IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-384
Filed: 3 April 2018
Bladen County, Nos. 13 CRS 050477, 050479; 15 CRS 000944-959; and 15 CRS
050855, 050858
STATE OF NORTH CAROLINA,
v.
JEFFREY SCOTT SMITH, Defendant.
Appeal by the State from orders entered 13 January 2016 and 19 August 2016
by Judge Ola M. Lewis in Bladen County Superior Court. Heard in the Court of
Appeals 18 October 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N.
Bolton, for the State.
Smith Moore Leatherwood LLP, by Matthew Nis Leerberg and Kip David
Nelson, for Defendant-Appellee.
INMAN, Judge.
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 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 order. The State argues that the trial court’s order must be
STATE V. SMITH
Opinion of the Court
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 N.C. Gen. Stat. § 14-306.4(b) in case numbers 13
CRS 50477 and 13 CRS 50479. Defendant entered a plea of not guilty, the case
proceeded to trial, and on 10 April 2014, a mistrial was declared following a
deadlocked jury. Defendant, who had been released on pre-trial bond, remained free
pending the resolution of the charges.
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 N.C. Gen. Stat. § 14-306.1A (15 CRS 945, 946, 956, 957, 958
959; 15 CRS 50855), two counts of misdemeanor gambling (15 CRS 952, 953), and two
counts of misdemeanor electronic sweepstakes violations pursuant to N.C. Gen. Stat.
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Opinion of the Court
§ 14-306.4(b) (15 CRS 954, 955). The State filed a motion to revoke Defendant’s initial
bond of $68,750 and to set a new secured bond in the amount of $500,000.
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 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
1The 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.
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Opinion of the Court
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.
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.
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.
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Opinion of the Court
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
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Opinion of the Court
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, 176 N.C. App.
410, 434, 626 S.E.2d 770, 786 (2006). For the purposes of our review today we note
the primary distinction between recusal and disqualification is the self-imposing
nature associated with recusals compared with the directive nature associated with
disqualifications.2 Because the trial court’s order compels the District Attorney’s
Office’s recusal, we review the order as one disqualifying the District Attorney and
his staff.
While generally interlocutory, an order disqualifying counsel is immediately
appealable because it affects a substantial right. See Goldston v. American Motors
Corp., 326 N.C. 723, 726-27, 392 S.E.2d 735, 736-37 (1990); see also Travco Hotels v.
Piedmont Natural Gas Co., 332 N.C. 288, 293, 420 S.E.2d 426, 429 (1992) (“[T]he
granting of a motion to disqualify counsel, unlike a denial of the motion, has
2Black’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).
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Opinion of the Court
immediate and irreparable consequences for both the disqualified attorney and the
individual who hired the attorney. The attorney is irreparably deprived of exercising
his right to represent a client. The client, likewise, is irreparably deprived of
exercising the right to be represented by counsel of the client’s choice. Neither
deprivation can be adequately redressed by a later appeal of a final judgment adverse
to the client.”).
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, 176 N.C. App. at 434, 626 S.E.2d at 786 (citation
omitted). This abuse of discretion standard is consistent with other decisions by both
this Court and the North Carolina Supreme Court. See, e.g., Travco Hotels, 332 N.C.
at 295, 420 S.E.2d at 430 (“Decisions regarding whether to disqualify counsel are
within the discretion of the trial judge and, absent an abuse of discretion, a trial
judge’s ruling on a motion to disqualify will not be disturbed on appeal.” (citation
omitted)).
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, 312
N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citations omitted). “A ruling committed to
a trial court’s discretion is to be accorded great deference and will be upset only upon
a showing that it was so arbitrary that it could not have been the result of a reasoned
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Opinion of the Court
decision.” Id. at 777, 324 S.E.2d at 833. On a motion for disqualification, “the
findings of the trial court are binding on appeal if supported by any competent
evidence, and the court’s ruling may be disturbed only where there is a manifest
abuse of discretion, or if the ruling is based on an error of law.” State v. Rogers, 219
N.C. App. 296, 299, 725 S.E.2d 342, 345 (2012) (citing State v. Taylor, 155 N.C. App.
251, 255, 574 S.E.2d 58, 62 (2002)).
2. Discussion
The principal case in our jurisdiction addressing a trial court’s authority to
disqualify a prosecutor is State v. Camacho, 329 N.C. 589, 406 S.E.2d 868 (1991). In
Camacho, the trial court ordered:
[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, 406 S.E.2d at 870 (emphasis in original). Our Supreme Court addressed
whether each directive in the trial court’s order exceeded the trial court’s authority.
