Herndon v. Herndon

IN THE SUPREME COURT OF NORTH CAROLINA

No. 363A15

Filed 10 June 2016

STEVEN CRAIG HERNDON

v.
ALISON KINGREY HERNDON

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 777 S.E.2d 141 (2015), vacating an order

entered on 10 September 2014 by Judge Doretta L. Walker in District Court, Durham

County, and remanding for further proceedings. Heard in the Supreme Court on 17

February 2016.

Foil Law Offices, by N. Joanne Foil and Laura E. Windley, for plaintiff-
appellant.

Tharrington Smith, LLP, by Jill Schnabel Jackson and Evan B. Horwitz, for
defendant-appellee.

BEASLEY, Justice.

We consider whether the Court of Appeals erred by granting defendant a new

hearing based upon the conclusion that the trial court violated defendant’s Fifth

Amendment rights. For the reasons stated herein, we reverse the decision of the

Court of Appeals.

On 21 May 2014, Steven Craig Herndon (plaintiff) filed a Complaint and

Motion for Domestic Violence Protective Order (DVPO) against his wife, Alison
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Kingrey Herndon (defendant). Plaintiff also sought temporary custody of their four

minor children. The complaint alleged that on several occasions, defendant placed in

plaintiff’s food and drink unknown substances that caused him to become

incapacitated, and that during those periods of incapacitation, defendant would leave

the home occupied by plaintiff and their children to visit the home of her paramour.

The district court judge entered an ex parte DVPO against defendant, ordering that

there be no contact between plaintiff and defendant and awarding temporary custody

of the children to plaintiff. On 27 May 2014, in a separate action, defendant filed a

complaint seeking temporary and permanent custody of the minor children. On 23

July 2014, plaintiff filed an answer and counterclaim seeking child custody.

On 10 September 2014, plaintiff’s motion for DVPO and defendant’s custody

complaint came on for hearing before the Honorable Doretta L. Walker in District

Court, Durham County. Several witnesses took the stand, including a computer

forensics expert, a private investigator, plaintiff, defendant’s paramour, defendant’s

friend, and defendant. After plaintiff rested his case-in-chief and before defendant

took the stand, the following exchange occurred:

[DEFENSE COUNSEL]: Call Alison Herndon.

THE COURT: All right. Before we do that, let me
make a statement. You’re calling her. She ain’t going to get
up there and plead no Fifth Amendment?

[DEFENSE COUNSEL]: No, she’s not.

THE COURT: I want to make sure that wasn’t going

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to happen because you -- somebody might be going to jail
then. I just want to let you know. I’m not doing no Fifth
Amendment.

[DEFENSE COUNSEL]: No.

THE COURT: Okay. Call your witness.

[DEFENSE COUNSEL]: Alison Herndon.

Defendant testified on direct examination about her work schedule, her relationship

with plaintiff and the children, and her affair. Defendant also discussed plaintiff’s

allegation that on 11 April 2014, defendant put an incapacitating substance in his

mashed potatoes during one of their daughter’s birthday party. When defense

counsel concluded her examination of defendant, the trial court denied plaintiff’s

counsel the opportunity to cross-examine defendant because the time allotted for the

hearing had almost expired. Instead, the trial court asked defendant questions

related to the events of 11 April 2014 and certain exhibits that had been admitted

into evidence by plaintiff related both to text messages and photographs exchanged

between defendant and her paramour. After hearing the evidence, the trial court

entered a DVPO and temporary custody order in favor of plaintiff, granting defendant

supervised visitation. The trial court did not make any ruling on defendant’s separate

permanent custody action.

On appeal to the COA, defendant argued that the trial court’s comments

preceding her testimony “had a chilling effect on the defense,” thereby depriving

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defendant of her right against self-incrimination.1 Defendant cited the Fifth and

Fourteenth Amendments to the United States Constitution, Article I, Section 23 of

the North Carolina Constitution, and Malloy v. Hogan, 378 U.S. 1, 6, 12 L. Ed. 2d

653, 658 (1964), in support of her argument.

