{ "id": 3746530, "name": "STATE OF NORTH CAROLINA v. ELGIN ORLANDAS HART", "name_abbreviation": "State v. Hart", "decision_date": "2007-05-04", "docket_number": "No. 446A06", "first_page": "309", "last_page": "317", "citations": [ { "type": "official", "cite": "361 N.C. 309" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "633 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636411 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/se2d/633/0102-01" ] }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "opinion_index": -1, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "617 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633715 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "339", "parenthetical": "Jackson, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0335-01" ] }, { "cite": "626 S.E.2d 270", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635150 ], "weight": 2, "year": 2006, "pin_cites": [ { "parenthetical": "per curiam" }, { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0270-01" ] }, { "cite": "613 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632971 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "356", "parenthetical": "citation omitted" }, { "page": "357", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0356-01" ] }, { "cite": "619 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633956 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "500", "parenthetical": "quoting State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982) (citation and internal quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0497-01" ] }, { "cite": "633 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636411 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "107" }, { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/se2d/633/0102-01" ] }, { "cite": "486 U.S. 578", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6221342 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "589" }, { "page": "1988" }, { "page": "586" } ], "opinion_index": 0, "case_paths": [ "/us/486/0578-01" ] }, { "cite": "433 U.S. 72", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177021 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "81" }, { "page": "2503" }, { "page": "604" } ], "opinion_index": 0, "case_paths": [ "/us/433/0072-01" ] }, { "cite": "260 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "432" } ], "opinion_index": 0 }, { "cite": "298 N.C. 802", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574207 ], "year": 1979, "pin_cites": [ { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0802-01" ] }, { "cite": "282 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "421" } ], "opinion_index": 0 }, { "cite": "304 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565587 ], "year": 1981, "pin_cites": [ { "page": "186-87" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0185-01" ] }, { "cite": "290 S.E.2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "566" } ], "opinion_index": 0 }, { "cite": "305 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571423 ], "year": 1982, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0554-01" ] }, { "cite": "130 L. Ed. 2d 174", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "115 S. Ct. 253", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1994, "opinion_index": 0 }, { "cite": "513 U.S. 898", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1334272, 1335811, 1333315, 1332005, 1332907, 1332812, 1335468, 1330575, 1331985, 1331603, 1334771, 1334073, 1331453, 1334366 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/513/0898-10", "/us/513/0898-08", "/us/513/0898-03", "/us/513/0898-11", "/us/513/0898-14", "/us/513/0898-05", "/us/513/0898-09", "/us/513/0898-02", "/us/513/0898-04", "/us/513/0898-01", "/us/513/0898-07", "/us/513/0898-13", "/us/513/0898-12", "/us/513/0898-06" ] }, { "cite": "440 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "335 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527903 ], "year": 1994, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0567-01" ] }, { "cite": "238 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "609", "parenthetical": "exercising Rule 2 in a collections action involving application of the statute of limitations to an accounting for money claimed to be due for services rendered" } ], "opinion_index": 0 }, { "cite": "293 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565332 ], "year": 1977, "pin_cites": [ { "page": "500", "parenthetical": "exercising Rule 2 in a collections action involving application of the statute of