Questions sometimes arise in criminal cases about whether a new judge may pick up duties initially undertaken by another judge who is no longer available. Consider the following scenarios.
- Trial begins with Judge A presiding. Judge A falls ill on day 3 of trial. May Judge B substitute as the presiding judge?
- Judge A presided over a suppression hearing in December 2024, just before her term expired at the end of the year. Judge A announced her ruling in open court and directed the prevailing party to prepare an order containing findings of fact and conclusions of law. Judge A did not sign the order before her term expired. May Judge B enter an order containing findings of fact and memorializing Judge A’s ruling?
- Judge A also presided over a probation violation hearing in December 2024. She determined that the defendant violated the terms of his probation, and she modified the judgment, announcing her ruling in court. She did not sign the judgment before her term expired. May Judge B sign the judgment memorializing Judge A’s decision?
The answers to the questions posed above are, respectively (1) yes, (2) no, and (3) maybe. Keep reading to learn why.
Scenario One. G.S. 15A-1224(a) permits, but does not require, a judge to order a mistrial if the judge “by reason of sickness or other disability” is unable to continue presiding over the trial without having to continue the proceeding. Subsection (b) of that statute gives the judge another option: If the judge “before whom the defendant is being or has been tried” is unable, due to “absence, death, sickness, or other disability” “to perform the duties required [ ] before entry of judgment” any other judge assigned to the court may perform those duties. G.S. 15A-1224(b). The substitute judge is, however, required to order a mistrial if he concludes that he cannot perform those duties. He may reach that conclusion because he did not preside at an earlier stage of the proceedings or “for any other reason.”
Thus, there is a straightforward statutory answer to the question in scenario one. Judge A fell ill during trial. She did not declare a mistrial. So long as Judge B is assigned to the session, Judge B may substitute as the presiding judge. If Judge B concludes that there is some reason he cannot properly preside over the trial, Judge B must order a mistrial.
The Court of Appeals applied this rule in State v. Holly, No. COA12-1557, 2013 WL 4004330, 228 N.C. App. 568 (2013) (unpublished), finding proper the temporary substitution of another judge during defendant’s trial. In Holly, the presiding judge became ill and was unable to preside over the portion of the trial that included the State’s closing argument. A substitute judge presided in his stead. Following the State’s closing argument, the original trial judge returned to the bench and presided over the remainder of the trial. The Holly Court noted that G.S. 15A-1224(b) allows another judge to perform duties that the presiding judge cannot perform due to sickness or other disability. It concluded that the statute did not require that the presiding judge be “fully debilitated for the remainder of the trial in order for another judge to properly step in and perform judicial duties during a portion of the trial.” Id. at *11. Thus, the court held that the return of the original judge later in the day of the substitution did not render the substitution improper.
Scenario Two. Recall that in scenario two, Judge A presided over the suppression hearing and announced her ruling, but left office before entering an order. The question is whether another judge may enter an order making findings of fact and memorializing Judge A’s ruling. As previously revealed, the answer is no. Why? First, while G.S. 15A-1224(b) authorizes the substitution of another judge when the judge “before whom the defendant is being or has been tried” is unable to complete his duties, it does not authorize the substitution of a judge to enter an order memorializing a ruling on a motion made by another judge. See State v. Bartlett, 368 N.C. 309, 313 (2015) (“By its plain terms, subsection 15A–1224(b) applies only to criminal trials, not suppression hearings.”).
Second, when a motion to suppress raises a material conflict in the evidence, the trial court must resolve those conflicts by making explicit factual findings that show the basis for the trial court’s ruling. Id. at 312-13 (concluding that G.S. 15A-977 “contemplates that the same trial judge who hears the evidence must also find the facts.”). The trial court may make those findings orally or in writing, but in either case they (and the court’s ruling) must be made a part of the record. Id. (deeming an oral ruling inadequate as it did not contain a definitive finding of fact that resolved the material conflicts in the evidence; noting that without such a finding, there can be no meaningful appellate review); cf. State v. Ditty, 294 N.C. App. 178, 186–87 (determining that the trial court’s ruling on the defendant’s motion to enforce the plea agreement was rendered when it was announced in open court, but was never entered because there was no entry indicating that the order was “spread upon the record” by the clerk through the ministerial act of filing or recording (internal citations omitted)), temp. stay allowed, ___ N.C. ___, 901 S.E.2d 774 (2024)).
