would lay
Bailey across the washing machine with his legs hanging off the
edge and spank him with a belt; (4) defendant would usually hit
Bailey hard about three times; (5) defendant would place Bailey in
a corner for about forty-five minutes to an hour; and (6) that this
routine happened several times.
Seth further testified defendant had given Bailey a bicycle
for Christmas. Seth stated Bailey experienced some accidents while
riding the bicycle but none were severe. On the morning of 13
January 2003, the day before his death, Bailey again wet his bed.
Seth stated that defendant administered the punishments described
3. Dr. Todd Hansen
The State tendered Dr. Todd Hansen (Dr. Hansen) as an expert
witness without objection from defendant. Dr. Hansen was an
emergency room physician who examined Bailey upon arrival at the
hospital. He determined Bailey's core bodily temperature was
sixty-nine degrees Fahrenheit.
Dr. Hansen opined that hypothermia was the major cause of
Bailey's death. He could not offer any medical explanation how a
child's temperature could drop to sixty-nine degrees within a
fifteen minute time span after defendant asserted he had last
checked on Bailey. Dr. Hansen also testified the center bar on
Bailey's bicycle, as shown in a photograph, could not have causedthe injuries on his buttocks Dr. Hanson observed and opined those
injuries were not accidentally caused.
4. Dr. Patrick Eugene Lantz
The State offered Pathologist Patrick Eugene Lantz (Dr.
Lantz) as an expert witness without objection from defendant. Dr.
Lantz performed the autopsy on Bailey and testified he observed
bruises consistent with childhood type injuries and eight bruises
on the back of Bailey's head. Dr. Lantz stated the eight bruises
were consistent with adult finger thumping on the back of
Dr. Lantz also observed bruising on Bailey's buttocks and
testified in his opinion the injuries Bailey's body presented were
not caused by falling from a bicycle and were not accidental. Dr.
Lantz opined the linear nature of the bruises on the buttocks were
consistent with Bailey having been struck with a belt. He found no
evidence of any natural disease that would have caused or
contributed to Bailey's death.
Based upon Bailey's weight and size, Dr. Lantz opined Bailey
could have become severely hypothermic after remaining forty-five
minutes to an hour and one-half in water with a temperature of
forty-five to fifty-five degrees. Dr. Lantz opined that Bailey's
cause of death was severe hypothermia and that hypoglycemia would
not cause the bodily temperature to drop to sixty-nine degrees.
Dr. Lantz also observed two burn marks on Bailey's left arm
and opined the marks were consistent with being caused by a
cigarette or cigarette-like object. Finally, Dr. Lantz opined thatthe burns to Bailey's arm, the bruising on his buttocks, and severe
hypothermia were painful injuries.
B. Defendant's Evidence
Defendant testified in his defense. During cross-examination,
defendant was asked about a telephone conversation that allegedly
occurred with Danny Corriher (Corriher) regarding the water
service to defendant's residence. Defendant stated he spoke with
a female to cancel his water services and insisted he did not talk
to Corriher and did not say, that water done killed my baby.
Defense counsel made a general objection to this line of cross-
C. State's Rebuttal
Corriher is the proprietor of the water system which serviced
defendant's residence. He was called as a witness for the State on
rebuttal to impeach defendant's testimony and his answers on cross-
examination. Corriher was asked if he was familiar with 124 Cove
View Road located in Mooresville, North Carolina. Corriher
testified he had spoken with a male calling from that address to
cancel the water service but the person calling never identified
himself. Corriher testified the person calling had stated, that
water had killed his child. Upon further questioning by Corriher
the caller replied, he died in the bathtub. Corriher stated he
assumed that the caller's baby had drowned.
Defendant objected to this line of questioning and the judge
excused the jury. After voir dire, the State withdrew Corriher's
testimony. The judge instructed the jury that the State hadwithdrawn Corriher's testimony and defendant's answers to the
State's cross-examination had been stricken and to not consider any
of Corriher's testimony during deliberations.
After defendant rested his case on surrebuttal, a charge
conference was held and court recessed for the evening. Upon
arriving at his office the next day at 7:45 a.m., defense counsel
received a tape recorded telephone message left by a caller who
identified himself as Allen Lorek (Lorek). Lorek informed
defense counsel that he had witnessed Bailey having a bad bicycle
wreck and falling in a ditch. Defendant moved to reopen the
evidence to allow this witness to rebut Seth's testimony and the
State's evidence on the cause of Bailey's bruising. The court
denied defendant's motion.
