Peoples, In re, No. 53

• Docket Nº: No. 53
• Citation: 296 N.C. 109, 250 S.E.2d 890
• Case Date: December 29, 1978
• Court: United States State Supreme Court of North Carolina

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250 S.E.2d 890 296 N.C. 109 In re Inquiry Concerning A Judge No. 53 Linwood T. PEOPLES. No. 71. Supreme Court of North Carolina. Dec. 29, 1978.

Mrs. Longmire, Assistant Clerk of Court in Vance County, identified Vance County District Court file number 76 CR 835, State of North Carolina v. Daniel McIntosh Briley. In pertinent part, the record disclosed that on 12 February 1976 Daniel McIntosh Briley was arrested and charged with operating a motor vehicle upon a public highway while under the influence of intoxicating liquor. His breathalyzer test showed the alcoholic content of his blood to be .19 percent at the time. Thereafter he was released on his own unsecured bond of $200.00 and ordered to appear in court for trial on Friday, 5 March 1976. On 2 April 1976 (Friday) Judge Peoples signed a judgment in the case upon a form which showed the number of the case, 76 CR 835, the name of the defendant Briley and his attorney, and the charge. The disposition of the case was "Judgment of the court is that this case dismissed." The judgment sheet showed that no plea or verdict had been entered.

From other records of the District Court (Exhibits 4 and 5), Mrs. Longmire testified that on 2 April 1976 Chief District Court Judge Julius Banzet was holding the criminal term in Vance County; that the name

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Daniel McIntosh Briley did not appear on the court calendar (docket) for that day; and that the docket sheet showing the disposition of cases on 2 April 1976 did not contain the name Briley or the case numbered 76 CR 835. When asked if, to her knowledge, the case of State v. Daniel McIntosh Briley, 76 CR 835, appeared on any court calendar or minutes which she prepared, Mrs. Longmire answered, "I don't know."

Daniel McIntosh Briley, a car dealer in Henderson, North Carolina, testified that on 12 February 1976 he "was in a ditch" and was arrested for "driving under the influence." He was given an opportunity to call his lawyer, who came down and told Briley "to take it (breathalyzer test) and say no more." After that his attorney went with him to the magistrate and then took him home. Thereafter Briley never went to court and heard nothing further about his case until his attorney called to tell him Judge Peoples had dismissed the case.

[296 N.C. 123] Mrs. Whitus, courtroom clerk for the criminal session of Vance County, identified Special Counsel's Exhibit D as a duly certified copy of proceedings in Case No. 76 CR 1009, State v. Louise Branham Catlett, who had received a citation on 18 February 1976 for driving a motor vehicle at a speed of 50 MPH in a 35 MPH speed zone. The judgment sheet showed that Judge Peoples had disposed of this case on Monday, 19 July 1976, by signing the following entry: "Judgment of the court is that . . . case is dismissed by the court." The blocks on the judgment sheet provided for the entry of the defendant's plea (guilty, not guilty, or nolo contendere) were left blank. Mrs. Whitus testified that she herself entered and dated this judgment on the day Judge Peoples dismissed the case and that no court was held in Vance County on any Monday in July 1976. Criminal sessions were held on every Tuesday and Friday.

Mrs. Whitus also identified Exhibit E as a duly certified copy of the proceedings in Vance County District Court Case No. 76 CR 1832, State v. Harry Battle Riggan. This record disclosed that on 26 February Riggan had received a citation for driving on the wrong side of the road and that his case was first set for 12 March 1976 and then continued until 9 April 1976. A notation on the shuck showed that sometime between March 12th and April 9th the case was put in Judge Peoples' file, and on Monday, 27 September 1976, Judge Peoples entered and signed the final judgment as follows: "The case is dismissed by the court."

Mrs. Whitus testified that she dated the judgment 27 September 1976, the day it was signed, and that no court was in session in Vance County on that day or on any other Monday in September 1976. As in the Briley and Catlett cases, the blanks provided on the judgment form to show the defendant's plea were unfilled.

Harry Battle Riggan, an employee of the North Carolina Department of Transportation testified that on 26 February 1976 a highway patrolman gave him a ticket for driving to the left of the center of the highway. Hoping to keep from losing a day's work because of going to court he took the ticket to his personal friend, James H. King, a Vance County magistrate. He gave King $25.00 in cash "to take care of the ticket . . . to answer for the ticket in (his) place." Thereafter Riggan never went to court or [296 N.C. 124] heard anything further about the ticket until "maybe six months or a year" later when his wife told him his name "got in the paper for the ticket" that day. Sometime later Riggan could not say when Mr. King called to say, "I have some money for you; do you want it?" He knew King was talking about the twenty-five dollars. King was "taking (him) out for supper one Saturday night"; so he told King to keep it and they would use it then.

