State v. Smith
State v. Smith
Opinion
*682 The State appeals from an order entered by Judge Ola M. Lewis in Bladen County Superior Court recusing the District Attorney of the 13th Judicial District and his staff from further prosecuting Jeffrey Scott Smith ("Defendant") and five unnamed co-defendants *868 in criminal actions arising from the commercial use of promotional internet software. The State also appeals from the denial of its motion to reconsider the recusal *683 order. The State argues that the trial court's order must be vacated on three grounds: (1) the trial court exceeded its lawful authority by recusing the entire District Attorney's Office, (2) the sua sponte nature of the recusal order-decided without notice or a hearing-undermines the adversarial process of our legal system, and (3) the trial court's findings of fact are not support by any evidence.
After careful review, we vacate the trial court's recusal order and remand for further proceedings. Because we vacate the recusal order, the State's appeal from the trial court's denial of its motion for reconsideration is moot.
Factual and Procedural History
On 10 June 2013, Defendant was indicted on two counts of electronic sweepstakes violations pursuant to
Defendant was next indicted on 6 July 2015 on seven counts of felonious possession of five or more video gaming machines (15 CRS 944, 947, 948, 949, 950, 951; 15 CRS 50858), seven counts of felonious operation of five or more video gaming machines in violation of
Defendant filed a response to the State's motion to increase bond, along with a motion to dismiss all charges for prosecutorial vindictiveness. On the same day, Cybernet LLC and Aladdin Real Estate, LLC, business entities affiliated with Defendant, filed a civil complaint in Bladen County Superior Court against Jonathan David, in his individual capacity and in his official capacity as the District Attorney for the 13th Judicial District, James McVicker, in his individual capacity and in his official capacity as the Sheriff of Bladen County, and Travis Deaver, in his individual capacity and in his official capacity as a Deputy Sheriff of Bladen County.
A hearing on the State's motion to increase bond was set for 11 January 2016, but the parties agreed to continue the hearing, after *684 Defendant's motion to dismiss the charges for prosecutorial vindictiveness was served on the State only three days before the proposed hearing.
Despite the parties' agreement to seek a continuance of the State's motion, at the 11 January 2016 Criminal Session of Bladen County Superior Court, the trial court, sua sponte and without a hearing, rendered an oral order removing the District Attorney for the 13th Judicial District, and his staff, from serving as the prosecutors in the pending matters regarding Defendant. 1 Two days later, the trial court issued its written order of recusal, signed nunc pro tunc to 11 January 2016, in which it made the following Findings of Fact:
1. That the Defendant stands charged with twenty (20) indictments, all involving Defendant's wife's businesses which use internet promotional software.
2. That the State and the Defendant had agreed to continue the hearing since the District Attorney was served on January 8th, 2016 with the vindictiveness dismissal motion.
3. That, also on Friday, January 8th, 2016, a civil action was filed against the District Attorney, and others, which involves damages suffered by Defendant's company and Defendant's wife's company during the Bladen County Sheriff's raid which resulted in most of the Defendant's criminal charges. That file is 16 CVS 9, Bladen County Clerk of Superior Court, and is incorporated herein.
*869 4. That the Court finds that the civil filing creates a conflict of interest, and that the District Attorney for the 13th Judicial District, and his staff, should be recused from further prosecution of the criminal action.
5. That there are five (5) Co-Defendants charged with the same offenses as the Defendant, arising out of the same facts and circumstances.
From these facts, the trial court made the following Conclusions of Law:
1. That the Court has jurisdiction over the subject matter of this action.
*685 2. That the civil action filed in File No. 16 CVS 9, against the District Attorney for the 13th Judicial District, creates a conflict of interest which prevents the District Attorney from being involved in further prosecution of the Defendant.
3. That the District Attorney should be recused from any further criminal prosecution of the Defendant or any co-Defendants.
The trial court's order decreed:
Based on the Foregoing Findings of Fact and Conclusions of Law, it is hereby Ordered, Adjudged, and Decreed that the District Attorney for the 13th Judicial District, and his staff, are hereby recused from any further prosecution of these cases or any of the cases of the Co-Defendants.
Two days later, on 15 January 2016, the State filed a motion for reconsideration of the recusal order. A hearing was set for 25 April 2016, however before this date, the State waived its request for a hearing and requested that the motion be decided on the briefs. The trial court denied the State's motion by order signed on 1 August 2016 and filed 19 August 2016. On 16 August 2016, the State filed a notice of appeal from both the recusal order and the denial of its motion to reconsider. The State withdrew this appeal on 5 December 2016.
A month later, on 6 January 2017, the State filed a petition for writ of certiorari with this Court seeking review of both the recusal order and the denial of its motion to reconsider. We granted this petition by order entered 24 January 2017.
Analysis
The State argues that the trial court's recusal order must be vacated because the trial court exceeded its lawful authority by recusing the entire District Attorney's Office from further prosecution of Defendant and the unnamed co-defendants. We agree.
1. Appellate Jurisdiction and Standard of Review
North Carolina's appellate courts have not previously reviewed a trial court's order recusing a district attorney's office. We have, however, reviewed a trial court's order disqualifying a district attorney's office.
