{
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  "name": "RE: CONTEMPT PROCEEDINGS AGAINST HAROLD W. COGDELL, JR., ATTORNEY FOR DEFENDANT, DAVID JOSEPH BUONICONTI",
  "name_abbreviation": "In re Contempt Proceedings Against Cogdell",
  "decision_date": "2007-05-15",
  "docket_number": "No. COA06-1186",
  "first_page": "286",
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          "parenthetical": "reversing order holding defendant attorney in criminal contempt where \"we find implicit in the statute the requirement that the judicial official's findings should indicate that [the 'beyond a reasonable doubt'] standard was applied to his findings of fact\""
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          "parenthetical": "reversing order holding defendant attorney in criminal contempt where \"we find implicit in the statute the requirement that the judicial official's findings should indicate that [the 'beyond a reasonable doubt'] standard was applied to his findings of fact\""
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          "page": "849",
          "parenthetical": "contempt orders were fatally deficient where the lower court failed to indicate in the findings that the beyond a reasonable doubt standard was applied"
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    {
      "cite": "164 N.C. App. 566",
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          "parenthetical": "contempt orders were fatally deficient where the lower court failed to indicate in the findings that the beyond a reasonable doubt standard was applied"
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  "last_updated": "2023-07-14T15:07:58.512650+00:00",
  "provenance": {
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    "source": "Harvard",
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    "judges": [
      "Judge JACKSON concurs.",
      "Judge STEELMAN concurs in a separate opinion."
    ],
    "parties": [
      "RE: CONTEMPT PROCEEDINGS AGAINST HAROLD W. COGDELL, JR., ATTORNEY FOR DEFENDANT, DAVID JOSEPH BUONICONTI"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nHarold W. Cogdell, Jr. (defendant) appeals from an order entered 24 May 2006 holding him in criminal contempt in violation of N.C. Gen. Stat. \u00a7 5A-ll(a)(6) for the \u201cwillful or grossly negligent failure by an officer of the court to perform his duties in an official transaction.\u201d For the reasons stated herein, we reverse.\nDefendant Cogdell appeared before the 15 May 2006 Criminal Session of the Superior Court of Cabarrus County as the attorney for David Joseph Buoniconti. During cross-examination, defendant asked a State\u2019s witness, Detective D.G. Waller \u201cat what point in time was [the confidential informant] polygraphed about his statement.\u201d The State gave a general objection to this question and the trial court sustained the objection. Defendant then asked \u201c[w]as [the confidential informant] ever polygraphed about his statement?\u201d The trial court sent the jury out of the courtroom and questioned defendant:\nCOURT: What kind of question was that? Wait a minute. What kind of question was that? You know that\u2019s inadmissible in the State of North Carolina.\nMr. Cogdell: Your Honor, I\u2019m trying to point out what steps if any were taken by law enforcement to\u2014\nCOURT: Sir, you just violated a rule that\u2019s clear in the State of North Carolina that polygraph tests are not admissible. You have planted in the minds of the jurors that this man was either polygraphed and told a lie or they didn\u2019t polygraph him to corroborate it.\nMr. Cogdell: Your Honor, my point is I\u2019ve questioned, I\u2019m trying to understand, Your Honor, that there was [sic] no steps taken to determine\u2014\nCOURT: Sir, you are an officer of this Court. You know as a criminal defense attorney that a polygraph is not admissible in this [S]tate and you deliberately asked a question twice. I\u2019m finding you in direct contempt and fining you $500 for that question. Do you understand that?\nWhen the jury returned, they were told to disregard defendant\u2019s questions and were instructed that polygraph evidence has been held unreliable and inadmissible.\nAt the contempt hearing on 24 May 2006, defendant addressed the trial court and explained the purpose of his line of questioning was to:\nestablish what any policies, practices, or procedures would have been regarding insuring the accuracy of information provided by a confidential source before trying to determine the reliability or truthfulness or trustworthiness of a confidential source before the Sheriff\u2019s Department permits a person to serve as a confidential source].]\nDefendant further explained his questioning \u201cwas by no means an effort to either solicit the results of a polygraph ... or [] to prejudice the jury].]\u201d Defendant understood the general rule pertaining to polygraphs meant that the results of polygraph tests were inadmissible, but \u201cnot whether or not a test was given.\u201d After hearing this explanation, the trial court then entered its order stating \u201cMr. Cogdell appeared to be deliberately trying to introduce inadmissible evidence before the jury to discredit the testimony of the co-defendant.\u201d The trial court then concluded \u201cas a matter of law\u201d Mr. Cogdell was in direct criminal contempt pursuant to N.C. Gen. Stat. \u00a7 5A-ll(a)(6). Defendant entered notice of appeal in open court.\nThe dispositive issue is whether the trial court erred by entering a criminal contempt order against defendant without stating the standard of review. N.C. Gen. Stat. \u00a7 5A-14(b) sets out the requirements of summary proceedings for direct criminal contempt:\nBefore imposing measures under this section, the judicial official must give the person charged with contempt summary notice of the charges and a summary opportunity to respond and must find facts supporting the summary imposition of measures in response to contempt. The facts must be established beyond a reasonable doubt.