DISCIPLINARY HEARING COMMISSION OF THE 13 DHC 11

1 NORTH CAROLINA COUNTY OF WAKE BEFORE THE DISCIPLINARY HEARING COMMISSION OF THE NORTH CAROLINA STATE BAR 13 DHC 11 E-X-C-E-R-P-T THE NORTH CAROLINA STATE BAR, ) ) PARTIAL TESTIMONY Plaintiff, ) OF ) KIMBERLY ROBB -vs- ) (relating to firing ) of Faris Dixon) DAVID C. SUTTON, Attorney, ) ) Sept. 17, 2014 Defendant. ) --------------------------------- The North Carolina State Bar 217 E. Edenton Street Raleigh, North Carolina 27601 May 5 through May 9, 2014 June 9, 10, 11, 2014 July 18, 2014 September 16, 17, 18, 2014 Hearing Panel: CHAIRMAN: ATTORNEY MEMBER: PUBLIC MEMBER: Fred M. Morelock Post Office Box 1151 Raleigh, North Carolina 27602 Irvin W. Hankins, III Three Wachovia Center 401 S. Tryon Street, Suite 3000 Charlotte, North Carolina 28202 Karen B. Ray 119 Hickory Hill Road Mooresville, North Carolina 28117 Reported by: Amy L. Poythress, CVR-M 3404 Morningside Drive Tel: 919/881-2000 Raleigh, NC 27607 TriangleRep@aol.com

2 A P P E A R A N C E S Appearing on Behalf of the Plaintiff: Carmen Hoyme Bannon Mary D. Winstead Deputy Counsel The North Carolina State Bar 217 E. Edenton Street (27601) Post Office Box 25908 (27611) Raleigh, North Carolina cbannon@ncbar.gov mwinstead@ncbar.gov Appearing on behalf of the Defendant: David C. Sutton, Pro se Sutton Law Offices, P.A. 105-B Regency Boulevard Greenville, North Carolina 27834 (252)756-7124 lawyer1@davecsuttonlaw.com - - - - - - - - Quoted material is verbatim and may/may not reflect a direct quote. - - - - - - - - Proper nouns may be spelled phonetically - - - - - - - -

3 1 P R O C E E D I N G 2 [Court Reporter's Note: The following is partial 3 testimony of Kimberly Robb, taken on September 17, 4 2014, in the Disciplinary Hearing Commission 5 proceeding regarding The North Carolina State Bar 6 versus David C. Sutton, Attorney.] 7 [Witness Kimberly Robb was called as a witness by 8 the State Bar at 3:09 p.m.; she was duly sworn and 9 was on direct examination by Ms. Winstead until a 10 recess was taken from 3:41 p.m. to 3:51 p.m.] 11 [Recess - 3:41 p.m. to 3:51 p.m.] 12 CHAIRMAN MORELOCK: We're back on the 13 record. 14 CROSS-EXAMINATION 15 BY MR. SUTTON: 3:51 p.m. 16 Q Ms. Robb, the Lopez case, haven't you 17 testified previously that it wasn't a particularly 18 strong case for the prosecution? 19 A That's correct. 20 Q And even good prosecutors lose cases. 21 A Yes, sir. 22 Q And if it's not a particularly strong 23 case, there's a fair chance you might not get a 24 beyond a reasonable doubt, right? 25 A That, or what we usually try to do, which

4 1 I did in this case, was offer to plea to a 2 misdemeanor to try to resolve it. 3 Q And you understood that he was a 4 registered nurse and he couldn't take that because 5 he would lose his license at his job at the hospital 6 in this case, right? 7 A I don't remember that. I'm sure there 8 were reasons that that happened. I knew he was a 9 registered nurse because he works for my husband. 10 Q I was going to say, your husband is a 11 doctor. If somebody is convicted of sexual 12 assaulting a minor, are they going to allow them to 13 be a nurse at that hospital? 14 A I don't know what their rules are. He 15 doesn't work at the hospital. 16 Q Okay. Your husband doesn't? 17 A No. 18 Q But you do know that Mr. Lopez was a 19 registered nurse. 20 A I do. 21 Q And Mr. Lopez -- you didn't even ever make 22 that offer to me, though, did you, Ms. Robb? 23 MS. WINSTEAD: Objection. 24 CHAIRMAN MORELOCK: How is that relevant? 25 MR. SUTTON: Well, she brought it up. She

