State v. Salter

• Decision Date: 02 April 2019
• Docket Number: No. COA18-747,COA18-747
• Citation: 826 S.E.2d 803,264 N.C.App. 724
• Parties: STATE of North Carolina v. Keith Allen SALTER
• Court: North Carolina Court of Appeals

264 N.C.App. 724

826 S.E.2d 803

STATE of North Carolina

v.Keith Allen SALTER

No. COA18-747

Court of Appeals of North Carolina.

Filed: April 2, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Carolyn McLain, for the State.

Vitrano Law Offices, PLLC, Wake Forest, by Sean P. Vitrano, for defendant-appellant.

HAMPSON, Judge.

Factual and Procedural Background

Keith Allen Salter (Defendant) appeals from (1) his conviction for Misdemeanor Stalking and (2) an Order finding him in criminal contempt. The evidence presented at trial tends to show the following:

On 1 March 2016, Defendant was charged with one count of Misdemeanor Stalking. On 1 April 2016, Forsyth County District Court found Defendant guilty of this offense and entered a suspended sentence. On 5 April 2016, Defendant gave Notice of Appeal to Forsyth County Superior Court, requesting a jury trial.

Defendant was tried de novo on the Misdemeanor Stalking charge during the 7 August 2017 Criminal Session of Forsyth County Superior Court. Defendant represented himself pro se and did not testify. Throughout the trial, the trial court warned Defendant that he would be held to the same standards as an attorney, given he represented himself pro se . On 8 August 2017, the trial court reviewed the closing argument procedures for the next day with Defendant and the State, and the following exchange occurred:

THE COURT: Okay. All right. Let me talk about the closing arguments. ...

This will be very important, Mr. Salter, directed mainly to you because you are also the defendant who will be making the closing argument.

THE DEFENDANT: Yes.

THE COURT: You may not -- you chose not to testify. You may not testify, then, through your closing argument. That means you cannot tell the jury, "Here's what I say happened." You can make an argument as to what the evidence showed happened, but you may not testify as you're making that closing argument; does that make sense?

THE DEFENDANT: Yes.

....

THE COURT: So when you are -- I will tell the jury very clearly that you may argue, you may characterize the evidence and attempt to persuade them to a particular verdict, but it would be improper for either side to become abusive, to inject personal experience, to express a personal belief as to the guilt or innocence of the defendant.

Mr. Salter, that makes it tricky for you because you're now not acting as the defendant, you're making a closing argument as a lawyer. So you may argue what the evidence indicates, but again, you may not testify as to what -- to anything outside of what has actually been heard on this witness stand; does that make sense?

THE DEFENDANT: Yes.

THE COURT: Do you understand what I'm saying?

THE DEFENDANT: Yes.

THE COURT: I'm telling you this so that you may prepare your arguments tomorrow. I do not want you to get up here and then me send the jury out and tell you "I'm not going to let you argue that," and you have no idea what you're going to say then. So I'm trying to give you a chance to prepare tonight so that you're able to make an argument tomorrow.

You may, however, give your analysis of the evidence and argue any position or conclusion with respect to any matter at issue.

All right. Do you have any questions, Mr. Salter, about what would be allowed in a closing argument or not allowed.

THE DEFENDANT: No, ma'am. Evidence is allowed, correct?

THE COURT: Anything that has been put into evidence you may refer to, or anything that has been testified to from the witness stand that was admitted into evidence, okay?

Now, something I sustained an objection to, that means it was not admitted into evidence and you cannot argue that; does that make sense?

THE DEFENDANT: Yes.

THE COURT: Any other questions that you wish to ask me about what you will and will not be allowed to argue?

THE DEFENDANT: No, ma'am.

Despite these explicit instructions, Defendant began his closing argument the following day by stating, "Every time you guys left out and went back into that room, I wasn't given an opportunity to present evidence. You haven't seen all the evidence. Every piece of evidence that had, I have on file, is on file but inadmissible." The trial court interrupted Defendant, excused the jury, and gave the following admonishment:

THE COURT: Mr. Salter, I was very clear with you yesterday, that you were not to talk about anything that was not in evidence. You may not then tell the jury that there are things that you didn't get to put in. That is completely improper. If I have to stop you for doing that kind of thing again, I will assume you have nothing left to say to the jury, and we will stop right there.

