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Peaches v. Payne8/15/2000
Appeal by contemnor William E. Moore, Jr., from order entered 11 March 1999 by Judge Marvin K. Gray in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 April 2000.
Contemnor William E. Moore, Jr., appeals the trial court's finding of criminal contempt and order that he pay the costs of the underlying action as a sanction. We reverse.
The contemnor's actions and resulting court rulings that are the subject of this appeal occurred during a personal injury trial that began 8 March 1999. The trial court initially instructed the attorneys for both parties to select the jury using the procedure approved in State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980) and warned them: " f you don't select that jury, in accordance with State Vs. Phillips, you're going to hear from me." (In Phillips, the court stated that counsel should not attempt to indoctrinate jurors, stake them out or establish rapport with them during voir dire, and that when possible, questions should be asked collectively of the entire panel.) The next day, after jury selection had been completed, the trial court chided both attorneys:
You took too long selecting a jury yesterday. Ought to be done in about two hours.
. . . You were verbose, as lawyers tend to be. And, you didn't follow State Vs. Phillips. So, the reason I'm bringing this to your attention is the next time I have a case with either one of you, you're on notice.
Contemnor called plaintiff Timothy L. Peaches (Mr. Peaches) as his first witness. He established on direct examination that Mr. Peaches saw defendants' automobile "from left, careen into -- on Independence Boulevard, . . . off into the grass, into the other lane, [spin] around; continue up in front of [plaintiffs] and on-going traffic, turned sideways." Contemnor then asked Mr. Peaches' opinion of the speed of defendants' car. When defense counsel objected on the grounds of improper foundation, the trial court sustained the objection. Contemnor asked additional questions in an attempt to lay a proper foundation, then asked Mr. Peaches' opinion of the speed of defendants' car four more times. Each time, the trial court sustained defendants' objections. Contemnor requested a bench conference, which was not recorded. The jury remained in the courtroom during the bench conference. When contemnor resumed his direct examination, the trial court interrupted him and excused the jury. The following exchange ensued:
THE COURT: Now Mr. Moore, if you want to be, in the future, sure of what the law is before you come up here to argue with the Court about it. What you stated the law to be is not the law. I can cite you any number of cases that would so indicate. You should have been prepared to handle that before you began trial of this case.
MR. MOORE: Well, Your Honor, I am sure of what I know of the law. I don't have a cite because it's a pretty basic principle with my 18 years of practice.
THE COURT: It's not.
MR. MOORE: I have tried many cases where that question has been asked and answered and the objection has been overruled.
Now Judge, I may be wrong on the law and what I remember of it. But if I brought in every case authority for every basic principle, I would be able to fill the courtroom up with my library.
THE COURT: Well, the OBJECTION HAS BEEN SUSTAINED because you have not laid the proper foundation.
MR. MOORE: I understand that.
THE COURT: You have still not laid a proper foundation.
MR. MOORE: Obviously, Your Honor, I have overlooked the part of the foundation that the Court is relying upon.
TH
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