{
  "id": 4159356,
  "name": "In the Matter of RAYMOND M. MARSHALL",
  "name_abbreviation": "In re Marshall",
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    "judges": [
      "Chief Judge MARTIN concurs.",
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      "In the Matter of RAYMOND M. MARSHALL"
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nOn 19 October 2006, Judge Helms convened a hearing at which Raymond M. Marshall (\u201cRespondent\u201d) was to show cause why he should not be held in criminal contempt for his conduct during a criminal trial over which Judge Helms presided. At the contempt hearing, Judge Helms found that Respondent\u2019s saying \u201cLord\u201d in a loud voice, in front of the jury, with his arms raised up, and in response to a ruling of the court was willfully contemptuous. Judge Helms sentenced Respondent to 30 days in jail, suspended the sentence, and placed Respondent on probation for one year. As conditions of probation, Respondent was ordered to (1) surrender his license to practice law for 30 days, which would be reduced to 15 days if he performed and paid the fee for 70 hours of community service; (2) obtain and pay for an evaluation for anger management; and (3) obtain and pay for treatment or counseling in connection with anger management, if recommended. Additionally, as a special condition of the suspended sentence, Respondent was required to serve 48 hours in the local jail. From this judgment, Respondent appeals.\nI. Background\nA. Calendar Call\nJudge Helms presided over the 18 September 2006 session of misdemeanor appeals for Forsyth County. At calendar call, Respondent was not present with his client when his case was called. Alan Doorasamy, counsel for the co-defendant of Respondent\u2019s client, told Judge Helms that he thought Respondent was somewhere in the building, but that he was running a few minutes late. Mr. Doorasamy then indicated that the parties had agreed to continue the trial of his and Respondent\u2019s clients to February 2007. When Judge Helms said, \u201cAnyway, it\u2019s nice to see you, sir[,]\u201d Mr. Doorasamy believed the case had been continued and told this to Respondent when he saw Respondent in the hallway after calendar call.\nLater that day, Judge Helms summoned Respondent to his courtroom to explain his absence from calendar call. The next day, Respondent appeared before Judge Helms and explained that he understood the parties had agreed to continue the criminal case to February 2007, and that his presence at calendar call was therefore not still expected. Judge Helms then announced that he was setting the case peremptorily as the first case on the 2 October 2006 trial docket. Respondent objected, contending that the State and defendants could agree to a continuance. Judge Helms told Respondent to show him a case or statute to that effect. After some discussion, Judge Helms had the bailiff escort Respondent from the courtroom. When Respondent did not return later that day with a case or statute to support his earlier contention, Judge Helms issued a show cause order, requiring Respondent to appear before him on 20 September 2006 to show cause why Respondent should not be held in contempt for failing to appear for calendar call and for failing to return with the legal authority Judge Helms had requested.\nAt the 20 September show cause hearing, Judge Helms determined that the witnesses who had previously said Respondent was standing just outside the courtroom during calendar call were not certain enough to testify about the matter under oath, and that it was possible Respondent had not heard Judge Helms\u2019 order to return with the law in question. Therefore, Judge Helms found that Respondent should not be held in contempt of court.\nB. Motion to Recuse\nPrior to jury selection in the underlying criminal case, Respondent made a motion for Judge Helms to recuse himself pursuant to N.C. Gen. Stat. \u00a7 15A-1223. Respondent alleged that Judge Helms had \u201cdisplayed marked negative personal feelings toward [Respondent], and displayed an unfavorable personal disposition or mental attitude towardf] [Respondent,] thereby creating a likelihood of, or the appearance of, bias as would negatively affect [D]efendant[\u2019]s confidence of his due process rights to a fair and impartial trial.\u201d Respondent also requested that the motion to recuse be heard by another superior court judge. Without first hearing Respondent on his request that the recusal motion be heard by another judge, Judge Helms denied the request, positing, \u201cWell, Mr. Marshall, you\u2019re fully aware of the volumes of case law that suggest that it\u2019s the judge from whom the attorneys are seeking the relief that the relief must be requested.