limitations to an accounting for money claimed to be due for services rendered" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0498-01" ] }, { "cite": "412 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "5", "parenthetical": "exercising Rule 2 in an action for breach of contract and quantum meruit involving application of the statute of frauds to a partnership's ownership of real property" } ], "opinion_index": 0 }, { "cite": "330 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509850 ], "year": 1992, "pin_cites": [ { "page": "576", "parenthetical": "exercising Rule 2 in an action for breach of contract and quantum meruit involving application of the statute of frauds to a partnership's ownership of real property" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0569-01" ] }, { "cite": "321 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "837", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "312 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752529 ], "year": 1984, "pin_cites": [ { "page": "320", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0318-01" ] }, { "cite": "287 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "year": 1975, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "340 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "362" }, { "page": "362" } ], "opinion_index": 0 }, { "cite": "315 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716443 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "578" }, { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0571-01" ] }, { "cite": "127 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "514" } ], "opinion_index": 0 }, { "cite": "257 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570708 ], "year": 1962, "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0723-01" ] }, { "cite": "173 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353052 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc-app/173/0144-01" ] }, { "cite": "360 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3790534 ], "year": 2006, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0353-01" ] }, { "cite": "170 N.C. App. 692", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006671 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0692-01" ] }, { "cite": "266 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "300 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561053 ], "year": 1980, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0286-01" ] }, { "cite": "590 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "919" }, { "page": "921-22", "parenthetical": "Tyson, J., dissenting" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917453 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/162/0362-01" ] }, { "cite": "511 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "299" }, { "page": "299" }, { "page": "299-300", "parenthetical": "noting that Rule 2 should only be used in \"exceptional circumstances\"" } ], "opinion_index": 0 }, { "cite": "350 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131998 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "65" }, { "page": "65" }, { "page": "66" }, { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0064-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2005, "pin_cites": [ { "page": "360", "parenthetical": "per curiam" }, { "page": "361" }, { "page": "361", "parenthetical": "citation omitted" }, { "page": "361" }, { "page": "361" } ], "opinion_index": 0 }, { "cite": "45 S.E. 353", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1903, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "133 N.C. 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656097 ], "year": 1903, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/133/0025-01" ] }, { "cite": "133 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656196 ], "year": 1903, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc/133/0059-01" ] }, { "cite": "156 S.E. 126", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "page": "127", "parenthetical": "citing Calvert v. Carstarphen, 133 N.C. 59, 60, 133 N.C. 25, 27, 45 S.E. 353, 354 (1903)" } ], "opinion_index": 0 }, { "cite": "199 N.C. 