Petition for Writ of Certiorari — Burton v. North Carolina

\ FILED

y

waa % Gores Coat, 6.8.

\

j

O8° 55 7 AUG 1 4 1995

No. 99 - ee or tit CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

DONALD BURTON,

Petitioner

*

STATE OF NORTH CAROLINA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Irving Joyner

1512 S. Alston Avenue

Durham, North Carolina 27707

Telephone: (919) 560-6293

COUNSEL FOR PETITIONER

a

fer eae,

a rae eee ee ae ow ae ee eee eS

QUESTION PRESENTED

1. WHETHER THE ARREST AND CONVICTION OF A

CITIZEN FOR ENGAGING IN AN ARGUMENT OR VERBAL

PROTEST WITH A POLICE OFFICER DURING A TRAFFIC

STOP IN A PRIVATE PARKING LOT VIOLATES THE

FIRST AMENDMENT?

ii

TABLE OF CONTENTS

CRUISE GD DRE Bec eceneseeesereanever'’ ii

pees OF CORR e chee eesinsaasesuancieces iii

Zeeeee OF REESE s oc ccecucctocsesoncess iv

CSS DRGs 5 oc chee cen seen dhe neeneawe ss 1

SURE EGCEAMM enc ncew de cesbecbanneeehete vee 6 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

io | LPP PTE YT ee er eC ee ere Sea ee 3

STATEMENT OF THE CARR. .ccccccsccscscccccs 6

HOW THE FEDERAL QUESTION WAS RAISED AND

DRAG? DE, 0 +h nb ee ee 0H 8 066 486 4568 O80 8

bs Pre rrr eee ee ee Te ee eT Pe ETE 10

: THE ARREST AND CONVICTION OF A

CITIZEN FOR ENGAGING IN AN ARGUMENT

OR VERBAL PROTEST WITH A POLICE

OFFICER DURING A TRAFFIC STOP INA

PRIVATE PARKING LOT VIOLATES THE

FIRST AMENDMENT .

CAMPRU 6660004 0 On 6 eae ewan bee Cee ene 25

COTE ECRE GCP BEVEL hs ee cetseeaccees 26

pS he ee eee ee a. ee a a 27

TABLE OF AUTHORITIES

CASES

Burton v. North Carolina, No. CA-93-351

sis Se dis BORD 046606 ceacceccecas 2,8,17

Colten v. Kentucky, 407 U.S.104

RRR ee er are 18,19,20

DeJorge v. Oregon, 299 U.S.353 ( )...... 11

Gooding, Warden v. Wilson, 405 U.S. 518

ES SS a rare a ee ee 12,21

Houston v. Hill, ?,

ee Se le oy en 12,13,14,21,24

Lewis v. City of New Orleans,

rs ee ene oc ae ene eee tees 12,13,21,24

State v. Burton, 108 N.C. 219,

nr PE nc cease saseccbeces 7,23

State v. Burton, 333 N.C. 576,

ee Oe

State v. Mobley, 240 N.C. 476,

en rn, CEE Coe cecceeeccsecenes 21

Terminiello v. Chicago,

Pr es Cech cee eee esc eiansese’ne 10,12

CONSTITUTIONAL PROVISIONS

es Se GS Dic She wees ccececccecs 3,8,12

ee ere 3,12

STATUTES

N.C. Gen. Stat. § 14-33(b) (4) (1988)... 3,6

N.C. Gen. Stat. § 14-141 (1988)....... 5,6

N.C. Gen. Stat. § 14- 160 (1988)...... 6

iv

N.C. Gen. Stat. § 14-223 (1988) ...4,6,15,23,24

N.C. Gen. Stat. § 15A-1113 (1988).... 4,21

2B U.S.C. & 2101 (@) .. cc che ccccceces 3

BO U.BiG. BF BOOBs cecesccesescscsussese 2,7,9

a ae a

i Be alt ee ee ee a |

— eee

No. 95-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

DONALD BURTON,

Petitioner

mor

STATE OF NORTH CAROLINA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Petitioner Donald Burton respectfully

prays that this Court issue a Writ of

Certiorari to review the judgment and opinion

of the United States Court of Appeals for the

Fourth Circuit entered on May 17, 1995.

OPINION BELOW

The per curiam opinion of the United

States Court of Appeals for the Fourth Circuit

in Burton v. State of North Carolina, #94-7070

(4th Cir. 1995) is unpublished and is included

in the Appendix. (App. at 1). The opinion of

Magistrate Judge Sharp is also unpublished and

is included in the Appendix. (App. at 3). The

opinion of the North Carolina Court of Appeals

is officially reported at 108 N.C. App. 219,

423 S.E.2d 484 (1992) and is also included in

the Appendix. (App. at 16 ). The North

Carolina Supreme Court did not grant Burton's

Petition for Discretionary Review and that

decision is reported at 333 N.C. 576, 429

S.E.2d 574 (1993).

JURISDICTION

The judgment of the United States Court

of Appeals for the Fourth Circuit affirming

the lower court's denial of the Petitioner's

Habeas Corpus Petition, 28 U.S.C. § 2254

(1988), was entered on May 17, 1995. (App. at

1). The jurisdiction of this court is

invoked pursuant to 28 U.S.C. § 2101(e) (1988).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The First Amendment to the United States

Constitution provides in relevant part that

"Congress shall make no law abridging the

freedom of speech, or of the press; or the

right of the people peaceably to assemble, and

to petition the Government for a redress of

grievances." U.S. Const. Amend. I.

The Fourteenth Amendment to the United

States Constitution provides in relevant part

that "nor shall any State deprive any person

of life, liberty, or property, without due

process of law, nor deny to any person within

its jurisdiction the equal protection of the

laws." U.S. Const. Amend. XIV.

N.C. Gen. Stat. § 14-33(b) (4) (1988)

provides in relevant part:

(b) Unless his conduct is covered

under some other provision of law

providing greater punishment, any

3

person who commits any assault,

assault and battery, or affray is

guilty of a misdemeanor punishable

by a fine, imprisonment for not more

than two years, or both such fine

and imprisonment if, in the course

of the assault, assault and battery,

or affray, he:

(4) Assaults a law

enforcement

officer...while the

officer or personnel is

discharging or attempting

to discharge a duty of his

office.

N.C. Gen. Stat. § 14-223 (1988) provides:

If any person shall willfully and

unlawfully resist, delay or obstruct

a public officer in discharging or

attempting to discharge a duty of

his office, he shall be guilty of a

misdemeanor punishable by a fine not

to exceed five hundred dollars

($500), imprisonment for not more

than six months, or both.

N.C. Gen. Stat. § 15A-1113(b) (1988)

provides in relevant part:

(b) Detention of Person Charged. A

law enforcement officer who has

probable cause to believe a person

has committed an infraction may

detain the person for a reasonable

period in order to issue and serve

him a citation.

N.C. Gen. Stat. § 20-141(a) (1994)

provides:

(a) No person shall drive a vehicle

on a highway or in a public

vehicular area at a speed greater

than is reasonable and prudent under

the conditions then existing.

STATEMENT OF THE CASE

Petitioner was arrested on January 2,

1990 and charged with exceeding a safe speed,

an infraction, in violation of N.C. Gen. Stat.

§ 20-141 (a); resisting, obstructing and

delaying a law enforcement officer, in

violation of N. C. Gen Stat. § 14-223; three

counts of misdemeanor assault on law

enforcement officers, in violation of N.C.

Gen. Stat. § 14-33(b) (4), and damage to

personal property, in violation of N.C. Gen.

Stat. § 14-160. Petitioner's arrest resulted

from a loud argument that he had with a police

officer during a traffic stop in which he

verbally challenged the issuance of a traffic

citation. When the Petitioner refused to be

quiet and to return to the car which he drove,

he was arrested. Following a trial in the

Durham County District Court on March 1, 1990,

Petitioner was convicted of three counts of

assault on law enforcement officers and of

exceeding a safe speed.

Thereafter, Petitioner appealed the

District Court convictions to the Durham

County Superior Court for a trial de novo. On

February 26, 1991, Burton was convicted of the

three counts of assault on police officers.

Following a timely appeal, the North Carolina

Court of Appeals affirmed the convictions on

December 16, 1992. State v. Burton, 108 N.C.

App. 219, 423 S.E.2d 485 (1992). A Petition

for Discretionary Review was denied by the

North Carolina Supreme Court on May 6, 1993.

State v. Burton, 333 N.C. 576, 429 S.E.2d 574

(1993).

On June 9, 1993, Petitioner sought relief

in the United States District Court for the

Middle District of North Carolina, pursuant to

28 U.S.C. § 2254 (1988)and consented to the

jurisdiction of the Magistrate Judge. The

Magistrate Judge determined that the

Petitioner was "in custody" at the time the

motion was filed. On August 15, 1994, the

Magistrate Judge denied Petitioner's claims.

Burton v. North Carolina, No. CA-93-351

(M.D.N.C. Aug. 15, 1994).

Petitioner appealed the Magistrate

Judge's opinion on September 9, 1994 to the

United States Court of Appeals for the Fourth

Circuit. In an unpublished opinion issued on

May 17, 1995, the United States Court of

Appeals for the Fourth Circuit denied

Petitioner a certificate of probable cause to

appeal the Magistrate Judge's order and

dismissed the appeal. It is from this

decision that Petitioner now seeks a Writ of

Certiorari.

HOW FEDERAL QUESTION WAS RAISED AND DECIDED

BELOW

In his initial appeal to the North

Carolina Court of Appeals, Petitioner raised a

First Amendment challenge to his convictions.

