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Contempt_criminal_reasonable doubt standard not stated in order
A criminal contempt order was reversed for failure to indicate application of the
reasonable doubt standard where the court stated that defendant, an attorney, appeared to be
deliberately trying to introduce inadmissible evidence before the jury.
Judge STEELMAN concurring.
Attorney General Roy Cooper, by Assistant Attorney General
Derrick C. Mertz, for the State.
Tin Fulton Greene & Owen, PLLC, by Noell P. Tin and Matthew G. Pruden, for defendant.
Harold W. Cogdell, Jr. (defendant) appeals from an order entered 24 May 2006 holding him in criminal contempt in violation of N.C. Gen. Stat. § 5A-11(a)(6) for the willful or grossly negligent failure by an officer of the court to perform his duties in an official transaction. For the reasons stated herein, we reverse.
Defendant Cogdell appeared before the 15 May 2006 Criminal Session of the Superior Court of Cabarrus County as the attorney for David Joseph Buoniconti. During cross-examination, defendant asked a State's witness, Detective D.G. Waller at what point intime was [the confidential informant] polygraphed about his statement. The State gave a general objection to this question and the trial court sustained the objection. Defendant then asked [w]as [the confidential informant] ever polygraphed about his statement? The trial court sent the jury out of the courtroom and questioned defendant:
COURT: What kind of question was that? Wait a minute. What kind of question was that? You know that's inadmissible in the State of North Carolina.
Mr. Cogdell: Your Honor, I'm trying to point out what steps if any were taken by law enforcement to - -
COURT: Sir, you just violated a rule that's clear in the State of North Carolina that polygraph tests are not admissible. You have planted in the minds of the jurors that this man was either polygraphed and told a lie or they didn't polygraph him to corroborate it.
Mr. Cogdell: Your Honor, my point is I've questioned, I'm trying to understand, Your Honor, that there was [sic] no steps taken to determine - -
COURT: Sir, you are an officer of this Court. You know as a criminal defense attorney that a polygraph is not admissible in this [S]tate and you deliberately asked a question twice. I'm finding you in direct contempt and fining you $500 for that question. Do you understand that?
When the jury returned, they were told to disregard defendant's questions and were instructed that polygraph evidence has been held unreliable and inadmissible. At the contempt hearing on 24 May 2006, defendant addressed the trial court and explained the purpose of his line of questioning was to:
establish what any policies, practices, or procedures would have been regarding insuring the accuracy of information provided by a confidential source before trying to determine the reliability or truthfulness or trustworthiness of a confidential source before the Sheriff's Department permits a person to serve as a confidential source[.]
Defendant further explained his questioning was by no means an effort to either solicit the results of a polygraph . . . or  to prejudice the jury[.] Defendant understood the general rule pertaining to polygraphs meant that the results of polygraph tests were inadmissible, but not whether or not a test was given. After hearing this explanation, the trial court then entered its order stating Mr. Cogdell appeared to be deliberately trying to introduce inadmissible evidence before the jury to discredit the testimony of the co-defendant. The trial court then concluded as a matter of law Mr. Cogdell was in direct criminal contempt pursuant to N.C. Gen. Stat. § 5A-11(a)(6) (See footnote 1) . Defendant entered notice of appeal in open court.
STEELMAN, Judge, concurring in separate opinion.
Based upon the binding precedent of Ford and Verbal, this case must be reversed. However, I believe that it would be appropriate to also remand the case to the trial court for additional findings of fact and conclusions of law articulating the standard used to determine the findings of fact.
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