A divided panel of the COA held that the trial court infringed upon defendant’s

right against self-incrimination, relying principally on the United States Supreme

Court’s decision in Brown v. United States, 356 U.S. 148, 2 L. Ed. 2d 589 (1958).

Herndon v. Herndon, ___ N.C. App. ___, ___, ___, 777 S.E.2d 141, 143, 145 (2015).

First, the Court of Appeals acknowledged that a witness, by taking the stand, waives

the Fifth Amendment privilege on cross-examination “with regard to ‘matters raised

by [the witness’s] own testimony on direct examination.’ ” Id. at ___, 777 S.E.2d at

144 (alteration in original) (quoting Brown, 356 U.S. at 156, 2 L. Ed. 2d at 597).

Second, the Court of Appeals observed that a trial court cannot determine whether a

witness may invoke the privilege based solely upon the witness’s physical act of

taking the stand. Id. at ___, 777 S.E.2d at 144 (citing Brown, 356 U.S. at 157, 2 L.

Ed. 2d at 598). The Court of Appeals majority reasoned that the trial court erred by

requiring defendant to choose between “forgoing her right to testify at a hearing

where her liberty was threatened or forgoing her constitutional right against self-

1 Defendant also argued that the trial court erred by admitting into evidence certain
electronic communications, and that, consequently, there was insufficient evidence to support
the trial court’s findings that defendant had committed domestic violence against plaintiff.

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incrimination.” Id. at ___, 777 S.E.2d at 144. Moreover, the Court of Appeals

majority concluded that the trial court’s line of questioning was outside the scope of

defendant’s direct examination, in violation of the rule articulated in Brown. Id. at

___, 777 S.E.2d at 144. For those reasons, the Court of Appeals vacated the trial

court’s order and remanded the case for a new hearing with instructions that the trial

court disregard defendant’s previous testimony and “assess any invocation of the

Fifth Amendment under the test established by the Supreme Court in Brown.” Id. at

___, 777 S.E.2d at 145.

The dissenting judge would have found that defendant waived her Fifth

Amendment privilege. Id. at ___, 777 S.E.2d at 147 (Bryant, J., dissenting). The

dissent criticized the majority’s reading of Brown as “overly technical” and reasoned

that Brown stands for the proposition that when a witness voluntarily testifies, she

cannot “invoke the privilege against self-incrimination as to relevant matters.” Id. at

___, 777 S.E.2d at 148 (citing McKillop v. Onslow County, 139 N.C. App. 53, 64-65,

532 S.E.2d 594, 601 (2000)). The dissent concluded that “it was within the inherent

power of the trial court to ascertain from defendant that she chose to testify

voluntarily and waive her privilege against self-incrimination,” and added that,

despite “the less than artful phraseology,” the trial court’s statements put defendant

on notice of her duty to testify truthfully. Id. at ___, 777 S.E.2d at 149 (citing Brown,

356 U.S. at 156, 2 L. Ed. 2d at 597).

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Plaintiff gave timely notice of appeal based upon the dissent. We review

alleged violations of constitutional rights de novo. E.g., Piedmont Triad Reg’l Water

Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001).

Before this Court, plaintiff argues that the trial court did not violate

defendant’s right against self-incrimination because the trial court’s inquiry was

entirely within the scope of the testimony elicited on direct examination. We agree.

