State v. Petersilie

• Decision Date: 30 July 1993
• Docket Number: No. 43PA92,43PA92
• Citation: 334 N.C. 169,432 S.E.2d 832
• Parties: STATE of North Carolina v. Frank W. PETERSILIE.
• Court: North Carolina Supreme Court

Page 832

432 S.E.2d 832

334 N.C. 169

STATE of North Carolina v. Frank W. PETERSILIE.

No. 43PA92.

Supreme Court of North Carolina.

July 30, 1993.

Lacy H. Thornburg, Atty. Gen. by Charles M. Hensey, Sp. Deputy Atty. Gen., Raleigh, for the State.

Chester E. Whittle, Jr., Boone, for defendant-appellee.

EXUM, Chief Justice.

The substantive issue before us is whether N.C.G.S. § 163-274(7), prohibiting anonymous, derogatory charges against candidates for primary or general elections, violates the free speech guarantees of the First Amendment of the United States Constitution or Article I, § 14 of the North Carolina Constitution, or both. Before reaching this constitutional issue, however, we must first dispose of a procedural question: whether the Court of Appeals erred by vacating the judgment of the trial court on the ground of lack of subject matter jurisdiction. We conclude the Court of Appeals did not err on the record before it when it vacated the judgment of the trial court; but, for reasons of judicial economy and to reach the important constitutional question raised, we elect to allow the State's motion to amend the record on appeal, which amendment demonstrates that the trial court had jurisdiction over the case. As for the constitutional issue, we conclude the statute does not violate defendant's free speech rights under either the federal or state constitution. We do find, however, that the trial court committed reversible error by incorrectly stating the law in its jury instructions; and defendant therefore is entitled to a new trial. We also conclude that the trial court erred in admitting certain out-of-court opinion evidence.

I.

Defendant was convicted of eleven counts of publishing unsigned materials about a candidate for public office--all misdemeanors in violation of N.C.G.S. § 163-274(7). Judgment was entered imposing a sentence of two years' imprisonment which was suspended for three years upon the condition defendant serve six weekends in the county jail. The only charging documents contained in the record on appeal are grand jury indictments. The Court of Appeals vacated the trial court judgment for lack of subject matter jurisdiction in the superior court. We allowed the State's petition for further review.

Evidence at defendant's trial tended to show as follows: Defendant owned a land development company, Property Services and Investments (PSI), in Boone, North Carolina, which was primarily engaged in the management of rental properties. Defendant was also among ten candidates running for three seats on the Boone Town Council in the 10 October 1989 election. Only one candidate, Ben Suttle, received a clear majority. A run-off election was required, but defendant did not receive enough votes to qualify for the run-off. Four other candidates did qualify for the run-off election, two of whom were Saul Chase and Louise Miller.

On 1 or 2 November 1989, defendant obtained a copy of a letter addressed to his mother with which was enclosed a copy of a Washington Post article written by Nan Chase, candidate Chase's wife. The article expressed Mrs. Chase's opinion about prayer in school. The accompanying letter stated:

Chase wants to take away aggressive Christian influence from public buildings and gathering places, such as our schools.

In an article published in the Washington Post, Mrs. Saul Chase ridiculed the people of Boone for their support of Christianity stating that here "Christianity is ... intimidating and self-perpetuating."

Calling herself an "unbeliever (in Christianity) in the midst of the pious", Mrs. Saul Chase states that she is unable to openly criticize "religious paraphernalia displayed in public offices and on state owned vehicles" and she also says that if (anyone) speak(s) out forcefully against what may be an unconstitutional mixing of church and state, they will be unable to enter the political mainstream that has the power to separate the two spheres".-- This thought has not been spoken to the people of Boone by Mrs. Chase, only to the Washington Post. Why keep it from us? Because her husband is on our Town Council, and was just put in the run off for re-election. If he wins, he will have the power to take away any Christian influence from the town employees, buildings, etc. It can be assumed that Chase allegedly has a goal to wipe out Christian influence from our town, take it away form the very God-fearing Christian people who helped put him in office. Candidates should be open about all of their feelings of all issues and it appears that Saul Chase has been deceptive to us by not supporting the good, wholesome beliefs of our people. A deception that is allegedly a deliberate attempt to gain power to take our Christian atmosphere from us. We, the town, should stop him, keep him out of our town government and hold fast to our Christian freedoms. Vote against Saul Chase!

With the help of various members of his staff at PSI, defendant reproduced and mailed approximately thirty to seventy copies of the letter to persons who voted in the 10 October 1989 election. Defendant personally addressed several of the envelopes. He did not sign his name to the mailing or otherwise indicate that the mailing came from him.