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615941 ], "year": 1930, "pin_cites": [ { "page": "789", "parenthetical": "citing Calvert v. Carstarphen, 133 N.C. 59, 60, 133 N.C. 25, 27, 45 S.E. 353, 354 (1903)" } ], "opinion_index": 0, "case_paths": [ "/nc/199/0788-01" ] }, { "cite": "297 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "396", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561451 ], "year": 1982, "pin_cites": [ { "page": "263", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0258-01" ] }, { "cite": "360 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798151 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "38", "parenthetical": "quoting State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982) (citation and internal quotation marks omitted)" }, { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0034-01" ] }, { "cite": "179 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8234101 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/179/0030-01" ] }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "weight": 5, "pin_cites": [ { "page": "401", "parenthetical": "per curiam" }, { "page": "402" }, { "page": "402" }, { "page": "402" }, { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] } ], "analysis": { "cardinality": 917, "char_count": 21546, "ocr_confidence": 0.745, "pagerank": { "raw": 1.1923325889294781e-06, "percentile": 0.9875473434937713 }, "sha256": "d10a3cc91832fff76fd4b8c7a2f98c7a2f4aa7461ed731fa9c3127a10605752c", "simhash": "1:2159c4ab2e473478", "word_count": 3584 }, "last_updated": "2023-07-14T16:19:48.141297+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ELGIN ORLANDAS HART" ], "opinions": [ { "text": "HUDSON, Justice.\nIn September 2003 defendant was indicted in Lenoir County for possession with intent to sell and deliver cocaine, keeping and maintaining a dwelling for the use of cocaine, and possession of marijuana, and for having attained habitual felon status. On 13 May 2005, a jury convicted defendant of the three drug offenses, after which defendant pleaded guilty to being an habitual felon. The trial court sentenced defendant to an active term within the presumptive range. Defendant appealed to the Court of Appeals. In a divided opinion issued on 1 August 2006, State v. Hart, 179 N.C. App. 30, 633 S.E.2d 102 (2006), the Court of Appeals found no error at trial. Defendant filed his appeal of right based on the dissenting opinion. We affirm in part, reverse in part, and remand to the Court of Appeals.\nOn appeal, defendant made fourteen assignments of error, five of which he argued in his brief to the Court of Appeals. The dissenting opinion only addressed the majority\u2019s decision to dismiss one of defendant\u2019s arguments for violations of the Rules of Appellate Procedure. The dissent presents the only issue before this Court.\nAt trial, a police officer testified over defense counsel\u2019s objection that a razor blade taped to cardboard and seized near defendant was a \u201ccrack pipe.\u201d Although defendant assigned error to this testimony, the majority opinion concluded that the pertinent assignment of error violated Rule 10(c)(1) of the North Carolina Rules of Appellate Procedure and thus was \u201cbeyond the scope of appellate review\u201d; as a result, the court did not address the merits of this argument. The dissent maintained that the assignment of error at issue, although perhaps \u201ctechnically deficient,\u201d essentially complied with Rule 10(c)(1) and that even if the assignment were technically deficient, the court was not required to dismiss it, but could exercise its discretion under Rule 2 to review the assignment on the merits.\nAlthough we will address the Court of Appeals\u2019 Rule 10(c)(1) analysis below, we must first address whether the Court of Appeals may review an appeal if there are any violations of the Rules of Appellate Procedure. We note at the outset that the State did not mention any appellate rules violation in the Court of Appeals, but that the court raised that issue on its own, which it was not required to do.\nIt is well settled that the Rules of Appellate Procedure \u201care mandatory and not directory.\u201d Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005) (quoting State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982) (citation and internal quotation marks omitted)); Pruitt v. Wood, 199 N.C. 788, 789, 156 S.E. 126, 127 (1930) (citing Calvert v. Carstarphen, 133 N.C. 59, 60, 133 N.C. 25, 27, 45 S.E. 353, 354 (1903)). Thus, compliance with the Rules is required. Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (per curiam); Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999). However, every violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.\nIn order to correct the misapplication of our Viar decision, a review of the pertinent opinions is essential. In Steingress, this Court stated that violation of the mandatory rules \u201cwill subject an appeal to dismissal.