in the Court of Appeals 15 October 2019.
by defendant from order entered 11 January 2019 by Judge
William H. Coward in Macon County No. 18 CRS 509 Superior
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
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.
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.
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
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.
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.
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.
defendant argues Judge Coward erred by refusing to recuse
himself from defendant's hearing. We disagree.
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.
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).
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
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