Herndon v. Herndon

• Decision Date: 10 June 2016
• Docket Number: No. 363A15,363A15
• Citation: 785 S.E.2d 922,368 N.C. 826
• Court: North Carolina Supreme Court
• Parties: Steven Craig HERNDON v. Alison Kingrey HERNDON

368 N.C. 826

785 S.E.2d 922

Steven Craig HERNDON

v.Alison Kingrey HERNDON

No. 363A15

Supreme Court of North Carolina.

Filed June 10, 2016

Foil Law Offices, by N. Joanne Foil, Durham and Laura E. Windley, for plaintiff-appellant.

Tharrington Smith, LLP, by Jill Schnabel Jackson and Evan B. Horwitz, Raleigh, for defendant-appellee.

BEASLEY, Justice.

We consider whether the Court of Appeals erred by granting defendant a new hearing based upon the conclusion that the trial court violated defendant's Fifth Amendment rights. For the reasons stated herein, we reverse the decision of the Court of Appeals.

On 21 May 2014, Steven Craig Herndon (plaintiff) filed a Complaint and Motion for Domestic Violence Protective Order (DVPO) against his wife, Alison Kingrey Herndon (defendant). Plaintiff also sought temporary custody of their four minor children. The complaint alleged that on several occasions, defendant placed in plaintiff's food and drink unknown substances that caused him to become incapacitated, and that during those periods of incapacitation, defendant would leave the home occupied by plaintiff and their children to visit the home of her paramour. The district court judge entered an ex parte DVPO against defendant, ordering that there be no contact between plaintiff and defendant and awarding temporary custody of the children to plaintiff. On 27 May 2014, in a separate action, defendant filed a complaint seeking temporary and permanent custody of the minor children. On 23 July 2014, plaintiff filed an answer and counterclaim seeking child custody.

On 10 September 2014, plaintiff's motion for DVPO and defendant's custody complaint came on for hearing before the Honorable Doretta L. Walker in District Court, Durham County. Several witnesses took the stand, including a computer forensics expert, a private investigator, plaintiff, defendant's paramour, defendant's friend, and defendant. After plaintiff rested his case-in-chief and before defendant took the stand, the following exchange occurred:

[DEFENSE COUNSEL]: Call Alison Herndon.

THE COURT: All right. Before we do that, let me make a statement. You're calling her. She ain't going to get up there and plead no Fifth Amendment?

[DEFENSE COUNSEL]: No, she's not.

THE COURT: I want to make sure that wasn't going to happen because you—somebody might be going to jail then. I just want to let you know. I'm not doing no Fifth Amendment.

[DEFENSE COUNSEL]: No.

THE COURT: Okay. Call your witness.

[DEFENSE COUNSEL]: Alison Herndon.

Defendant testified on direct examination about her work schedule, her relationship with plaintiff and the children, and her affair. Defendant also discussed plaintiff's allegation that on 11 April 2014, defendant put an incapacitating substance in his mashed potatoes during one of their daughter's birthday party. When defense counsel concluded her examination of defendant, the trial court denied plaintiff's counsel the opportunity to cross-examine defendant because the time allotted for the hearing had almost expired. Instead, the trial court asked defendant questions related to the events of 11 April 2014 and certain exhibits that had been admitted into evidence by plaintiff related both to text messages and photographs exchanged between defendant and her paramour. After hearing the evidence, the trial court entered a DVPO and temporary custody order in favor of plaintiff, granting defendant supervised visitation. The trial court did not make any ruling on defendant's separate permanent custody action.

On appeal to the Court of Appeals, defendant argued that the trial court's comments preceding her testimony "had a chilling effect on the defense," thereby depriving defendant of her right against self-incrimination.¹ Defendant cited the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Section 23 of the North Carolina Constitution, and Malloy v. Hogan , 378 U.S. 1, 6, 84 S.Ct. 1489, 1492, 12 L.Ed.2d 653, 658 (1964), in support of her argument.

A divided panel of the Court of Appeals held that the trial court infringed upon defendant's right against self-incrimination, relying principally on the United States Supreme Court's decision in Brown v. United States , 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). Herndon v. Herndon , ––– N.C. App. ––––, ––––, ––––, 777 S.E.2d 141, 143, 145 (2015). First, the Court of Appeals acknowledged that a witness, by taking the stand, waives the Fifth Amendment privilege on cross-examination "with regard to ‘matters raised by [the witness's] own testimony on direct examination.’ " Id. at ––––, 777 S.E.2d at 144 (alteration in original) (quoting Brown , 356 U.S. at 156, 78 S.Ct. at 627, 2 L.Ed.2d at 597 ). Second, the Court of Appeals observed that a trial court cannot determine whether a witness may invoke the privilege based solely upon the witness's physical act of taking the stand. Id. at ––––, 777 S.E.2d at 144 (citing Brown , 356 U.S. at 157, 78 S.Ct. at 627, 2 L.Ed.2d at 598 ).