That court refused to address that issue and

the North Carolina Supreme Court denied

Petitioner's Petition for Discretionary

Review. The First Amendment claim was raised

ee CCC LLU ~ —-

again in the 28 U.S.C. § 2254 (1988) Habeas

Corpus petition in the United States District

Court for the Middle District of North

Carolina. Thus, the federal constitutional

claim which is presented in this Petition was

properly presented and reviewed below and is

ripe for this Court's determination.

WHY THE COURT SHOULD GRANT THE WRIT

The central issue in this Petition For

Certiorari is whether, consistent with the

First Amendment, a citizen can be arrested and

convicted for engaging in an argument or

verbal protest with a police officer during a

traffic stop in a private parking lot. When

cases with facts similar to those present in

this petition have been presented and reviewed

in the past, this Court has concluded that

citizens can not be prosecuted and convicted

for speaking out or verbally protesting

governmental conduct unless the speech is

"shown likely to produce a clear and present

danger of a serious substantive evil that

rises far above public inconvenience,

annoyance or unrest." Terminiello v. Chicago,

337 U.S. 1,4 (1949) The decision rendered in

this case by the United States District Court

For The Middle District Of North Carolina and

affirmed by the Fourth Circuit Court Of

10

Appeals is in conflict with settled precedent

of this Court.

The vitality of civil and political

institutions in our society depends

upon free discussion. As Chief

Justice Hughes wrote in DeJonge v.

Qregon, 299 U.S. 353, 365, it is

only through free debate and free

exchange of ideas that government

remains responsive to the will of

the people and peaceful change is

effected. The right to speak freely

and to promote diversity of ideas

and programs is therefore one of the

chief distinctions that sets us

apart from totalitarian regimes.

Accordingly a function of free

speech under our system of

government is to invite dispute. It

may indeed best serve its high

purpose when it induces a condition

of unrest, creates dissatisfaction

with conditions as they are, or even

stirs people to anger. Speech is

often provocative and challenging.

It may strike at prejudices and

preconceptions and have profound

unsettling effects as it presses for

acceptance of an idea. That is why

freedom of speech, though not

absolute, (cite omitted), is

nevertheless protected against

censorship or punishment, unless

shown likely to produce a clear and

present danger of a serious

substantive evil that rises far

above public inconvenience,

annoyance, or unrest. There is no

room under our Constitution for a

more restrictive view. For the

alternative would lead to

11

standardization of ideas either by

legislatures, courts, or dominant

political or community groups.

Terminiello, at 4-5.

The principle articulated by this court

in Terminiello was applied in subsequent First

Amendment cases where citizens had been

convicted in state court because of their

speech or because of speech-related

activities. In Gooding, Warden v. Wilson, 405

U.S. 518 (1972), Lewis v. City of New Orleans,

415 U.S. 130 (1974), and Houston v. Hill, 482

U.S. 451 (1987), the court concluded that

attempts to criminalize mere verbal protests,

criticisms, disagreements, or hostility

directed toward police officers violate the

First and Fourteenth Amendments.

Facts presented in Gooding, Warden v.

Wilson showed that the defendant, in an angry

outburst, told a police officer: "White son

of a bitch. I'll kill you." He also stated:

"You son of a bitch, if you ever put your

hands on me again, I'll cut you all to

12

pieces." 405 U.S. at 519-20, n. 1. In Lewis

v. City of New Orleans, the defendant cursed,

screamed and yelled at a police officer and

said to him: "You god damn m.f., I am going

to the [Superintendent of Police] about this."

415 U.S. at 131, n.1. In Houston v. Hill, the

defendant, with the specific intent to prevent

a police officer from arresting one of his

friends, shouted at the officer: "Why don't

you pick on somebody your own size? Why don't

you pick on somebody my size?" 482 U.S. at

453-54, n. 1.

The defendants' convictions were reversed

in each of the cases cited above because the

statutes under which the defendants were

prosecuted infringed upon or was interpreted

in a manner that interfered with protected

speech. For example, in Houston v. Hill, it

was determined that , as interereced, a

Houston ordinance penalized "the mere

interruption of a policeman while in the line

of duty (cite omitted) and has been employed

13

to make arrests for , inter alia, arguing,

talking, interfering, failing to remain quiet,

refusing to remain silent, verbal abuse,

cursing, verbally yelling, and talking loudly,

walking through scene." 482 U.S. at 457. In

explaining its decision, the Court stated:

[T]he First Amendment protects a

Significant amount of verbal

criticism and challenge directed at

police officers. Speech is often

provocative and challenging... [But

it] is nevertheless protected

against censorship or punishment,

unless shown likely to produce a

clear and present danger of serious

substantive evil that rises far

above public inconvenience,

annoyance, or unrest.

Id. at 461.

Finally, the Houston v. Hill court

concluded that, as it had been interpreted by

the lower courts, the Houston ordinance

prohibited speech that in any manner

interrupted a police officer. "The

Constitution does not allow such speech to be

made a crime. The freedom of individuals

verbally to oppose or challenge police action

without thereby risking arrest is one of

14

the principal characteristics by which we

distinguish a free nation from a police

state." Id.

In this case, Donald Burton engaged in an

argument with a police officer during a

traffic stop regarding whether Burton should

receive a traffic citation for speeding. The

argument occurred during daylight hours in the

parking lot of an automotive parts store as

the two stood at the door of the officer's

police car. During the argument, Burton spoke

loudly but did not curse or threaten the

officer. When the officer asked Burton to go

sit in the car which he drove into the parking

lot, Burton refused and continued to argue.

Finally, the officer told Burton he would be

arrested if he did not return to his car.

The officer then arrested Burton for

resisting, obstructing and delaying a law

enforcement officer in violation of N. C. Gen.

Stat. § 14-223 (1988). After the arrest, the

officer attempted to handcuff Burton and was

15

unsuccessful because Burton refused to put his

hands behind his back. As a result, the

officer used his police radio to call for

assistance. Burton did not attempt to leave

the officer's presence and stayed at the

police car until other officers arrived.

The question presented in this Petitic™

for Certiorari is whether Burton's verbal

protests and argument regarding the issuance

of the traffic citation can constitute the

basis of an arrest for resisting, obstructing

and delaying a law enforcement officer.’

The Fourth Circuit Court of Appeals, in

an unpublished opinion, summarily upheld a

decision from the United States District Court

for the Middle District of North Carolina

which denied Donald Burton's habeas corpus

petition. In affirming the District Court's

opinion, the Court of Appeals adopted the

*It is unclear from the jury's

verdict whether Burton was convicted of

either resisting, obstructing or

delaying, or of all three offenses.

16

eS ae

"reasoning of the Magistrate Judge" who

reviewed Burton's habeas petition. Burton v.

North Carolina, No. CA-93-351 (M.D.N..C. Aug.

15, 1994). The Magistrate Judge concluded, in

his memorandum opinion, that "(t]he law under

which Burton was arrested is a neutral law not

aimed at speech, and it is not solely Burton's

speech that led to his arrest in this case."

Magistrate Judge Sharp's Memorandum Opinion at

12. According to Magistrate Judge Sharp:

There was ample evidence in the

record that Burton refused to return

to his car when ordered to do so at

least three times, and that the

officer was therefore unable to

control the situation sufficiently

to assure his safety or to proceed

with his normal procedures for

checking registration records.

Under these circumstances, the court

cannot conclude that Burton's speech

rights were impermissibly infringed

by his arrest on the obstruction

charge.

id. at 11-12.

Simply stated, the Magistrate Judge

concluded that Donald Burton was arrested

because he argued loudly-with the officer and

did not return to his car as the officer

17

requested. Before he was arrested, Burton was

under no legal duty to return to his car. He

was not under arrest and did not attempt to

leave the site. There is no evidence in the

record that Burton's protests or argument

constituted a breach of the peace or that the

officer's safety was compromised. Burton did

not threaten the officer in any way, nor did

he grab the police radio to prevent the

officer from speaking into it. The record is

unclear as to how Burton's speech prevented

the officer from calling into police

headquarters for a registration check.

In support of his conclusion, the

Magistrate Judge relied upon this Court's

holding in Colten v. Kentucky, 407 U.S. 104

(1972). The speech in Burton's case differs

Significantly from the conduct of the

defendant in Colten. The defendant there was

not in a place in which he was privileged to

be. The officer was in the process of

directing traffic along a public highway that

18

had become congested with cars and people.

The defendant's action attracted the attention

of others who travelled in his entourage as he

sought to intercede in a traffic matter

involving a third party. Because of the

congestion on the highway and the large number

of people present there, the defendant's

conduct, not his speech, created a dangerous

Situation. The Colten defendant's speech was

not. violative of any law; his conduct was and

it was his repeated efforts to intercede into

the legal affairs of another that caused his

arrest.

To contrast the two situations, the

defendant in Colten was attempting to involve

himself in the business of another person.

Donald Burton was attending to his own

business. The conduct of the Colten defendant

attracted the attention of a large group of

people that was a part of his entourage and

the parking of their cars along the roadway

caused a traffic congestion. In Burton's

19

Situation, there is no evidence that anyone

was around; the private parking lot was not

congested and the officer was not exposed to

any risk of accident or harm. The officer, at

one point in his testimony, indicated that he

was concerned because he did not know the

whereabouts of a passenger who rode in the car

that Petitioner drove. It was clear, however,

that the officer was not being threatened by

anyone and’ the conditions present at that

scene was totally different from the chaotic

scene described in Colten.

