OPINIONS

Continued

From

Inc. v. Woodcock (Lawyers Weekly No. 020022-23, 23 pp.) (Mark Davis, J.) Nathan Huff and Anderson Shacklefort for plaintiff; Douglas Harris and Krispen Culbertson for defendants. 2023 NCBC 22

Criminal Practice

Constitutional – Confrontation Right – Unavailable Witness – Probable Cause Hearing Testimony

At the time of defendant’s trial for kidnapping and attempted human trafficking of a minor, the state was unable to find the victim, “Amy.” Over defendant’s objection, the trial court allowed the state to enter into evidence Amy’s testimony from defendant’s probable cause hearing. Where (1) after the probable cause hearing, the state increased the kidnapping charge against defendant from second-degree to first-degree and added the attempted human trafficking of a minor charge; (2) after the probable cause hearing, discovery revealed important discrepancies between Amy’s testimony at the hearing and her earlier statements to police; and (3) at the probable cause hearing, the court imposed significant limitations on defendant’s sole opportunity to cross-examine Amy, the trial court erred by ruling that Amy’s prior testimony was admissible under the Confrontation Clause.

We vacate defendant’s convictions for first-degree kidnapping and attempted human trafficking of a minor involving sexual servitude.

This case is distinguishable from State v. Ross, 216 N.C. App. 337, 720 S.E.2d 403 (2011), disc. review denied, 366 N.C. 400, 735 S.E.2d 174 (2012), in which we held that the trial court did not err in admitting an unavailable witness’s prior testimony from a probable cause hearing. In Ross, the defendant argued that “he had no meaningful opportunity to cross-examine [the witness] at the probable cause hearing because the various charges had not yet been joined, [his] lead trial counsel had not yet been appointed, and his counsel at that time had not yet had an opportunity to review all the discovery.”

Here, the state eventually tried defendant on two different, greater felony charges than those he faced at the time of the probable cause hearing. Therefore, defendant’s motives to cross-examine Amy at the probable cause hearing were necessarily different than they would have been at this trial.

While it is true that our courts have never held that discovery must be complete for a cross-examination opportunity to be adequate, we cannot, in good faith, ignore the significance of discovery timelines in a case such as this. At the probable cause hearing, defense counsel lacked information about a litany of meaningful inconsistencies in Amy’s testimony, and the trial court limited counsel’s ability to test Amy’s credibility and recall.

On top of these limits, the trial court further limited counsel’s cross-examination of Amy precisely because it was only a probable cause hearing. The repeated invocation of procedural posture regarding the previous proceeding directly implicates the constitutional inadequacy of defendant’s prior opportunity to cross-examine Amy. We agree with defendant that the district court’s limitations of his cross-examination at the probable cause hearing “thwart[ed] any full and effective opportunity to cross-examine Amy.”

We emphasize, however, that these are highly case-specific determinations. Our holding should not be construed as an attempt to quantify or otherwise categorically resolve the issue of what constitutes a “constitutionally adequate” prior opportunity for cross-examination during a probable cause hearing, where the testifying witness subsequently becomes unavailable for trial.

Because the state has made no argument that the constitutional error in question was harmless beyond a reasonable doubt, the error is prejudicial and entitles defendant to a new trial.

Vacated and remanded.

State v. Smith (Lawyers Weekly No. 012025-23, 19 pp.) (Valerie Zachary, J.) Appealed from Durham County Superior Court (Michael O’Foghludha, J.) Jasmine

McGhee for the state; Wyatt Orsbon for defendant. N.C. App. Unpub.

Domestic Relations

Parent & Child – Civil Practice – Notice of Expert Witnesses –Appeals

Even though N.C. R. Civ. P. 26 does not set a specific time for a litigant to give an opposing party notice of the litigant’s expert witnesses, the Rules of Civil Procedure nevertheless foster openness and discourage unfair tactical advantages. The trial court did not abuse its discretion when it excluded expert witness testimony and reports that the defendant-Father did not reveal until the day of trial.

We affirm the trial court’s orders regarding Father’s expert witnesses and child custody.

Rule 11

Where the transcript shows that Father “submitted” the information regarding his proposed expert witnesses and their reports for consideration at parties’ custody trial, the trial court erred in excluding the reports from the record on appeal. N.C. R. App. P. 11 requires exclusion from the appellate record of materials that were not “filed, served, submitted for consideration, admitted, or made the subject of an offer of proof.” Materials presented in any of these ways need not be excluded from the appellate record.

Because the trial court erred in settling the record by excluding Father’s proposed expert materials which were served on the plaintiff-Mother at the trial, we grant Father’s petition for writ of certiorari, reverse the trial court’s order settling the record on appeal, and thus include the expert witness materials attached to his petition as a Rule 11(c) supplement to the record on appeal.