\u201d During the contentious hearing on the motion to recuse, Respondent asked Judge Helms to \u201cplease allow [him] to finish\u201d when he had been interrupted. Judge Helms responded, \u201cAs difficult as it is, Mr. Marshall, I will allow you to finish.\u201d Judge Helms expressed that he did \u201cnot take lightly a motion for [him] to recuse [himself] from a case,\u201d and further stated to Respondent,\nSo I don\u2019t know why \u2014 you\u2019re the one that\u2019s wrong in all this, but I\u2019m the one that\u2019s being accused of being the bad guy. And, you know, that\u2019s difficult for me to swallow, Mr. Marshall, quite frankly. But go ahead. I\u2019ve given you the floor and I\u2019ll do my best to maintain.\nJudge Helms also stated, \u201cI don\u2019t have long left on the bench. I\u2019ve never been held at the will of the attorneys and I don\u2019t intend to go out with this feeling on my part that somebody got something over on me[.]\u201d In ultimately denying Respondent\u2019s motion to recuse, Judge Helms explained:\nI will encourage you to go back \u2014 I\u2019ve been a judge for 26 years ... to find any occasion when I have, because of something a lawyer or a defendant has done or failed to do, done anything whatsoever wrong. I have a reversal rate of about [10]%. I\u2019m right nine out of ten. If I jerked people around and treated people unfairly, the way you suggest that I would in this case, I would suggest to you that I would have a much higher reversal rate than I do. A record of which I am quite proud [].\nC. Criminal Trial\nDuring a hearing on several motions made after jury selection, an issue arose about the defendants being black and the charging officers being white. Judge Helms warned Respondent, an African American, \u201cI\u2019m not going to let you play that card in the courtroom in front of a jury.\u201d When Respondent replied, \u201cIt\u2019s not a card to play[,]\u201d Judge Helms responded, \u201cYes, it is. Yes, it is to base it on race as opposed to basing it on the facts that come from the witness stand, Mr. Marshall, is wrong. It\u2019s an advantage that you should not gain, whether it is true or not. . . .\u201d\nThe act that formed the basis for the contempt judgment occurred during the cross-examination of the State\u2019s first witness, a police officer. Respondent questioned the officer about her call for \u201chelp\u201d after the officer described calling for \u201cassistance.\u201d Judge Helms intervened, saying, \u201cYou\u2019re getting into a semantic thorn bush here, you all. Assistance is help. Help is assistance. We\u2019re getting hung up on the use of words. Just tell us what you did ma\u2019am.\u201d When Respondent attempted to address the court, Judge Helms cut him off and, after Respondent declined Judge Helms\u2019 offer to \u201clook up those two words,\u201d Judge Helms stated, \u201cWell then let\u2019s move along.\u201d Respondent then inquired into the length of time that had passed between the time the officer walked up to the individual she claimed was one of the defendants and the time when both defendants were taken away by the police. Judge Helms perceived Respondent\u2019s questions to be repetitive, urged Respondent to \u201c[m]ove along[,]\u201d and inquired, \u201cMr. Marshall, how many times are we going to go over this same stuff?\u201d After Respondent framed the question several different ways, the witness answered, \u201cI\u2019m saying that I can\u2019t give you an exact time frame because I was not looking at my watch.\u201d Respondent then stated, \u201cAnd then, therefore, you could \u2014 you would not argue that it was five minutes?\u201d At that point, Judge Helms interrupted, stating, \u201cShe\u2019s not arguing, Mr. Marshall. As I recall \u2014 the jury will recall what she said. She said between \u2014 it could have been five; it could have been 20. Was that your answer, ma\u2019am?\u201d When the witness replied, \u201cYes, Your Honor[,]\u201d Respondent exclaimed, \u201cLord.\u201d\nAfter excusing the jury, Judge Helms said to Respondent:\nMr. Marshall, I\u2019ll hear from you why I should not ultimately hear from you on why you should not be held in contempt of court for saying \u201cLord\u201d when the Court had made a ruling in this case that was adverse to what you wanted the Court to rule.