5 1 said that -- the thrust of all the witnesses, 2 and it's obvious that it's a joint cooperative 3 effort, is to say I make things longer, I don't 4 work with people. She said that she tried to 5 work it out when, in fact, she never made that 6 offer to me. 7 I think I'm entitled to ask it because 8 they -- 9 CHAIRMAN MORELOCK: Overruled. 10 MR. SUTTON: Thank you. 11 A He had prior counsel, Witt Powell, and 12 Wayland Sermons, and Mark Owens, and all of us had 13 conversations and they told me that he would not 14 take it. 15 Q Exactly. So by the time he got to me, he 16 had gone through multiple attorneys, and you had 17 made the offer and through his previous attorneys he 18 had turned it down. 19 A That's correct. 20 Q So obviously it didn't make sense to offer 21 it again knowing he turned it down more 22 than -- probably more than once before. 23 A Yes, with all the other attorneys. 24 Q Okay. So -- okay. So there was no 25 argument or anything about a plea between you and I

6 1 in this case; it was just going to trial. 2 A That's the best I can remember. 3 Q Now, ma'am, if it wasn't a particularly 4 strong case, is there anything unusual about the 5 fact that it came back not guilty, talking about the 6 Lopez case? 7 MS. WINSTEAD: Objection. 8 CHAIRMAN MORELOCK: Overruled. 9 A No. 10 Q Well, the Bar is trying to prove that 11 somehow I did something, I suppose, I don't know 12 exactly, that I -- 13 MS. WINSTEAD: Objection. 14 CHAIRMAN MORELOCK: Overruled. 15 Q -- that I did something that obstructed or 16 impeded justice, and if it wasn't a particularly 17 strong case and he got found not guilty, you can't 18 say that anything I did affected the outcome of the 19 case, can you? 20 A I absolutely can say that it did. 21 Q I thought you just said it wasn't a 22 particularly strong case and it wouldn't be unusual 23 for a not-particularly-strong case to come back not 24 guilty. 25 A Your behavior left every one of those

7 1 jurors, every one of those witnesses, probably your 2 clients, the court reporter, the clerk, with a 3 distaste that they had probably never experienced 4 before, and an opinion of the court system that was 5 much, much poorer than it was when they walked in 6 there. 7 Q Well, Ms. Robb, maybe it's a matter of 8 perspective. When I was asking you about the 9 administration of justice, it was a criminal case 10 where a jury determines guilt or innocence, and 11 maybe I should have phrased my question better. 12 Are you saying that -- given that you said 13 it wasn't a particularly strong case, and that not 14 particularly strong prosecution cases come back not 15 guilty, you can't say that anything I did affected 16 the jury coming back not guilty, can you? 17 A I can't say that, no, I cannot say that. 18 I think that your behavior did affect the outcome. 19 I think your -- you interrupted me so many times in 20 my closing argument that I couldn't even get my 21 argument across to the jury. 22 Q Ma'am -- 23 A Now, whether it would have made a 24 difference, I don't know. But it was unnecessary. 25 Q And that's my point. Whether you liked it

8 1 or not, whether it was unnecessary, you can't say 2 that it had any affect on the outcome of the jury 3 verdict. 4 A I wasn't on the jury, so I wouldn't know. 5 Q So -- and that's been kind of my 6 objections all along, is you don't have any idea 7 whether anything I did affected any legal decision 8 by the jury. 9 A I don't have any knowledge about that. I 10 do know that I still have people come up and ask me 11 about you and your behavior in that trial. 12 Q Have any of the jurors ever come up and 13 said, "Ms. Robb, I found not guilty because Sutton's 14 horrendous conduct"? 15 A I remember hearing something about -- I do 16 remember hearing that closer to when the trial was, 17 that they felt like your behavior was so outlandish 18 that they felt sorry for your client. 19 Q So -- 20 A And even your own client's wife said that. 21 Q So they felt so sorry -- my behavior was 22 so outlandish you think they found him not guilty? 23 A I think it went towards your side; I do. 24 Q I was so bad that they found him not 25 guilty?