You may argue -- and I took my time to be very clear so that you could prepare. You may argue anything that is in evidence, what you believe your contention is, but what you may not argue is what took place in this courtroom when the jury was not present; do you understand?

THE DEFENDANT: I understand.

After the jury returned, Defendant again attempted to discuss matters not in evidence, such as his lack of a history of domestic violence, his personal background as a father of three children, and his educational background. The trial court excused the jury for a second time and gave Defendant a final warning.

THE COURT: I will note the jury is outside the presence of the courtroom. Mr. Salter, my patience is wearing thin because I went over this with you repeatedly yesterday. You decided not the [sic] testify, and I indicated to you that you may not testify about things outside of the record in front of the jury. The next time -- listen to me carefully -- that I tell you, I will hold you in contempt, and I will begin contempt proceedings; do you understand me?

THE DEFENDANT: Yes.

THE COURT: I have indicated to you repeatedly you may not get up and say things outside of the record. You did not testify, so you may not say what your background or what your education is. That's not in record. You may not argue that that letter you didn't write. You may argue that there -- that there may not be evidence, but if there is a letter, you did not testify. You may not avoid cross-examination by testifying in the closing argument. I have been very, very clear, and I took a lot of time yesterday to explain to you what you could not do, and you said you understood; and so far, I have sent the jury out repeatedly because you're doing exactly what I told you not to do. If you violate that again, I will begin contempt proceedings. You may argue any matter that is in the record or any matter that's in evidence. You may not avoid testifying by trying to testify in your closing argument; do you understand what I'm saying to you?

THE DEFENDANT: I can testify -- I can only talk about evidence.

THE COURT: You can talk about -- you may argue that -- you may argue any contention that you have regarding the evidence that was admitted yesterday; anything that was said on the stand, any lack of evidence that you believe wasn't presented, that the State has not met their burden of proof, but you may not testify about things outside of the record; do you understand that?

THE DEFENDANT: Yes.

Upon the jury reentering, Defendant continued his closing argument and stated, "I went to Family Dollar and tried to get the video of us standing in line. They said that is a corporate matter." The trial court sua sponte objected to and sustained its objection to this statement, as it concerned matters not in evidence. Defendant's statement served as the basis for the trial court's finding of criminal contempt.

On 9 August 2017, the jury found Defendant guilty of Misdemeanor Stalking. The trial court entered Judgment on the Misdemeanor Stalking charge, imposed a sentence of 75 days imprisonment, suspended that sentence, and placed Defendant on supervised probation for 18 months. In calculating Defendant's prior record level for sentencing, Defendant stipulated both that he had a prior conviction of "No Operator's License" and that this conviction was a Class 2 Misdemeanor.

The same day, the trial court also entered a "Direct Criminal Contempt/Summary Proceedings/Findings and Order" (Criminal Contempt Order), holding Defendant in direct criminal contempt for his testimonial statements made during his closing argument and ordering him to pay a $300.00 fine within 30 days. Specifically, the trial court made the following finding of fact in its Criminal Contempt Order:

The Court finds beyond a reasonable doubt that during the proceeding the above contemnor willfully behaved in a contemptuous manner, in that the above named contemnor did repeatedly argue to jury matters outside the record and attempt to testify to the jury through his closing argument after choosing not to testify at trial. The court repeatedly told him not to do so both on 8/8/17 and on 8/9/17.

The court warned him if he did so again contempt proceedings would begin. The defendant then stated to jury "I went to the Family Dollar and tried to get the video but corporate ...." That statement was his testimony attempt again and not in evid[ence].

Appellate Jurisdiction

We note at the outset Defendant's Notices of Appeal from both the Misdemeanor Stalking Judgment and Criminal Contempt Order do not comply with the requirements of Rule 4 of our Rules of Appellate Procedure. On 9 November 2018, Defendant filed a Petition for Writ of Certiorari with this Court, seeking review of the Misdemeanor Stalking Judgment and Criminal Contempt Order.

Pursuant to Rule 21(a)(1) of our Appellate Rules, this Court possesses the authority to grant a petition for writ of certiorari and review an order or judgment entered by the trial court "when the right to prosecute an appeal has been lost by failure to take timely action ...." N.C.R. App. P. 21(a)(1). This Court has allowed for the issuance of a writ of certiorari despite technical defects in a notice of appeal by a pro se defendant in a variety of circumstances, especially where the State has not been misled by the mistake. See,...