\nNow, sir, I am not going to sit through this entire trial fighting with you tooth and nail over every item of evidence that you care to dissect when its probative value is insignificant, if important at all. Whether it was \u201chelp\u201d or \u201cassistance\u201d \u2014 we spent 10 minutes on whether it was \u201chelp\u201d or \u201cassistance.\u201d\nLater in the trial, Judge Helms addressed his appearance of partiality:\nIt has looked like I\u2019ve been picking on you the whole trial, and maybe that was one of your intentions. I don\u2019t know. It\u2019s certainly not my intention to do anything other than just have you stay within the bounds of professional propriety in the trial of this case.\nThis is not Mike against \u2014 this is not Judge Helms against Mr. Marshall. Even though it may have appeared that way at some times by necessity, but I\u2019m in search of the truth as well.\nAfter Respondent\u2019s client was found guilty of assault on a governmental official, and before sentencing in the matter, the following exchange took place between Judge Helms and Respondent:\n[Judge Helms]: So I don\u2019t understand, Mr. Marshall, why you continue to want to act like, quite frankly, like you\u2019re out there in the parking lot at McDonald\u2019s on this evening just doing what you choose to do without regard to the apparent authority or actual authority of people in charge; in this courtroom, it\u2019s me. Now, you may not like me, you may not like the way I try a case, but that\u2019s neither here nor there as far as I\u2019m concerned. You are expected, as an officer of this Court, to abide by the rules and to remain within the boundaries of professional propriety, which are well defined and which go on in courtrooms across the country every day.\nNow, we\u2019ll get into this more when I entertain the contempt hearing, which I plan to do after lunch. Right now, Mr. Marshall, do you have anything at all to offer by way of what the Court should consider as it decides what [is] an appropriate sentence for your client who has been convicted by these 12 jurors?\n[Respondent]: Yes, Your Honor, I object to your \u2014 all that you\u2019ve said; and I will not trade insults with you and I will not \u2014 I don\u2019t need an audience to do it. I have no more to say, Your Honor.\nD. Contempt Hearing\nAt the beginning of the contempt hearing, Judge Helms explained to Respondent:\nI have previously told you . .. that I only intended to focus on the one offending act, allegedly offending act, committed by you in my presence during a sitting of court while we were trying a case in front of the jury. However, I want to make sure that you understand that, while I am only concentrating on that one act, it is impossible to look at that one act in a vacuum or a void, which means that the entire conduct of the trial will be in the mind of the court when it determines this issue of whether or not you should be held in contempt for your conduct and what, if any, action is appropriate to remedy the situation.\nAfter conducting the hearing, Judge Helms concluded that Respondent\u2019s conduct was willfully contemptuous and constituted direct criminal contempt of court. Judge Helms then sentenced Respondent to 30 days in jail, suspended the sentence, and placed Respondent on probation for one year. In determining this sentence, Judge Helms initiated and considered ex parte communications with non-parties in order \u201cto gain some insight\u201d into Respondent. At the hearing, Judge Helms stated:\nAnd I have asked people, what is it \u2014 I have been trying to gain some insight into you, Mr. Marshall. I have learned about your football days back at West Virginia, your son\u2019s really outstanding football record at Duke, at least when he had a line good enough to protect him. You told me about your hard upbringing, I shared with you some of mine. But I\u2019m still looking for what on earth would make an officer of the court conduct himself that way.\nThe response I get is: \u201cIt\u2019s just Raymond, just Raymond.\u201d And I am thinking, \u201cHow sad.\u201d\nII. Discussion\nDefendant argues that the trial court erred in not returning the show cause order for contempt before a different judge because Judge Helms\u2019 objectivity could reasonably have been questioned.\nAccording to the plenary proceedings for criminal contempt, \u201c[i]f 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.\u201d N.C. Gen. Stat. \u00a7 5A-15(a) (2005) (emphasis added). Although, as a general rule, a defendant\u2019s failure to object to an alleged error by the trial court precludes raising the error on appeal, see N.C. R. App. P 10(a); State v. Reynolds, 307 N.C. 184, 297 S.E.2d 532 (1982), \u201cwhen atrial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court\u2019s action is preserved, notwithstanding defendant\u2019s failure to object at trial.