State v. Hardy

1

STATE OF NORTH CAROLINA v. KHALIL HARDY, Defendant.

No. COA23-421

Court of Appeals of North Carolina

July 2, 2024

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 17 October 2023.

Appeal by Defendant from order entered 7 November 2022 by Judge Clinton D. Rowe in New Hanover County, No. 22 CRS 3153 Superior Court.

Attorney General Joshua H. Stein, by Assistant Attorney General Lisa R. Atwater, for the state-appellee.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender David S. Hallen, for the defendant-appellant.

STADING, JUDGE

Defendant Khalil Hardy appeals from an order finding him in direct criminal contempt. For the reasons below, we reverse the order.

I. Background

Wilmington police officers arrested Defendant on 21 March 2020 for discharging a firearm in the city limits, possession of a stolen firearm, and possession of the Court of up to one-half ounce of marijuana. On 23 March 2020, Defendant completed an affidavit of indigency, on which he stated he had no monthly income and expenses. He left portions of the affidavit relating to his assets and liabilities blank. The trial court found that Defendant was indigent and entitled to court-appointed counsel. On 15 February 2022, Defendant pleaded guilty to possession of a stolen firearm, and the State dismissed the remaining charges. The presiding judge suspended Defendant's sentence for twelve months of supervised probation.

On 14 October 2022, Defendant's probation officer filed a report alleging that Defendant violated the terms of his probation and requested him to appear in court on 7 November 2023. At this time, Defendant lived in Georgia and traveled to North Carolina by plane on the day of the hearing. Upon arriving in court, Defendant completed, signed, and dated an affidavit of indigency form in the same way as his first, saying that he had no monthly income, monthly expenses, assets, or liabilities. After he affirmed under oath that "the information on the affidavit is true and accurate[,]" the trial court asked Defendant how he managed to afford a plane ticket from Georgia. Defendant responded that his parents paid for his ticket, and the following exchange ensued:

The Court: And why don't you work?

Defendant: I do work.

The Court: Where do you work?

Defendant: I work for a temp service. I work for Peace (phonetic) Industry.

The Court: Okay. Do they pay you?

Defendant: Yeah, I take care of bills.

The Court: Well, you put on here you have no bills and you have no income.

Defendant: Yes, sir.

The Court: So explain to me why I shouldn't hold you in contempt for not being truthful on this.

Defendant: I don't know, sir.

The Court: Okay. Well, go ahead and appoint the Public Defender, but I'm going to hold you in contempt and you're going to spend 30 days in jail.

The Court: And for the reason, it's perjury.

Thereafter, the trial court completed an order of assignment of counsel and marked the box denoting Defendant as indigent. It then entered and signed the Administrative Office of the Courts form entitled "Direct Criminal Contempt/ Summary Proceedings/ Findings and Order," providing:

The Court finds beyond a reasonable doubt that during the proceeding the above contemnor [Defendant] willfully behaved in a contemptuous manner, in that the above named contemnor did PERJURY[.]

The undersigned gave a clear warning that the contemnor's conduct was improper. In addition, the contemnor was given summary notice of the charges and summary opportunity to respond.

The contemnor's conduct interrupted the proceedings of the court and impaired the respect due its authority.

Through appointed counsel, Defendant timely filed a notice of appeal from the order.

II. Jurisdiction

This Court has jurisdiction to hear Defendant's appeal of the trial court's order pursuant to N.C. Gen. Stat. §§ 5A-17(a) and § 7A-27(b) (2023), which collectively authorize appeals of final criminal contempt judgments.

III. Analysis

Defendant raises two issues on appeal: (1) whether the trial court erred in holding him in direct contempt, and (2) whether the trial court provided Defendant with summary notice of the charges. This Court reviews a trial court's determination of contempt to determine "whether . . . competent evidence support[s] the [court's] findings of fact and whether the findings support [its] conclusions of law." State v. Okwara, 223 N.C.App. 166, 168, 733 S.E.2d 576, 578 (2012) (citation omitted). This Court reviews "the trial court's conclusions of law drawn from the findings of fact . . . de novo." State v. Baker, 260 N.C.App. 237, 241, 817 S.E.2d 907, 910 (2018) (citation omitted). We reverse the trial court's criminal contempt order because Defendant's acts were not willful and did not impair, impede, or interrupt the proceedings.

