State v. Boone

• Court: North Carolina Supreme Court
• Writing for the Court: FRYE; Judge Peel did not announce his ruling on the motion to suppress in open court. Instead, he signed an order denying the motion and mailed it to the clerk and counsel for the State and the defendant. Therefore, at the very earliest
• Citation: State v. Boone, 311 S.E.2d 552, 310 N.C. 284 (N.C. 1984)
• Decision Date: 02 February 1984
• Docket Number: No. 29PA83,29PA83
• Parties: STATE of North Carolina v. James Charles BOONE.

Page 552

311 S.E.2d 552

310 N.C. 284

STATE of North Carolina v. James Charles BOONE.

No. 29PA83.

Supreme Court of North Carolina.

Feb. 2, 1984.

Rufus L. Edmisten, Atty. Gen. by Dennis P. Myers, Asst. Atty. Gen., Raleigh, for State-appellant.

Jeffrey S. Miller, Jacksonville, for defendant-appellee.

FRYE, Justice.

The State seeks to have the Court of Appeals' decision granting defendant a new trial reversed because it "appears likely to be in conflict with one or more prior decisions" of this Court and the Court of Appeals. For the reasons stated in this opinion, we find that the Court of Appeals correctly applied the law of this State, and therefore, we affirm the decision of the Court of Appeals.

The State's evidence tended to show the following: On 13 February 1981, a number of police officers, acting pursuant to a valid search warrant, were searching a place known as the Old Langley Farm near Jacksonville, in Onslow County. The search led to the seizure of a substantial amount of marijuana and other items. As SBI Agent A.R. Stevens was leaving the scene of the search with a truck load of confiscated goods, he noticed a vehicle driven by the defendant approaching the farm. Defendant stopped the vehicle and began to back up at a high rate of speed along the dirt road leading to the farm.

Agent Stevens pursued the vehicle and motioned for the defendant to pull over. Defendant pulled over and he and the other passengers of the car were asked to return to the farm. Defendant and the other passengers of the car, one of whom was Tommy Johnson, a reputed drug dealer, returned to the farm, although they were not placed under arrest.

After returning to the farm, defendant was asked by Deputy Sheriff Gibson, if he (Gibson) could examine the trunk of defendant's car. After defendant opened the trunk, Gibson observed some clear plastic containers, with greenish-brown vegetable matter in them, sticking out of the edge of a duffel bag in the trunk. The duffel bag was seized, and the defendant was placed under arrest. It was later determined that the duffel bag contained approximately ten pounds of marijuana.

Defendant's pre-trial motion to suppress the marijuana discovered in his car was heard by Judge Elbert S. Peel, Jr., on 16 and 18 June 1981 at a Criminal Session of Superior Court, Onslow County, which is located in the Fourth Judicial District. During the afternoon of 18 June, Judge Peel allowed counsel for both parties to present "case law" to him in chambers. It is unclear whether Judge Peel made a formal ruling denying defendant's motion to suppress in chambers. Judge Peel, through an affidavit, states that his recollection is that counsel for the defendant was informed of his ruling in chambers but he could not swear to it. In any event, Judge Peel readily admits that his ruling was not made in open court. Defendant's counsel states that he was not informed of the judge's ruling until sometime after the "in chambers" discussion. Judge Peel signed the Order denying defendant's motion to suppress evidence on 25 June 1981 in Williamston, North Carolina, Martin County, which is located in the Second Judicial District. The original of the Order was mailed to the clerk of court, Onslow County, on that same day and copies were also mailed to counsel for the State and the defendant. The Order was received by the clerk on 27 June 1981.

At trial, before Judge Strickland, defendant renewed his motion to suppress, contending that Judge Peel's Order denying his motion to suppress was invalid. Judge Strickland denied defendant's motion to suppress without conducting a suppression hearing.

I.

Defendant contends and the Court of Appeals agreed that Judge Strickland committed reversible error by failing to conduct a new suppression hearing because Judge Peel's Order denying defendant's motion to suppress was a nullity since it "was signed after the session at which the motion was heard was closed and it was signed outside of the district and outside of the county in which defendant was being tried." State v. Boone, 59 N.C.App. 730, 732, 297 S.E.2d 920, 921 (1982). We agree with the decision of the Court of Appeals.

The general rule concerning judgments and orders is as follows:

[J]udgments and orders substantially affecting the rights of parties to a cause pending in the Superior Court at a term must be made in the county and at the term when and where the question is presented, and our decisions on the subject are to the effect that, except by agreement of the parties or by reason of some express provision of law, they cannot be entered otherwise, and assuredly not in another district and without notice to the parties interested.

