Matter of Nakell

Annotate this Case

411 S.E.2d 159 (1991)

In the Matter of Attorney Barry NAKELL.

No. 9016SC403.

Court of Appeals of North Carolina.

December 17, 1991.

*164 Atty. Gen. Lacy H. Thornburg by Asst. Attys. Gen. John H. Watters and David F. Hoke, Raleigh, for the State.

Smith, Patterson, Follin, Curtis, & James by Norman B. Smith, Greensboro, for defendant, appellant.

HEDRICK, Chief Judge.

Nakell first contends Judge Lake erred in denying his motion for the judge to recuse himself from the hearing on 16 November 1989. Nakell argues that "North Carolina statutory and case law establish that a judge must disqualify himself upon motion of a party if he is unable to render an impartial decision because of prejudice or a reasonable suspicion of his impartiality."

G.S. 15A-1223(b) in pertinent part provides:

A judge on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is: (1) prejudiced against the moving party or in favor of the adverse party; or ... (4) for any other reason unable to perform the duties required of him in an impartial manner.

The standard to be applied when a defendant makes a motion that a judge be recused places "the burden on the party moving for disqualification to demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially." State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774, 775 (1987). Due process standards require that where the trial judge is so embroiled in a controversy with the defendant that there is a likelihood of bias or an appearance of bias, the judge may be "unable to hold the balance between vindicating the interests of the court and the interests of the accused," and should recuse himself from the proceeding. In re Paul, 28 N.C.App. 610, 618, 222 S.E.2d 479, 484, cert. denied, 289 N.C. 614, 223 S.E.2d 767 (1976), citing, Ungar v. Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964).

In the present case Judge Lake addressed the issue of his personal involvement at the proceeding on 16 November 1989 as follows:

Personally, what Mr. Nakell said and did, did not bother me. It bothered me as a lawyer and it bothered me as a judge. It bothered me as an officer of the Court and the State presiding over a courtroom in a highly volatile situation.... I'm not concerned with the several times that I told Mr. Nakell to sit down and be quiet before we had several long exchanges ... except ... as it bears on what happened later.... What bothers me and why I had Mr. Nakell removed was with all that predicate, he then turned, in what I saw and perceived to be a most disrespectful manner, to Mr. Thompson after being directly ordered to sit down and be quiet and not address the Court, but to communicate only through Mr. Thompson, he refuses to do that, remains standing and in a loud voice directs again his same inquiry to the Court but by looking at Mr. Thompson and saying, `Mr. Thompson will you ask.' ... It was at that point that I saw I had no alternative but to remove Mr. Nakell. And the immediate effect of that, the bailiffs coming up, following the outburst from the audience, was the violent attack ... by Eddie Hatcher against the Court.

Nakell argues "the most salient indication of this [Judge Lake's] bias is his telling a *165 newspaper reporter, before Mr. Nakell's hearing, that he had warned Mr. Nakell three times before having him removed, and that Mr. Nakell had been `disruptive of the proceedings,' `pandering to the audience and the defendant [Hatcher],' and encouraging Mr. Hatcher to be disruptive." Nakell asserts that he was convicted in the press before the hearing and the trial judge should have recused himself based on this prejudgment of the merits.

Our examination of the record reveals no bias, prejudice, or proof that would require the judge before whom the contempt was committed to recuse himself from conducting a hearing. The interview with the press occurred after the finding of contempt on 14 November 1989 and the ruling made by the trial judge at that proceeding was tantamount to a finding of contempt, and thus prejudgment could not have occurred. Thus, we hold Judge Lake did not err in denying Nakell's motion that he disqualify himself.

Defendant Nakell's next argument, Assignment of Error No. 1, is set out in the record as follows:

1. Did the trial court on November 16, 1989, err in conducting an evidentiary hearing and imposing punitive measures against the defendant on account of alleged misconduct occurring on November 14, 1989, purportedly under its summary contempt authority established by G.S. ยง 5A-14, when such action was not necessary to restore order or maintain the dignity and authority of the court and when the measures imposed were not imposed substantially contemporaneous with the alleged contempt?

Nakell argues in his brief the hearing conducted on 16 November 1989 was not "in continuation" of the 14 November 1989 hearing and therefore the "measures" were not "imposed substantially contemporaneously with the contempt" as required by G.S. 5A-14.

N.C.R.App.P. 10(c)(1) provides in pertinent part:

A listing of the assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal, in short form without argument, and shall be separately numbered. Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned.

While Nakell's first assignment of error is in clear violation of the rule, and is subject to a dismissal, because of the serious nature of this case, we will respond to Nakell's contentions with respect to this assignment of error.