A. Willfulness

1. Conduct

N.C. Gen. Stat. § 5A-11 provides an exhaustive-and exclusive-list of behaviors, each preceded by the word "willful," that qualify as criminal contempt. N.C. Gen. Stat. § 5A-11(a) (2023). Based on the criminal contempt order, the trial court cited N.C. Gen. Stat. § 5A-11 (1) - (3), which states the following behavior is criminal contempt:

(1) Willful behavior committed during the sitting of a court and directly tending to interrupt its proceedings.

(2) Willful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority.

(3) Willful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution.

Id. § 5A-11(a) (1)-(3). Criminal contempt can either be direct or indirect. A trial court will find that an individual is in direct criminal contempt when the act:

(1) Is committed within the sight or hearing of a presiding judicial official; and

(2) Is committed in, or in immediate proximity to, the room where proceedings are being held before the court; and

(3) Is likely to interrupt or interfere with matters then before the court.

N.C. Gen. Stat. § 5A-13(a) (2023).

Here, Defendant makes several arguments as to why the trial court erred by holding him in direct criminal contempt. He first alleges the trial court erred because N.C. Gen. Stat. § 5A-11(a) includes perjury in its exhaustive list of behaviors. He then points to N.C. Gen. Stat. § 7A-456 (2023)-the statute outlining penalties for false statements of indigency made under oath-noting it does not include contempt as a possible penalty.^[1] However, these arguments are misplaced.

This Court has previously held that "[m]aking a false statement under oath may constitute contempt, notwithstanding that the conduct may also be a crime, such as perjury or false swearing." In re Edison, 15 N.C.App. 354, 361, 190 S.E.2d 235, 240 (1972) (internal quotation marks and citation omitted). Holding that perjury could never qualify as a "behavior" properly under N.C. Gen. Stat. § 5A-11(a) would construe the statute too narrowly; the statute's focus on willfulness more accurately emphasizes the contemnor's intentions. See, e.g., In re Hayes, 199 N.C.App. 69, 78, 681 S.E.2d 395, 401 (2009) ("A fundamental principle of statutory interpretation is that a statute must be construed, if possible, so as to give effect to every part of it, it being presumed that the Legislature did not intend any of its provisions to be surplusage." (internal quotation marks and citation omitted)). Accordingly, Defendant's first argument lacks merit.

2. Intent

Next, Defendant contends writing $0 in all boxes on his affidavit was not a willful contemptuous act and did not interrupt, impede, or interfere with matters being heard in the court. In effect, he asserts that he acted neither "willfully [n]or with gross negligence." Okwara, 223 N.C.App. at 170, 733 S.E.2d at 580. The statutory term "'willful' . . . implies" that a defendant "purposefully and deliberately" violated the law with a "knowing[ ] and . . . stubborn purpose." Clayton v. Clayton, 54 N.C.App. 612, 615, 284 S.E.2d 125, 127 (1981) (citation omitted). "Conduct which is designed and reasonably calculated to interrupt the proceedings of the court then engaged in the administration of justice and the dispatch of business presently before it is punishable as criminal contempt." In re Nakell, 104 N.C.App. 638, 650-51, 411 S.E.2d 159, 166 (1991) (citation omitted). A defendant's willful intent to impair, interfere, or interrupt court proceedings can be inferred from the circumstances. See State v. Warren, 313 N.C. 254, 262, 328 S.E.2d 256, 262 (1985) ("[I]ntent is a mental attitude which . . . must ordinarily be shown by circumstances from which it may be inferred.").

In State v. Phair, a trial court found an attorney in direct criminal contempt after her cell phone went off while court was in session. 193 N.C.App. 591, 593, 668 S.E.2d 110 111 (2008). This Court reversed the order, holding "that defendant merely made a mistake in not turning her cell phone off before entering the courtroom." Id. at 594. And "[w]hile this was irresponsible," the Court could not say that the defendant exhibited a "bad faith disregard for the trial court's authority; indeed, rather than "more than deliberation or conscious choice[,]" the "defendant's actions here-or rather her inaction-seem to. . . constitute less than conscious choice." Id. (internal quotation mark and citation omitted). Conversely, in State v. Baker, this Court held that the defendant willfully intended to interrupt court proceedings when he "used two fingers and...