Unlike the Colten defendant, Petitioner's

only act was to speak in his own behalf. Not

only was Burton not under arrest during the

traffic stop, but under North Carolina law,

Burton could not be arrested for this traffic

violation. Exceeding a safe speed, the

traffic violation with which Burton was

charged, is an infraction under North Carolina

law. An officer involved with an infraction

is authorized by law to do no more than

20

"detain the person for a reasonable period in

order to issue and serve him a citation."

N.C. Gen. Stat. § 15A-1113 (1988). The

statute does not authorize an arrest of the

offender or even the detention of a person for

the purpose of checking the automobile

registration. To this extent, the effort by

the detaining officer to check the

registration of the car which Burton drove

exceeded what was authorized by North Carolina

law. In North Carolina, an arrest or

detention which exceeds the powers authorized

by statute is illegal. State v. Mobely, 240

N.C. 476, 83 S.E.2d 100 (1954).

At all times during the initial traffic

stop, Donald Burton was in a place in which he

was privileged to be. He was under no legal

obligation to return to the car which he drove

or to refrain from voicing his displeasure at

being detained by the officer. It is thus

difficult to sustain a conclusion that

Burton's refusal to return to his car

21

constituted unlawful interference or delay.

This is particularly true where Burton's mere

presence did not prevent the officer from

using the police radio. Although he held the

police radio in his hand at some point during

the argument, the record indicates that the

officer never attempted to speak into it.

When determining what Burton did during

the traffic stop to justify an arrest, the

only answer is that he argued loudly with the

officer. In every respect, Burton's speech

was not threatening and was more civil than

that presented in Houston v. Hill, Lewis v.

City of New Orleans, or Gooding, Warden v,

Wilson. There was no physical interference

present and Burton's mere presence in a place

he had a right to be is legally insignificant.

After the officer placed Burton under

arrest, Burton did not attempt to leave the

scene, ceased arguing with the officer and

waited quietly at the police car until two

other officers arrived at the scene as backup.

22

After the backup officers arrived, all three

attempted to handcuff Burton. This effort by

the officers resulted in Burton being

wrestled into the front seat of the police

car. The prosecution and subsequent

convictions for the assaults on the police

officers resulted when Burton fought back

after the officers wrestled him into the

police car:

The statute under which Burton was

initially arrested is speech neutral. N.C.

Gen. Stat. § 14-223 (1988) provides:

If any person shall willfully and

unlawfully resist, delay, or

obstruct a public officer in

discharging or attempting to

discharge a duty of his office, he

shall be guilty of a misdemeanor

punishable by a fine to exceed five

hundred dollars. ($500),

imprisonment for not more than six

months, or both.

As interpreted by the North Carolina

Court of Appeals, N.C. Gen. Stat. § 14-223

criminalizes Burton's Speech. State v.

Burton, 108 N.C. App. 219, 423 S.E.2d 484

(1992). Although the statute on its face

23

passes constitutional scrutiny, its

application to Donald Burton's speech and

protest is unconstitutional and is very

Similar to the interpretation of the speech

neutral statute that was condemned by this

Court in Houston v. Hill. As interpreted by

the North Carolina Court of Appeals, N.C. Gen.

Stat. § 14-223 (1988) prohibits verbal

interruptions of police officers and for this

reason, Burton's conviction should be

reversed.

This court reversed the defendant's

conviction in Lewis v. City of New Orleans,

Supra because the overbroad statute in that

case punished any spoken words and not just

those fighting words that "by their very

utterance inflict injury or tend to incite an

immediate breach of the peace." Id. at 133.

Burton's speech did not constitute "fighting

words" and did not, by mere utterance, incite

or promote a breach of the peace.

24

CONCLUSION

For the reasons discussed above,

Petitioner respectfully requests that this

Court issue a Writ of Certiorari to review the

Opinion of the United States Court of Appeals

for the Fourth Circuit.

Respectfully submitted, this the 10th day

of August, 1995.

Sp

Irving Joyner

512 S. Alston Avenue

Durham, N.C. 27707

Telephone: (919) 560-6293

COUNSEL FOR PETITIONER

25

No. 95-

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

DONALD BURTON,

Petitioner

* an

STATE OF NORTH CAROLINA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

27

APPENDICES

1. Burton v. State of North Carolina, No. 94-

7070 (4th Cir. May 17, 1995) unpublished

COOGEE «oss n case nah 04646 608 oh bbe teehee 1

2. Burton v. State of North Carolina, Ne. CA-

Fa~sen I8.DN.C. Bee. iS, 2906) cs caces 3

3. State of North Carolina v. Burton, 108 N.C.

pp.2i9, 423 S.E. 2nd 464 (1992)... 2s « 26

4. H.C. Goh. Stat. $ 4-223 (32908) «occ. 39

5. N.C. Gen. Stat. § 15A-1113 (1988)..... 39

6. N.C. Gen. Stat. § 15A-1114 (1988)..... 40

28

ee

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 94-7070

DONALD BURTON,

Petitioner - Appellant

versus

STATE OF NORTH CAROLINA; ATTORNEY GENERAL OF

NORTH CAROLINA,

Respondents - Appellees

Appeal from the United States District Court

for the Middle District of North Carolina, at

Durham. Paul Trevor Sharp, United States

Magistrate Judge. (CA-93-351)

Submitted:April 20, 1995 Decided:May 17, 1995

Before WIDENER, WILKINSON, and WILKENS,

Circuit Judges.

Dismissed by unpublished per curiam opinion

Irving Joyner, NORTH CAROLINA CENTRAL

UNIVERSITY, Durham, North Carolina, for

Appellant. Clarence Joe DelForge, III. OFFICE

OF THE ATTORNEY GENERAL OF NORTH CAROLINA, for

Appelles.

Unpublished opinions are not binding precedent

in this circuit. See I.0.P. 36.5 and 36.6

PER CURIAM:

Appellant seeks to appeal the magistrate

judge's order’ denying relief on his 28

U.S.C.§ 2254 (1988) petition. We have reviewed

the record and the magistrate judge's opinion,

and find no reversible error. Accordingly, we

deny a certificate of probable cause to appeal

and dismiss the appeal on the reasoning of the

magistrate judge. Burton v. North Carolina,

No. CA.-93-351 ( M.D.N.C. Aug. 15, 1994). We

dispense with oral argument because the facts

and legal contentions are adequately presented

in the materials before the Court and argument

would not aid the decisional process.

DISMISSED

‘The parties consented to the

jurisdiction of the magistrate judge

pursuant to 28 U.S.C. § 636(C)

(1988). 4 '

2

(filed: August 15, 1994 in the office of the

Clerk, U.S. District Court, Greensboro, N.C.)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DURHAM DIVISION

: DONALD BURTON,

: Petitioner,

) v. 1:93CV00351

STATE OF NORTH CAROLINA

AND THE NORTH CAROLINA

ATTORNEY GENERAL

: Respondents.

MEMORANDUM OPINION

SHARP, Magistrate Judge

Petitioner Burton brings this action

pursuant to 28 U.S.C. § 2254, challenging his

February 1991 conviction in Durham county

Superior Court. Burton alleges that his

First, Fourth, and Fourteenth Amendment rights

have been violated. Both parties have filed

motions for summary judgment, and the matter

is now before the court! for decision on the

merits.’

BACKGROUND

A. The Underlying Offense

At trial in state court, the State's

evidence tended to show that on January 2,

1990, Sergeant Charles Tiffin of the Durhan,

North Carolina Police Department observed

Petitioner driving a red Corvette on Briggs

‘The parties have consented to the

jurisdiction of the United States

Magistrate Judge pursuant to 28 U.S.C. §

636(c).

“On November 24, 1993, this court on

its own motion raised the issue of

jurisdiction, noting that there was no

indication in the file that Petitioner

was "in custody," for purposes of his

habeas claim, at the time he filed this

action. The court ordered the parties to

provide a certified copy of the record of

Burton's state court proceedings as well

as any jurisdictional arguments. Review

of the record and the parties'

submissions reveals that at the time the

motion was filed, Petitioner was in

custody for purposes of establishing

jurisdiction under 28 U.S.C. § 2254(a).

+

J ts

Avenue in Durham. (Tr. 65) Tiffin was

driving a marked police car and met the

Corvette as it crested a hill traveling in the

opposite direction. (tr. 65) Tiffin observed

the car for two to three seconds and estimated

that the car was traveling 55 miles per hour

in a 35 mile per hour zone. (Tr. 66) The red

Corvette was the only car on Briggs Avenue at

that time and Tiffin did not lose sight of it

from the point he first observed the vehicle

until the vehicle stopped and Petitioner

Burton stepped out. (Tr. 67)

After estimating the Corvette's speed,

Tiffin turned around and followed the Corvette

for about a half mile, activating his blue

lights and continuing to follow the car until

it turned into the parking lot of an auto

parts store at the corner of Bacon and Lawson

Streets. (Tr. 67) Tiffin pulled up behind

the Corvette.

The Corvette parked in a diagonal

5

position and Burton and another person got out

of the car and started walking away from it.

(Tr. 68) Tiffin approached Burton and asked

if Burton would speak with Tiffin for a

minute. (Tr. 68)

Tiffin noticed that Burton was wearing a

mechanic's uniform. Tiffin asked Burton if he

was test driving the Corvette. (Tr. 69)

Burton became hostile and asked, "What are you

talking about?” (Tr. 69) Tiffin told Burton

that Burton had been exceeding the speed limit

and that this caused Tiffin to wonder if that

was for purposes of testing the car. (Tr. 69)

Tiffin asked to see Burton's driver's license

and registration. (Tr. 69) Instead, Burton

gave Tiffin a business card. (Tr. 69) When

Tiffin indicated he did not need a business

card, Burton handed him a driver's license.