See
State v. Scanlon
,
While generally interlocutory, an order disqualifying counsel is immediately appealable because it affects a substantial right.
See
Goldston v. American Motors Corp.
,
In
Scanlon
, this Court held that a trial court's "decision regarding whether to disqualify counsel 'is discretionary with the trial judge and is not generally reviewable on appeal.' "
Scanlon
,
When applying an abuse of discretion standard, our review "is limited to a determination of whether there was a clear abuse of discretion."
White v. White
,
2. Discussion
The principal case in our jurisdiction addressing a trial court's authority to disqualify a prosecutor is
State v. Camacho
,
[ I ] n order to avoid even the possibility or impression of any conflict of interest , the Court directs that the District Attorney's Office immediately withdraw from the case; that the District Attorney's Office, including Ms. Shappert, have no further participation, either directly or indirectly, with the case; that the Attorney General's Office be contacted immediately by the District Attorney's Office for representation of the State in the matter; and that the Attorney General's Office shall immediately assume the prosecution of the case.
Id. at 593,
Camacho
articulated the rule that "a prosecutor may not be disqualified from prosecuting a criminal action in this State unless and until the trial court determines that
an actual conflict of interests exists
[,]" as defined by that opinion.
Id. at 601-02,
Our Supreme Court in
Camacho
considered the constitutional nature of the office of a district attorney, noting: "The several District Attorneys of the State are independent constitutional officers, elected in their districts
*871
by the qualified voters thereof, and their special duties are prescribed by the Constitution of North Carolina and by statutes."
Id. at 593,
Camacho
ultimately held that a trial court considering disqualifying a prosecutor should balance the respective interests of the defendant, the government, and the public.
Id. at 600,
[The defendant] has a fundamental interest in his fifth amendment right not to be deprived of liberty without due process of law and in his sixth amendment right to counsel. The government has an interest in fulfilling its public protection function. To that end, the convenience of utilizing the office situated in the locus criminis is not lightly to be discarded. Furthermore, the government has a legitimate interest in attracting qualified lawyers to its service.
The trial court's order in the present case fails for several reasons. First, Camacho plainly directs that a prosecutor may be disqualified only when the trial court has found the existence of a conflict of interests as defined by that decision-a prior representation of Defendant by the *689 prosecutor in the matter sought to be prosecuted, in which that prosecutor has obtained confidential information detrimental to Defendant. The trial court here made no such finding. Nor was there any evidence before the trial court, at the time of its order, that would support a finding that a member of the District Attorney's Office had previously represented Defendant in a related matter and received confidential information detrimental to Defendant. Rather, the trial court explicitly justified its recusal order based on a different consideration, stating that "the civil action filed in File No. 16 CVS 9, against the District Attorney for the 13th Judicial District, creates a conflict of interest which prevents the District Attorney from being involved in further prosecution of the Defendant." The mere filing of a civil suit is insufficient to meet Camacho 's criteria to disqualify the District Attorney or any of his staff.
Even assuming
arguendo
that a conflict of interests beyond the definition provided in
Camacho
could support an order compelling the recusal of-
i.e.
, disqualifying-a prosecutor, the unilateral filing of a civil suit by a criminal defendant would not, on its own, suffice. The North Carolina Supreme Court in
State v. Britt
,
A conflict of interests sufficient to disqualify a prosecutor cannot arise merely from the unilateral actions of a criminal defendant. The trial court's order here included no findings of fact as to how the substance of the civil case created a conflict of interest for the District Attorney, or any of his staff, in the criminal action.
*690
Moreover, the trial court's order is not drawn as narrowly as possible, as required by our Supreme Court.
Camacho
directs that "any order tending to infringe upon the constitutional powers and duties of an elected District Attorney must be drawn as narrowly as possible."
Because the trial court's order lacks the proper findings sufficient to support the disqualification of the prosecutor or any of his staff, and because the trial court's order is not narrowly tailored to address any possible conflict of interests, we hold that the trial court exceeded its lawful authority in ordering the recusal of the District Attorney for the 13th Judicial District and his entire staff. 3
Conclusion
For the foregoing reasons, we vacate the trial court's recusal order and remand for further proceedings.
VACATED AND REMANDED.
Judges ELMORE and DIETZ concur.
The parties stipulated to the events of the 11 January 2016 Criminal Session of Bladen County Superior Court as no recordings or transcripts were taken of the oral order.
Black's Law Dictionary defines recusal as " removal of oneself as judge or policy-maker in a particular matter, esp. because of a conflict of interest." Black's Law Dictionary (10th ed. 2014) (emphasis added). Disqualification is defined as "[s]omething that incapacitates, disables, or makes one ineligible; esp., a bias or conflict of interest that prevents a judge or juror from impartially hearing a case, or that prevents a lawyer from representing a party." Black's Law Dictionary (10th ed. 2014).
We note that the trial court did not proceed with a hearing on Defendant's motion to dismiss for prosecutorial misconduct. Our opinion today does not address that motion or Defendant's contentions therein.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.