\u201d 350 N.C. at 65, 511 S.E.2d at 299. Thereafter, in Viar, we held that the Court of Appeals acted improperly when it reviewed issues not raised or argued by the appellant. 359 N.C. at 402, 610 S.E.2d at 361. Deciding the case on the basis of issues appellant did not present, the Court of Appeals majority in Viar reversed the decision of the Industrial Commission denying a tort claim, holding that certain findings and conclusions were not supported by the evidence. 162 N.C. App. 362, 590 S.E.2d 909 (2004). The majority justified its action by saying that \u201c[the Court of Appeals] may suspend or vary the requirements of the rules to \u2018prevent manifest injustice,\u2019. N.C. R. App. R 2, or \u2018as a matter of appellate grace.\u2019 Enterprises, Inc. v. Equipment Co., 300 N.C. 286, 288, 266 S.E.2d 812, 814 (1980).\u201d Id. at 375, 590 S.E.2d at 919. The dissent argued that the court should have dismissed the appeal because the appellant\u2019s arguments bore no relationship to its assignments of error. Id. at 378-79, 590 S.E.2d at 921-22 (Tyson, J., dissenting).\nThis Court reversed per curiam, explaining as follows:\nThe majority opinion in the Court of Appeals, recognizing the flawed content of plaintiff\u2019s appeal, applied Rule 2 of the Rules of Appellate Procedure to suspend the Rules. The majority opinion then addressed the issue, not raised or argued by plaintiff, which was the basis of the Industrial Commission\u2019s decision, namely, the reasonableness of defendant\u2019s decision to delay installation of the median barriers. The Court of Appeals majority asserted that plaintiff\u2019s Rules violations did not impede comprehension of the issues on appeal or frustrate the appellate process. It is not the role of the appellate courts, however, to create an appeal for an appellant.\n359 N.C. at 402, 610 S.E.2d at 361 (citation omitted). This Court then dismissed the appeal for the reasons stated in its per curiam opinion, as well as for the reasons stated in the Court of Appeals dissent which addressed the Rules violations. Id.\nSubsequently, in State v. Buchanan, 170 N.C. App. 692, 613 S.E.2d 356 (2005), the Court of Appeals misinterpreted and improperly extended Viar when it opened with the following:\nRecently, in Viar v. N.C. Dep\u2019t of Transp., our Supreme Court admonished this Court to avoid applying Rule 2 of the Rules of Appellate Procedure even in instances where a party\u2019s \u201cRules violations did not impede comprehension of the issues on appeal or frustrate the appellate process.\u201d . . . Because we are constrained to follow the dictates of Viar, we must hold that Defendant\u2019s failure to comply with Rule 10(b) by failing to renew his Motion to Dismiss at the close of all evidence mandates a dismissal of this appeal.\n170 N.C. App. at 693, 613 S.E.2d at 356 (citation omitted). Later in the opinion, the court said:\nIn Viar, our Supreme Court stated that this Court may not review an appeal that violates the Rules of Appellate Procedure even thodgh such violations neither impede our comprehension of the issues nor frustrate the appellate process.\nId. at 695, 613 S.E.2d at 357 (citation omitted). These excerpts reveal that the Court of Appeals in Buchanan misapplied the holding of this Court\u2019s Viar decision. In Viar, we neither admonished the Court of Appeals to avoid applying Rule 2, nor did we state that the court may not review an appeal that violates the Rules, even when rules violations \u201cd[o] not impede comprehension of the issues on appeal or frustrate the appellate process.\u201d 359 N.C. at 402, 610 S.E.2d at 361. We simply noted that the Court of Appeals majority had justified its application of Rule 2 in Viar by using that phrase. Rather than approving this justification for applying Rule 2 to that scenario, we rejected it and dismissed the Viar appeal. In so doing, we held that the Court of Appeals improperly applied Rule 2 when it created an appeal for the appellant and addressed issues not raised or argued.\nWe also addressed appellate rules violations in Munn v. N.C. State Univ., 360 N.C. 353, 626 S.E.2d 270 (2006) (per curiam), rev\u2019g 173 N.C. App. 144, 617 S.E.2d 335 (2005). In Munn, the plaintiff raised two assignments of error. One, not pertinent here, related to the award of damages. The other stated: \u201cDenial of Plaintiffs Motion for Judgment Notwithstanding the Verdict on the ground that the jury disregarded the Court\u2019s instructions on contract damages.