\u201d State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985). In this case, Respondent did not move to have the show cause order returned before a different judge. Thus, we must first determine whether the failure to make such motion precludes this Court from addressing Respondent\u2019s assignment of error.\nWhen construing statutes, \u201c[i]f the statute is clear and unambiguous, we will apply the plain meaning of the words, with no need to resort to judicial construction.\u201d Wiggs v. Edgecombe Cty., 361 N.C. 318, 322, 643 S.E.2d 904, 907 (2007). Here, the language of the contempt statute states unequivocally that \u201cthe order must be returned before a different judge\u201d when the circumstances cited in the statute cause the objectivity of the judge to be reasonably questioned. N.C. Gen. Stat. \u00a7 5A-15(a) (emphasis added). The statute neither expressly nor impliedly places any responsibility on a respondent to file a motion for recusal. Had the legislature intended that a motion be required, the statute would have been drafted similarly to N.C. Gen. Stat. \u00a7 15A-1223, which states;\nA 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;\n(1) Prejudiced against the moving party or in favor of the adverse party; or\n(3) Closely related to the defendant by blood or marriage; or\n(4) For any other reason unable to perform the duties required of him in an impartial manner.\nN.C. Gen. Stat. \u00a7 15A-1223(b) (2005) (emphasis added).\nThe State argues that N.C. Gen. Stat. \u00a7 15A-1223 provides the exclusive procedure by which a judge may be disqualified from hearing any criminal matter. We disagree. While the motion required by N.C. Gen. Stat. \u00a7 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 where the acts constituting the contempt so involve the judge issuing the show cause order that his objectivity could be reasonably questioned. Given the judge\u2019s omnipotent role as opposing party, witness, finder of fact, and arbiter of law in a criminal contempt proceeding where the allegedly contemptuous acts so involve him or her, the legislature recognized the unduly inflammatory effect that a respondent\u2019s motion to return a show cause order before a different judge could have, and, thus, in this limited circumstance, did not impose such a prerequisite. Instead, N.C. Gen. Stat. \u00a7 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\u2019s objectivity and, in such circumstance, to return the show cause order before a different judge ex mero motu.\nAlthough North Carolina appellate courts have addressed issues regarding recusal of a judge where bias or prejudice was alleged, this Court has never considered this issue in a criminal contempt proceeding where the judge\u2019s objectivity could reasonably have been questioned because of his involvement in the acts allegedly constituting the contempt. For example, in In re Robinson, 37 N.C. App. 671, 247 S.E.2d 241 (1978), and In re Dale, 37 N.C. App. 680, 247 S.E.2d 246 (1978), notice of charges against respondent-attorney issued by a superior court judge in a disciplinary proceeding stated that respondent \u201c \u2018negligently . . . failed to perfect the appeal or to seek appellate review\u2019 \u201d by any other permissible means in four criminal cases, violating the Code of Professional Responsibility. Robinson, 37 N.C. App. at 678, 247 S.E.2d at 245; Dale, 37 N.C. App. at 681, 247 S.E.2d at 247. After denying respondent\u2019s motion to recuse, the judge found facts consistent with the charges specified and suspended respondent from the practice of law for one year. On appeal, this Court held the trial court erred in not granting respondent\u2019s motion to recuse as the language of the notice of charges constituted a prejudgment of respondent\u2019s conduct by the issuing judge, creating an appearance of bias and prejudice.\nMore recently, in State v. Key, 182 N.C. App. 624, 643 S.E.2d 444, disc, review denied, 361 N.C. 433, 649 S.E.2d 398 (2007), respondent-attorney abandoned his client outside the courtroom prior to his client\u2019s probation violation hearing. The superior court judge before whom respondent failed to appear issued an order directing respondent to appear before the Senior Resident Superior Court Judge to show cause why he should not be subject to disciplinary action and/or punished for contempt. The Senior Resident Superior Court Judge before whom the matter was set subsequently issued an amended show cause order, setting forth in detail the basis for the alleged criminal contempt. After a hearing, respondent was found guilty of criminal contempt and sentenced to 30 days in jail.