\nN.C. Gen. Stat. \u00a7 5A-14(b) (2005); State v. Ford, 164 N.C. App. 566, 569-70, 596 S.E.2d 846, 849 (2004) (contempt orders were fatally deficient where the lower court failed to indicate in the findings that the beyond a reasonable doubt standard was applied). N.C. Gen. Stat. \u00a7 5A-14(b) clearly requires that the standard should be \u201cbeyond a reasonable doubt.\u201d See State v. Verbal, 41 N.C. App. 306, 307, 254 S.E.2d 794, 795 (1979) (reversing order holding defendant attorney in criminal contempt where \u201cwe find implicit in the statute the requirement that the judicial official\u2019s findings should indicate that [the \u2018beyond a reasonable doubt\u2019] standard was applied to his findings of fact\u201d).\nOn 24 May 2006, the trial court issued an order, which in its entirety, stated:\nTHIS MATTER coming on for hearing before the undersigned Superior Court Judge on its own motion and the Court makes the following Findings of Fact:\nThat Mr. Harold Cogdell is a sworn officer of the Court appearing as a defense attorney before the Court in the case of State versus Buoniconti.\nThat Mr. Cogdell asked the witness, Detective D.G. Waller, not once, but twice, after an objection by the State had already been sustained, about whether the co-defendant took a lie detector test concerning statements he had made to Detective Waller. As an attorney with ten years experience, Mr. Cogdell knew or should have known that lie detector evidence is inadmissable in the State of North Carolina in all court proceedings.\nThat no request was made by Mr. Cogdell for any voir dire prior to asking the question. By asking such a question Mr. Cogdell appeared t\u00f3 be deliberately trying to introduce inadmissible evidence before the jury to discredit the testimony of the co-defendant. Such action is a clear violation of the Rules of Professional Conduct and holdings of the North Carolina Supreme Court and constitutes willful failure by an officer of the Court to perform his duty.\nThat all the acts were committed in sight and hearing of this Court in the courtroom and they interrupted and interfered with the proceedings, requiring the Jury to be sent out of the room while this Court heard legal arguments and entered this order.\nThat the actions by the attorney may well have resulted in the Court having to declare a mistrial if the State had so requested.\nThe Court concludes as a matter of law that Mr. Cogdell is in direct criminal contempt in violation of G.S. 5A-11(a)(6).\nIt is therefore Ordered, Adjudged, and Decreed that Mr. Cogdell pay a fine of $500.00 as punishment for this direct criminal contempt.\n(Emphasis added). Here, the trial court stated defendant \u201cappeared to be\u201d deliberately trying to introduce inadmissible evidence before the jury and that \u201c[s]\u00fach action is a clear violation of the Rules of Professional Conduct and holdings of the North Carolina Supreme Court and constitutes willful failure by an officer of the Court to perform his duty.\u201d However, the trial court\u2019s order failed to indicate that he applied the beyond a reasonable doubt standard to his findings as required by N.C.G.S. \u00a7 5A-14(b). See State v. Randell, 152 N.C. App. 469, 472, 567 S.E.2d 814, 816 (2002) (citation omitted) (\u201cThe facts must be established beyond a reasonable doubt.\u201d). Just as in Verbal, \u201cwe conclude that the order entering judgment on the summary proceedings below is fatally deficient, and cannot be sustained.\u201d Verbal, 41 N.C. App. at 307, 254 S.E.2d at 795. Defendant\u2019s conviction is therefore reversed.\nReversed.\nJudge JACKSON concurs.\nJudge STEELMAN concurs in a separate opinion.\n. N.C.G.S. \u00a7 5A-ll(a)(6) defines criminal contempt as the \u201c[w]illful or grossly negligent failure by an officer of the court to perform his duties in an official transaction.\u201d N.C. Gen. Stat. \u00a7 5A-ll(a)(6) (2005).",
        "type": "majority",
        "author": "BRYANT, Judge."
      },
      {
        "text": "STEELMAN, Judge,\nconcurring in separate opinion.\nBased upon the binding precedent of Ford and Verbal, this case must be reversed. However, I believe that it would be appropriate to also remand the case to the trial court for additional findings of fact and conclusions of law articulating the standard used to determine the findings of fact.",
        "type": "concurrence",
        "author": "STEELMAN, Judge,"
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.",
      "Tin Fulton Greene & Owen, PLLC, by Noell P. Tin and Matthew G. Pruden, for defendant."
    ],
    "corrections": "",
    "head_matter": "RE: CONTEMPT PROCEEDINGS AGAINST HAROLD W. COGDELL, JR., ATTORNEY FOR DEFENDANT, DAVID JOSEPH BUONICONTI\nNo. COA06-1186\n(Filed 15 May 2007)\nContempt\u2014 criminal \u2014 reasonable doubt standard not stated in order\nA criminal contempt order was reversed for failure to indicate application of the reasonable doubt standard where the court stated that defendant, an attorney, \u201cappeared to be\u201d deliberately trying to introduce inadmissible evidence before the jury.\nJudge Steelman concurring.\nAppeal by defendant from an order entered 24 May 2006 by Judge Michael E. Beale in Cabarrus County Superior Court. Heard in the Court of Appeals 12 April 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.\nTin Fulton Greene & Owen, PLLC, by Noell P. Tin and Matthew G. Pruden, for defendant."
  },
  "file_name": "0286-01",
  "first_page_order": 318,
  "last_page_order": 322
}