North Carolina Lawyers Weekly
Where defendant was served with a subpoena to testify in an assault on a female case, the trial court could find her in criminal contempt for failing to appear. Defendant’s failure to appear was equivalent to a willful refusal to testify.
We affirm the trial court’s order finding defendant in criminal contempt.
Although the show cause order in a criminal contempt proceeding is analogous to a criminal indictment, a show cause order is not equivalent to an indictment. We reject defendant’s argument that the show cause order was defective for failing to comply with G.S. § 15A-924(5).
Even though the district court’s order finding defendant in criminal contempt did not indicate that the district court applied the reasonable-doubt standard of proof, this defect in the district court’s order was not jurisdictional. Accordingly, the superior court was not deprived of jurisdiction on appeal.
Once defendant appealed to superior court, District Court Judge Boone was no longer the presiding judge. Accordingly, Judge Boone could testify as a witness with knowledge of whether defendant had failed to appear in her courtroom. N.C. R. Evid. 605 only prohibits the presiding judge from testifying. While there is a risk of prejudice whenever a judicial official testifies in a subsequent proceeding of a case over which she has previously presided, offering this testimony does not in and of itself violate Rule 605.
Superior Court Judge Puckett’s decision to allow a witness with knowledge to testify about whether defendant was present in court when subpoenaed was not arbitrary or manifestly unsupported by reason. Therefore, it was not error, much less plain error, for Judge Puckett to allow Judge Boone to testify.
Affirmed.
Concurrence
(Berger, J.) Defendant merely cites to Rule 605 and contends that the trial court deprived her of a fair hearing when it failed to intervene ex mero motu to exclude Judge Boone’s testimony. Defendant thus abandoned any argument under Rule 605 and is not entitled to appellate review.
The issue of Judge Puckett’s decision to allow Judge Boone to testify should be reviewed for an abuse of discretion, not plain error. Plain error review is not available on appeal for unpreserved evidentiary issues that fall within a trial court’s sound discretion. The majority impermissibly engaged in plain error review and lays the foundation for the expanded use of plain error review of evidentiary issues that fall within a trial court’s sound discretion.
State v. Wendorf (Lawyers Weekly No. 011-304-20, 21 pp.) (Christopher Brook, J.) (Philip Berger, J., concurring) Appealed from Surry County Superior Court (Angela Puckett, J.) Ameshia Cooper for the state; Louise Paglen for defendant. N.C. App.
