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In re Inquiry Concerning A No. 198 George T. Fuller12/5/1996
ORDER REJECTING CENSURE.
The evidence stipulated to and presented during these proceedings shows the facts to be as follows:
On 9 June 1995, respondent presided over a trial in which the defendant was charged with failure to stop for a stopped school bus in violation of N.C.G.S. § 20-217. The defendant entered a plea of not guilty. Respondent, after hearing the evidence offered by the State, felt there was insufficient evidence to convict the defendant of the charge of passing a stopped school bus. Respondent's testimony before the Judicial Standards Commission, which was uncontroverted, is set out below:
On the Conclusion of the testimony of [the State's witnesses], the State rested. Mr. Homesley made a motion to dismiss at the close of the State's evidence. At that time it was my feeling that under the circumstances and facts of this situation that it was a young and inexperienced driver, it was a bus stop located in a place where visibility was poor, and that all of the evidence from the State's witnesses indicated it was not a deliberate act of not wanting to stop but being unable to stop due to the speed.
It was my opinion at that point that it was more appropriate as an exceeding safe speed or some type of speeding situation than a passing stopped school bus violation.
I called the counsel, Mr. Homesley and Ms. Gullett, to the bench and inquired as to whether the defendant would be willing to enter into some lesser plea. Mr. Homesley spoke with his client and told the court that his client would enter a plea of exceeding safe speed. At that point Ms. Gullett inquired as to whether the court intended to accept the plea that they had -- that the State had rejected in pretrial negotiations.
At that point I told her that was my intention. Mr. Homesley tendered the plea. I announced that the court accepted it and entered judgment accordingly.
Subsequently, on 12 October 1995, respondent was asked to rule on a motion for appropriate relief concerning the above matter, which had been filed by an assistant district attorney on 15 June 1995. Respondent testified concerning the motion for appropriate relief as follows:
I was considering the facts of the case at the time that I entered -- accepted the plea and entered the judgment and was attempting to make the facts fit the offense, what I felt had taken place, and was more interested in doing Justice than I was in technically following the law.
When I received the motion for appropriate relief, I immediately saw that it was based on meritorious grounds; that it was not in fact a lesser included offense and I granted the motion to set aside. At that point there had been no verdict by the court at the close of the State's evidence. There had been a plea. I accepted that plea; and when I set aside that plea, we were back at the close of the State's evidence.
Mr. Homesley was present and Ms. Gullett was present. And if I recall correctly, I said that, "We've heard State's evidence. Is there anything that you wish to offer, Mr. Homesley?" And he said no and entered a verdict of not guilty, which is what I should have done back in June under the facts of this case, under the circumstances as I saw them at that time.
Based upon these and other findings of fact and Conclusions of law, the Commission recommended that this Court censure the respondent.
A proceeding before the Judicial Standards Commission is "an inquiry into the conduct of one exercising judicial power . . . . Its aim is not to punish the individual but to maintain the honor and dignity of the judiciary and the proper administration of Justice."
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