Expert Witness Order

Nonetheless, the rule does require advance disclosure of expert witnesses who will testify at trial, even without a discovery request, discovery plan, or court order. Additionally, the trial court has inherent authority to impose a sanction for failure to disclose sufficiently in advance of trial. The trial court has discretion to allow or to exclude an expert’s evidence or to impose another sanction for the failure to disclose. When making its discretionary determination of whether Father failed to disclose his experts sufficiently in advance of the trial, the court was required to determine whether Father’s delay gave him an unfair tactical advantage at trial or defeated the purpose of providing openness as contemplated by Rule 26(b).

Dr. Avram Mack’s potential testimony and report and Dr. Evans Harrell’s potential testimony were both first disclosed by Father on the first day of trial. It appears Father had multiple psychological evaluations yet only have intended to call the experts who offered favorable reports. The trial court did not abuse its discretion in excluding this evidence.

Dr. Roger Moore’s report was prepared based upon a consent order and was served upon Mother over a year prior to trial. Moreover, it is not entirely clear that Mother objected to this evidence.

But even if we assume arguendo that the trial court erred by excluding Dr. Moore’s evidence, Father has not demonstrated any prejudice from exclusion of this expert witness. We have reviewed Dr. Moore’s report, and it is not apparent this evidence might have led the trial court to rule differently upon Father’s decision-making authority or visitation schedule.

Custody Order

Father does not specifically attack any of the trial court’s findings of fact or conclusions of law, but he argues that the trial court erred by granting Mother primary legal and physical custody. However, the court made this decision after finding that Mother had made great efforts to ensure a stable, balanced, and healthy lifestyle for “Charlie,” and that Mother was “the primary caregiver” of Charlie. Mother was able to provide a greater degree of flexibility and support in her caretaking of Charlie and was able to leverage her local family for additional support. The trial court recognized Father had also taken good care of Charlie but determined Mother was in a better position to understand Charlie’s medical, educational, and social needs.

Ultimately, when two parties are unable to effectively communicate or resolve a decision, there necessarily must be a way to defeat any stalemate as to any significant decision in Charlie’s life. The trial court did not abuse its discretion in awarding Mother primary physical and legal custody of Charlie, including final decision-making authority should Mother and Father be unable to agree as to important decisions regarding Charlie’s health, wellbeing, and education.

Affirmed.

Aman v. Nicholson (Lawyers Weekly No. 011-027-23, 40 pp.) (Donna Stroud, C.J.) (Jeffery Carpenter, J., concurring in part & concurring in result only in part without separate opinion) Appealed from Halifax County District Court (William Farris, J.) Lloyd Smith, Jr., and Lloyd Smith, III, for plaintiff; Michael Harrell for defendant. N.C. App.

Domestic Relations

Parent & Child – Support Action –Attorney’s Fee Award – Supporting Party

Because this action was one solely for child support and the plaintiff-father was the party ordered to pay support, the trial court could not award attorney’s fees to plaintiff, notwithstanding findings of fact that (I) plaintiff was a party acting in good faith and does not have sufficient means to pursue the action; (II) plaintiff has paid reasonable child support since separation; and (III) defendant unnecessarily increased plaintiff’s attorney’s fees by her actions. We are constrained by our precedent to reverse the trial court’s award of attorney’s fees to plaintiff.

We affirm the trial court’s child support award but reverse its attorney’s fee award.

In order to award attorney’s fees under

G.S. § 50-13.6, when an action is one for child custody or custody and support, a trial court need only find the party awarded fees be an interested party acting in good faith who has insufficient means to defray the expense of the suit. On the other hand, when the action is one solely for child support, prior to making an award of fees, a trial court is required to make an additional finding: “the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action or proceeding.”

Hudson v. Hudson, 299 N.C. 465, 263 S.E.2d 719 (1980).

Even though custody was also an issue in this case, since the parties resolved the custody issue by consent order before going to trial on the support issue, the trial court was required to make the additional finding. The trial court did not make this finding. Indeed, the trial court expressly found plaintiff—the party ordered to furnish support—“has paid reasonable child support since separation[.]” Moreover, the trial court did not—and on the facts of this case, clearly would not—find plaintiff as the supporting party had initiated a frivolous action or proceeding, which would otherwise justify an award of fees to an interested party under the language of the statute.

Thus, the trial court did not make the findings required by § 50-13.6 to award attorney’s fees when—by the time of trial—this was solely an action for child support. Therefore, the trial court did not have statutory authority to make an award of attorney’s fees in this case.

We acknowledge the potential for gamesmanship our case law creates. Here, the trial court’s order reflects it was defendant’s intransigence on the issue of child support that prolonged this litigation and resulted in this matter converting to one that was solely an action for support in which plaintiff was functionally precluded from recovering his attorney’s fees. On the other hand, there would appear to be at least some disincentive (really on the part of any party) to settle child custody issues

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