The Fifth Amendment to the United States Constitution, made applicable to

the states by the Fourteenth Amendment, Malloy, 378 U.S. at 6, 12 L. Ed. 2d at 658,

provides that “[n]o person . . . shall be compelled in any criminal case to be a witness

against himself.” U.S. Const. amend. V. This Fifth Amendment protection extends

to civil proceedings. Allred v. Graves, 261 N.C. 31, 35, 134 S.E.2d 186, 190 (1964)

(citation omitted), superseded in part by statute, Act of June 21, 1977, ch. 649, sec. 1,

1977 N.C. Sess. Laws, 761, 761-62. “[T]he claim of privilege ‘should be liberally

construed.’ ” State v. Pickens, 346 N.C. 628, 637, 488 S.E.2d 162, 167 (1997) (quoting

Allred, 261 N.C. at 35, 134 S.E.2d at 189). Moreover, the privilege “protects against

real, not remote and speculative dangers.” State v. Ballard, 333 N.C. 515, 520, 428

S.E.2d 178, 181 (citing Zicarelli v. N.J. State Comm’n of Investigation, 406 U.S. 472,

478, 32 L. Ed. 2d 234, 240 (1972)), cert. denied, 510 U.S. 984, 126 L. Ed. 2d 438 (1993).

“The privilege, to be sustained, need be evident only from the implications of the

question and in the setting in which it is asked. These must show only that a

responsive answer to the question or an explanation of why it cannot be answered

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might be dangerous because injurious disclosure could result.” Id. at 520, 428 S.E.2d

at 181 (quoting Hoffman v. United States, 341 U.S. 479, 486-87, 95 L. Ed. 1118, 1124

(1951)).

Depending on whether a witness is compelled to testify or testifies voluntarily,

the right against self-incrimination operates differently. This distinction, explored

by the Supreme Court in Brown, arises from a need to balance the constitutional right

to protect against self-incrimination with a party’s interest in attacking the

credibility of a witness and the interest of the court in ascertaining the truth. Brown,

356 U.S. at 155-56, 2 L. Ed. 2d at 597. A compelled witness “has no occasion to invoke

the privilege against self-incrimination until testimony sought to be elicited will in

fact tend to incriminate.” Id. at 155, 2 L. Ed. 2d at 597. When the compelled witness’s

privilege is triggered, the normal right of cross-examination becomes secondary to the

constitutional protection against compulsory self-incrimination. Id. at 155, 2 L. Ed.

2d at 597. By contrast, a voluntary witness has the benefit of choosing whether to

testify and “determines the area of disclosure and therefore of inquiry.” Id. at 155, 2

L. Ed. 2d at 597. For that reason, a voluntary witness cannot claim “an immunity

from cross-examination on the matters he has himself put in dispute.” Id. at 156, 2

L. Ed. 2d at 597.

The Court of Appeals majority identified the trial court’s error as follows:

In Brown, the Supreme Court held that the decision
whether to permit invocation of the Fifth Amendment in a
civil proceeding is one that can be made only after the trial

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court considers what the witness “said on the stand.”
[Brown, 356 U.S.] at 157. In other words, the
determination that a witness may not invoke the Fifth
Amendment cannot be made simply because the witness
“physically took the stand.” Id.
That is precisely what happened here.

Herndon, ___ N.C. App. at ___, 777 S.E.2d at 144 (majority).

In Brown the petitioner was subjected to a denaturalization hearing after

being charged with fraudulently procuring citizenship by falsely swearing, inter alia,

that she had not been a member of the Communist Party. 356 U.S. at 149, 2 L. Ed.

2d at 593-94. In the proceeding, during the Government’s case-in-chief, the petitioner

refused to answer the Government’s questions related to her participation in

Communist activities and successfully asserted her Fifth Amendment privilege. Id.

at 150, 2 L. Ed. 2d at 594. Subsequently, during the petitioner’s case-in-chief, the

petitioner took the stand as a witness on her own behalf and answered the questions

posed by her attorney related to Communist activities, but refused to answer the

questions posed by the Government on cross-examination, claiming a Fifth

Amendment privilege. Id. at 150-52, 2 L. Ed. 2d at 594-95. The trial court overruled

the petitioner’s claim of privilege, reasoning that “by taking the stand in her own

defense petitioner had abandoned the privilege.” Id. at 152, 2 L. Ed. 2d at 595. The

trial court ultimately held the petitioner in contempt for continuing to refuse to

answer questions on cross-examination. Id. at 152, 2 L. Ed.2d at 595. On appeal

from her conviction for contempt of court, the petitioner argued that she did not waive