9 1 A Your behavior was so bad. 2 Q So the jury -- you're saying that people 3 came and said the jurors thought my behavior was 4 awful, so they found my client not guilty. 5 A I think they felt sorry for your client. 6 Q So you think 12 people disobeyed the law 7 that they are given by the jury [sic], their solemn 8 oath? 9 A By the judge, you mean? 10 Q Yeah, by the judge, excuse me. 11 A I think that if it was a close case, and 12 it was, I knew that went into it; that your behavior 13 more than likely made them feel sorry for your 14 client. I even felt sorry for your client, to be 15 honest with you. 16 Q How many cases, Ms. Robb, have you 17 surmised that the jurors were so affected by the 18 misbehavior of defense counsel that they came back 19 not guilty? 20 MS. WINSTEAD: Objection. 21 CHAIRMAN MORELOCK: Sustained. 22 Q Ms. Robb, this case was set to go to trial 23 once before it actually went to trial, with me as 24 counsel; I don't know how many times before that. 25 But do you recall that?

10 1 A At least once. I do recall that. 2 ATTY MEMBER HANKINS: By "this case," are 3 you referring to the Lopez case? 4 MR. SUTTON: Yes, sir, Mr. Hankins. 5 Q And, ma'am, why did you think it was 6 proper for you to call my personal physician when I 7 was out sick? 8 MS. WINSTEAD: Objection. 9 CHAIRMAN MORELOCK: Overruled. 10 A When you did not show up, your paralegal 11 brought a note that you were sick. Judge William 12 Griffin was the judge. Judge Griffin, as he is, 13 he's hard on everybody in the courtroom, or was, he 14 ordered me to call your physician to verify whether 15 or not you actually could not come to court. He 16 ordered me. A superior court judge standing in 17 front of me. I was in the courtroom, I used the 18 clerk's phone. 19 Q Ma'am, isn't it true that when the 20 discussion of me being out sick -- oh, excuse me. 21 Scratch that. 22 My client was physically in the courtroom, 23 correct? 24 A I believe he was. 25 Q And, ma'am, when it was discussed in open

11 1 court that I was out sick, you and Judge Griffin 2 were generally laughing it up about my allegedly 3 being out sick, right? 4 A I never laughed in front of Judge Griffin. 5 He scared me. 6 Q Ma'am, were you there when Judge Griffin 7 said that if he had to come get me on a stretcher 8 the trial was going to start the next day? 9 A I sure did. 10 Q Were you there also when he said there was 11 going to be a trial for Mr. Lopez with or without 12 David Sutton there? 13 A That sounds like something he would say. 14 Q Were there people there to witness this? 15 A Yes. 16 Q Do you think that had a positive impact on 17 the impression of the public upon our profession? 18 MS. WINSTEAD: Objection. 19 CHAIRMAN MORELOCK: Sustained. 20 Q Ma'am, in going back to the public 21 perception in Pitt County, tell me how, Ms. Robb, 22 you can tell the difference between any negative 23 perception generated by what I've done versus all 24 the horrid press about you firing Faris Dixon. 25 A I didn't fire Faris Dixon. He resigned.