\nOn appeal, respondent contended that the language of the amended order, similar to the language in Robinson and Dale, demonstrated that the Senior Resident Superior Court Judge was biased against respondent. Id. Although respondent had not made a motion for the judge\u2019s recusal, respondent alleged the judge should have recused himself from hearing the matter ex mero motu. Citing the fact that the respondent in Robinson and Dale had made a motion to recuse the trial judge for alleged bias, and noting in a footnote that, pursuant to N.C. Gen. Stat. \u00a7 15A-1223, \u201cin criminal cases, a motion to disqualify a judge must be in writing, accompanied by supporting affidavit(s) and filed at least five days before the call of the case for trial,\u201d id. at 632, 643 S.E.2d at 450-01 n.2, this Court dismissed respondent\u2019s argument for failure to preserve the assignment of error for appellate review.\nAlthough, as in Key, Respondent in this case did not make a motion to have the show cause order issued by Judge Helms returned before another judge, the case at bar is distinguishable from Key. First, whereas Key points out that respondent in Robinson and Dale made a motion to recuse the judge for his alleged bias, Robinson and Dale involved disciplinary proceedings for violations of the Code of Professional Responsibility while this case involves a criminal contempt proceeding governed by N.C. Gen. Stat. \u00a7 5A-15. Furthermore, unlike in Key where the acts constituting respondent\u2019s alleged criminal contempt took place before a different judge than the judge respondent contended was biased, here, the acts constituting Respondent\u2019s alleged criminal contempt, as well as the circumstances surrounding those acts, took place before Judge Helms, the same judge who issued the show cause order, conducted the contempt hearing, and ultimately found Respondent in criminal contempt. As noted, in Key the superior court judge before whom respondent failed to appear for the probation violation hearing, and who issued the original show cause order based on respondent\u2019s conduct, returned the order before a different judge, thus complying with the statutory mandate of N.C. Gen. Stat. \u00a7 5A-15.\nAccordingly,'as Key is readily distinguishable from the case at bar, the holding in Key does not require dismissal of Respondent\u2019s assignment of error for failure to make a motion for recusal in this case. In light of this determination, we conclude that we may address Respondent\u2019s argument that the trial court erred in not returning the show cause order for contempt before a different judge.\nThe record reflects that conflict between Judge Helms and Respondent originated on 18 September 2006 with Respondent\u2019s failure to appear for calendar call. This resulted in Judge Helms summoning Respondent to court to explain his absence. Respondent appeared before the Judge the following day and, after an exchange between the parties, Judge Helms had a bailiff escort Respondent from the courtroom. The next day, Judge Helms issued a show cause order against Respondent for failing to appear at calendar call and for failing to return to court the previous day with a copy of the statute or case law Respondent had referenced. A hearing on the show cause order was held by Judge Helms, and Respondent was found not to be in contempt.\nRespondent then made a motion for Judge Helms to recuse himself from the underlying criminal trial and requested the motion be heard by another judge. Judge Helms immediately denied Respondent\u2019s request to have the motion heard before another judge and, after a contentious hearing, also denied Respondent\u2019s motion to recuse. Numerous heated exchanges took place between Judge Helms and Respondent during the subsequent criminal trial, both before and after the act that Judge Helms found constituted criminal contempt. When Judge Helms ultimately heard the contempt matter, he stated,\nWhile I am only concentrating on that one act, it is impossible to look at the one act in a vacuum or void, which means that the entire conduct of the trial will be in the mind of the court when it determines this issue of whether or not [Respondent] should be held in contempt.