State v. Poole

• Decision Date: 02 July 2013
• Docket Number: No. COA12–1150.,COA12–1150.
• Citation: 745 S.E.2d 26
• Parties: STATE of North Carolina v. Tracy Allen POOLE, Defendant.
• Court: North Carolina Court of Appeals

745 S.E.2d 26

STATE of North Carolina

v.Tracy Allen POOLE, Defendant.

No. COA12–1150.

Court of Appeals of North Carolina.

July 2, 2013.

Appeal by the State from Order entered 5 June 2012 by Judge Gary M. Gavenus in Superior Court, Buncombe County. Heard in the Court of Appeals 28 March 2013.

Attorney General Roy A. Cooper III, by Assistant Attorney General LaToya B. Powell, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellee.

STROUD, Judge.

The State appeals from an order entered 5 June 2012 dismissing an indictment charging Tracy Allen Poole (“defendant”) with violating an ex parte domestic violence protective order (DVPO) that required him to surrender his firearms. We conclude that the Supreme Court case relied upon by the trial court is not controlling on the issue presented here because of subsequent statutory amendments and that prosecution of defendant for violation of an ex parte order does not violate his procedural due process rights. Therefore, we reverse the trial court's order and remand for further proceedings.

I. Background

On 14 October 2011, defendant's wife, Tammy Lynn Poole, filed a complaint and motion for a domestic violence protective order, alleging that defendant had showed up at her house after making repeated phone calls and banged on her door. She further alleged that defendant possessed “several rifles and a handgun and lots of ammo” and that she felt “unsafe” and “frightened.”

That same day, the trial court entered an ex parte DVPO. The trial court found that defendant had placed Tammy in fear of imminent bodily harm and continued harassment “to such a level as to inflict substantial emotional distress.” The trial court also found that defendant had threatened to commit suicide. The trial court accordingly concluded that defendant had committed acts of domestic violence, that there “is a clear danger” of acts of domestic violence against Tammy, and that “[t]he defendant's conduct requires that he[ ] surrender all firearms, ammunition, and gun permits.” The ex parte DVPO prohibited defendant from contacting Tammy and ordered defendant to surrender all “firearms, ammunition, and gun permits” to the sheriff who served him with the DVPO. The DVPO was in effect until 20 October 2011.¹

On 17 October 2011 a sheriff served defendant with the DVPO. The next day, 18 October 2011, sheriffs returned to defendant's home and discovered a shotgun. Defendant was then arrested for violating the DVPO and indicted for “owning, possessing, purchasing, or receiving a firearm” in violation of a domestic violence protective order pursuant to N.C. Gen.Stat. § 14–269.8 (2011).

Defendant's case came on for trial on 21 May 2012. Prior to trial, defendant filed a motion to dismiss the charge, arguing that “[a]n ex parte hearing does not satisfy the hearing requirements for a valid protective order” and that “[a] valid protective order is required under N.C.G.S. §§ 50B–3.1(j) and 14–269.8 to convict a defendant of the offense [charged.]” At the hearing on defendant's motion to dismiss the trial court announced that it would grant the motion. On 5 June 2012, the trial court entered an order granting defendant's motion and dismissing all charges because (1) the DVPO “was not a protective order entered within the meaning of N.C.G.S. § 50B–1(c) and N.C.G.S. § 14–269.8” and (2) “prosecution of the defendant ... under these facts and circumstances would be a violation of the defendant's constitutional right to due process.” The State filed timely written notice of appeal to this Court.

II. Protective order

The trial court relied primarily upon State v. Byrd, 363 N.C. 214, 675 S.E.2d 323 (2009), in concluding that an ex parte order entered under N.C. Gen.Stat. §§ 50B–2(c) and 50B–3.1(b) (2011) is not a “protective order” for purposes of N.C. Gen.Stat. § 14–269.8 (2011). In Byrd, the Supreme Court considered whether a Temporary Restraining Order (TRO) entered under N.C. Gen.Stat. § 1A–1, Rule 65, was a “valid domestic violence protective order under Chapter 50B” for purposes of a sentencing enhancement under N.C. Gen.Stat. § 50B–4.1(d). Byrd, 363 N.C. at 219, 675 S.E.2d at 325. The Supreme Court held that the TRO was not entered “pursuant to Chapter 50B” and then went on to note that even if it had been entered pursuant to Chapter 50B that it was not a “valid protective order” because it had been entered ex parte.Id. at 220–21, 675 S.E.2d at 327.

Here, the trial court concluded that the 2009 amendments to N.C. Gen.Stat. § 50B–4 and 50B–4.1 (2011), which appear to have been passed directly in response to Byrd, were inapplicable and that there is a distinction in Chapter 50B between a “protective order” and a “valid protective order.” We disagree.

