State v. Jackson
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA13-357 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. Durham County No. 12 CRS 5265 TIKEEYA JACKSON Appeal by defendant from judgment entered 1 November 2012 by Judge Michael O Foghludha in Durham County Superior Court. Heard in the Court of Appeals 11 September 2013. Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State. Peter Wood, for defendant-appellant. CALABRIA, Judge. Tikeeya Jackson ( defendant ) appeals from a judgment finding her guilty of direct criminal contempt. We affirm. I. Background On 10 July 2012, Deputy Donte Armstrong ( Deputy Armstrong ) was on duty as a courtroom bailiff in Durham County District Court. Another Deputy gave preliminary instructions to the audience, instructing everyone to silence their cell phones. -2After a cell phone rang somewhere in the courtroom, the audience was given another warning to silence all cell phones. A cell phone rang several a second members defendant s presiding phone judge, of time. the Deputy audience Armstrong suspected, indicated, that rang. Deputy Judge James Hill Armstrong ( Judge that and it was informed the Hill ), that he believed the phone that rang belonged to defendant. When defendant was called for her case, Judge Hill asked her whether it was her phone that rang. Defendant denied that it was her phone. Defendant requested a court-appointed attorney. Subsequently, Deputy Armstrong began handing out clipboards to the defendants in the courtroom for them to complete relevant paperwork. When Deputy Armstrong handed defendant a clipboard, she looked at Deputy Armstrong and said, Thank you, house n----. Deputy Armstrong and everyone else around her within fifteen feet heard defendant s statement. When Deputy Armstrong handed defendant s clipboard to Judge Hill, he informed Judge Hill that defendant had called him a house n----- and walked away. Judge Hill immediately stopped the proceedings, called defendant to the front of the courtroom, and questioned both Deputy Armstrong and defendant about her statement. Judge Hill -3charged defendant with direct criminal contempt and sentenced her to thirty days in the Durham County jail. Defendant appealed to Durham County Superior Court, where Judge Hill, Deputy Armstrong, and defendant all testified at a hearing. The trial court found defendant guilty of direct criminal contempt and sentenced her to thirty days in the Durham County jail. Defendant appeals. II. Standard of Review In contempt proceedings, the trial judge must make findings of fact beyond a reasonable doubt, and enter a written order. State v. Coleman, 188 N.C. App. 144, 148, 655 S.E.2d 450, 452 (2008). On appeal, the trial judge s findings of fact are conclusive ... when supported by any competent evidence and are reviewable only for the purpose of passing on their sufficiency. Id., 655 S.E.2d at 453. (citations omitted). The appellate court may only review the law applicable to the trial judge s findings of fact. State v. Ford, 164 N.C. App. 566, 569, 596 S.E.2d 846, 849 (2004). III. Direct Criminal Contempt Defendant contends that it was error for the trial court to hold her in direct criminal contempt. There are two types of We disagree. criminal contempt: direct and -4indirect. N.C. Gen. Stat. § 5A-13 (2011). An act is considered direct criminal contempt when the act: (1)[i]s committed within the sight or hearing of a presiding judicial official; and (2)[i]s committed in, or in immediate proximity to, the room where proceedings are being held before the court; and (3)[i]s likely to interrupt or interfere with matters then before the court. N.C. Gen. Stat. § 5A-13(a)(1)-(3) (2011). A person who commits criminal contempt, whether direct or indirect, is subject to censure, imprisonment up to 30 days, fine not to exceed five hundred dollars ($500.00), or any combination of the three .... N.C. Gen. Stat. § 5A-12(a) (2011). As an initial matter, defendant contends that the trial judge had no direct knowledge of facts which would establish acts of contempt and therefore the trial court must [have] follow[ed] indirect criminal contempt procedures. argues that with indirect criminal contempt, Defendant the trial court should have followed the requirements for a plenary contempt proceeding pursuant to N.C. Gen. Stat. § 5A-15. However, defendant failed to make this argument below, and therefore it is not preserved for appellate review. See Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934) ( [T]he law does not permit parties to swap horses between courts in order to get a better -5mount on appeal). In the instant case, when Deputy Armstrong handed defendant a clipboard, she said audibly, Thank you, house n-----. At the hearing in Superior Court, defendant admitted making the statement to Deputy Armstrong in the courtroom while Judge Hill was conducting court. The trial court entered an order finding defendant in direct criminal contempt and made the following relevant findings of fact: 3) The Defendant appeared in that Courtroom that morning to answer a misdemeanor charge. The Defendant had been in a court of law on previous occasions and understood that she should treat courtroom officials with respect and in a dignified manner. ... 7) When Deputy Armstrong handed the Defendant her clipboard, she looked directly at Deputy Armstrong and said audibly, Thank you, house [n-----]. 8) This racial epithet was made audibly, in open Court, while Court was in session, while the Presiding Judge was present, and within fifteen feet of the Judge s bench. 9) This racial epithet was therefore made within the sight or hearing of the presiding Judge, although Judge Hill did not actually hear the Defendant s words. 