James H. King, who became a magistrate on 1 January 1974, testified that he is a personal friend of Riggan's and "he and I, we socialize." In late February 1976 Riggan brought King the ticket which a patrolman had given him for "driving left of the center line, while pulling a trailer." Riggan asked King if there was anything he could do to help him out on the ticket. King replied that he had known Judge Peoples

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for several years, considered him a friend, and he would see what he could do; that if "he could get him a prayer for judgment (continued), it would probably cost him the costs of court. At that time it was $25.00." Riggan gave him twenty-five dollars in cash. Thereafter King saw Judge Peoples, "explained the case to him," and told him he would "appreciate what he could do." Judge Peoples told King "he'd see what he could do, and that's all he said to (him)." King said it was his "understanding" that if Judge Peoples could or would "take care of that citation" he would be doing so as an accommodation to both him and Mr. Riggan. King did not give Judge Peoples the twenty-five dollars. Thereafter King heard nothing further about the case until Riggan asked him about it after he "saw it in the paper." When they discussed the twenty-five dollars Riggan "said he didn't want it back, (they) would just go out and eat it up."

Counts II, III, and IV of the complaint charge that in Vance, Franklin, and Granville Counties, Respondent, without notice to the district attorney, had pending cases removed from the active files of the district courts of the respective counties and caused them to be placed in a personal file with instructions to the courtroom clerk to keep them in his file until he ordered them calendared or otherwise disposed of; that in consequence the administration of justice was delayed and the cases were not calendared or tried in open court in the regular course of business as provided by law. These cases were identified by name, file number, date and offense charged, and similarly listed in the Commission's findings of fact.

[296 N.C. 125] The cases specified in Count II are the 27 cases which Mr. Glenn found in the "LTP File" in the clerk's office in Vance County. In that group were six citations for speeding, two for driving after license revoked, one each for carrying a concealed weapon and an assault on a female, one for reckless driving, seven citations for relatively minor traffic offenses, and nine cases for driving under the influence of intoxicating liquor.

Of the nine cases of drunken driving two defendants had refused to take the breathalyzer test. On the other seven defendants the breathalyzer readings were .16% (2 cases), .17%, .18%, .19%, .24%, and .27%. The oldest of these cases (State v. Hight, 75 CR 702), (Exhibit 2A) had been pending since 2 February 1975 more than two years and seven months before it was calendared for trial before Judge Allen on September 1977 (at which time the defendant pled guilty as charged).

The most recent case of drunken driving in the "LTP File" (State v. Shoemaker, 77 CR 1883, Exhibit 2W) was filed 11 May 1977. In State v. Thomas Jenkins Moore, 77 CR 5097, Exhibit 2AA, driving under the influence, 10/16/76, the original trial date was 11/19/76. However, on the back of one of the forms in the certified copy of the court record of this case, the following handwritten, undated notation appears: "Lucy, put Tommy Moore's DUI case in my file. Linwood Peoples." Thus, this case lay dormant from 16 October 1976 until 23 September 1977 (11 months and one week) when Judge Allen disposed of the case upon the defendant's plea of guilty as charged.

The cases specified in Count III of the complaint are the four cases listed below, which Mrs. Nelms, the Clerk of the Superior Court of Granville County, delivered to Mr. Glenn in early September 1977 after the State auditors had discovered them in the inactive case files of the district court:

71 CR 4410 State of North Carolina v. Harold Taylor Cottrell

Driving under the influence, breathalyzer reading .20%, 11/21/71

74 CR 3689 State of North Carolina v. Virgil Lee Twisdale

Speeding 80 miles per hour in a 55 mile per hour zone 8/3/74

74 CR 4025 State of North Carolina v. Jimmy Carl Knight

Speeding 70 miles per hour in a 55 mile per hour zone 8/16/74

[296 N.C. 126] 74 CR 5227 State of North Carolina v. Allen Ray Moody

Speeding 69 miles per hour in a 55 mile per hour zone 10/8/74

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The certified record in State v. Cottrell, 71 CR 4410, (Exhibit 8-A) showed that Cottrell was arrested for drunken driving and carrying a concealed weapon on 21 November 1971. He was released upon a bond with surety and his trial date set for 15 December 1971. On the judgment sheet, which showed no plea or verdict, the following information was typed: "December 15, 1971: Prayer for judgment...