The Court of Appeals majority reasoned that the trial court erred by requiring defendant to choose between "forgoing her right to testify at a hearing where her liberty was threatened or forgoing her constitutional right against self-incrimination." Id. at ––––, 777 S.E.2d at 144. Moreover, the Court of Appeals majority concluded that the trial court's line of questioning was outside the scope of defendant's direct examination, in violation of the rule articulated in Brown . Id. at ––––, 777 S.E.2d at 144. For those reasons, the Court of Appeals vacated the trial court's order and remanded the case for a new hearing with instructions that the trial court disregard defendant's previous testimony and "assess any invocation of the Fifth Amendment under the test established by the Supreme Court in Brown ." Id. at ––––, 777 S.E.2d at 145.

The dissenting judge would have found that defendant waived her Fifth Amendment privilege. Id. at ––––, 777 S.E.2d at 147 (Bryant, J., dissenting). The dissent criticized the majority's reading of Brown as "overly technical" and reasoned that Brown stands for the proposition that when a witness voluntarily testifies, she cannot "invoke the privilege against self-incrimination as to relevant matters." Id. at ––––, 777 S.E.2d at 148 (citing McKillop v. Onslow County , 139 N.C.App. 53, 64–65, 532 S.E.2d 594, 601 (2000) ). The dissent concluded that "it was within the inherent power of the trial court to ascertain from defendant that she chose to testify voluntarily and waive her privilege against self-incrimination," and added that, despite "the less than artful phraseology," the trial court's statements put defendant on notice of her duty to testify truthfully. Id. at ––––, 777 S.E.2d at 149 (citing Brown , 356 U.S. at 156, 78 S.Ct. at 627, 2 L.Ed.2d at 597 ).

Plaintiff gave timely notice of appeal based upon the dissent. We review alleged violations of constitutional rights de novo. E.g. , Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc. , 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001).

Before this Court, plaintiff argues that the trial court did not violate defendant's right against self-incrimination because the trial court's inquiry was entirely within the scope of the testimony elicited on direct examination. We agree.

The Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, Malloy , 378 U.S. at 6, 84 S.Ct. at 1492, 12 L.Ed.2d at 658, provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This Fifth Amendment protection extends to civil proceedings. Allred v. Graves , 261 N.C. 31, 35, 134 S.E.2d 186, 190 (1964) (citation omitted), superseded in part by statute , Act of June 21, 1977, ch. 649, sec. 1, 1977 N.C. Sess. Laws, 761, 761–62. "[T]he claim of privilege ‘should be liberally construed.’ " State v. Pickens , 346 N.C. 628, 637, 488 S.E.2d 162, 167 (1997) (quoting Allred , 261 N.C. at 35, 134 S.E.2d at 189 ). Moreover, the privilege "protects against real, not remote and speculative dangers." State v. Ballard , 333 N.C. 515, 520, 428 S.E.2d 178, 181 (citing Zicarelli v. N.J. State Comm'n of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 32 L.Ed.2d 234, 240 (1972) ), cert. denied , 510 U.S. 984, 114 S.Ct. 487, 126 L.Ed.2d 438 (1993). "The privilege, to be sustained, need be evident only from the implications of the question and in the setting in which it is asked. These must show only that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Id. at 520, 428 S.E.2d at 181 (quoting Hoffman v. United States, 341 U.S. 479, 486–87, 71 S.Ct. 814, 818, 95 L.Ed. 1118, 1124 (1951) ).

Depending on whether a witness is compelled to testify or testifies voluntarily, the right against self-incrimination operates differently. This distinction, explored by the Supreme Court in Brown , arises from a need to balance the constitutional right to protect against self-incrimination with a party's interest in attacking the credibility of a witness and the interest of the court in ascertaining the truth. Brown , 356 U.S. at 155–56, 78 S.Ct. at 627, 2 L.Ed.2d at 597. A compelled witness "has no occasion to invoke the privilege against self-incrimination until testimony sought to be elicited will in fact tend to incriminate." Id. at 155, 78 S.Ct. at 627, 2 L.Ed.2d at 597. When the compelled witness's privilege is triggered, the normal right of cross-examination becomes secondary to the constitutional protection against compulsory self-incrimination. Id. at 155, 78 S.Ct. at 627, 2 L.Ed.2d at 597. By contrast, a voluntary witness has the benefit of choosing whether to testify and "determines the area of disclosure and therefore of inquiry." Id. at 155, 78 S.Ct. at 627, 2 L.Ed.2d at 597. For that reason, a voluntary witness cannot claim "an immunity from cross-examination on the...