Burton stated that he did not have the

registration and the car belonged to a

customer. (Tr. 69)

Tiffin told Burton to remain at the

Corvette and walked back to his police car to

determine if the Corvette was legally

registered or if it had been stolen. (Tr. 69-

70) Burton walked over to the police car and

in a very loud and agitated voice asked

Tiffin, "What's going on; what are you doing?"

(Tr.70) Burton became louder, asking Tiffin

repeatedly what he was doing and stating that

Tiffin could not charge Burton with speeding

because there was no radar in the patrol car.

(7E.° 73)

Tiffin repeated his instruction that

Burton go and sit in his car. At that point

Tiffin was seated in his police car with his

radio microphone in hand and Burton was

standing outside the open car door, still

refusing to return to the Corvette. (Tr. 72)

Tiffin warned Burton that Burton was

interfering with Tiffin's ability to do his

job. Tiffin testified that he was concerned

about his safety because Burton was standing

over him yelling and the other subject was out

Of wae. (38. 72)

Because Tiffin could not use the radio

while watching the two subjects and attempting

to get Burton to go and sit in his car, he was

unable to check the car's registration. (Tr.

72-73) Tiffin warned Burton again that Burton

was interfering with Tiffin's job and that

Burton could be arrested if he did not go back

to his car. (Tr. 73-74 Burton refused again

to return to the Corvette and continued to

question whether Tiffin knew what he was

doing. (Tr. 74) Tiffin stepped out of his

car, placed his hand on Burton's shoulder, and

told Burton that he was under arrest. (Tr.

74)

Because Burton refused to obey

instructions to turn around to be handcuffed

and searched, Tiffin placed his hand on

Burton's shoulder in an attempt to turn him

8

around and lean him over the vehicle. (Tr.78)

Tiffin reached into the police car to get his

nightstick and said, "We don't need to

escalate to the use of the nightstick, okay?"

(Tr. 78) Burton was asked again to comply and

he again refused. Tiffin put the nightstick

back into the car and called for another unit

to assist in making the arrest. (Tr. 78-79)

While the two waited for the officer to

arrive, Burton folded his arms and leaned

against the patrol car, where he remained near

the open door of the car. Tiffin stood in

front of him to prevent him from leaving.

(Tr. 79) After about two minutes, Officer

Taylor arrived. (Tr. 79)

When Taylor arrived, Tiffin told him that

Burton was under arrest for resisting,

delaying and obstructing an officer in the

performance of his duties and asked Taylor to

help him make the arrest. (Tr. 79-80) Taylor

told Burton that he was under arrest and asked

him to put his hands on the car. Burton did

not respond. (Tr. 80)

A third officer, Corporal Allen, arrived

and the three attempted physically to turn

Burton around. (Tr. 80) At that point, they

were struggling with him to get hold of his

arm or a leverage point to turn him around.

(Tr. 80) As they struggled, they slid down

against the car and Burton fell into the open

front car door. The three police were on top

of Burton trying to get him out of the police

car, which was still running and which

contained weapons in the front seats. (Tr.80-

81)

Burton began to resist violently.

(Tr.81) Initially, Burton had been holding

his hands away from the offices and trying to

resist any attempts for-.the officers to turn

him around. (Tr. 81) Once inside the car,

Burton grabbed and squeezed Taylor's hand and

grabbed Allen's hand and tried to bite it.

10

(Tr. 81) Burton kicked and grabbed Taylor's

face. (Tr. 81) He kicked Tiffin in the shin.

(Tr. 81) After a struggle, the officers got

Burton out of the car and onto the ground,

where they were able to handcuff him. (Tr.

84)

Petitioner was charged with exceeding

safe speed, resisting, delaying, and

obstructing an officer in the performance of

his duties, injury to personal property, and

three counts of assault on police officers.

B. State Court Proceedings

Petitioner's case was originally tried

during the March 1, 1990 Session of District

Court in North Carolina's Fourteenth Judicial

District. Petitioner was charged with one

court of exceeding a safe speed in violation

of N.C. Gen. Stat. § 20-141(a)' one count of

resisting, obstructing and delaying a law

enforcement officer in violation of N.C. Gen.

Stat. § 14-223; and three counts of

11

misdemeanor assault on a law enforcement

officer in violation of N.C. Gen. Stat. § 14-

33(b) (4). Verdicts of guilty were returned

against Petitioner on the three counts of

assault on a law enforcement officer and the

Single count of exceeding a safe speed. |

Petitioner appealed to Durham County

Superior Court, where, on February 26, 1991,

after pleading not guilty to all charges

against him, Burton was again convicted of the

three counts of assault on a police officer.’

On December 15, 1992, the North Carolina Court

of Appeals affirmed the conviction. 108 N.C.

App. 219, 423 S.E.2d 485. Burton's petition

for Discretionary Review was denied by the

North Carolina Supreme Court on May 6, 1993.

*Before trial, the judge dismissed

the charge of resisting, obstructing and

delaying an officer on grounds of double

jeopardy, no verdict apparently having

been returned on that charge in the

District curt, and at the close of the

State's case, he also dismissed the

charge of exceeding a safe speed.

12

333 N.C. 576, 429 &.E.2d 574.

On June 9, 1993, Burton filed the instant

case in this court, challenging his

convictions on the three assault charges.

DISCUSSION

In his complaint, Petitioner raises three

grounds for habeas corpus relief: (1) His

convictions were obtained in violation of his

right to free speech under the First

Amendment; (2) Officer Tiffin's seizure of

Burton without probable cause violated the

Fourth Amendment; and (3) The officers'

seizure of Petitioner and the physical force

they used violated his Fourteenth Amendment

liberty interest.

A. The First Amendment Claim

Burton first alleges that his convictions

for assault on a law enforcement officer are

unlawful because the actions for which he was

initially arrested constituted speech

protected under the First Amendment. Under

13

North Carolina law, a person cannot be

convicted of assault on a law enforcement

officer if the assault occurred in the course

|

of resisting an illegal arrest. See State v.

Mobley, 240 N.C. 476, 83 S.E.2d 120(1954).

Burton contends that his initial arrest for

resisting, delaying and obstructing an officer

was violative of his First Amendment rights

and therefore illegal. If so, he was then

privileged to resist the officers' attempts to

arrest him and his convictions cannot stand.

The court must therefore analyze the legality

of Burton's initial arrest for resisting,

delaying and obstructing a law enforcement

officer in the performance of his or her

duties.

North Carolina General Statute section

14-223 (1993) provides as follows:

If any person shall willfully and

unlawfully resist, delay or obstruct

a public officer in discharging or

attempting to discharge a duty of

his office, he shall be guilty of a

14

eee a oe MeN NT ncn mr yw

misdemeanor punishable by a fine not

to exceed five hundred dollars

($500.00), imprisonment for not more

than six months, or both.

North Carolina Courts have held that this

Statute is not unconstitutionally vague, State

v. Singletary, 73 N.C. App. 612, 614-15, 327

S.E.2d 11 (1985), provides a person of

ordinary intelligence fair notice of the

behavior proscribed, id. at 615, and that one

purpose of the section is to enforce orderly

conduct in the important mission of preserving

the peace. State v. Leigh, 278 N.C. 243, 179

S.E.2d 708 (1971). Further, in State v.

Singletary, supra, the Court of Appeals held

that

[C]ommunications intended merely to

assert rights, clarify a

misunderstanding, or gain

information in a peaceable and

orderly manner...are not chilled [by

section 14-223]. Those intended to

hinder or prevent an officer from

Carrying out his duty admittedly are

discouraged by the statute, and we

have found that these restrictions

are in the public interest and not

so intrusive as to violate the First

15

or Fourteenth Amendments.

Id. at 615 (citing State v. Leigh, 278 N.C. at

Zona, 279 B3.4s28 BO TES

In State v. Leigh, 278 N.C. 243, the

North Carolina Supreme Court analyzed section

14-223 under principles of First Amendment

jurisprudence and found that it passed

constitutional muster. The court noted that

"(f)reedom of speech is not an unlimited,

unqualified right," id. at 250, and that it

may be restricted in the public interest. Id.

The court also pointed out that when a course

of conduct has been otherwise properly

declared illegal, there is no. abridgement of

freedom of speech because the illegal conduct

is initiated or carried out by the spoken or

written word.” Id.

Petitioner compares his case with a

series of United States Supreme Court opinions

in which the Court struck down laws forbidding

opprobrious speech directed toward police

16

officer. See, e.g., Lewis v. City of New

Orleans, 415 U.S. 130 (1974) (striking down as

facially overbroad an ordinance making it a

crime "for any person wantonly to curse or

revile or to use obscene or opprobrious

language toward or with reference to any

member of the city police while in the actual

performance of his duty")' Gooding v. Wilson,

405 U.S. 518 (1972) (statute prohibiting

"opprobrious words or abusive language,

tending to cause a breach of the peace” is on

its face unconstitutionally vague and

overbroad under First and Fourteenth

Amendments). Those cases are inapposite to

this case, however, because Burton was

arrested pursuant to a facially neutral

Statute not aimed at speech per se nor any

particular brand of speech.

One case to which Burton refers the

court, City of Houston v. Hill, 482 U.S. 451

(1987), underscores the difference between

17

impermissible speech-based ordinances and

those that are neutral, as that at issue in

the instant case. In Hill, the petitioner was

arrested for “wilfully or intentionally

interrupt[ing] a city policeman...by verbal

challenge during an investigation,” in

violation of a municipal ordinance making it

illegal to "in any manner oppose, molest,

abuse or interrupt any policeman in the

execution of his duty." Id. at 454-55.