Importantly, only the trial judge who heard the evidence may find the facts. Bartlett, 368 N.C. at 313. This is because the presiding judge “‘sees the witnesses, observes their demeanor as they testify and by reason of his more favorable position . . . is given the responsibility of discovering the truth.’” Id. (quoting State v. Smith, 278 N.C. 36 (1971)). In Bartlett, the North Carolina Supreme Court held that a judge who did not conduct a suppression hearing lacked the authority to subsequently enter a written order resolving an evidentiary conflict. There, a superior court judge conducted a suppression hearing in December 2012, orally granted the defendant’s motion to suppress without making definitive findings of fact, and asked counsel to prepare a written order. The judge was not able to sign the proposed order before his term of office expired. The defendant subsequently presented the proposed order to another superior court judge who signed it without hearing any evidence himself. The order found that the defendant’s expert was credible, gave weight to the expert’s testimony, and used the expert’s testimony to conclude that the defendant’s arrest was not supported by probable cause. The State appealed. The state supreme court held that the second judge lacked authority to enter the order and remanded the matter for a new suppression hearing. The court noted that a trial court “is in no better position than an appellate court to make findings of fact if it reviews only the cold, written record,” and rejected an interpretation of G.S. 15A-977 that “would diminish the trial court’s institutional advantages in the fact-finding process.” Id. at 313; but cf. State v. McCord, ___ N.C. App. ___, 906 S.E.2d 538, 541 (2024) (concluding that a judge in a Miller v. Alabama resentencing hearing may make credibility findings regarding the evidence offered at the trial to support his sentencing decision even when that judge was not the presiding judge at trial).
Scenario Three. Recall here that Judge A presided over a probation violation hearing in December 2024. She determined that the defendant violated the terms of his probation, and she modified the judgment, announcing her ruling in court. She did not sign the judgment before her term expired. May Judge B sign the judgment memorializing Judge A’s decision? The answer to this question is not entirely clear.
In civil matters, Rule 63 of the North Carolina Rules of Civil Procedure authorizes a designated substitute judge (typically the most senior resident superior court judge or, in district court, the chief district court judge) to perform certain ministerial duties–including entry of judgment–following a trial or hearing presided over by a judge who can no longer perform her duties. To the extent that any judgment signed by Judge B conformed with Judge A’s oral pronouncement, the entry of that judgment would be ministerial. See State v. Miller, 368 N.C. 729, 737 (2016) (“[R]endering a judgment or an order means to pronounce, state, declare, or announce the judgment or order, and is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy. . . . Entering a judgment or an order, on the other hand, is a ministerial act which consists in spreading it upon the record.”) (internal citations omitted)); see also G.S. 15A-101(4a) (providing that “[j]udgment is entered when sentence is pronounced.”). Yet G.S. 15A-1224, titled “Death or disability of trial judge,” and codified in Article 73 of Chapter 15A, titled “Criminal Jury Trial in Superior Court” is more specific and thus has more limited application than Rule 63. G.S. 15A-1224(b) applies when the judge “before whom the defendant is being or has been tried,” is unable to perform the duties required of him before entry of judgment. And subsection (a) of the statute clearly applies only in the trial context as it authorizes a judge to declare a mistrial if the judge is unable to continue presiding. The Bartlett Court noted the limitations of G.S. 15A-1224, opining that it “only applied to criminal trials, not suppression hearings.” 368 N.C. at 313.
Even if G.S. 15A-1224(b) does not extend to suppression hearings, might it extend beyond the confines of a trial setting to allow a substitute judge to perform the ministerial act of entering judgment when the judgment does not follow a trial? Perhaps, but neither the statute nor case law recognizes such an extension or its reach. It might also be the case that Judge B could exercise inherent authority in these circumstances, entering judgment to ensure that the court’s records accurately reflect its actions. Cf. State v. Cannon, 244 N.C. 399, 403 (1956) (“It is universally recognized that a court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record . . “); State Tr. Co. v. Toms, 244 N.C. 645, 650 (1956) (“It is well settled that in any case where a judgment has been actually rendered, or decree signed, but not entered on the record, in consequence of accident or mistake or the neglect of the clerk, the court has power to order that the judgment be entered up nunc pro tunc, provided the fact of its rendition is satisfactorily established and no intervening rights are prejudiced.” (internal quotations omitted)); see generally Michael Crowell, Inherent Authority, Administration of Justice Bulletin No. 2015/02 (UNC School of Government November 2015). Our appellate courts have not considered whether the later entry of a judgment by a substitute judge is a proper exercise of judicial authority; that act is akin to but extends beyond the judge’s actions in Cannon, which involved the judge entering findings in the minutes about what transpired at his trial, and in State Trust Co., where the judge ordered the clerk to correct the minute docket to conform to the facts. Given the lack of clarity, the safer course of action may be for Judge B to rehear the matter, assuming that probation has not expired in the interim.