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In re Eldridge

Court of Appeals of North Carolina

December 3, 2019

IN THE MATTER OF: DAVIN ELDRIDGE, Contemnor.

          Heard in the Court of Appeals 15 October 2019.

          Appeal by defendant from order entered 11 January 2019 by Judge William H. Coward in Macon County No. 18 CRS 509 Superior Court.

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Teresa L. Townsend, for the State.

          McKinney Law Firm, P.A., by Zeyland G. McKinney, Jr., for defendant-appellant.

          BRYANT, JUDGE.

         Where the trial court's actions would not cause a reasonable person to doubt his objectivity or impartiality, we affirm the trial court's ruling denying defendant's motion for recusal. Where defendant's actions gave rise to criminal contempt, we affirm the trial court's ruling finding him in criminal contempt. Where the trial court did not abuse its discretion by imposing specific conditions which were reasonably related to defendant's probationary sentence, we affirm the trial court's ruling.

         On 29 November 2018, defendant Davin Eldridge, a frequent publisher for a Facebook page called "Trappalachia," entered the Macon County Courthouse. The officer working the metal detector saw defendant had a small tape recorder and "advised [defendant that] he [could] not record inside the courtroom. Defendant acknowledged the officer's instruction and entered a courtroom. As he did so, defendant bypassed signs posted on the entranceways stating:

BY ORDER OF THE SENIOR RESIDENT SUPERIOR COURT JUDGE: DO NOT use or open cell phones, cameras, or any other recording devices inside the courtrooms. Violations of this order will be contempt of court, subjecting you to jail and/or a fine. Your phone may be subject to seizure and search.

         While in the courtroom, defendant was observed sitting on the second row with a cell phone, holding it "shoulder-chest level" towards the front of the courtroom. The officer went over to defendant and instructed him to put his phone away. Defendant replied, "I'm not doing anything." The Honorable William H. Coward, Superior Court Judge of Macon County, was presiding over a criminal matter at that time. Judge Coward was informed that a live posting of the hearing in session was streaming from a Facebook page. Based on that information, Judge Coward interrupted the hearing to issue a reminder that recordings of courtroom proceedings were prohibited by law. At the conclusion of the hearing, Judge Coward viewed the Facebook postings by defendant, which included footage of the inside of the courtroom and the prosecutor presenting his closing argument. The trial court ordered defendant to return to the courtroom later that day. Defendant failed to return as ordered.

         On 3 December 2018, Judge Coward issued a show cause order for defendant to appear and show why he should not be held in criminal contempt. The show cause order made it clear the notice of hearing was based on defendant's usage of a recording device inside the courtroom. The hearing was scheduled for 11 January 2019. Meanwhile, the North Carolina State Bureau of Investigation (SBI) made a preservation request to Facebook to preserve all information relevant to the specific date and time period of the incident. A search warrant was issued and signed by Judge Coward. Upon execution of the warrant, the agents seized defendant's Facebook account records and several messaging threads.

         On 11 January 2019, immediately prior to the criminal contempt hearing, the defendant made an oral motion under N.C. G.S. § 5A-15 for Judge Coward to recuse himself, which was denied. A contempt hearing was held, and the trial court found defendant to be guilty of criminal contempt. Defendant was sentenced to jail for thirty days. The active sentence was suspended, and defendant was placed on probation for one year with certain conditions. Defendant gave oral notice of appeal in open court.

         On appeal, defendant argues the trial court erred by: (I) denying his motion for recusal at the hearing for contempt, (II) finding him in criminal contempt of court, and (III) issuing a probationary sentence that was unsupported by law.

         I

         First, defendant argues Judge Coward erred by refusing to recuse himself from defendant's hearing. We disagree.

         Disqualification and recusal of a presiding judge in plenary proceedings for contempt is governed by Canon 3 of the North Carolina Code of Judicial Conduct and, in criminal cases, section 5A-15 of the North Carolina General Statutes.

         The Code of Judicial Conduct provides, in pertinent part, that a judge should recuse upon motion of any party or by the judge's own initiative if "impartiality may reasonably be questioned" including, inter alia, where "the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings." Code of Jud.Conduct, Canon 3C(1)(a) (2015).

         Section 5A-15 of the North Carolina General Statues provides that "[t]he judge is the trier of facts at the show cause hearing." N.C. G.S. § 5A-15(d) (2017). "If the criminal contempt is based upon acts before a judge which so involve him that his objectivity may reasonably be questioned, the order must be returned before a different judge." Id. § 5A-15(a).

While [a written] motion required by N.C. Gen. Stat. § 15A-1223 must be made in a criminal proceeding where either the state or the defendant alleges bias, close familial relationship, or absence of impartiality on the part of the presiding judge, the legislature specifically codified an exception to this requirement for criminal contempt proceedings [under N.C. G.S. § 5A-15] where the acts constituting the contempt so involve the judge issuing the show cause order that his objectivity could be reasonably questioned.

In re Marshall, 191 N.C.App. 53, 60, 662 S.E.2d 5, 10 (2008). Therefore, section 5A-15(a) "imposes a duty on the judge to acknowledge that his involvement in the acts allegedly constituting the contempt could reasonably cause others to question the judge's objectivity and, in such circumstance, to return the show cause order before a ...


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