Central to the Court's analysis was its view

that the ordinance was not narrowly tailored

to prohibit either "fighting words” or conduct

interfering with an officer's.duties. The

court offered the following examples of

ordinances that could permissibly accomplish

the city's legitimate goals of facilitating

law enforcement:

In any case, today's decision

does not leave municipalities

powerless to punish physical

obstruction of police action. For

example, Justice Powell states that

18

TN

"a municipality constitutionally may

punish an individual who chooses to

stand near a police officer and

persistently attempt to engage the

officer in conversation while the

officer is directing traffic at a

busy intersection.

Justice Powell also observes

that "contentious and abusive "

speech can interrupt an officer's

investigation, and offer as an

example a person who "run[s] beside

[an officer pursuing a felon] ina

. public street shouting at the

officer." But what is of concern

in that example is not simply

contentious speech, but rather the

possibility that by shouting and

running beside the officer the

person may physically obstruct the

officer's investigation. Although

that person might constitutionally

be punished under a tailored statute

that prohibited individuals from

physically obstructing an officer's

investigation, he or she may not be

punished under a broad statute aimed

at speech.

Id. at 463, n. ll.

The facts of the case at bar closely

parallel the examples above listed by the

Court. Burton was properly subject to arrest,

not for the content of his speech or the fact

19

that it was contentious, but for the fact that

he was physically interfering with Officer

Tiffin's performance of important duties. Cf.

Colten v. Kentucky, 407 U.S. 104, 109 (1971)

(upholding petitioner's conviction for

disorderly conduct, based on his refusal to

obey police order to leave a congested

roadside where his friend in another car was

being ticketed. "[(Petitioner] insists that...

he was disseminating and receiving

information. But this is a strained, near-

frivolous contention and we have little doubt

that Colten's conduct in refusing to move on

after being directed to do so was not, without

more, protected by the First Amendment.").

In analyzing section 14-223 as applied to

Burton, the court is also mindful of the state

trial court's efforts to safeguard

Petitioner's speech rights. The trial court

gave the following instruction to Burton's

jury:

20

Merely remonstrating with an

officer, protesting, objecting,

questioning or criticizing an

officer when he is performing his

duties, does not amount to delaying

and interfering an officer, they

[sic], in temperance [sic] language,

used without apparent purpose is not

always an indispensable ingredient

of the offense of interfering with

an officer in the discharge of his

duty, mere[ly] remonstrating or

criticizing an officer is not

usually held to be the equivalent of

unlawful interference.

(Tr. 292) Notwithstanding this instruction,

the jury found Burton guilty of assault on the

law enforcement officers; this verdict

necessarily includes a finding that the arrest

of Burton for "willfully and unlawfully

resist[ing], delay[ing] or obstruct[ing] a

public officer in discharging or attempting to

discharge a duty of his office" was proper.

There was ample evidence in the record that

Burton refused to return to his car when

ordered to do so at least three times, and

that the officer was therefore unable to

control the situation sufficiently to assure

21

his safety or to proceed with his normal

procedures for checking registration records.

Under these circumstances, the court cannot

concluded that Burton's speech rights were

impermissibly infringed by his arrest on the

obstruction charge.

The law under which Burton was arrested

is a neutral law not aimed at speech, and it

was not solely Burton's speech that led to his

arrest in this case. Thus, Petitioner's First

Amendment claim must fail. His conviction for

assault on the law enforcement officers are

not invalid products of an illegal arrest.

B. The Fourth and Fourteenth Amendment Ciaims

Petitioner's second and third grounds for

relief may be addressed more briefly. Burton

alleges that Officer Tiffin seized him without

probable cause, thereby violating the Fourth

and Fourteenth Amendments. This claim is

brought in his petition for habeas corpus

22

We

ig

= ‘

relief under 42 U.S.C. § 2254. A claim of

arrest in violation of the Fourth Amendment,

however is not cognizable in an action under

section 2254 because such claim does not

challenge the conviction itself.‘ Likewise,

Burton's Fourteenth Amendment challenge to the

officers' seizure of him and use of force is

not properly brought as a habeas corpus

action.

Challenges to illegal arrest and

excessive force are normally brought under 42

U.S.C. § 1983, which prohibits deprivation of

rights secured by the Constitution or other

laws by a person acting under color of state

law. The potential remedy in such suits is

‘To any extent Petitioner means to

argue that his assault conviction should

be set aside because he was resisting an

illegal arrest, i.e an arrest without

probably cause, such a claim fails. The

State's evidence, summarized at the

outset of this opinion, clearly shows

prebably cause for Burton's arrest for

obstructing a police officer.

23

monetary or injunctive relief. As the Fourth

Circuit has stated, "Ordinarily, a claim of

illegal arrest presents no ground for habeas

corpus relief when a convicted criminal

defendant does not claim that he was denied a

fair trial by the introduction of evidence

which came from the illegal arrest." Crowell

v. Zahradnick, 571 F.2d 1257, 1259 n.3 (4th

Cir. 1977). See also Gerstein v. Pugh, 420

U.S. 103, 119 (1975) ("{I]llegal arrest or

detention does not void a subsequent

conviction.').

Because probable cause to arrest and use

of force during arrest are not reviewable as

independent claims in a habeas setting,

Burton's Fourth and Fourteenth Amendment

challenges must therefore be dismissed.

CONCLUSION

For the foregoing reasons, Petitioner's

24

petition for habeas corpus relief is DENIED.

A Judgment dismissing this action will be

entered contemporaneously with this Memorandum

Opinion.

s/

P. Trevor Sharp, U. S. Magistrate Judge

August 15, 1994

y toe

IN THE COURT OF APPEALS 219

STATE v. BURTON

{108 N.C. App. 219 (1992)}

filed by the defendant was required to be timely filed in accordance

with Rule 12 of the Rules of Civil Procedure, which generally re-

quires the defendant to serve his answer within 30 days from

the service of the summons and complaint upon him. Even with

the extension of 30 days allowed by the court in this case, the

defendant has met the “reasonable inquiry” requirement of Rule

11. There is, in my opinion, no evidence that the investigative

efforts suggested by the dissent could have been conducted within

the applicable time constraints placed upon the defendant.

STATE OF NORTH CAROLINA v. DONALD BURTON

No. 9114SC460

(Filed 15 December 1992)

1. Appeal and Error § 344 (NCI4th)— motion to dismiss— motion

to set aside verdict — evidence introduced after close of State’s

evidence—right to appeal denied

A defendant waived the right to appeal the denial of his

motion to dismiss at the close of the State’s evidence where

he introduced evidence after the close of the State’s evidence

and waived the right to appeal the denial of his motion to

set aside the verdicts where he failed to address the issue

in his brief. N.C.R. App. 28(b5); N.C.R. App. 10(b)3).

Am Jur 2d, Appeal and Error §§ 248, 430, 431.

2. Assault and Battery § 60 (NCI4th)— assault on an officer —

sufficiency of evidence

A jury in a prosecution for assaulting an officer could

reasonably conclude that officers were attempting to lawfully

arrest defendant for resisting, delaying, and obstructing a police

officer when the assault occurred, and defendant's motion to

dismiss was properly denied, where officers had probable cause

to believe that defendant willfully prevented Sergeant Tiffin

from performing his duties concerning a traffic stop. The State

presented evidence that Sergeant Tiffin observed defendant

traveling at a speed estimated to be twenty m.p.h. greater

than the posted speed limit; Sergeant Tiffin attempted to use

his car radio to run a check on the registration of the vehicle

26

IN THE COURT OF APPEALS

STATE v. BURTON

[108 N.C. App. 219 (1992)}

after stopping defendant; defendant stood beside the patrol

car, spoke in a loud and hostile manner, and refused to return

to his car after the officer requested three times that he do

so; Sergeant Tiffin was concerned for his safety as a result

of defendant's behavior; he was unable to communicate on

the radio; and he warned defendant that he would arrest de-

fendant for obstructing an officer, but defendant did not desist.

N.C.G.S. § 14-33(bX8); N.C.G.S. § 14-223.

Am Jur 2d, Assault and Battery § 107.

. Arrest and Bail § 96 (NCI4th)— assault on an officer —use

of force by officers—not excessive

A jury.in a prosecution for assaulting an officer could

reasonably conclude that officers did not use excessive force

in arresting defendant for resisting an officer and that defend-

ant was not entitled to resist in any manner where defendant

was stopped for speeding; stood next to the patrol car, talked

in a loud and hostile manner, and refused to return to his

car while the officer attempted to radio a check on the registra-

tion; after warning defendant several times, the officer (Sergeant

Tiffin) attempted to arrest defendant for obstruction and placed

his hand on defendant's shoulder to execute the arrest; defend-

ant did not respond and leaned against the patrol car; Sergeant

Tiffin and Officer Taylor, who had arrived at the scene to

assist Sergeant Tiffin, attempted to turn defendant around

and handcuff him but were unable to do so; Corporal Allen

arrived and the three officers attempted to secure defendant;

defendant fell into the patrol car; and Officer Taylor struck

defendant twice on the wrist with a nightstick after defendant

attempted to bite Corporal Allen, kicked Sergeant Tiffin in

the shin causing injury, and dislocated Officer Taylor's thumb.

Am Jur 2d, Arrest §§ 80, 81.

