North Carolina Criminal Law NC Criminal Law

Two cases this month from the Court of Appeals, one published and one not, offer different perspectives on the meaning of an appeal for a “trial de novo” in superior court. Neither of the cases speaks directly to what a trial de novo is, but they offer an opportunity to think about the difference between an ordinary appeal and an appeal for a trial de novo. It also is an opportunity to note that lawyers and courts seem to confuse the concept of trial de novo when it comes to appeals of contempt.

To remind you, misdemeanors are first tried before a judge in district court. If the defendant is acquitted, that’s the end of the case. If convicted, the defendant may appeal to superior court for a trial de novo, this time with a jury. The state saves considerable money and time in prosecuting misdemeanor cases because the district court trial is without a jury or court reporter and most defendants accept the verdict there, while the constitutional right to a jury is preserved by the option of carrying the case to superior court.

But what exactly is a trial de novo? It doesn’t take much Latin to understand that de novo means new, so the concept is a new trial. It’s still an appeal, though, so does that limit how new the new trial is to be?

The answer is no. The most commonly stated explanation of appeal to superior court for a trial de novo is that “it is as if the case had been brought there originally and there had been no previous trial.” State v. Sparrow, 276 N.C. 499, 507 (1970). Or, put another way, “The judgment appealed from is completely annulled and is not thereafter available for any purpose.” Id. The appeal to superior court, unlike an appeal to the Court of Appeals or Supreme Court, is not an appeal on the record. It is not an appeal based on error in the district court; it is an appeal of right. The appeal is available even if the defendant pled guilty in district court. “It is a new trial as a matter of absolute right from the beginning to the end. It totally disregards the plea, trial, verdict, and judgment of the District Court.” State v. Brooks, 287 N.C. 392, 405 (1975).

The United States Supreme Court has characterized the verdict in the lower court in a trial de novo system as “no more than an offer in settlement” of the state’s case. Colten v. Kentucky, 407 U.S. 104, 119 (1972). The defendant is free to either accept the offer or appeal and seek the decision of a jury in superior court. As the North Carolina Supreme Court has said:

The purpose of our de novo procedure is to provide all criminal defendants charged with misdemeanor violations the right to a ‘speedy trial’ in the District Court and to offer them an opportunity to learn about the State’s case without revealing their own. In the latter sense, this procedure can be viewed as a method of ‘free’ criminal discovery.

Brooks, 287 N.C. at 406.

Because the appeal is a trial de novo and the slate is wiped clean of the district court proceedings, the superior court may impose a harsher sentence than the defendant received below. Colten v. Kentucky, supra; State v. Sparrow, supra. The defendant may not be questioned about having pled guilty in district court. State v. Overby, 4 N.C. App. 280 (1969). Nor may the defendant be asked about failing to testify in district court. State v. Ferrell, 75 N.C. App. 156 (1985). On the other hand, the state is no longer bound by a plea bargain which allowed the defendant to plead to a lesser charge in district court; it may proceed on the original charge in superior court. State v. Fox, 34 N.C. App. 576 (1977).

Remember that the appeal for trial de novo to superior court is an appeal as a matter of right; it is not based on legal error in the district court. Consequently, procedural defects in the district court, even constitutional violations, are irrelevant to the new trial in superior court. Thus, for example, it does not matter whether the defendant was denied the right to introduce evidence in district court; the trial de novo provides that opportunity and preserves the defendant’s rights. State v. Williams, 41 N.C. App. 287 (1979).

Now, to this month’s two opinions from the Court of Appeals. The first, State v. Macon, is consistent with all we have just said about the meaning of a trial de novo. Macon — about which my colleague Shea Denning already has blogged for other reasons — actually was about a mistrial and whether at the new trial the judge was bound by a ruling of the judge in the first trial on jury instructions. The Court of Appeals said no, the rule about one trial judge not overruling another (discussed in excruciating detail in this bulletin), did not apply in this situation because “’the new trial is “[a] trial de novo, unaffected by rulings made therein during the [original] trial.”’” (quoting Burchette v. Lynch, 139 N.C. App. 756, 760 (2000)). That explanation of a trial de novo following a mistrial is exactly what one would expect from the case law about trial de novo on appeal to superior court.

The second Court of Appeals opinion, the unpublished one, however, is hazier on the trial de novo concept. In re Foster involved an Asheville lawyer who apparently missed all those classes on professionalism and civility and also apparently learned just enough about the First Amendment to think she could say anything she wanted anytime she wanted. She got this case started by repeatedly cursing a magistrate at the county jail, generously mixing in the f-word with other insults. The magistrate responded by summarily holding the lawyer in criminal contempt (and then overreacted by setting a $10,000 cash-only bond when the lawyer announced she was appealing the contempt).

Under the criminal contempt statutes an appeal from a magistrate is to superior court for a hearing de novo. That is, a new trial altogether. When the appeal went to superior court, however, the testimony covered the magistrate’s behavior as well as that of the lawyer, including whether the magistrate had warned the lawyer about being held in contempt and given her a chance to respond. Even when direct criminal contempt is being dealt with summarily, the judicial official has to pause, tell the defendant that contempt is on the table, and give the defendant a chance to respond why sanctions should not be imposed.

The superior court found the lawyer in contempt, but the Court of Appeals reversed. It did so because the magistrate failed to give the lawyer the opportunity to say why contempt sanctions should not be imposed. But missing from the briefs and from the opinion is discussion of why the magistrate’s handling of the contempt mattered if the lawyer got a hearing de novo in superior court. Remember, an appeal to superior court for a trial de novo is not an appeal on the record, it is not based on error by the magistrate. It is an altogether new proceeding, one purpose of which is to protect any rights denied at the original hearing. The defendant lawyer’s right to explain why contempt was not appropriate was preserved by the new hearing in superior court.

The unusual circumstances of Foster probably explain why the Court of Appeals viewed the appeal to superior court more like an appeal on the record than a de novo proceeding. Upon being held in contempt by the magistrate on Saturday evening the lawyer was taken straight to jail and could not post the $10,000 cash bond. She remained locked up until the bond was changed Monday morning by a judge. Thus, even though the subsequent contempt hearing in superior court was de novo, she already had served part of the five-day contempt sentence. Indeed, when the superior court found her in contempt the judge ordered that she be jailed for 48 hours but then gave credit for that amount of time already served.

Given those facts, it is not surprising that everyone involved in the appeal to the Court of Appeals focused on the propriety of the magistrate’s original decision on contempt rather than on the de novo aspect of the superior court proceeding. Still, the case creates some confusion about the meaning of an appeal for a trial de novo. And it reinforces my perception that lawyers handling appeals of contempt from magistrates and district court often want to argue about the procedure followed by the magistrate or district judge even though the superior court hearing is de novo. Apparently it is the immediacy of the contempt sanction, the fact that the offender may have already sat in jail for a while, that triggers the sense that one cannot really start over.

(As a footnote, a bill pending in the General Assembly would require review of the bail bond within 24 hours of the defendant being jailed for criminal contempt. The bill met the crossover deadline and remains eligible for final action this session.)