Id. at 593-95, 406 S.E.2d at 870-72. The trial court had disqualified the district
attorney and his staff from further participation in the defendant’s case for the
purpose of avoiding “even the possibility or impression of any conflict of interest.” Id.
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Opinion of the Court
at 595, 406 S.E.2d at 871-72. The Supreme Court held “that the trial court exceeded
its authority in several respects . . . .” Id. at 595, 406 S.E.2d at 872.
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,
406 S.E.2d at 875-76 (emphasis added) (“[W]e conclude that where a trial court has
found ‘an actual conflict of interests’ as that term has been defined in this opinion, the
trial court may disqualify the prosecutor . . . .” (emphasis added)). The Court defined
“an actual conflict of interests” as arising when “a District Attorney or a member of
his or her staff has previously represented the defendant with regard to the charges
to be prosecuted and, as a result of that former attorney-client relationship, the
prosecution has obtained confidential information which may be used to the
defendant’s detriment at trial.” Id. at 601, 406 S.E.2d at 875. The Court went on to
note that “[e]ven then . . . any order of disqualification ordinarily should be directed
only to individual prosecutors who have been exposed to such information.” Id. at
601, 406 S.E.2d at 876.
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 by the qualified voters
thereof, and their special duties are prescribed by the Constitution of North Carolina
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and by statutes.” Id. at 593, 406 S.E.2d at 870 (citations omitted). It was with this
constitutional and statutory mandate in mind that the Court rejected per se rules of
disqualification and concluded: “The courts of this State . . . must, at the very least,
make every possible effort to avoid unnecessarily interfering with the District
Attorneys in their performance of such duties. . . . [And] any order tending to infringe
upon the constitutional powers and duties of an elected District Attorney must be
drawn as narrowly as possible.” Id. at 595, 406 S.E.2d at 872 (citations omitted).
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, 406 S.E.2d at 874-75. The Court adopted the balancing
test established by the United States Court of Appeals for the Seventh Circuit in
United States v. Goot, 894 F.2d 231, 236 (7th Cir. 1990), cert. denied, 498 U.S. 811,
112 L. Ed. 2d 22 (1990). Goot reasoned that
[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.
894 F.2d at 236. The Seventh Circuit panel affirmed the denial of the defendant’s
motion to disqualify the entire United States District Attorney’s Office because the
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Opinion of the Court
government had sufficiently screened the United States Attorney from the
prosecution of the defendant “so that each and every particular interest of [the
defendant], the government, and the public was met.” Id. at 237.
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 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.,
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Opinion of the Court
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, 291 N.C 528, 231 S.E.2d 644 (1977), entertained possible scenarios in which
it might be proper to remove a prosecutor. In Britt, the defendant sought to remove
a prosecutor based “upon the fact that this [was] the fourth trial for this offense by
the same district attorney, and the fact that [the North Carolina Supreme] Court
reversed the conviction of [the] defendant for over-zealous conduct on the part of the
district attorney . . . .” Id. at 541, 231 S.E.2d at 653. The Supreme Court, rejecting
the defendant’s argument, explained that “[i]n the discharge of his duties the
prosecuting attorney is not required to be, and should not be, neutral. He is not the
judge, but the advocate of the State’s interest in the matter at hand.” Id. at 541-42,
231 S.E.2d at 653. The Court noted that “the prosecutor was acting as the advocate
of the State’s interest. . . . There [had] been no showing of misconduct in [the] trial . .
. [nor] evidence that the prosecutor [had] any conflict of interest, E.g., [sic] prior
representation of [the] defendant; nor that the prosecutor [had] any self-interest in
obtaining the conviction of [the] defendant, E.g., [sic] revenge; nor that the prosecutor
[had] any interest adverse to that of protecting the State.” Id. at 542, 231 S.E.2d at
653-54 (citations omitted).
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
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Opinion of the Court
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.
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.” 329 N.C. at 595, 406 S.E.2d at 872. The trial court’s
order here disqualifies the named District Attorney in the civil suit, as well as the
entire District Attorney’s Office for the 13th Judicial District. Additionally, the order
applies not only to Defendant, but to five other unnamed co-defendants.
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.
3 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.
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Opinion of the Court
Judges ELMORE and DIETZ concur.
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