finding reversible error in cumulative effect of trial judge’s thirty-seven hostile remarks toward defendant
How later courts described this case
- finding reversible error in cumulative effect of trial judge’s thirty-seven hostile remarks toward defendant
- “Because appellant was the driver of the car in which the contraband was found, an inference was authorized that he had possession of the cocaine” (citation omitted)
Written by the judges who cited it.
The opinion
Justice Meyer
concurring in part and dissenting in part.
I agree with that portion of the majority opinion in which a new trial is granted on the basis that the cumulative effect of the extraneous remarks made by the trial judge during the proceedings below was sufficiently prejudicial to the defendants’ cause to require such a result. Another section of the majority opinion, however, causes me great concern.
At the end of its opinion, the majority notes that, with one member of the Court not taking part, the Court is split evenly as to the question of whether defendant Durham County ABC Board is insulated by governmental immunity in exercising its enforcement and investigative duties. Therefore, states the majority, the decision of the Court of Appeals — specifically, that governmental immunity does attach to the enforcement and investigative activities of local ABC boards — is left undisturbed and stands without precedential value. While this is the effect of our evenly divided vote, I am convinced to a certainty that the Court of Appeals was correct in that the officers, acting as they were in a police capacity, were performing a governmental function.
As a general matter, ABC officers are required by statute to take the oath prescribed for all peace officers. N.C.G.S. § 18B-501(b) (1983). Moreover, although their primary responsibilities relate to the enforcement of ABC laws and article 5 of chapter 90 of the North Carolina General Statutes, they have the clear authority to make arrests and to “take other investigatory and enforcement actions for any criminal offense.” N.C.G.S. § 18B-501(b) (1983). See State v. Taft, 256 N.C. 441 , 124 S.E. 2d 169 (1962). More specific to this case, the officers in question were serving a warrant at the time of the incident that gave rise to this lawsuit. It seems clear to me therefore that the officers were thus per *432 forming a governmental police function, and thus bore the shield of governmental immunity. Whether the Court of Appeals was correct on the issue is not determinative in the case at bar, as our evenly divided vote produces the same result, i.e., the officers here were clothed with governmental immunity while serving the warrant.
The feature of the majority opinion with which I disagree is its affirmance of the order remanding the case for a determination as to whether the ABC Board has purchased liability insurance. Inherent in this remand is the notion that, if the ABC Board has in fact purchased liability insurance, it has waived its governmental immunity to the extent of the insurance coverage. Simply because the Court is evenly divided as to the governmental immunity issue, it does not necessarily follow that the case must be remanded to determine the availability of insurance coverage.
If the Durham County ABC Board is entitled to governmental immunity by reason of our equally divided vote, that immunity cannot be waived by the purchase of insurance absent an express statutory authorization. See Guthrie v. State Ports Authority, 307 N.C. 522 , 299 S.E. 2d 618 (1983). Our legislature has provided that cities and counties may waive governmental immunity by the purchase of insurance. See N.C.G.S. § 160A-485 (1987) (cities); N.C.G.S. § 153A-435 (1987) (counties). The statutory definition of the term “city” appears in N.C.G.S. § 160A-H2) and does not encompass a local ABC board. A county is defined in N.C.G.S. § 153A-13, which provides that a county is one of the one hundred listed in N.C.G.S. § 153A-10, and thus the term “county” does not encompass a local ABC board.
In its opinion in this case, the Court of Appeals drew an analogy between cities and counties and local ABC boards, concluding that the same waiver possibility would exist for the latter as for the former. Governmental immunity, however, can only be waived if there is statutory authority authorizing and permitting the waiver. While, admittedly, the legislature has explicitly created waivers for cities and counties, it has done no such thing for local ABC boards. As a result, the majority’s order that the case be remanded for a determination as to the Durham County ABC Board’s liability insurance coverage seems clearly erroneous. *433 It is for that reason that I dissent only from that portion of the majority opinion.
Justice MITCHELL joins in this concurring and dissenting opinion.