\u201d 173 N.C. App. at at 151, 617 S.E.2d at 339 (Jackson, J., dissenting). Because the assignments of error failed to refer to the record or transcript and because the plaintiff did not object to the jury charge or assign it as error, we adopted the dissent\u2019s position that the majority improperly considered the merits of the issue on appeal. 360 N.C. at 354, 626 S.E.2d at 271. Although the dissent in Munn correctly analyzed the plaintiff\u2019s failures to comply with Rule 10, by adopting that dissent we did not intend to adopt the Buchanan analysis cited therein.\nTo clarify, when this Court said an appeal is \u201csubject to\u201d dismissal for rules violations, it did not mean that an appeal shall be dismissed for any violation. See Black\u2019s Law Dictionary 1466 (8th ed. 2004) (defining \u201csubject to liability\u201d as \u201csusceptible to a lawsuit\u201d). Rather, \u201csubject to\u201d means that dismissal is one possible sanction. By quoting this language from Steingress in Viar, we did not intend thereby to imply that all rules violations mandate automatic dismissal. To the extent that the Court of Appeals has interpreted Steingress, Viar, and Munn to require dismissal in every case in which there is a violation of the Rules of Appellate Procedure, we expressly disavow this interpretation.\nHere, after conducting what it believed to be a mandatory review of defendant\u2019s compliance with the appellate rules, the Court of Appeals majority found a violation of Rule 10(c)(1). Because the dissenting opinion and defendant\u2019s brief contend that defendant did not violate Rule 10(c)(1), the issue of whether the majority correctly concluded that defendant violated Rule 10(c)(1) is squarely before this Court.\nRule 10(c)(1) of the Rules of Appellate Procedure, entitled \u201cAssignments of Error. Form; Record References,\u201d states in part:\nA 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. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.\nN.C. R. App. P. 10(c)(1). Defendant\u2019s assignment of error number four reads:\n4. The trial court erred in overruling defendant\u2019s objection as to the officer\u2019s testimony that certain evidence constituted a \u201ccrack pipe\u201d, as such testimony constituted an opinion as to an ultimate issue for the jury and a legal conclusion, otherwise violated the N.C. Rules of Evidence, and denied defendant due process, a fair trial and his legal and constitutional rights.\nIn defendant\u2019s brief to the Court of Appeals, the argument heading related to this assignment of error reads: \u201cThe trial court erred in overruling defendant\u2019s objection as to the officer\u2019s testimony that certain evidence constituted a \u2018crack pipe\u2019, as such testimony violated the N.C. Rules of Evidence, and denied defendant due process and a fair trial.\u201d Defendant then argued in his brief that the officer\u2019s lay testimony that an object was a \u201ccrack pipe\u201d violated Rule 701 of the North Carolina Rules of Evidence. Defendant maintained that the State did not show that the officer had personal knowledge for his testimony or that his opinion was \u201crationally based on the perception of the witness.\u201d N.C.G.S. \u00a7 8C-1, Rule 701 (2005). However, when addressing this argument, the majority opinion concluded: \u201cNowhere in defendant\u2019s assignment of error does he assign error on this specific basis; rather, he states generally that the challenged testimony \u2018otherwise violated the N.C. Rules of Evidence.\u2019 \u201d The majority opinion further concluded that \u201cthis assignment of error is broad, vague, and unspecific,\u201d \u201cfails to identify the issues on appeal,\u201d and \u201cwould allow defense counsel to argue on appeal any and every violation of the North Carolina Rules of Evidence.\u201d Hart,-N.C. App. at -, 633 S.E.2d at 107. We agree that defendant\u2019s fourth assignment of error fails to satisfy the requirements of Rule 10(c)(1).