The jury found defendant guilty of first-degree murder by
torture, first-degree felony murder, and felonious child abuse
inflicting serious bodily injury. Defendant was sentenced to life
imprisonment without parole. Defendant appeals.
Defendant argues the trial court erred by: (1) permitting the
State to question him in an improper and highly prejudicial manner;
(2) not granting a mistrial ex mero motu after the State withdrew
Corriher's testimony; and (3) not reopening the evidence to allow
admission of newly discovered evidence. Defendant also asserts he
was denied effective assistance of counsel.
III. Defendant's Cross-Examination
Defendant argues the trial court erred by permitting the State
to question him in an improper and highly prejudicial manner. We
Pursuant to Rule 611(b) of the North Carolina Rules of
Evidence, [a] witness may be cross-examined on any matter relevant
to any issue in the case, including credibility. N.C. Gen. Stat.
§ 8C-1, Rule 611(b) (2003). The trial court, however, shall
exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment
of the truth, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue embarrassment. N.C.
Gen. Stat. § 8C-1, Rule 611(a) (2003). 'Because the manner of the
presentation of evidence is a matter resting primarily within the
discretion of the trial judge, his control of the case will not be
disturbed absent a manifest abuse of discretion.' State v. Demos,
148 N.C. App. 343, 351, 559 S.E.2d 17, 22 (quoting State v. Harris,
315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986)), cert. denied, 355
N.C. 495, 564 S.E.2d 47 (2002).
During cross-examination, defendant was asked if he had a
conversation with Corriher and whether he told Corriher, that
water done killed my baby. The State introduced the evidence for
the purpose of challenging the credibility of defendant and his
explanation of the cause of Bailey's death. Testing defendant's
credibility and impeaching his explanations of Bailey's cause of
death is relevant evidence well within the scope of cross-examination. N.C. Gen. Stat. § 8C-1, Rule 611(b). While this line
of questioning may be damaging to defendant and cast doubt on his
theory and explanation of the cause of Bailey's death, such
evidence is highly probative of the issues at trial. The trial
court did not abuse its discretion in allowing the questions. This
assignment of error is overruled.
IV. Ex Mero Motu
Defendant argues the trial court committed plain error by not
declaring a mistrial ex mero motu after the State withdrew
During rebuttal, the State asked Corriher if anything unusual
was said during his telephone conversation. Corriher replied the
caller stated, that water had killed his child. Defense counsel
objected and the trial court sustained the objection. The court
recessed for lunch and after returning into session, the State
moved to withdraw Corriher's testimony. Defendant moved to strike
this testimony and asked that a curative instruction be given to
After the State moved to withdraw Corriher's testimony,
defendant's motion to strike was granted. Curative instructions
were given to the jury. Jurors are presumed to follow a trial
judge's instructions. State v. Taylor, 340 N.C. 52, 64, 455
S.E.2d 859, 866 (1995) (citing State v. Rouse, 339 N.C. 59, 92, 451
S.E.2d 543, 561 (1994)).
After the judge gave instructions to disregard Corriher's
testimony, defense counsel thanked the court and proceeded topresent his case without moving for a mistrial. Presuming
Corriher's testimony before the jury was improper, 'the court
cured any error by its action in sustaining the objection and
giving the curative instruction.' State v. Fletcher, 125 N.C.
App. 505, 512, 481 S.E.2d 418, 423 (1997) (quoting State v. Bowie,
340 N.C. 199, 209, 456 S.E.2d 771, 776, cert. denied, 516 U.S. 994,
133 L. Ed. 2d 435 (1995)). The trial court did not err by not
granting a mistrial ex mero motu. This assignment of error is
V. Newly Discovered Evidence
Defendant asserts the trial judge erred by not reopening the
evidence to allow admission of newly discovered evidence.
N.C. Gen. Stat. § 15A-1226(b) (2003) provides, [t]he judge in
his discretion may permit any party to introduce additional
evidence at any time prior to verdict. Our Supreme Court has
stated, [t]he trial court has discretionary power to permit the
introduction of additional evidence after a party has rested.