12 1 And part of what I do, I'm going to have bad press, 2 Mr. Sutton. I accept that. 3 Q But he resigned after you let the press 4 know that you had initiated an SBI investigation of 5 him, right? 6 MS. WINSTEAD: Objection. 7 A No. 8 CHAIRMAN MORELOCK: Sustained. 9 Q Ms. Robb, without going into the details 10 of Mr. Dixon's thing, is it not fair to say that 11 there is extreme anger within the community in Pitt 12 County over the situation with Faris Dixon? 13 MS. WINSTEAD: Objection. 14 CHAIRMAN MORELOCK: Sustained. 15 Q How can you tell the difference, ma'am, 16 between the public's negative image for anything 17 that I may have done and things that other people in 18 the profession have done that's been in the press? 19 A Everybody does things that are perhaps 20 perceived differently. I'd need more specifics 21 about what you're talking about. 22 Q Ma'am, you read the paper, you're there. 23 You know what's on the chat boards. It's obvious 24 they don't want me to go into details. You know 25 that the stories about me are one of many stories in

13 1 Pitt County that reflect negatively on our 2 profession. 3 And I'm asking you how it is that you can 4 sit here and say that what I have done has affected 5 that versus the other negative stories in the press 6 that involve you, for example, in Pitt County? 7 A I was asked about your behavior in the 8 Lopez trial, specifically. 9 Q Ma'am, are you saying that you think my 10 behavior in the Lopez trial in -- you said 2007 but 11 if I tell you October of 2008, does that sound about 12 right? 13 A I can't remember. 14 Q So are you saying that my behavior six 15 years ago is affecting opinion today? 16 A No, I think the things that you did in the 17 last year to -- year to two years have affected it, 18 yes. I thought you were referring to her question 19 about the Lopez case. 20 Q Now, you made the decision to have me 21 arrested, right? 22 A No, sir. 23 Q Who did? 24 A Anthony Futrell. I was on vacation, 25 Mr. Sutton.

14 1 Q Weren't you on the phone with him? 2 A I was on the phone with whom? 3 Q The sheriff, your office, whomever, 4 listening to the tape, making comments on it. 5 MS. WINSTEAD: Objection. 6 CHAIRMAN MORELOCK: Overruled. 7 A Mr. Sutton, Paula Dance called me while I 8 was on vacation, and when she called me I was at the 9 landfill with my husband's dually truck. If you 10 know anything about a dually truck, they are very, 11 very loud. I said, "Paula, I can't hear you. I 12 can't hear the recording. You're going to have to 13 call somebody in my office." 14 Q But you didn't have anything to do with 15 it. 16 A No, sir. I couldn't hear the tape. I 17 said, "Talk to Anthony or Clark." So she either 18 talked to Anthony and Clark, or Anthony or Clark. 19 Q Ma'am, so you had no involvement with the 20 case. 21 A Of course I had involvement with the case, 22 Mr. Sutton, but I did not, quote, "have you 23 arrested." I couldn't even hear -- 24 Q I've never accused you of that, have I? 25 A You just asked me if I had you arrested.

15 1 Q I asked you if you made the decision. 2 A No, the decision was made by Anthony 3 Futrell. 4 Q And, ma'am, after that decision was made, 5 did you come to realize or -- scratch that. 6 At the time you talked to Ms. Dance, did 7 you realize that there was a court date set seven 8 days later? 9 MS. WINSTEAD: Objection. 10 CHAIRMAN MORELOCK: Overruled. 11 A For what? 12 Q The underlying case, the child abuse case 13 with Deputy Dolenti. 14 A I knew that there was a hearing date 15 because I had been involved in the Waters case. 16 Q Did you know it was exactly seven days 17 later? 18 A No, sir. Like I said, I was on vacation, 19 I was trying to enjoy myself. 20 Q And, if you know, do you know if 21 Mr. Futrell was privy to that knowledge whenever he 22 made his decision? 23 MS. WINSTEAD: Objection. 24 CHAIRMAN MORELOCK: Overruled. 25 A I don't know. I assume so. I mean, I

16 1 assume any investigator would explain the whole 2 situation. 3 Q Have you talked with him since then about 4 it? Mr. Futrell? 5 MS. WINSTEAD: Objection. 6 CHAIRMAN MORELOCK: Overruled. 7 A Yes, I have. 8 Q Do you know if he knew? 9 MS. WINSTEAD: Objection. 10 CHAIRMAN MORELOCK: Overruled. 11 A I didn't ask him that specific question. 12 It wasn't important to me. 13 [End of Excerpt.] 14 15 16 17 18 19 20 21 22 23 24 25