\nAlthough on its face the assignment of error states a \u201cparticular\u201d alleged error (that the \u201ctrial court erred in overruling defendant\u2019s objection as to the officer\u2019s testimony that certain evidence constituted a \u2018crack pipe\u2019 \u201d) and states a \u201clegal basis upon which [the] error [was] assigned\u201d (that \u201csuch testimony constituted an opinion as to an ultimate issue for the jury and a legal conclusion\u201d), defendant presented a different legal argument before the Court of Appeals, namely that the lay opinion testimony regarding the alleged \u201ccrack pipe\u201d should not have been admitted because the testimony violated Rule 701. Thus, defendant\u2019s fourth assignment of error does not provide \u201cthe legal basis\u201d for an argument that the testimony at issue violated Rule 701. Moreover, the Court of Appeals majority opinion correctly concluded that the remainder of this assignment of error, that the testimony \u201cotherwise violated the N.C. Rules of Evidence, and denied defendant due process, a fair trial and his legal and constitutional rights,\u201d is too broad and thus ineffectual. E.g., Hines v. Frink, 257 N.C. 723, 729, 127 S.E.2d 509, 514 (1962). Thus, we affirm the majority opinion\u2019s conclusion that assignment of error number four failed to comply with North Carolina Rule of Appellate Procedure 10(c)(1).\nAppellate Rule 2 specifically gives \u201ceither court of the appellate division\u201d the discretion to \u201csuspend or vary the requirements or provisions of any of [the] rules\u201d in order \u201c[t]o prevent manifest injustice to a party, or to expedite decision in the public interest.\u201d N.C. R. App. P. 2. Although this Court concluded in Viar that the Court of Appeals improperly applied Rule 2 under those particular circumstances, 359 N.C. at 402, 610 S.E.2d at 361, the Viar holding does not mean that the Court of Appeals can no longer apply Rule 2 at all. Here, in response to the dissent\u2019s suggestion that the Court of Appeals exercise discretion under Rule 2, the majority opinion held it could not apply Rule 2. Hart, -N.C. App. at -, 633 S.E.2d at 107.\nBecause we disavow this interpretation, which led the majority below to conclude incorrectly that the Court of Appeals had no authority to apply Rule 2, we reverse this portion of the majority opinion. In so doing, we note that Rule 2 must be applied cautiously. The text of Rule 2 provides two instances in which an appellate court may waive compliance with the appellate rules: (1) \u201c[t]o prevent manifest injustice to a party\u201d; and (2) \u201cto expedite decision in the public interest.\u201d N.C. R. App. P. 2. \u201cWhile it is certainly true that Rule 2 has been and may be so applied in the discretion of the Court, we reaffirm that Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest or to prevent injustice which appears manifest to the Court and only in such instances.\u201d Steingress, 350 N.C. at 66, 511 S.E.2d at 299-300 (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d 358, 362 (1986)).\nWhen the North Carolina Rules of Appellate Procedure were adopted by this Court, the rules drafting committee saw fit to note that Rule 2 \u201cexpresses an obvious residual power possessed by any authoritative rule-making body to suspend or vary operation of its published rules in specific cases where this is necessary to accomplish a fundamental purpose of the rules.\u201d N.C. R. App. P. 2 drafting comm, comment., reprinted in 287 N.C. 680 (1975) (emphasis added). Thus, the exercise of Rule 2 was intended to be limited to occasions in which a \u201cfundamental purpose\u201d of the appellate rules is at stake, which will necessarily be \u201c \u2018rare occasions.\u2019 \u201d See Reep v. Beck, 360 N.C. at 38, 619 S.E.2d at 500 (citing and quoting Blumenthal, 315 N.C. at 578, 340 S.E.2d at 362; see also Steingress, 350 N.C. at 66, 511 S.E.2d at 299-300 (noting that Rule 2 should only be used in \u201cexceptional circumstances\u201d).\nWhile an appellate court has the discretion to alter or suspend its rules, exercise of this discretion should only be undertaken with a view toward the greater object of the rules. This Court has tended to invoke Rule 2 for the prevention of \u201cmanifest injustice\u201d in circumstances in which substantial rights of an appellant are affected. See State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (per curiam) (\u201cIn view of the gravity of the offenses for which defendant was tried and the penalty of death which was imposed, we choose to exercise our supervisory powers under Rule 2 of the Rules of Appellate Procedure and, in the interest of justice, vacate the judgments entered and order a new trial.\u201d); see also Alan D. Woodlief, Jr., Shuford North Carolina Civil Practice and Procedure \u00a7 88:10 (6th ed. 2003).