State v. Jackson, 306 N.C. 642, 653, 295 S.E.2d 383, 389 (1982)
(citing State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980);
State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978); State v.
Coffey, 255 N.C. 293, 121 S.E.2d 736 (1961)). It is within the
discretion of the trial judge to permit, in the interest of
justice, the examination of witnesses at any stage of trial.
State v. Johnson, 23 N.C. App. 52, 57, 208 S.E.2d 206, 210 (citing
State v. King, 84 N.C. 737 (1881)), cert. denied, 286 N.C. 339, 210
S.E.2d 59 (1974). We review this ruling for an abuse of discretion and will
uphold a trial court's ruling under N.C. Gen. Stat. § 15A-1226(b)
unless it is shown to be manifestly unsupported by reason. State
v. Farmer, 138 N.C. App. 127, 130, 530 S.E.2d 584, 587 (2000)
(citing State v. Wooten, 344 N.C. 316, 474 S.E.2d 360 (1996)); see
also State v. Carson, 296 N.C. 31, 45, 249 S.E.2d 417, 425 (1978)
(even after arguments to the jury have begun, it is not an abuse of
discretion for the court to allow additional evidence).
After defendant rested his case on surrebuttal, a charge
conference was held. The court was recessed for the evening. A
caller, who identified himself as Lorek left a message on defense
counsel's telephone recorder stating he had previously seen Bailey
have a bad bicycle wreck and fall into a ditch. Defense counsel
called the trial judge at 8:10 a.m. to inform him of the message
and moved the court to reopen the evidence. The tape recording of
Lorek's message was presented to and heard by the court.
On the tape, the caller identified himself as Allen Lorek,
and stated: (1) I saw the little boy crash, he fell into my
ditch; (2) I ran out into my yard [sic] ask him if he was ok and
his brother was there also; and (3) I don't think that he hit his
little boy, I think the little guy actually did crash on his
bicycle [sic] cause I saw it.
Defendant argues the State would not have been prejudiced by
reopening the evidence because neither side had concluded their
case through closing arguments. The State objected to reopening
the evidence. The trial court denied defendant's motion to reopenthe evidence but allowed the tape to be admitted as a proffer of
Although defendant may not have previously been aware of
Lorek's testimony and presented the evidence and moved the court to
reopen the evidence as soon as it was available to him, those facts
alone do not warrant a new trial. During preparation for trial,
defendant with due diligence could have asked his son, Seth,
whether anyone else was present when Bailey fell from his bicycle.
Also, during Seth's cross-examination, defendant could have
inquired whether any other person witnessed or made any comments
regarding Bailey's fall from the bicycle.
Even though Lorek's testimony may have corroborated
defendant's testimony regarding the severity of the bicycle wreck,
defendant testified on direct and cross-examined Seth extensively
regarding Bailey's bicycle wrecks. Relevant evidence may be
excluded . . . by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. N.C. Gen. Stat. §
8C-1, Rule 403. Lorek's testimony was cumulative and would have
only possibly served to corroborate defendant's testimony or facts
brought to the jury's attention during Seth's cross-examination.
Both Dr. Hansen and Dr. Lantz attributed Bailey's cause of
death to hypothermia and not to bruises. The trial court did not
abuse its discretion finding Lorek's testimony to be cumulative
regarding the possible causes of Bailey's bruises and not allowing
defendant's motion to reopen the trial for additional evidence. This evidence is merely cumulative to other evidence and testimony
defendant placed before the jury for its consideration. Id.
Defendant has failed to show any abuse in the trial court's
discretion. This assignment of error is overruled.
VI. Ineffective Assistance of Counsel
Defendant asserts his trial counsel failed to provide
meaningful assistance which prejudiced his defense by not moving
for a mistrial after the State offered Corriher's direct testimony
and later withdrew it.
A defendant's ineffective assistance of counsel (IAC) claim
may be brought on direct review when the cold record reveals that
no further investigation is required, i.e., claims that may be
developed and argued without such ancillary procedures as the
appointment of investigators or an evidentiary hearing. State v.
Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (citations omitted),
motion to withdraw opinion denied, 354 N.C. 576, 558 S.E.2d 861
(2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002).
