# Petition for Writ of Certiorari — Burton v. North Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 945

## Text

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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

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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

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CONSTITUTIONAL AND STATUTORY PROVISIONS
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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

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: 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 .

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2336%3A1. Public record. Not legal advice.