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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89289
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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I was arrested last night and charged with cyberstalking in

Customer Question

I was arrested last night and charged with cyberstalking in NC...The charges were brought by an individual at the magistrate's office. I was processed and given a custody release (no bond) to a friend with a court date set in 15 days.

At no time was I read my rights, but I was not questioned either. The processing was very routine which included finger printing, mug shot and dna sample.

I was advised of the charges with respect to the NC GS on cyberstalking, but not allowed to see any of the evidence that was presented by the plaintiff.

I was advised by the magistrate that there were no provisions in the NC Statutes that allowed me to file a counter complaint regarding the plaintiff providing false information to a law enforcement officer or an officer of the court.

The contact that I had with the plaintiff was via Facebook Personal Messages as an administrator of a Garage Sale Group. I had sent the plaintiff several PMs as a result of complaints that I had received from other members expressing their strong dissatisfaction regarding the plaintiff's business dealings with them.

The PMs sent to the plaintiff were professional, business like and in not way threatening.

They simply asked the plaintiff to contact the customers and work out the problems that were submitted to me. I advised the plaintiff that action must be taken in the near future to mitigate the complaints and properly address them if the plaintiff expected to remain a member of the group. Otherwise, the plaintiff would be removed and banned.

The Facebook Group is a private group by invitation only and there are no dues or payments.

I have little doubt that the DA will either decline to prosecute or recommend for a dismissal in court.

My question is what remedies to I have now to:

1. Have my record, etc. expunged.

2. To bring criminal charges against the plaintiff for perjury, and filing a false report?

3. Civil court actions.

Also, how can I have my Mug Shot removed from public web site.
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

1) Once the DA declines prosecution or you are found not guilty, you can file a motion to expunge your record, which would also include removal of your fingerprints from the system and your mugshot as well.

2) If the DA declines prosecution on your case and you can provide proof to the DA that the conversation was not stalking and the complainant filed a false charge, then it is up to the DA solely to decide on criminal prosecution for filing false reports and they have the final say on criminal charges.

3) Once the case is completed and charges are dismissed, then you can file a suit against the complainant for malicious prosecution, which is for filing false charges and having you needlessly be prosecuted on them.




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Customer: replied 11 months ago.

How does a plaintiff establish damages when filing a malicious prosecution suit?

Can the suit malicious prosecution be filed in small claims court?


 


I think our SCC limit was just increased to $10,000.

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response.

Damages start with your actual economic damages and then you would multiply those times a factor of about 3 and that would be your emotional harm. But absent actual damages, it is very hard to put a real number of damages on malicious prosecution.

Yes, you can file this in small claims court.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 89289
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
Law Educator, Esq. and 4 other Criminal Law Specialists are ready to help you
Customer: replied 11 months ago.

DA advised that there is on discovery in district court for Magistrate complaints...Probable Cause is oath on the Bible.


 


Followup questions:

1. How the hell to I see the evidence prior to trial if there is no discovery?

2. Can I depose or have my attorney depose the plaintiff?



3. Can I force this matter to a jury trial? How.

4. Since the State didn't file the complaint, is this case not about Citizen A vs. Citizen B?

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response.

You have to wait for this case to get out of magistrate court for any depositions and discovery. If the magistrate finds against you, then you have the right to appeal to Superior Court and that is where you get full disclosure of the evidence and a right for jury trial. There are very limited rights in magistrate court, it is really meant to be a speedy resolution of matters, but that is also why you get a right to a full trial including discovery and a jury on appeal to the Superior Court.

The magistrate court hears cases where one citizen swears a complaint against another, which means even more if you are cleared at magistrate you have more evidence to your case to sue her for malicious prosecution and seek money damages from her.
Customer: replied 11 months ago.

My first appearance is in regular district court...It appears that the magistrate only hears civil cases..Warrants for domestic violence from an individual also go to district court.

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response.

If you are going to the district court for a trial, you are entitled to discovery and to ask for a jury trial though, so I do not know why they are telling you that you cannot get either. At this point you need to hire local representation anyhow because this is a criminal matter and your attorney will be entitled to examine the evidence and file a motion to depose the alleged victim.
Customer: replied 11 months ago.

I agree with hiring an attorney.

But if I elect pro se, why should my access be restricted and not be the same as any attorney?

Why can I not depose the plaintiff?

Expert:  Law Educator, Esq. replied 11 months ago.
Your access should not be denied if you go pro se, but courts are hesitant to allow deposition of a victim by a defendant because it is considered to be intimidating to the victim, so they will likely require an attorney to be used for that.
Customer: replied 11 months ago.

I can see it from the courts position....

Thanks Paul, J.D. You are the best as always and one of the primary reasons I am a JA customer.

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you very much.
Customer: replied 10 months ago.

Followup questions:

1. Was the arresting officer required to read me my rights?



2. In this case where law enforcement was not involved with only the Magistrate acting on the oath of another individual, is this case the State of NC vs the Defendant or the Plaintiff vs the Defendant?

Expert:  Law Educator, Esq. replied 10 months ago.
Thank you for your response.

1) Miranda warnings are to be given to an arrested subject only prior to any questioning about the offense. If you were questioned about the offense without being first advised of your Miranda Rights then any statement you gave would be inadmissible in court.

2) The case would be prosecuted by the state v. Defendant if criminal charges were filed, even though it was the plaintiff who went to swear out the criminal charges. It is possible the state may even refuse to continue prosecuting the case and may dismiss the charges.
Customer: replied 10 months ago.

How do I ask the judge for a jury trial?

Expert:  Law Educator, Esq. replied 10 months ago.
Your attorney or you would ask for a jury trial at your arraignment or you can file a written motion demanding trial by jury.

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