Here, the record is insufficient for us to review and rule on
defendant's claim. The transcripts and record are insufficient for
us to determine whether defense counsel's actions or inaction
resulted from trial tactics and strategy or from a lack of
preparation or an unfamiliarity with the legal issues. Further,
defendant acknowledges in his brief that he is unable, on the
present record, to litigate any of those claims for [IAC]. We
decline to reach defendant's IAC assignment of error because it isnot properly raised at this stage of review. This assignment of
error is dismissed.
Our dismissal of this assignment of error is without prejudice
to defendant to move for appropriate relief and to request a
hearing to determine whether he received effective assistance of
counsel. See State v. Dockery, 78 N.C. App. 190, 192, 336 S.E.2d
719, 721 (1985) (The accepted practice is to raise claims of
ineffective assistance of counsel in post-conviction proceedings,
rather than direct appeal. (citing e.g., State v. Vickers, 306
N.C. 90, 291 S.E.2d 599 (1982)).
VII. Trial Court's Ex Parte Communication
Defendant failed to assign error to or provide any argument in
his brief regarding the trial court's ex parte communication with
the Institute of Government. N.C.R. App. P. 28(b)(6) (2004). Any
discussion regarding the trial court's action and authority is
extraneous to and not germane to any issue before us on appeal.
Looseness of language and dicta in judicial
opinions, either silently acquiesced in or
perpetuated by inadvertent repetition, often
insidiously exert their influence until they
result in confusing the application of the
law, or themselves become crystallized into a
kind of authority which the courts, without
reference to true principle, are constrained
Smith v. R.R., 114 N.C. 728, 749-50, 19 S.E. 863, 869 (1894); see
also State v. Clark, 165 N.C. App. 279, 293, 598 S.E.2d 213, 223
(J. Wynn concurring in the result only by separate opinion), disc.
rev. denied, 358 N.C. 734, 601 S.E.2d 866, appeal dismissed, 359
N.C. 192, 607 S.E.2d 651 (2004).
Defendant failed to show the trial court committed
prejudicial error in allowing the State to question defendant on
cross-examination regarding a purported telephone conversation
with Corriher. The trial court struck this testimony and
provided curative instructions to the jury. The trial court did
not err in not granting a mistrial ex mero motu
Defendant failed to show the trial court abused its
discretion by not allowing defendant to introduce testimony of a
newly found witness. That witness's proffered testimony was
cumulative of other evidence defendant already presented.
Defendant had the opportunity to learn of Lorek's presence at
Bailey's bicycle accident through his son, Seth, prior to and
Defendant's claim of ineffective assistance of counsel is
not properly before us and is dismissed without prejudice.
Defendant received a fair trial free from prejudicial errors he
preserved and argued.
JUDGE ELMORE concurs.
JUDGE WYNN concurs in the result by separate opinion.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
No. 02 CRS 052903
TIMOTHY SETH PHILLIPS
WYNN, Judge concurring in the result.
I write separately to note in passing
(See footnote 1)
an apparently on-going
occurrence in our judiciary in which judges are permitted, without
restriction, under our Code of Judicial Conduct to engage in ex
discussions on issues of law with individuals (disinterested
experts) who are not parties to the proceeding. N.C. Code of
Judicial Conduct Canon 3(A)(4) (2003).
(See footnote 2)
In this case, the trial court initially indicated that it
would admit evidence of a telephone conversation that Corriher
allegedly had with Defendant. Shortly thereafter, however, the
State withdrew Corriher's testimony. The trial court responded
that it thought the testimony was admissible and had conferred with
the Institute of Government during the lunch recess. After probing
by defense counsel, the trial judge revealed the name of the
individual that he spoke to at the Institute of Government, Ms.
While this assertion by the trial judge appears at first
glance to be benign, I believe it raises a strong concern regarding
the apparently common practice of judges consulting disinterested
experts or obtaining opinions from non-judicial entities such as
the Institute of Government
(See footnote 3)
on the law applicable to a proceeding
The primary reason that ex parte
prohibited, is to ensure that parties appearing before a judgehave access to the relevant materials on which a judge may rely.