10) Making such a racial epithet to a uniformed Deputy Sheriff in charge of courtroom security and order is willfully contemptuous. -611) Making such a racial epithet in open Court directly tends to interrupt its proceedings, and did in fact interrupt the Court s proceedings, as Judge Hill, upon being informed of the Defendant s conduct, had to interrupt the Court s business to deal with the Defendant s conduct, and then Judge Hill had to recess Court briefly in order to thereafter properly conduct the remaining business of the Court. 12) Making such a racial epithet to a Deputy Sheriff in charge of courtroom security and order directly tends to impair the respect due the Court s authority. 13) Making such a racial epithet to Deputy Armstrong while Deputy Armstrong was carrying out the business of the Court by handing out necessary paperwork relating to the appointment or waiver of counsel constitutes interference with execution of the Court s lawful process, order, directive, or instruction. The trial court then concluded that defendant s conduct was willfully contemptuous ... that said conduct occurred in open court within the sight or hearing of the Honorable James T. Hill, and constitutes Direct Criminal Contempt under N.C.G.S. 5A-11(a)(1), 5A-11(a)(2), and 5A-11(a)(3). Defendant disputes findings of fact three and seven through twelve as well as the trial court s conclusion that she was in direct criminal contempt. at the hearing that However, the State presented evidence Deputy Armstrong was in uniform and in -7charge of courtroom security on that date, and defendant made her statement directly to Deputy Armstrong in a crowded courtroom. Judge Hill immediately stopped proceedings to address defendant s disrespectful statement, to and [Deputy indicated Armstrong], that and defendant as a was result, was disrespectful to the Court and had shown contempt for the Court and the entire process. Defendant knew the basics of courtroom making knowing decorum, the and history admitted and the the harmfulness statement of the despite statement. Despite defendant s contentions, the hearing testimony supports the trial court s findings. Furthermore, requirements of found, and the defendant defendant s direct actions criminal met contempt. the The statutory trial court State s evidence at the hearing showed, that uttered the racial slur in the presence of the presiding judge. Defendant makes much of the fact that Judge Hill did not actually hear defendant utter the racial slur. However, N.C. Gen. Stat. § 5A-13(a) simply requires that the act be committed within the sight or hearing of a presiding judicial official[.] N.C. Gen. Stat. § 5A-13(a)(1) (2011). The statute does not require that the official actually see or hear the event occur. In addition, defendant made the statement in -8open court during court proceedings, and thus her committed in ... the room where proceedings are before the court .... Defendant act was being held N.C. Gen. Stat. § 5A-13(a)(2). contends that her behavior did not directly interrupt the normal court proceedings and uses several school cases to illustrate what is necessary to constitute a disruption. However, the evidence at the hearing supported the trial court s findings that defendant s behavior was disruptive. When Judge immediately Hill became stopped aware the of defendant s proceedings to statements, address he defendant s behavior. When asked to explain the reason for holding defendant in contempt, Judge Hill stated, [I]t was a disruption to the operation of court. In light of these findings by the trial court and the evidence supporting them, it is clear that defendant s acts met the statutory requirements for direct criminal contempt. The trial court did not err in finding defendant in direct criminal contempt. IV. Willfulness Defendant argues that her comment did not rise to the level of contempt because it was not willful. We disagree. Criminal contempt includes: [w]illful behavior committed -9during the sitting of a court and directly tending to interrupt its proceedings[,] sitting of a [w]illful court in its behavior immediate committed view and during the presence and directly tending to impair the respect due its authority[,] and [w]illful disobedience of, resistance to, or interference with a court s lawful process, order, directive, or instruction or its execution. N.C. Gen. Stat. § 5A-11(a)(1)-(3) (2011). In the context of contempt proceedings, this Court has previously defined a willful act as one done deliberately and purposefully in violation of law, and without authority, justification, or excuse. State v. Okwara, __ N.C. App. __, __, 733 S.E.2d 576, 580 (2012) (citation omitted). Willfulness is not affected by a defendant s claimed purpose offered to justify actions that are knowingly prohibited. See State v. Simon, 185 N.C. App. 247, 254, 648 S.E.2d 853, 857 (2007). Defendant argues that her conduct was not willful, and thus it was error contempt. for the trial court to hold her in criminal Defendant admitted making the statement. Defendant admitted that she had previously been in a courtroom and knew how to treat courtroom officials. In addition, she knew the history and harmfulness of the racial epithet she used, and she knew it was wrong to use the word, but she said it anyway -10because she was mad at [Deputy] Armstrong. Although defendant argues that she did not intend for anyone to hear the statement and that it was uttered in anger, the motivation for her actions is irrelevant here. The statute only requires that the behavior be willful, and defendant s action in making the statement was willful violation excuse. as it of was law, Okwara, done and __ deliberately without N.C. and authority, App. at __, purposefully in justification, or 733 S.E.2d at 580 (citation omitted). V. Conclusion The trial court did not err in holding defendant in direct criminal contempt requirements for because direct it is clear criminal defendant s actions were willful. Affirmed. Judges ELMORE and STEPHENS concur. Report per Rule 30(e). that contempt the were statutory met and
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