Remand For Sanction Of ADA

A busy day yesterday in the North Carolina Court of Appeals included an appeal of a trial court order suspending an assistant district attorney 

Phillip Entzminger (“Respondent”) appeals from an order of discipline, which suspended his license to practice law for two years, with possibility of a stay of the balance of the suspension after six months. We affirm the order appealed from in part, reverse in part, and remand for further hearing on the appropriate discipline to be imposed.

The underlying matter was a DUI case assigned to the ADA on the day of trial. The defendant had a military spouse and had flown from Hawai’i for trial.

The prosecutor’s office was previously aware of the unavailability of the essential witness.

When the case was called after waiting for two days

After determining no subpoena was present in the court file or had been issued for Officer Sinclair, the trial court denied the State’s motion to continue. The State dismissed the DWI charge against Aguilar and accepted her plea on the driving after consuming while underage charge.

Then

The next day, Respondent completed a document entitled “Prosecutor’s Dismissal and Explanation” which included Respondent’s version of the reason for the State’s dismissal of the DWI:

This 2014 case was set in superior court. The analyst was unavailable due to training with the Huntersville Police Department (North Carolina). The State made a motion to continue which was denied. Oddly enough, the judge indicated the DWI case should have been set further up in calendar because defendant was from Hawaii. All defendants simply need to move out of state after being charged with a crime if that is the case.

[The State] could have proved all the elements but a superior court judge denied the motion to continue for lack of an analyst to show the .12

Judge Foster saw and reviewed the dismissal document and spoke with Officer Sinclair concerning her absence for training and learned the true history, including her prior notice of her unavailability and absence as a witness on trial day. After consulting with other judges, Judge Foster “made the decision to begin this action.” Judge Foster felt Respondent’s comments on the dismissal document “called the Court into disrepute,” and were “disrespectful,” “inappropriate,” and “unnecessary.”

Judge Foster entered an order for Respondent to show cause why he should not be held in contempt or disciplined. The order alleged Respondent: (1) showed “a disregard for the dignity of the Court”; (2) “demonstrated undignified and discourteous conduct”; (3) “[m]isled the Court by making statements he knew or should have known to be false”; and, (4) “[a]cted to create a false record.”

Bar Counsel was appointed to prosecute the contempt.

On appeal the court sustained some findings of misconduct

…competent evidence supports the superior court’s disciplinary order. Respondent made two statements to Judge Foster regarding Officer Sinclair’s availability that implicated rules 8.4 and 3.3. First, when Judge Foster questioned why Officer Sinclair was not present to testify, Respondent replied, “I could not tell you. Ms. Stroud in our office told me today that she was in Huntersville. And I want to say actually [she] has a job in Huntersville in training with the police department.” Second, in response to Judge Foster’s question to Respondent of when “did y’all know that [Officer Sinclair] was going to be unavailable,” Respondent stated, “I found out today, your Honor, at approximately 12:15.” (Emphasis supplied).

Respondent’s statements could be found to be a misrepresentation of facts that could have misled the court to believe the District Attorney’s office had learned of Officer Sinclair’s absence only that day. This potential to mislead the court may have prompted Atwood to interject and clarify Respondent’s statements, by saying, “I was made aware Monday. [Officer Sinclair] contacted our office and said she is in training with the police department.”

No misrepresentation re the court’s docket

The trial court’s finding and conclusion that this statement was a material misrepresentation of fact to the court is not supported by competent evidence. Respondent relied upon the trial docket and calendar and represented facts he believed to be true, with the qualification of “in my understanding.”

The trial court properly concluded that his apology was unavailing.

Remand was ordered because of the vacated finding of misrepresentation. (Mike Frisch)