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her privilege against self-incrimination by taking the stand. Id. at 154, 2 L. Ed. 2d

at 596. The Supreme Court affirmed the trial court’s ruling, explaining that

[i]n view of the circumstances surrounding this ruling and
the testimony that preceded it, it is reasonably clear that
the court meant to convey by “having taken the stand in
her own defense” what she said on the stand, not merely
that she physically took the stand. . . . Taken in context,
the ruling of the District Court conveyed a correct
statement of the law, and adequately informed petitioner
that by her direct testimony she had opened herself to
cross-examination on the matters relevantly raised by that
testimony.

Id. at 157, 2 L. Ed. 2d at 598.

Like in Brown, the context in which the Fifth Amendment issue arose here is

important. During plaintiff’s case-in-chief plaintiff called defendant’s paramour, a

compelled witness, to the stand. The paramour invoked his Fifth Amendment right

against self-incrimination concerning questions related to his relationship with

defendant and the text messages that had been exchanged between them.

Thereafter, during defendant’s case-in-chief but before defendant took the stand, the

trial court asked defense counsel whether defendant intended to invoke the Fifth

Amendment, to which counsel twice responded in the negative. At no point during

direct examination or the trial court’s questioning did defendant, a voluntary witness,

give any indication that answering any question posed to her would tend to

incriminate her. Put simply, defendant never attempted to invoke the privilege

against self-incrimination, which distinguishes this case from Brown. We are not

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aware of, and the parties do not cite to, any case holding that a trial court infringes

upon a witness’s Fifth Amendment rights when the witness does not invoke the

privilege.

In addition, the Court of Appeals majority concluded that the trial court’s

inquiry was improper because defendant’s “direct testimony did not address her

alleged drugging of her husband” or the “text messages that corroborated this

allegation.” Herndon, ___ N.C. App. at ___, 777 S.E.2d at 144. Yet, the record reveals

otherwise. During defense counsel’s direct examination of defendant, the following

exchange occurred:

Q. Did he ever say anything to you at all about being
fearful?

A. No, ma’am.

Q. Or believing that you poisoned him?

A. No, ma’am.

....

Q. Did you drug him?

A. No, ma’am.

....

Q. And [the computer forensics expert] read text
messages -- excuse me. He read text messages and
I’m going [sic] summarize where it appeared to make
reference to drugging Craig or giving him an Ambien
and do you -- what do you know about those text
messages?

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Opinion of the Court

A. I mean, I only know what [plaintiff’s counsel] has
given me, text message-wise, or what I’ve read that
they had printed out.

Q. Did you send the text messages?

A. I sent some text messages. Did I send text messages
about drugging Craig? No.

Q. Do you recall ever making a joke about -- about
drugging him to anyone?

A. I don’t remember -- I don’t recall making jokes about
drugging him. I -- I remember joking about -- I don’t
-- I mean, I don’t know exactly what it said, but I -- I
would -- I very likely said -- I don’t -- I really don’t
know.

At the completion of defendant’s direct examination, the trial court asked defendant

whether she sent the text messages referenced in plaintiff’s exhibit number four, 2 to

which defendant replied, “I don’t recall, Your Honor.” The trial court also asked

defendant whether she sent the photographs in plaintiff’s exhibit number twenty-

three,3 to which defendant replied, “Well, the ones on April 11th are the ones with my

bathing suit on. Yes, ma’am. I probably did.” It is clear that defendant’s direct

testimony did, in fact, address the allegation that defendant drugged plaintiff and the

2 Plaintiff’s exhibit number four contained text messages allegedly sent by defendant
to her paramour indicating that on 11 April 2014, she intentionally put pills in plaintiff’s food
so that he would “pass out,” giving her the opportunity to leave the house and meet with the
paramour.