\nAlthough this Court has exercised Rule 2 in civil cases, see, e.g., Potter v. Homestead Pres. Ass\u2019n, 330 N.C. 569, 576, 412 S.E.2d 1, 5 (1992) (exercising Rule 2 in an action for breach of contract and quantum meruit involving application of the statute of frauds to a partnership\u2019s ownership of real property), and Whitley\u2019s Elec. Serv., Inc. v. Sherrod, 293 N.C. 498, 500, 238 S.E.2d 607, 609 (1977) (exercising Rule 2 in a collections action involving application of the statute of limitations to an accounting for money claimed to be due for services rendered), the Court has done so more frequently in the criminal context when severe punishments were imposed. See, e.g., State v. Moore, 335 N.C. 567, 612, 440 S.E.2d 797, 823, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994); State v. Booher, 305 N.C. 554, 564, 290 S.E.2d 561, 566 (1982); State v. Poplin, 304 N.C. 185, 186-87, 282 S.E.2d 420, 421 (1981); State v. Adams, 298 N.C. 802, 804, 260 S.E.2d 431, 432 (1979).\nBefore exercising Rule 2 to prevent a manifest injustice, both this Court and the Court of Appeals must be cognizant of the appropriate circumstances in which the extraordinary step of suspending the operation of the appellate rules is a viable option. Fundamental fairness and the predictable operation of the courts for which our Rules of Appellate Procedure were designed depend upon the consistent exercise of this authority. Furthermore, inconsistent application of the Rules may detract from the deference which federal habeas courts will accord to their application. Although a petitioner\u2019s failure to observe a state procedural rule may constitute an \u201cadequate and independent state ground[]\u201d barring federal habeas review, Wainwright v. Sykes, 433 U.S. 72, 81, 97 S. Ct. 2497, 2503, 53 L. Ed. 2d 594, 604 (1977), a state procedural bar is not \u201cadequate\u201d unless it has been \u201cconsistently or regularly applied.\u201d Johnson v. Mississippi, 486 U.S. 578, 589, 108 S. Ct. 1981, 1988, 100 L. Ed. 2d 575, 586 (1988). Thus, if the Rules are not applied consistently and uniformly, federal habeas tribunals could potentially conclude that the Rules are not an adequate and independent state ground barring review. Therefore, it follows that our appellate courts must enforce the Rules of Appellate Procedure uniformly.\nWe remand this case to the Court of Appeals for consideration of whether to exercise such discretion and whether other sanctions ' should be imposed pursuant to appellate Rule 25(b) or Rule 34.\nAFFIRMED IN PART; REVERSED IN PART AND REMANDED.\n. We note that current appellate counsel did not represent defendant in the Court of Appeals or at trial.", "type": "majority", "author": "HUDSON, Justice." } ], "attorneys": [ "Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, for the State.", "Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ELGIN ORLANDAS HART\nNo. 446A06\n(Filed 4 May 2007)\n1. Appeal and Error\u2014 appellate rules violation \u2014 dismissal not required\nAny interpretation of prior cases to require dismissal in every case in which there is a violation of the Appellate Rules is disavowed. Language that an appeal is \u201csubject to\u201d dismissal for rules violations means that dismissal is a possible sanction, not that an appeal shall be dismissed for any violation.\n2. Appeal and Error\u2014 assignment of error \u2014 different legal basis in argument \u2014 overbroad language\nAn assignment of error that a police officer\u2019s testimony constituted an opinion on an ultimate issue did not provide a basis for a different argument, that the testimony violated Rule 701 (personal knowledge of the witness). The remainder of the assignment of error (that the testimony otherwise violated the Rules of Evidence and denied defendant a fair trial) was too broad and thus ineffectual.\n3. Appeal and Error\u2014 Rule 2 \u2014 may be applied by Court of Appeals \u2014 caution required\nViar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, does not mean that the Court of Appeals cannot apply Appellate Rule 2 to suspend or vary the requirements or provisions of the rules to prevent manifest injustice or to expedite a decision. However, Rule 2 must be applied cautiously; fundamental fairness and the predictable operation of the courts for which the Rules of Appellate Procedure were designed depend upon the consistent exercise of that authority.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 179 N.C. App.-, 633 S.E.2d 102 (2006), finding no error in a judgment entered on 13 May 2005 by Judge D. Jack Hooks, Jr. in Superior Court, Lenoir County. Heard in the Supreme Court 14 February 2007.\nRoy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, for the State.\nStaples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0309-01", "first_page_order": 367, "last_page_order": 375 }