. Indictment, Information, and Criminal Pleadings § 50 (NCI4th) —

indictment — assaulting an officer — underlying arrest dismissed

—no variance

There was not a fatal variance between warrant allega-

tions and the evidence presented at trial where defendant

was charged with resisting, obstructing and delaying an officer

and three counts of assault on a police officer; the resisting,

obstructing, ind delaying charge was dismissed prior to jury

IN THE COURT OF APPEALS 221

STATE v. BURTON

{108 N.C. App. 219 (1992)]

selection; and defendant was convicted of three counts of assault

on a police officer. The State presented evidence that the

officers had probable cause to believe that defendant was

resisting, obstructing, and delaying an officer in the perform-

ance of his official duty; an officer does not have to be attempt-

ing an arrest in order to be performing an official duty of

his office. Certainly an officer is performing an official duty

when he stops a vehicle for speeding and attempts to use

his car radio to obtain information on the registration of the

stopped vehicle.

Am Jur 2d, Assault and Battery § 95.

. Assault and Battery § 60 (NCI4th)— assault on an officer —

request for further instructions — definition of obstructing — no

plain error

There was no plain error in a prosecution for assault

on an officer arising from an attempted arrest for obstructing

an officer where the jury requested an additional instruction

on the definition of “obstruct,” and the definition given at

that point did not include the necessary element of wiilfulness.

In convicting defendant, the jury must have determined that

he acted willfully when he refused to return to his car as

requested by the officer and repeatedly talked in a loud voice

as the officer attempted to use the patrol car radio. The Court

of Appeals was not convinced that the jury would have reached

a different result absent the alleged error.

Am Jur 2d, Trial §§ 1448, 1449.

. Evidence and Witnesses § 2973 (NCI4th)— assault on an

officer —cross-examination of officer—alleged misconduct —

questions properly excluded or no prejudice

Two questions asked of an officer on cross-examination

during a prosecution for assault on an officer were properly

excluded because they dealt with complaints and discipline

against the officer and did not address his character for

truthfulness or untruthfulness. While the third question

specifically addressed the officer's veracity and should have

been allowed, defendant failed to prove that there was a

reasonable possibility that the outcome of the trial would have

28

222

IN THE COURT OF APPEALS

STATE v. BURTON

[108 N.C. App. 219 (1992)

been different if the excluded evidence had been admitted.

N.C.G.S. § 8C-1, Rule 608(b); N.C.G.S. § 15A-1230(a).

Am Jur 2d, Evidence § 342.

Criminal Law § 438 (NCI4th)— assault on an officer—

prosecutor’s closing argument—no prejudicial error

There was no prejudicial error in a prosecution for assault

on an officer where the prosecutor commented in his closing

argument on the lack of use of sirens in stopping cars for

traffic violations; on defendant's snickering as officers described

his conduct and their injuries; and that defendant's testimony

was consistent with that of the officers except for two parts

he “made up” and how victims ended up becoming the defend-

ant. Although the comment on use of sirens may have encom-

passed matters outside the record, the charges of assault on

officers were not related directly to the initial traffic stop;

urging jurors to observe defendant's demeanor for themselves

does not inject the prosecutor's opinions into his argument;

and while the last comment was improper, it did not constitute

such gross impropriety as to influence the verdict of the jury.

Am Jur 2d, Trial §§ 554-556, 609, 637, 664-666, 681.

Appeal by defendant from judgment entered 25 February 1990

by Judge Frank Brown in Durham County Superior Court. Heard

in the Court of Appeals 11 February 1992.

Attorney General Lacy H. Thornburg, by Special Deputy At-

torney General, Ralph B. Strickland, Jr., for the State.

Irving Joyner for defendant appellant.

COZORT, Judge.

Defendant was charged with operating a motor vehicle at a

speed greater than reasonable under the conditions then existing;

resisting, delaying, and obstructing an officer in the performance

of his duties; injury to personal property; and three counts of

assault on a police officer. In Durham County District Court, defend-

ant was found guilty of three counts of assault on a police officer

and appealed the conviction to superior court. On appeal to superior

court, the jury found defendant guilty of three counts of assault

on a police officer in violation of N.C. Gen. Stat. § 14-33(bX8) (1991

29.

IN THE COURT OF APPEALS 223

STATE v. BURTON

[108 N.C. App. 219 (1992)]

Cum. Supp). Defendant was fined $100.00 and sentenced to six

months in prison, suspended, and one year unsupervised probation.

Defendant appeals. We find no error.

The State presented the following evidence: On 2 January

1990, at approximately 4:00 p.m., Durham Police Sergeant C. M.

Tiffin observed defendant driving a vehicle on a city street. Sergeant

Tiffin concluded that defendant was traveling approximately 55

m.p.h. in a 35 m.p.h. zone. Sergeant Tiffin activated his blue lights

and followed defendant to the parking lot of an auto parts store.

Sergeant Tiffin approached defendant who was walking away from

the store, and informed him that he was driving too fast. Upon

Sergeant Tiffin’s request for his driver's license, defendant first

produced a business card and then his driver's license. Defendant

was not the owner of the car and did not possess the registration.

Defendant stood to the left of the police car as Sergeant Tiffin

attempted to use the car radio to run a check on the registration.

Defendant repeatedly questioned Sergeant Tiffin's actions and re-

fused to return to his car, even after Sergeant Tiffin instructed

him to do so three times. Sergeant Tiffin informed defendant that

he would be placed under arrest if he did not stop interfering

and obstructing him in the performance of his duties. After defend-

ant refused to cooperate, Sergeant Tiffin placed defendant under

arrest and called for assistance. Officer T. M. Taylor arrived on

the scene, but he and Sergeant Tiffin were unable to secure custody

of defendant. Corporal C. M. Allen arrived to assist his fellow

officers. A struggle ensued, and defendant fell into the open door

of the patrol car. Sergeant Tiffin instructed Officer Taylor to strike

defendant with his nightstick. Officer Taylor responded by striking

defendant twice on the wrist. As a result of the struggle, Officer

Taylor suffered a dislocated thumb and Sergeant Tiffin suffered

injury to his shin. Defendant was finally brought under control.

Defendant presented the following evidence: Defendant was

driving a vehicle at 30 or 35 m.p.h. when Sergeant Tiffin stopped

him. Defendant questioned Sergeant Tiffin about the detention and

his actions. After the other officers arrived on the scene, defendant

asked to speak to a superior officer. Defendant refused to cooperate

as the officers tried to handcuff him, and Officer Taylor struck

defendant on the head with his nightstick.

On appeal defendant argues that the trial court erred in (1)

denying defendant's motions to dismiss at the close of State's

30

IN THE COURT OF APPEALS

STATE v. BURTON

[108 N.C. App. 219 (1992)

evidence and the close of all the evidence, to vacate the verdicts

after their return, and to set aside the verdicts; (2) instructing

the jury on request that they were to give the term “obstruct”

its ordinary meaning; (3) denying defendant the opportunity to

cross-examine Sergeant Tiffin about alleged misconduct; and (4)

allowing the assistant district attorney to make certain remarks

during closing argument.

[1] N.C.R. App. P. 10(bX3) provides in part that “if defendant

makes [a motion to dismiss the action] after the State has presented

all its evidence and has rested its case and that motion is denied

and the defendant then introduces evidence, his motion for dismissal

or judgment in case on nonsuit made at the close of State's evidence

is waived.” Since defendant introduced evidence after the close

of State’s evidence, he has waived the right to appeal the denial

of his motion at the close of State's evidence. Defendant has also

waived the right to appeal the denial of his motion to set aside

the verdicts, since he has failed to address the issue in his brief.

N.C.R. App. P. 28(b)\(5).

[2] Therefore, we need consider only defendant's argument that

the trial court erred in failing to dismiss the action at the close

of all the evidence. The trial court must dismiss charges for insuffi-

ciency of the evidence, if, viewing the evidence in the light most

favorable to the State, the State fails to present substantial evidence

of each essential element of the offenses charged. State v. Herring,

322 N.C. 733, 738, 370 S.E.2d 363, 367 (1988). “Substantial evidence

is such evidence as a reasonable mind might accept as adequate

to support a conclusion.” Jd. Specifically, defendant argues that

(1) the officer did not have probable cause to arrest him for resisting

arrest; (2) he was entitled to protect himself against use of excessive

force by the police officers; and (3) there was a fatal variance

between the warrant allegations and the State's evidence.

N.C. Gen. Stat. § 14-33(bX8) provides that a person is guilty

of a misdemeanor if he assaults a law enforcement officer when

the officer is discharging or attempting to discharge a duty of

his office.

In order to obtain a conviction under [this section], the burden

is on the State to satisfy the jury from the evidence and

beyond a reasonable doubt that the party assaulted was a

law enforcement officer performing the duty of his office, and

IN THE COURT OF APPEALS 225

STATE v. BURTON

[108 N.C. App. 219 (1992)}

that the defendant knew his victim was a law enforcement

officer.

State v. Rowland, 54 N.C. App. 458, 462, 283 S.E.2d 543, 546 (1981).

“T]he offense under [this section]’ . . . presupposes lawful conduct

of the public officer in discharging . . . a duty of his office.” State -

v. Jefferies, 17 N.C. App. 195, 198, 193 S.E.2d 388, 391 (1972),

cert. denied, 282 N.C. 673, 194 S.E.2d 153 (1973) (interpreting former

N.C. Gen. Stat. § 14-33(cX4)). “One resisting an illegal arrest is

not resisting an officer within the discharge of his official duties.”

State v. Anderson, 40 N.C. App. 318, 322, 253 S.E.2d 48, 51 (1979).