Plaintiff’s exhibit number twenty-three contained photographs extracted from text
3

messages allegedly sent from defendant to her paramour.

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Opinion of the Court

text messages that tended to corroborate the allegation. The trial court, in its

questioning of defendant, inquired into matters within the scope of that which was

put into dispute on direct examination by defendant. Therefore, even if defendant

had attempted to invoke the Fifth Amendment, under the rule in Brown the privilege

was not available to defendant during the trial court’s inquiry.

Defendant contends that the Court of Appeals decision in Qurneh v. Colie, 122

N.C. App. 553, 471 S.E.2d 433 (1996), controls the outcome in this case. Specifically,

defendant argues that in Qurneh the plaintiff was given the opportunity to invoke

the Fifth Amendment privilege and still pursue his custody claim, whereas defendant

was required to choose between invoking the privilege and going to jail, or pursuing

her temporary custody claim. We are not persuaded.

In Qurneh the plaintiff-father invoked the Fifth Amendment to avoid

responding to questions posed during a custody hearing about his involvement with

illicit drugs. 122 N.C. App. at 556, 471 S.E.2d at 434-35. Balancing the interests of

the parties, the trial court concluded that the plaintiff used the privilege as both a

shield and a sword by introducing evidence of his fitness and then prohibiting the

defendant from rebutting that evidence with proof of his unfitness. Id. at 558, 471

S.E.2d at 436. As a result, the Court of Appeals affirmed the trial court’s dismissal

of the plaintiff’s custody claim, reasoning that “the trial court was unable to consider

pertinent information in determining plaintiff’s fitness,” id. at 559, 471 S.E.2d at 436,

which was an element of the plaintiff’s prima facie case, id. at 558-60, 471 S.E.2d at

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436-37. The present case is factually distinguishable from Qurneh. Unlike in

Qurneh, the trial court here was able to consider all the pertinent evidence because

defendant did not invoke the Fifth Amendment privilege. Instead, defendant

voluntarily took the stand and testified about the domestic violence allegations

against her, her marriage, her relationship with her children, and her ability to care

for them. The Court of Appeals decision in Qurneh does not support a conclusion that

the trial court in this case violated defendant’s Fifth Amendment rights.

We hold, therefore, that the Court of Appeals erred by granting defendant a

new hearing. We acknowledge that the trial court’s conduct was inappropriate and

that the trial judge should not have threatened defendant with jail; however, we do

not believe the trial judge’s actions amounted to a constitutional violation. Defendant

did not invoke the privilege against self-incrimination. Defense counsel did not make

an offer of proof, object, or otherwise demonstrate a concern for defendant’s

constitutional rights.4 Defendant was in control of her testimony by virtue of her

decision to take the stand. Defense counsel asked defendant plainly whether she

4 We recognize that North Carolina Rules of Evidence Rule 614(c) provides that “[n]o
objections are necessary with respect to . . . questions propounded to a witness by the court
but it shall be deemed that proper objection has been made and overruled.” This rule operates
to preserve for appellate review the impropriety of a trial court’s interrogation of a witness
even if a party does not object. It does not apply when, as here, a party argues that the trial
court’s inquiry infringed upon a litigant’s privilege against compelled self-incrimination. Cf.
State v. Garcia, 358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004) (“It is well settled that
constitutional matters that are not ‘raised and passed upon’ at trial will not be reviewed for
the first time on appeal.” (citations omitted)), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122
(2005).

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drugged plaintiff and the trial court asked questions tending to corroborate plaintiff’s

domestic violence allegations. We cannot say, in view of these circumstances, that

the trial court infringed upon defendant’s Fifth Amendment right against self-

incrimination.

Accordingly, we reverse the decision of the Court of Appeals and remand this

case to that court for consideration of defendant’s alternative bases for appeal.

REVERSED AND REMANDED.

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