State v. Humphrey, 186 N.C. 533, 535, 120 S.E. 85, 87 (1923). In prior and subsequent cases, this rule has been stated in various forms, and it has been consistently applied in both criminal and civil cases. See State v. Saults, 299 N.C. 319, 261 S.E.2d 839 (1980); Baker v. Varser, 239 N.C. 180, 79 S.E.2d 757 (1954); State v. Alphin, 81 N.C. 566 (1879). We still adhere to this rule today.

In Alphin, this Court stated that the judge had no power to make an order granting a new trial after the expiration of the term and that such an order was a nullity and should be stricken from the record. Alphin, 81 N.C. at 567-68. Additionally, in Saults, this Court held that an order denying a new trial was void where the parties did not consent to the entry of an order out of term, out of session, out of county, and out of the district where the hearing was being held. Saults, 299 N.C. at 325, 261 S.E.2d at 842-43. Read together, Alphin and Saults stand for the proposition that an order of the superior court, in a criminal case, must be entered during the term, during the session, in the county and in the judicial district where the hearing was held.

Applying the aforementioned general rule and the holdings of this Court in criminal cases pertaining to the entry of orders in the superior court to the instant case, it is clear that the Order entered by Judge Peel was null and void and of no legal effect.

Pursuant to our power to take judicial notice of the assignment of trial judges to hold court, Baker v. Varser, 239 N.C. 180, 79 S.E.2d 757 (1954), we take judicial notice of the following: During the Spring Session 1981 (January 5 to June 29) Judge Peel was assigned to the Fourth Judicial District and he was assigned to hold the 15 June 1981 Criminal Session of Superior Court, Onslow County. This criminal session was scheduled to last one week unless all of the court's business was not disposed of at that time, in which case Judge Peel was statutorily authorized to continue the session until all of the court's business had been completed. G.S. § 15-167. This criminal session of court was adjourned by Judge Peel on 18 June 1981.

In light of the fact that Judge Peel signed the Order denying defendant's motion to suppress on 25 June 1981, in Williamston, North Carolina, Martin County, which is located in the Second Judicial District, it is quite clear that Judge Peel's Order was signed out of session, out of county, and out of district and, therefore, was null and void and of no legal effect. Thus, when the defendant renewed his motion to suppress, it was incumbent upon Judge Strickland to consider the motion anew and conduct a hearing thereon pursuant to G.S. § 15A-977. His failure to do so constitutes error.

The result reached in this case is not affected by the two arguments advanced by the State to uphold the validity of Judge Peel's Order. First, the State argues that defendant did not object to the procedures employed in the instant case at any time, although he had plenty of opportunities to do so. Suffice it to say that defendant did object to the validity of the Order entered by Judge Peel immediately prior to his trial on the felony charges. We also note that in Saults, this Court considered ex mero motu the question of the trial court's authority to enter an order out of session although the defendant did not raise any question about it on appeal. Saults, 299 N.C. at 324-25, 261 S.E.2d at 842-43. Jurisdictional questions which relate to the power and authority of the court to act in a given situation may be raised at any time. See Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965).

Secondly, the State argues that "the case law does not support the proposition that the signing of an order out of term and out of district renders such order a nullity without regard to whether the [d]efendant is prejudiced thereby," citing State v. Richardson, 295 N.C. 309, 245 S.E.2d 754 (1978) and State v. Williams, 34 N.C.App. 386, 238 S.E.2d 195 (1977). In both of those cases it appears that the trial judge announced his ruling on the motion to suppress during the session when it could be entered in the court's records by the clerk, although the findings of fact and conclusions of law supporting the decision were made and the orders signed at a later time. Thus the parties were immediately aware of the judge's decision although the formal findings supporting that decision were subsequently entered. Thus the court, in each case, considered whether this delay in dictating the findings of fact and conclusions of law was prejudicial. Richardson, 295 N.C. at 319-20, 245 S.E.2d at 761-62; Williams, 34 N.C.App. at 388, 238 S.E.2d at 196. In the instant case, there is nothing in the record to support a finding that Judge Peel announced his ruling on the motion to suppress at any time during the session or that any record of a decision was made until after the session had ended. Thus the critical decision, the ruling of the court--contained in the Order denying the motion to suppress--was not made, in the instant case, until after the session had ended. That Order being null and void and of no legal effect, Saults, 299 N.C. at 325, 261 S.E.2d at 842-43; Alphin, 81 N.C. at 567-68, the question of...