Accordingly, in order for defendant to be convicted of assault

on a police officer in violation of N.C. Gen. Stat. § 14-33(bX8), the

jury must first determine whether the officers were attempting

to lawfully arrest defendant for resisting, delaying, and obstructing

a police officer in violation of N.C. Gen. Stat. § 14-223 (1986). A

warrantless arrest is lawful if based upon probable cause. State

v. Phillips, 300 N.C. 678, 683, 268 S.E.2d 452, 456 (1980). The ques-

tion, then, is whether the officers had probable cause to arrest

defendant. Probable cause “‘has been defined to be a reasonable

ground of suspicion supported by circumstances sufficiently strong

in themselves to warrant a cautious man in believing the accused

to be guilty.’” State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140,

145 (1984) (quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d

682, 687 (1974)).

N.C. Gen. Stat. § 14-223 (1986) makes it unlawful for any person

to “willfully and unlawfully resist, delay or obstruct a public officer

in discharging or attempting to discharge a duty of his office

....” Actual physical force or assault is not necessary. State

v. Downing, 66 N.C. App. 686, 690, 311 S.E.2d 702, 704 (1984),

aff'd in part and rev'd in part, 313 N.C. 164, 326 S.E.2d 256 (1985).

The State does not have to prove that the officer was permanently

prevented from discharging his duties by defendant's conduct. Id.

Instead, the State must prove only that

“the officer was obstructed or interfered with, and that such

obstruction or interference was willful on the part of the de-

fendant. . . . To ‘interfere’ is to check or hamper the action

of the officer, or to do something which hinders or prevents

or tends to prevent the performance of his legal duty; and

to ‘obstruct’ signifies direct or indirect opposition or resistace

[sic] to the lawful discharge of his official duty.”

32

= m

226 IN THE COURT OF APPEALS

STATE v. BURTON

[108 N.C. App. 219 (1992)}

State v. Leigh, 278 N.C. 243, 248, 179 S.E.2d 708, 711 (1971) (quoting

State v. Estes, 185 N.C. 752, 117 S.E. 581 (1923)). “Merely

remonstrating with an officer in behalf of another, or criticizing

an officer while he is performing his duty, does not amount to

obstructing, hindering, or interfering with an officer.” State v. Allen,

14 N.C. App. 485, 491, 188 S.E.2d 568, 573 (1972).

The State presented evidence that Sergeant Tiffin observed

defendant traveling at a speed estimated to be twenty m.p.h. greater

than the posted speed limit. On the basis of his observation and

training, Sergeant Tiffin had at least reasonable suspicion to stop

defendant's vehicle. See State v. Morocco, 99 N.C. App. 421, 393

S.E.2d 545 (1990). After stopping the defendant for speeding, Sergeant

Tiffin attempted to use his car radio to run a check on the registra-

tion of the vehicle. Defendant was standing beside the patrol car

and speaking in a loud and hostile manner. He refused to return

to his car after the officer requested three times for him to do

so. Sergeant Tiffin was concerned for his safety as a result of

defendant's behavior, and he was unable to successfully communicate

on the radio. He then warned defendant that he would arrest him

for obstructing an officer, but defendant did not desist. Based upon

the evidence presented by the State, a jury could reasonably con-

clude that the officers lawfully arrested defendant because they

had probable cause to believe that defendant willfully prevented

Sergeant Tiffin from performing his duties concerning the traffic stop.

[3] Defendant next argues that defendant had the right to protect

himself against the use of excessive force during an unlawful arrest.

We have already determined that a jury could reasonably conclude

that the arrest was lawful. If attempting a lawful arrest, an officer

has the right to use reasonable force to subdue the arrestee and

the arrestee has no right to resist. N.C. Gen. Stat. § 15A-401(d)(1)

(1991 Cum. Supp.). If, however, an officer uses excessive force to

execute a lawful arrest, the arrestee may defend against the ex-

cessive force. See State v. Mensch, 34 N.C. App. 572, 575, 239

S.E.2d 297, 299 (1977), cert. denied, 294 N.C. 443, 241 S.E.2d 845 (1978).

The State presented evidence that after warning defendant

several times, Sergeant Tiffin attempted to arrest defendant for

obstruction and placed his hand on defendant's shoulder to execute

the arrest. Defendant did not respond and leaned against the patrol

car. Sergeant Tiffin and Officer Taylor, who had arrived at the

scene to assist Sergeant Tiffin, attempted to turn defendant around

33

IN THE COURT OF APPEALS 227

STATE v. BURTON

[108 N.C. App. 219 (1992)}

and handcuff him but were unable to do so. Corporal Allen arrived

and the three officers attempted to secure defendant. Defendant

fell into the patrol car. After defendant attempted to bite Corporal

Allen, kicked Sergeant Tiffin in the shin causing injury, and dislocated

Officer Taylor's thumb, Officer Taylor struck defendant twice on

the wrist with a nightstick. A jury could reasonably conclude that

the officers did not use excessive force in executing the arrest

and that defendant was not entitled to resist in any manner.

[4] Defendant further argues that there was a fatal variance in

the warrant allegations for resisting arrest and the State’s evidence

presented at trial. Defendant was charged with the offense of

resisting, obstructing, and delaying in violation of § 14-223 and

three counts of assault on a police officer in violation of § 14-33(bX8).

The resisting, obstructing, and delaying charge was dismissed prior

to jury selection. Defendant was convicted of three counts of assault

on a police officer. The State had the burden of proving that the

persons assaulted were police officers performing their duties and

that defendant knew they were police officers. See Rowland, 54

N.C. App. at 462, 283 S.E.2d at 546. In order to meet this burden,

the State also had to present evidence that the officers were mak-

ing a lawful arrest for resisting, obstructing, and delaying. As

stated above, the State presented evidence that the officers had

probable cause to believe defendant was resisting, obstructing, and

delaying Sergeant Tiffin in the performance of his official duty.

An officer does not have to be attempting an arrest in order to

be performing an official duty of his office. Certainly an officer

is performing an official duty when he stops a vehicle for speeding

and attempts to use his car radio to obtain information on the

registration of the stopped vehicle. We find defendant's argument

that there was a fatal variance in the warrant and evidence presented

at trial to be without merit.

Considering the evidence in the light most favorable to the

State, we find the State presented substantial evidence of each

element of the crimes charged, three counts of assault on a police

officer, and that defendant was the perpetrator of the crimes. Ac-

cordingly, we find that the trial court did not err in denying defend-

ant’s motion to dismiss for insufficiency of evidence at the close

of trial. Defendant's first assignment of error is overruled.

[5] In his second assignment of error, defendant contends that

the trial court committed plain error when it responded to a ques-

34

228 IN THE COURT OF APPEALS

STATE v. BURTON

{108 N.C. App. 219 (1992)]

tion from the jury concerning the definition of obstructing a police

officer. Defendant does not challenge the correctness of the initial

instructions here. In that charge, the trial court properly instructed

the jury on the charge of assault on a police officer. The trial

court then instructed the jury on the offense of resisting, delaying,

and obstructing a police officer. The trial court explained that

the officer had to have probable cause to believe that the defendant

had committed the offense of delaying and obstructing; probable

cause would exist if the circumstances surrounding defendant's

conduct would lead a prudent person to believe defendant had

committed the offense of delaying and obstructing. The trial court

then instructed the jury that

[mJerely remonstrating with an officer, protesting, objecting,

questioning or criticizing an officer when he is performing

his duties, does not amount to delaying and interfering an

officer, they, in temperance language, used without apparent

purpose is not sufficient, although force or threatened force

is not always an indispensable ingredient of the offense of

interfering with an officer in the discharge of his duty, mere

remonstrating or criticizing an officer is not usually held to

be the equivalent of unlawful interference.

Defendant argues that plain error occurred when the jury,

after retiring for deliberation, requested in writing a definition

of the phrase “obstructing an officer” and the trial court responded

that the jury was to give the term “its ordinary meaning.” Defend-

ant’s attorney did not object to the trial court’s response to the

jury's question. He now argues on appeal that the trial court's

response to the jury’s question was plain error, an error so fun-

damental that defendant must receive a new trial. He argues that

the trial court’s instruction to the jury that they could give the

term “obstructing” its “ordinary meaning,” which would not require

a finding of willfulness, would allow the jury to find the defendant

guilty of assault on an officer without having to first find that

the officer had probable cause to arrest the defendant for the

defendant's willful obstruction of the officer in the performance

of his duties.

Webster’s Third New International Dictionary (1971) defines

obstruct: “to be or come in the way of: hinder from passing, action,

or operation: IMPEDE, RETARD.” The Second College Edition of

the American Heritage Dictionary (1985) offers a similar definition:

35

IN THE COURT OF APPEALS 229

STATE v. BURTON

[108 N.C. App. 219 (1992)}

“to impede, retard, or interfere with; hinder.” Looking at these

definitions of the “ordinary meaning” of obstruct, we agree with

defendant's contention that the ordinary meaning of obstruct does

not necessarily include an element of willfulness, an element which

is required in the crime of obstructing an officer under N.C. Gen.

Stat. § 14-223. We must now determine whether the trial court's

response to the jury’s question, which failed to require that the

defendant's obstruction be willful in order to support the offense

of assault, was so fundamental an error that a new trial is required.