Andrew L. Kaufman, Judicial Ethics: The Less-Often Asked Questions
64 Wash. L. Rev. 851, 856 (1989). Nearly all states that allow a
judge to engage in ex parte
communication with an expert on the law
require that certain due process and notice concerns be given to
the parties. Indeed, those states generally track the language of
the American Bar Association Model Code of Judicial Conduct Canon
3(B)(7) which gives guidance to the judiciary on the use of a
(See footnote 4)
The ABA Model Code of Judicial Conduct
Canon 3(B)(7)(b) provides: A judge may obtain the advice of a
disinterested expert on the law applicable to a proceeding beforethe judge if the judge gives notice to the parties of the person
consulted and the substance of the advice, and affords the parties
reasonable opportunity to respond. Thus, the Model Code requires
that the trial judge give the parties notice of the expert
consulted and the substance of the advice, as well as requires that
the parties be given a chance to respond. But see
Alaska Code of
Judicial Conduct Canon 3(B)(7) (2005) (commentary to rule states A
judge may not ex parte seek advice on the law applicable to a
proceeding from a disinterested expert.).
In contrast, our Code of Judicial Conduct does not give any
guidance to the judiciary as to who is a disinterested expert,
whether the parties should be notified, whether the parties must be
told the substance of the communication, whether the parties must
be given a chance to respond to the expert's advice, or what
exactly a judge may ask the expert. Instead, Canon 3(A)(4)
unrestrictively provides that: A judge, however, may obtain the
advice of a disinterested expert on the law applicable to a
proceeding before him.
Significantly, even in a criminal proceeding in which
defendants are constitutionally entitled to be present at every
critical stage of the criminal proceeding, U.S. Const. amend. VI;
N.C. Const. art. I, § 23, our Code provides for no notice to
parties of the ex parte
communication with a disinterested
(See footnote 5)
This creates a problem as the expert contacted by thetrial judge is supposed to be disinterested in the parties, the
issues and facts of the proceeding, and the outcome of the
proceeding. Giving the parties notice of the ex parte
communication, as well as the identity of the expert contacted and
substance of the advice given, is prudent because
it cannot be assumed that legal and other
experts will give only objective advice. They
may have developed philosophical loyalties
which affect the advice that they give; as
practicing attorneys they may have cases
involving the same problems on which they are
rendering advice; as consultants they may owe
allegiance to business or other interests that
could benefit from acceptance by courts of
In re Fuchsberg
, 426 N.Y.S.2d 639, 648 (N.Y. Ct. Jud. 1978).
Further, our Code does not require the court to allow parties
a chance to respond to the substance of the advice given by the
judge. Unless the parties are given the opportunity to respond to
the expert and the substance of his advice, his prejudices and
preconceptions may go unchallenged. In short, the practice of
judicial consultation with experts without notice to the parties is
fraught with dangers. Id
.; see also
Leslie W. Abramson, The
Judicial Ethics of Ex Parte and Other Communications
, 37 Hous. L.
Rev. 1343, 1374 (2000).
Clearly, Canon 3(B)(7) of the ABA Model Code gives a great
deal more protection to the parties than does Canon 3(A)(4) of the
N.C. Code of Judicial Conduct. But in the interest of protectingthe independence, impartiality, and integrity of our judiciary, our
judges should be cautious about having an ex parte
with an expert. At the very least, judges should give notice to
the parties of the communication, the identity of the
disinterested expert, the substance of the communication, and
afford the parties an opportunity to respond.
(See footnote 6)
See In re
, 426 N.Y.S.2d at 648 (Ex parte
correspondence with experts, law teachers or otherwise, is unfair
and can be misleading. The facts given may be incomplete or
inaccurate, the problem can be incorrectly stated or other matters
can be incorrectly stated.) (internal citation omitted).
It is essential that the independence, impartiality and
integrity of the judiciary in the decision-making process are
protected. After all, [a]n independent and honorable judiciary is
indispensable to justice in our society. N.C. Code of Judicial
Conduct Canon 1.