This Court addressed this question in State v. Johnson, 52 N.C.App. 592, 279 S.E.2d 77, disc. review denied and appeal dismissed, 303 N.C. 549, 281 S.E.2d 390 (1981). There, we held that the term "substantially contemporaneously" is construed in the light of its legislative purposethat is to meet due process safeguards. We held that "[t]he word `substantially' qualifies the word `contemporaneously' and clearly does not require that the contempt proceedings immediately follow the misconduct." We further noted that factors bearing on the time lapse included the contemnor's notice or knowledge of the misconduct, the nature of the misconduct and other circumstances that may have some bearing on the right of the defendant to a fair and timely hearing.

In the present case, the conduct of Nakell which gave rise to his being held in direct criminal contempt occurred late in the afternoon of 14 November 1989. At Nakell's request, the court gave him "specification of the contempt" and set a hearing for Nakell to return "for a further consideration of this matter by the Court" on 16 November at 2:30 p.m. It is clear that the hearing on 16 November was in continuation and was "substantially contemporaneous" with the events of 14 November. Indeed, Judge Lake, at the hearing on 16 November, explained that the hearing was pursuant to G.S. 5A-14 and had been continued to 16 November "to afford Attorney Nakell adequate opportunity to respond to the direct criminal contempt charge." Clearly under the circumstances of the *166 case, we find no conceivable error or prejudice to Nakell.

By Assignment of Error No. 4, Nakell contends there is insufficient evidence to prove beyond a reasonable doubt that he violated a clear order, that he acted with willful intent to obstruct the proceedings, and that his conduct materially obstructed the proceedings as to constitute criminal contempt. This assignment of error is purportedly based on exceptions to Findings of Fact Nos. 4-14, Conclusions of Law Nos. 1-3, and the order entered.

We note at the outset that most of Nakell's argument in support of this assignment of error is based on the premise that Hatcher was Nakell's client. There is nothing in the record before us to support this assumption. In fact, the record demonstrates conclusively that Nakell did not represent Hatcher, that Nakell did not have a client, and that Nakell was an interloper at the time he entered the courtroom on 14 November and seated himself beside Hatcher. Indeed, Judge Lake found as a fact that the court made it abundantly clear to Nakell that Angus Thompson was the only attorney of record for Hatcher, that Nakell was not recognized by the court as having standing in the court, and that the court was not accepting his limited appearance. This finding of fact, although excepted to by Nakell, is not challenged in his brief. As stated before, Nakell merely assumes that he had a client. Thus, all of defendant's arguments relating to the court's refusal to hear Nakell are meritless.

The balance of Nakell's argument in his brief in support of Assignment of Error No. 4 raises the question of whether the findings of fact and evidence support the conclusions of law and the order entered.

G.S. 5A-11(a) provides instances of criminal contempt. These include:

(1) Willful behavior committed during the sitting of a court and directly tending to interrupt its proceedings. (2) Willful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority. (3) Willful disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution.

Criminal contempts are crimes, and therefore the accused is entitled to the benefits of all constitutional safeguards. O'Briant v. O'Briant, 313 N.C. 432, 329 S.E.2d 370 (1985). Evidence is sufficient to support a conviction if there is substantial evidence of every element of the crime. State v. Jordan, 321 N.C. 714, 365 S.E.2d 617 (1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Erwin, 304 N.C. 93, 98, 282 S.E.2d 439, 443 (1981). Conduct which is designed and reasonably calculated to interrupt the proceedings of the court then engaged in the administration of justice and the dispatch of business presently before it is punishable as criminal contempt. State v. Little, 175 N.C. 743, 94 S.E. 680 (1917).

Nakell argues the record, the findings of fact, and the evidence fail to support the three conclusions of law drawn from the findings of fact made by Judge Lake. He contends that there is no support for the conclusion that he willfully intended that his conduct should be disruptive, or that the proceeding was disrupted in any way, nor that his conduct impaired the respect due the authority of the court, nor that he willfully and intentionally disobeyed, resisted and interfered with a lawful direction and order of the court.

The record before us manifests that Nakell intended to disrupt the proceeding wherein he, as an interloper, continually interrupted the proceeding by attempting to argue matters not then being considered. The trial judge repeatedly ordered Nakell to sit down and be quiet. Nevertheless, Nakell willfully disobeyed the order and continued to interfere and disrupt the proceeding. Nakell not only intended that his conduct should disrupt the proceeding, it did in fact do so. His language, conduct, and attitude precipitated *167 the violent outburst from Hatcher and applause from Hatcher's supporters in the courtroom. Hatcher's outbursts halted the proceeding and he had to be removed from the courtroom, bound and gagged. We cannot imagine a scenario more calculated to disrupt the proceeding and to impair the respect due the authority of the court.

We find no error in the proceeding and affirm the order dated 17 November 1989 adjudging Barry Nakell to be in direct criminal contempt and ordering him to pay a fine of $500 and be imprisoned for ten days in the custody of the Sheriff of Robeson County.


ARNOLD and PHILLIPS, JJ., concur.

PHILLIPS J., concurred in this decision prior to his retirement on 1 October 1991.