We hold that it was not. =

After reviewing the entire record, we are not convinced “that

absent the alleged error, a jury probably would have reached a

different verdict.” State v. Robinson, 330 N.C. 1, 22, 409 S.E.2d

288, 300 (1991). Here, the jury was correctly instructed that merely

remonstrating or criticizing an officer did not amount to the offense

of obstructing an officer. In order to convict defendant of assault

on a police officer, the jury first had to determine whether there

was probable cause for Sergeant Tiffin to arrest defendant for

resisting, obstructing, and delaying an officer. In convicting defend-

ant, the jury must have determined that he acted willfully when

he refused to return to his car as requested by Sergeant Tiffin

and repeatedly talked in a loud voice as Sergeant Tiffin attempted

to use the patrol car radio. Defendant’s second assignment of error

is overruled. ——

[6] In his third assignment of error, defendant argues the trial

court erred in denying defendant the opportunity to cross-examine

Sergeant Tiffin about alleged misconduct. Specifically, defendant

sought to ask the following questions in order to impeach the credibili-

*ty of Sergeant Tiffin:

1. [Djuring the time that you have been employed with

the Durham Police Department, have you not had a number

of complaints filed against you?

2. And have you not been disciplined for some of these

alleged incidents of misconduct?

3. Were you dismissed from the police department... .

for lying to your superior officers about an incident involving

some officers under your command in a policemen’s conduct

matter?

N.C. Gen. Stat. § 8C-1, Rule 608(b) (1988) provides that specific

instances of conduct may “in the discretion of the court, if probative

36

230 IN THE COURT OF APPEALS

STATE v. BURTON

[108 N.C. App. 219 (1992)]

of truthfulness or untruthfulness, be inquired into on cross-

examination of the witness (1) concerning his character for

truthfulness or untruthfulness ... .” We find that the first two

questions were properly excluded by the trial court because they

do not address Sergeant Tiffin’s character for truthfulness or un-

truthfulness. The third question, however, does specifically address

the question of Sergeant Tiffin's veracity and should have been

allowed. Although we find error in the exclusion of the question,

defendant has failed to prove that there was a reasonable possibili-

ty that the outcome of the trial would have been different if the

excluded evidence had been admitted. See N.C. Gen. Stat. § 15A-1443

(1988).

[7] Finally, defendant argues that the trial court erred in permit-

ting the assistant district attorney to comment during the closing

argument (1) about the lack of use of sirens in stopping cars for

traffic violations; (2) about defendant's snickering as the officers

described their injuries and his conduct; and (3) that “defendant's

own testimony is consistent with what the officers said other than

the two parts he made up, and ladies and gentlemen it always

amazed me that whenever I try a case how the victims end up

becoming the defendant.” N.C. Gen. Stat. § 15A-1230(a) (1988) pro-

hibits an attorney from injecting personal experiences and making

arguments on the basis of matters outside the record, except for

those matters of which the court may take judicial notice. “Whether

counsel abuses this privilege is a matter ordinarily left to the

sound discretion of the trial judge, and we will not review the

exercise of this discretion unless there be such gross impropriety

in the argument as would be likely to influence the verdict of

the jury.” State v. Covington, 290 N.C. 313, 328, 226 S.E.2d 629,

640 (1976) (citations omitted.) Addressing the first comment, although

the statement may have encompassed matters outside the record,

we do not find the statement to be prejudicial to defendant. As

the State points out, the charges of assault on police officers were

not related directly to the initial traffic stop of the defendant.

As to the second comment, “urging the jurors to observe defen-

dant’s demeanor for themselves does not inject the prosecutor's

own opinions into his argument, but calls to the jurors’ attention

the fact that evidence is not only what they hear on the stand

but what they witness in the courtroom.” State v. Brown, 320

N.C. 179, 199, 358 S.E.2d 1, 15, cert. denied, 484 U.S. 970, 98 L.Ed.2d

406 (1987). Finally, we find the third comment to be improper, but

37

IN THE COURT OF APPEALS 231

COVINGTON v. TOWN OF APEX

[108 N.C. App. 231 (1992)}

we do not think the comment constitutes such gross impropriety

as to influence the verdict of the jury. Defendant has failed to

demonstrate prejudicial error, and his fourth assignment of error

is therefore overruled.

No error.

Judges EAGLES and ORR concur.

ELIZABETH R. COVINGTON, WILLIAM JOHN EVANS, JR., LAURA M.

GRIMES, NANCY L. GUTSKE, LONNIE D. HEDRICK, TRACEY S. HEDRICK,

LYNN C. HOWELL, NANCY L. HUGHES, WILLIAM J. HUGHES, DORIS

B. SEYMOUR, DAVID P. TRUEBLOOD, JACOB VAN KRETSCHMAR, anp

TERESA VAN KRETSCHMAR, AppeLLees v. THE TOWN OF APEX;

CLARICE D. ATWATER, MICHAEL JONES, EVERETT M. EDWARDS,

JR. anp JACK H. KERLEY, AS MEMBERS OF THE TOWN OF APEX BOARD OF

COMMISSIONERS; AND C&D INVESTMENT COMPANY, INC., APPELLANTS

No. 9110SC930

(Filed 15 December 1992)

. Municipal Corporations § 30.11 (NCI3d)— conditional use

zoning —summary judgment — plaintiffs’ forecast of evidence

opposing zoning

Plaintiffs provided sufficient evidence that a zoning change

from Office and Institutional to Conditional Use Business-2

was unreasonable, arbitrary, and not in the public interest

where the rezoning was sought to permit electronic assembly

by a prospective tenant; defendants supported their motion

for summary judgment by providing affidavits which identified

the public purposes of the rezoning ordinance; one affidavit

stated that the rezoning ordinance serves legitimate public

purposes in that it contributes to the revitalization of downtown,

promotes economic stability, and serves to promote the ex-

press statutory goal of conserving the value of buildings; plain-

tiffs’ pleadings and supporting affidavits showed that the owners

of the property voluntarily terminated their lease with their

former tenant in order to execute a lease with a new tenant,

which required that the property be rezoned because its line

of business involved electronic assembly; the only public in-

38

§ 14-223 CH. 14. CRIMINAL LAW § 14-223

§ 14-223. Resisting officers.

If any person shall willfully and unlawfully resist, delay or obstruct a public

officer in discharging or attempting to discharge a duty of his office, he shall

be guilty of a misdemeanor punishable by a fine not to exceed five hundred

dollars ($500.00), imprisonment for not more than six months, or both. (1889,

c. 51, s. 1; Rev., s. 3700; C. S., s. 4378; 1969, c. 1224, s. 1.)

§15A-1111 CH. 15A. CRIMINAL PROCEDURE ACT §15A-1113

ARTICLE 66.

-§ 15A-1113. Prehearing procedure.

(a) Process. — A law enforcement officer may issue a citation for

an infraction in accordance with the provisions of G.S. 15A-302. A

judicial official may issue a summons for an infraction in accor-

dance with the provisions of G.S. 15A-303.

(b) Detention of Person Charged. — A law enforcement officer

who has probable cause to believe a person has committed an in-

fraction may detain the person for a reasonable period in order to

issue and serve him a citation.

(c) Appearance Bond May Be Required. — A person charged with

an infraction may not be required to post an appearance bond if:

(1) He is licensed to drive by a state that subscribes to the

nonresident violator compact as defined in Article 1B of

Chapter 20 of the General Statutes, the infraction charged

is subject to the provisions of that compact, and he exe-

cutes a personal recognizance as defined by that compact.

(2) He is a resident of North Carolina.

Any other person charged with an infraction may be required to

post a bond to secure his appearance and a charging officer may

require such a person charged to accompany him to a judicial offi-

cial’s office to allow the official to determine if a bond is necessary

to secure the person’s court appearance, and if so, what kind of bond

is to be used. If the judicial official finds that the person is unable to

post a secured bond, he must allow the person to be released on

execution of an unsecured bond. The provisions of Article 26 of this

Chapter relating to issuance and forfeiture of bail bonds are appli-

cable to bonds required pursuant to this subsection.

(d) Territorial Jurisdiction. — A law enforcement officer’s terri-

torial jurisdiction to charge a person with an infraction is the same

as his Feng 7 rca to arrest specified in G.S. 15A-402.

(e) Use of Same Process for Two Offenses. — A person may be

ed with a criminal offense and an infraction in the same

pleading. (1985, c. 764, s. 3; 1985 (Reg. Sess., 1986), c. 852, s. 12.)

ene eee

§ 15A-1114. Hearing procedure for infractions.

(a) Jurisdiction. — Jurisdiction for the adjudication and disposi-

Ne Tra by ing eed let xy hastings Sr infractions,

) y Jury. — tory or ns,

no right to a in. district court.

(c i ae pad ee Cee riminal Session. — A district

court judge may conduct proceedings relating to traffic infractions

in a civil or criminal session of unless the infraction is joined

with a criminal offense arising out of the same transaction or occur-

rence. In such a case, the criminal offense and the infraction must

be heard at a session in which criminal matters may be heard.

(d) Pleas. — A person charged with an infraction may admit or

deny nsibility for the infraction. The plea must be made by the

person in open court, unless he submits a written waiver of

appearance which is a proved by the presiding judge, or, if autho-

rized by G.S. 7A-146, he waives his right to a hearing and admits

ae cat ae for the infraction in writing and pays the specified

"a 1) Deas of Dies of District Attorney. — The district attorney is responsi-

ble a ensuring that infractions are calendared and prosecuted effi-

cien

(f) Burden of Proof. — The State must prove beyond a reasonable

doubt that the person charged is responsible for the infraction un-

less the person admits responsibility.

(g) Recording Not Necessary. — The State does not have to

record the proceedings at infraction hearings. With the approval of

the court, a party may, at his expense, record any proceeding.

(1985, c. 764, s. 3.)

40