\nThe record before this Court abundantly reveals that the criminal contempt with which Respondent was charged was based upon acts so involving Judge Helms that his objectivity may reasonably have been questioned. Indeed, Judge Helms appeared to have recognized this fact when he stated, \u201cThis is not Mike against \u2014 this is not Judge Helms against Mr. Marshall. Even though it may have appeared that way at some times by necessity!.]\u201d Since one purpose behind the statute is to maintain public confidence in the courts, even the appearance of a lack of objectivity must be avoided. Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145, 21 L. Ed. 2d 301 (1968) (stating that a judge must avoid even the appearance of bias), reh\u2019g denied, 393 U.S. 1112, 21 L. Ed. 2d 812 (1969). Accordingly, the trial court erred in not returning the show cause order before a different judge. As the record reflects there was a reasonable possibility that, had the order been returned before a different judge, a different result would have been reached, State v. Johnson, 164 N.C. App. 1, 595 S.E.2d 176, disc, review denied, 359 N.C. 194, 607 S.E.2d 659 (2004), we vacate the trial court\u2019s judgment finding Respondent in criminal contempt.\nIn light of this holding, we need not address Respondent\u2019s remaining assignments of error.\nFor the above-stated reasons, the trial court\u2019s order is\nVACATED.\nChief Judge MARTIN concurs.\nJudge STEELMAN dissents in a separate opinion.",
        "type": "majority",
        "author": "STEPHENS, Judge."
      },
      {
        "text": "STEELMAN, Judge,\ndissenting.\nThis case is controlled by this Court\u2019s holding in State v. Key, 182 N.C. App. 624, 643 S.E.2d 44 (2007), disc, review denied, 361 N.C. 433, 649 S.E.2d 398 (2007), and must be dismissed. Key involved a criminal contempt proceeding where there was no motion to recuse the hearing judge, and the defendant then attempted to call into question the impartiality of the judge for the first time on appeal. This Court held \u201c [t]his assignment of error has not been properly preserved and is dismissed.\u201d Key at 632-33, 643 S.E.2d at 451. The majority\u2019s lengthy attempt to distinguish Key cannot change its fundamental and controlling holding. I would dismiss Respondent\u2019s appeal.",
        "type": "dissent",
        "author": "STEELMAN, Judge,"
      }
    ],
    "attorneys": [
      "Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for Respondent-Appellant.",
      "Attorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State."
    ],
    "corrections": "",
    "head_matter": "In the Matter of RAYMOND M. MARSHALL\nNo. COA07-629\n(Filed 17 June 2008)\nContempt\u2014 criminal contempt \u2014 failure to hold show cause order before different judge\nThe trial court erred by holding respondent attorney in criminal contempt when it did not have the show cause order returned before a different judge even though defendant failed to make such a motion, and the judgment is vacated, because: (1) N.C.G.S. \u00a7 5A-15(a) provides that the order must be returned before a different judge when circumstances cited in the statute caused the objectivity of the judge to be reasonably questioned; (2) the statute neither expressly nor impliedly places any responsibility on respondent to file a motion for recusal; (3) N.C.G.S. \u00a7 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\u2019s objectivity, and, in such circumstance, to return the show cause order before a different judge ex mero motu; (4) distinguishable from Key, 182 N.C. App. 624 (2007), the acts constituting respondent\u2019s alleged criminal contempt in this case, as well as the circumstances surrounding those acts, took place before the same judge who issued the show cause order, conducted the contempt hearing, and ultimately found respondent in criminal contempt; (5) the record revealed the criminal contempt with which defendant was charged, regarding his failure to appear for calendar call and failure to return legal authority the judge had requested, was based upon acts so involving the judge that his objectivity may reasonably have been questioned; and (6) there was a reasonable possibility that, had the order been returned before a different judge, a different result would have been reached.\nJudge STEELMAN dissenting.\nAppeal by Respondent from order entered 19 October 2006 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 4 February 2008.\nRudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for Respondent-Appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Charles E. Reece, for the State."
  },
  "file_name": "0053-01",
  "first_page_order": 85,
  "last_page_order": 96
}