The amendments enacted by 2009 N.C. Sess. Laws 342 do change the application of these statutes and have corrected the situation created by Byrd, which left victims of domestic violence with limited penalties for violation of ex parte domestic violence orders. The 2009 amendments make it clear that an ex parte domestic violence order entered under Chapter 50B is a “valid protective order” and thus defendant would have been in violation of a “valid protective order” by his alleged possession of guns from 17 October 2011 to about 19 October 2011. Reading N.C. Gen.Stat. § 14–269.8 in light of the plain language of its companion 50B statute, N.C. Gen.Stat. § 50B–3.1, also supports this conclusion.

First, the portions of Byrd which the trial court relied on in making a distinction between a “protective order” and a “valid protective order” were dicta, as they were not necessary to the court's decision. See Romulus v. Romulus, ––– N.C.App. ––––, ––––, 715 S.E.2d 308, 321 (2011) (“[I]f the statement in the opinion was ... superfluous and not needed for the full determination of the case, it is not entitled to be accounted a precedent, for the reason that it was, so to speak, rendered without jurisdiction or at least extra-judicial.” (quoting Hayes v. Wilmington, 243 N.C. 525, 536–37, 91 S.E.2d 673, 682 (1956))).

The Supreme Court in Byrd held that a Rule 65 TRO was not sufficient to form the basis of a sentencing enhancement based on violation of a DVPO, since the TRO was not a DVPO entered under Chapter 50B. Byrd, 363 N.C. at 218–22, 675 S.E.2d at 325–27. The Court highlighted the significant procedural differences between a TRO under Rule 65 and a DVPO under Chapter 50B.

In addition to those procedural differences which were most relevant in the context of the Byrd case—discussed further below—Chapter 50B provides different enforcement mechanisms for DVPOs than are available for Rule 65 TROs. For example, N.C. Gen.Stat. § 50B–3(d) requires that

The sheriff of the county where a domestic violence order is entered shall provide for prompt entry of the order into the National Crime Information Center registry and shall provide for access of such orders to magistrates on a 24–hour–a–day basis. Modifications, terminations, renewals, and dismissals of the order shall also be promptly entered.

N.C. Gen.Stat. § 50B–3(d) (2011).

Not only must copies of the DVPO be served on the parties, but they also must be provided to “the police department of the city of the victim's residence” or “the sheriff, and the county police department, if any, of the county in which the victim resides” and the principal of child's school if the order requires the defendant to stay away from the child as well. N.C. Gen.Stat. § 50B–3 (c). The obvious purpose of providing copies of the DVPO to law enforcement agencies, the school, and entry of the domestic violence order information into the National Crime Information Center database is to permit prompt and effective enforcement of the order by law enforcement agencies.

After holding that a TRO entered under Rule 65 was not a valid protective order entered under Chapter 50B, which was sufficient to dispose of the issues presented by Byrd, the Supreme Court went on to note that the TRO was entered ex parte and thus was not entered “upon hearing by the court or consent of the parties”—another requirement under N.C. Gen.Stat. § 50B–1(c) not included under Rule 65 because no adversarial hearing at which the defendant had a right to be present was held prior to issuance of the TRO. Id. at 223–24, 675 S.E.2d at 328.

The issue of whether an ex parte order entered under § 50B–2(c) was a valid protective order and enforceable by N.C. Gen.Stat. § 50B–4.1 was not actually presented to the Supreme Court in Byrd. See Byrd, 363 N.C. at 221, 675 S.E.2d at 327 (“[E]ven if the TRO had been entered under Chapter 50B, which we have held it was not....” (emphasis added)). It is unclear whether the portion of the Supreme Court's opinion addressing the ex parte nature of the proceedings could constitute an independent ground for its holding or not. See Romulus, ––– N.C.App. at ––––, 715 S.E.2d at 321 (“[W]here a case actually presents two or more points, any one of which is sufficient to support decision, but the reviewing Court decides all the points, the decision becomes a precedent in respect to every point decided.” (quoting Hayes, 243 N.C. at 536–37, 91 S.E.2d at 682)).

Given the fact that the case did not actually present the issue of an ex parte order entered pursuant to the detailed procedures in Chapter 50B and the lack of a due process analysis, we believe that the Supreme Court did not intend the ex parte and due process discussion as an independent ground for its holding. See Central Virginia Community College v. Katz, 546 U.S. 356, 363, 126 S.Ct. 990, 996, 163 L.Ed.2d 945, 954 (2006) (“[W]e are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”).

It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case,...