The practice of our courts commenting on relevant matters
in the record that are not raised by the parties is well
established by noting in passing. See, e.g., First Nat'l Bank
of Lumberton v. McCaskill
, 174 N.C. 390,391, 93 S.E. 905, 905
(1917) (not[ing], in passing, the personal history of a party
to a prior case); Onuska v. Barnwell
, 140 N.C. App. 590, 591, 537
S.E.2d 840, 841 (2000) (not[ing] in passing an incorrect
citation); State v. Jenkins
, 21 N.C. App. 541, 543, 204 S.E.2d
919, 921 (1974) (not[ing] in passing that a breathalyzer test
does not give rise to the inference that a party was under the
. While not binding, this practice allows our courts
to move beyond the technical rules of appeal to provide guidance
for improving the legal profession.
Canon 3(A)(4) of the North Carolina Code of Judicial
A judge should accord to every person who is
legally interested in a proceeding, or his
lawyer, full right to be heard according to
law, and, except as authorized by law,
neither initiate nor consider ex parte
other communications concerning a pending orimpending proceeding. A judge, however, may
obtain the advice of a disinterested expert
on the law applicable to a proceeding before
The mission of the Institute of Government located at the
University of North Carolina at Chapel Hill is: To provide to
state, county, and municipal officials and employees programs of
instruction, research, and consultation to help them improve and
maintain their effectiveness, efficiency, and economy. The
institute also provides special programs for the news media and
non-profit organizations with governmentally related purposes.
Institute of Government, available at
(last visited 24 June 2005). The mission statement does not
indicate the Institute of Government provides any services for
The following states follow Model Code of Judicial Conduct
Canon 3(B)(7): Ala. Canons of Judicial Ethics Canon 3(A)(4); Ark.
Code of Judicial Conduct Canon 3; Cal. Code of Judicial Ethics
Canon 3(B)(7); Colo. Code of Judicial Conduct Canon 3(A)(4);
Conn. Code of Judicial Conduct Canon 3(A)(4); Del. Judges' Code
of Judicial Conduct Canon 3(A)(4); Fla. Code of Judicial Conduct
Canon 3(B)(7)(b); The Ga. Code of Judicial Conduct Canon 3(B)(7);
Haw. Code of Judicial Conduct Canon 3(B)(7); Idaho Code of
Judicial Conduct Canon 3(B)(7); Ind. Code of Judicial Conduct
Canon 3(B)(8); La. Code of Judicial Conduct Canon 3(A)(4); Me.
Code of Judicial Conduct Canon 3(B)(7); Md. Code of Judicial
Conduct Canon 3(A)(5); Mich. Code of Judicial Conduct Canon
3(A)(4); Minn. Code of Judicial Conduct Canon 3(A)(4); Miss. Code
of Judicial Conduct Canon 3(B)(4); Mo. Code of Judicial Conduct
Canon 3(B)(7); Neb. Code of Judicial Conduct Canon 3(B)(7); Nev.
Code of Judicial Conduct Canon 3(B)(7); N.J. Code of Judicial
Conduct Canon 3(A)(6); N.M. Code of Judicial Conduct Rule 21-
300(B)(7); 22 N.Y.C.R.R. § 100.3(B)(6); N.D. Code of Judicial
Conduct Canon 3(B)(7); Ohio Code of Judicial Conduct Canon
3(B)(7); Okla. Code of Judicial Conduct Canon 3(B)(6); R.I. Code
of Judicial Conduct Canon 3(B)(8); S.C. Code of Judicial Conduct
Canon 3(B)(4); S.D. Code of Judicial Conduct Canon 3(B)(7); Tenn.
Code of Judicial Conduct Canon 3(B)(7); Tex. Code of Judicial
Conduct Canon 3(B)(8); Utah Code of Judicial Conduct Canon
3(B)(7); Vt. Code of Judicial Conduct Canon 3(B)(7); Va. Canons
of Judicial Conduct Canon 3(B)(7); W. Va. Code of Judicial
Conduct Canon 3(B)(7); Wis. SCR 60.04(1)(g); Wyo. Code of
Judicial Conduct Canon 3(B)(7).
In this case, the trial judge consulted the Institute of
Government. Given that the mission of the Institute of
Government is to serve only governmental entities (see, supra
,footnote 3), it is questionable as to whether the Institute of
Government qualifies as a disinterested expert on the law in a
It should be noted that in North Carolina, our trial judges
are not provided research assistants. In federal courts, and
increasingly in many state jurisdictions, trial judges are being
provided the assistance of law clerks, which lessens the need to
seek advice from disinterested experts on the law applicable to
proceedings before them.
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