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State v. Smith

Court of Appeals of North Carolina

April 3, 2018

STATE OF NORTH CAROLINA,
v.
JEFFREY SCOTT SMITH, Defendant.

          Heard in the Court of Appeals 18 October 2017.

          Appeal by the State from orders entered 13 January 2016 and 19 August 2016 by Judge Ola M. Lewis in Bladen County Superior Court Nos. 13 CRS 050477, 050479; 15 CRS 000944-959; 15 CRS 050855, 050858.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N. Bolton, for the State.

          Smith Moore Leatherwood LLP, by Matthew Nis Leerberg and Kip David Nelson, for Defendant-Appellee.

          INMAN, JUDGE.

         The State appeals from an order entered by Judge Ola M. Lewis in Bladen County Superior Court recusing the District Attorney of the 13th Judicial District and his staff from further prosecuting Jeffrey Scott Smith ("Defendant") and five unnamed co-defendants in criminal actions arising from the commercial use of promotional internet software. The State also appeals from the denial of its motion to reconsider the recusal order. The State argues that the trial court's order must be vacated on three grounds: (1) the trial court exceeded its lawful authority by recusing the entire District Attorney's Office, (2) the sua sponte nature of the recusal order- decided without notice or a hearing-undermines the adversarial process of our legal system, and (3) the trial court's findings of fact are not support by any evidence.

         After careful review, we vacate the trial court's recusal order and remand for further proceedings. Because we vacate the recusal order, the State's appeal from the trial court's denial of its motion for reconsideration is moot.

         Factual and Procedural History

         On 10 June 2013, Defendant was indicted on two counts of electronic sweepstakes violations pursuant to N.C. Gen. Stat. § 14-306.4(b) in case numbers 13 CRS 50477 and 13 CRS 50479. Defendant entered a plea of not guilty, the case proceeded to trial, and on 10 April 2014, a mistrial was declared following a deadlocked jury. Defendant, who had been released on pre-trial bond, remained free pending the resolution of the charges.

         Defendant was next indicted on 6 July 2015 on seven counts of felonious possession of five or more video gaming machines (15 CRS 944, 947, 948, 949, 950, 951; 15 CRS 50858), seven counts of felonious operation of five or more video gaming machines in violation of N.C. Gen. Stat. § 14-306.1A (15 CRS 945, 946, 956, 957, 958959; 15 CRS 50855), two counts of misdemeanor gambling (15 CRS 952, 953), and two counts of misdemeanor electronic sweepstakes violations pursuant to N.C. Gen. Stat. § 14-306.4(b) (15 CRS 954, 955). The State filed a motion to revoke Defendant's initial bond of $68, 750 and to set a new secured bond in the amount of $500, 000.

         Defendant filed a response to the State's motion to increase bond, along with a motion to dismiss all charges for prosecutorial vindictiveness. On the same day, Cybernet LLC and Aladdin Real Estate, LLC, business entities affiliated with Defendant, filed a civil complaint in Bladen County Superior Court against Jonathan David, in his individual capacity and in his official capacity as the District Attorney for the 13th Judicial District, James McVicker, in his individual capacity and in his official capacity as the Sheriff of Bladen County, and Travis Deaver, in his individual capacity and in his official capacity as a Deputy Sheriff of Bladen County.

         A hearing on the State's motion to increase bond was set for 11 January 2016, but the parties agreed to continue the hearing, after Defendant's motion to dismiss the charges for prosecutorial vindictiveness was served on the State only three days before the proposed hearing.

         Despite the parties' agreement to seek a continuance of the State's motion, at the 11 January 2016 Criminal Session of Bladen County Superior Court, the trial court, sua sponte and without a hearing, rendered an oral order removing the District Attorney for the 13th Judicial District, and his staff, from serving as the prosecutors in the pending matters regarding Defendant.[1] Two days later, the trial court issued its written order of recusal, signed nunc pro tunc to 11 January 2016, in which it made the following Findings of Fact:

1. That the Defendant stands charged with twenty (20) indictments, all involving Defendant's wife's businesses which use internet promotional software.
2. That the State and the Defendant had agreed to continue the hearing since the District Attorney was served on January 8th, 2016 with the vindictiveness dismissal motion.
3. That, also on Friday, January 8th, 2016, a civil action was filed against the District Attorney, and others, which involves damages suffered by Defendant's company and Defendant's wife's company during the Bladen County Sheriff's raid which resulted in most of the Defendant's criminal charges. That file is ...

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