On 3 or 4 November 1989 defendant received a copy of a flyer concerning candidates Miller and Chase. The flyer stated:

VOTE LIQUOR BY THE DRINK FOR BOONE.

FOUR YEARS AGO, WITH THE HELP OF SAUL CHASE, THE A.S.U. STUDENTS BROUGHT BEER TO BOONE. NOW IS THE TIME TO COMPLETE THE PARTY!

SUTTLE, DUGGER & MARSH REFUSE TO ENDORSE THIS ISSUE AND WOULD WORK TO DEFEAT THE REFERENDUM.

VOTE SAUL CHASE AND LOUISE MILLER

NOV. 7TH

THE "PRO-LIQUOR" CANDIDATES

Defendant copied and mailed out twenty to twenty-five unsigned copies of the flyer. Again, defendant did not sign his name to the mailing or otherwise identify himself as the person who sent it.

On 15 November 1989 Special Agent Steve Wilson of the North Carolina State Bureau of Investigation began investigating the mailings. Wilson spoke with defendant on 27 November 1989 at defendant's PSI office. When Wilson informed defendant that he had compared the handwriting on defendant's notice of candidacy to handwriting appearing on the flyers and anonymously mailed envelopes, defendant admitted addressing some of the anonymous letters. He said he was unaware that sending the anonymous material was a criminal violation.

The opinion of the Court of Appeals was filed 21 January 1992. Concluding that the record on appeal demonstrated a lack of jurisdiction in the superior court, the Court of Appeals vacated the superior court's judgment. On 22 January 1992 the State moved in the Court of Appeals to amend the record on appeal by adding certified copies of the presentment upon which charges were initiated against defendant. The Court of Appeals denied this motion on 23 January 1992.

II.

The State contends the Court of Appeals erred by vacating the superior court proceedings for lack of jurisdiction. We conclude the Court of Appeals acted properly on the record before it.

Like the majority of states, North Carolina requires the State to prove jurisdiction beyond a reasonable doubt in a criminal case. State v. Batdorf, 293 N.C. 486, 493, 238 S.E.2d 497, 502 (1977). Exclusive, original jurisdiction of all misdemeanors lies in the District Court Division of the General Court of Justice. N.C.G.S. § 7A-272 (1989). The superior court has jurisdiction to try a misdemeanor charge:

(1) Which is a lesser included offense of a felony on which an indictment has been returned, or a felony information as to which an indictment has been properly waived; or (2) When the charge is initiated by presentment; or

(3) Which may be properly consolidated for trial with a felony under G.S. 15A-926;

(4) To which a plea of guilty or nolo contendere is tendered in lieu of a felony charge; or

(5) When a misdemeanor conviction is appealed to the superior court for trial de novo, to accept a guilty plea to a lesser included or related charge.

N.C.G.S. § 7A-271(a) (1989).

"When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority." State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981). See also State v. Hardy, 298 N.C. 191, 257 S.E.2d 426 (1979) (Record on appeal shows lack of jurisdiction when a defendant is convicted in superior court of committing a crime for which he is not charged; judgment arrested.); State v. Guffey, 283 N.C. 94, 194 S.E.2d 827 (1973) (Record on appeal shows lack of jurisdiction when the superior court convicts a defendant of a misdemeanor for which there is no conviction in district court; judgment arrested.); State v. Evans, 262 N.C. 492, 137 S.E.2d 811 (1964) (Record on appeal shows lack of jurisdiction when a defendant who is never tried in district court is tried in superior court upon a warrant; judgment arrested and vacated.).

Contrarily, "when the record is silent and the appellate court is unable to determine whether the court below had jurisdiction, the appeal should be dismissed." Felmet, 302 N.C. at 176, 273 S.E.2d at 711. See also State v. Hunter, 245 N.C. 607, 96 S.E.2d 840 (1957) (No copy of the bill of indictment contained in the record on appeal; appeal dismissed.); State v. Banks, 241 N.C. 572, 86 S.E.2d 76 (1955) (Where Record failed to disclose jurisdiction in the court below; appeal dismissed.). In Felmet, we concluded the record was silent as to jurisdiction when the defendant was tried in superior court upon a warrant charging misdemeanor trespass because the record did not indicate whether the defendant had been tried in district court. We, therefore, held the Court of Appeals properly dismissed the appeal.

As did the Court of Appeals, we conclude this is a case in which the record affirmatively shows a lack of jurisdiction. According to the record, the...