In Sеptember 2003 defendant was indicted in Lenoir County for possession with intent to sell and deliver cocaine, keeping and maintaining a dwelling for the use of cocaine, and possession of marijuana, and for having attained habitual felon status. On 13 May 2005, a jury convicted defendant of the three drug offenses, after which defendant pleaded guilty to being an habitual felon. The trial court sentenced defendant to an active term within the presumptive range. Defendant appealed to the Court of Appeals. In a divided opinion issued on 1 August 2006,
State v. Hart,
On appeal, defendant made fourteen assignments of error, five of which he argued in his brief to the Court of Appeals. The dissenting opinion only addressed the majority’s decision to dismiss one of defendant’s arguments for violations of the Rules of Appellate Procedure. The dissent presents the only issue before this Court.
At trial, a police officer testified over defense counsel’s objection that a razor blade taped to cardboard and seized near defendant was a “crack pipe.” Although defendant assigned error to this testimony, the majority opinion concluded that the pertinent assignment of error viоlated Rule 10(c)(1) of the North Carolina Rules of Appellate Procedure and thus was “beyond the scope of appellate review”; as a result, the court did not address the merits of this argument. The dissent maintained that the assignment of error at issue, although perhaps “technically deficient,” essentially complied with Rule 10(c)(1) and that even if the assignment were technically deficient, the court was not required to dismiss it, but could exercise its discretion under Rule 2 to review the assignment on the merits.
Although we will address the Court of Appeals’ Rule 10(c)(1) analysis below, we must first address whether the Court of Appeals *311 may review an appeal if there are any violations of the Rules of Aрpellate Procedure. We note at the outset that the State did not mention any appellate rules violation in the Court of Appeals, but that the court raised that issue on its own, which it was not required to do.
It is well settled that the Rules of Appellate Procedure “are mandatory and not directory.”
Reep v. Beck,
In order to correct the misapplication of our
Viar
decision, a review of the pertinent opinions is essential. In
Steingress,
this Court stated that violation of the mandatory rules “will subject an appeal to dismissal.”
This Court reversed per curiam, explaining as follows:
The majority opinion in the Court of Appeals, recognizing the flawed content of plaintiff’s appeal, applied Rule 2 of the Rules of Appellate Procedure to suspend the Rules. The majority opinion *312 then addressed the issue, not raised or argued by plaintiff, which was the basis of the Industrial Commission’s decision, namely, the reasonableness of defendant’s decision to delay installation of the median barriers. The Court of Appeals majority asserted that plaintiff’s Rules violations did not impede comprehension of the issues on appeal or frustrate thе appellate process. It is not the role of the appellate courts, however, to create an appeal for an appellant.
Subsequently, in
State v. Buchanan,
Recently, in Viar v. N.C. Dep’t of Transp., our Supreme Court admonished this Court to avoid applying Rule 2 of the Rules of Appellate Procedure even in instances where a party’s “Rules violations did not impede comprehension of the issues on appeal or frustratе the appellate process.” . . . Because we are constrained to follow the dictates of Viar, we must hold that Defendant’s failure to comply with Rule 10(b) by failing to renew his Motion to Dismiss at the close of all evidence mandates a dismissal of this appeal.
In Viar, our Supreme Court stated that this Court may not review an appeal thаt violates the Rules of Appellate Procedure even thodgh such violations neither impede our comprehension of the issues nor frustrate the appellate process.
Id.
at 695,
We also addressed appellate rules violations in
Munn v. N.C. State Univ.,
To clarify, when this Court said an appeal is “subject to” dismissal for rules violations, it did not mean that an appeal shall be dismissed for any violation. See Black’s Law Dictionary 1466 (8th ed. 2004) (defining “subject to liability” as “susceptible to a lawsuit”). Rather, “subject to” means that dismissal is one possible sanction. By quoting this language from Steingress in Viar, we did not intend thereby to imply that all rules violations mandate automatic dismissal. To the extent that the Court of Appeals has interprеted Steingress, Viar, and Munn to require dismissal in every case in which there is a violation of the Rules of Appellate Procedure, we expressly disavow this interpretation.
Here, after conducting what it believed to be a mandatory review of defendant’s compliance with the appellate rules, the Court of Appeals majority found a violatiоn of Rule 10(c)(1). Because the dissenting opinion and defendant’s brief contend that defendant did not violate Rule 10(c)(1), the issue of whether the majority correctly concluded that defendant violated Rule 10(c)(1) is squarely before this Court.
Rule 10(c)(1) of the Rules of Appellate Procedure, entitled “Assignments of Error. Form; Record References,” statеs in part:
*314 A listing of the assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal, in short form without argument, and shall be separately numbered. Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plаinly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.
N.C. R. App. P. 10(c)(1). Defendant’s assignment of error numbеr four reads:
4. The trial court erred in overruling defendant’s objection as to the officer’s testimony that certain evidence constituted a “crack pipe”, as such testimony constituted an opinion as to an ultimate issue for the jury and a legal conclusion, otherwise violated the N.C. Rules of Evidence, and denied defendant due prоcess, a fair trial and his legal and constitutional rights.
In defendant’s brief to the Court of Appeals, the argument heading related to this assignment of error reads: “The trial court erred in overruling defendant’s objection as to the officer’s testimony that certain evidence constituted a ‘crack pipe’, as such testimony violated the N.C. Rules оf Evidence, and denied defendant due process and a fair trial.” Defendant then argued in his brief that the officer’s lay testimony that an object was a “crack pipe” violated Rule 701 of the North Carolina Rules of Evidence. Defendant maintained that the State did not show that the officer had personal knowledge for his testimony or that his opinion was “rationally based on the perception of the witness.” N.C.G.S. § 8C-1, Rule 701 (2005). However, when addressing this argument, the majority opinion concluded: “Nowhere in defendant’s assignment of error does he assign error on this specific basis; rather, he states generally that the challenged testimony ‘otherwise violated the N.C. Rules of Evidence.’ ” The majоrity opinion further concluded that “this assignment of error is broad, vague, and unspecific,” “fails to identify the issues on appeal,” and “would allow defense counsel to argue on appeal any and every violation of the North Carolina Rules of Evidence.” Hart,-N.C. App. at -,
*315
Although on its face the assignment of error states a “particular” alleged error (that the “trial court erred in overruling defendant’s objection as to the officer’s testimony that certain evidence constituted a ‘crack pipe’ ”) and states a “legal basis upon which [the] error [was] assigned” (that “such testimony constituted an opinion as to an ultimate issue for the jury and a legal conclusion”), defendant presented a different legal argument before the Court of Appeals, namely that the lay opinion testimony regarding the alleged “crack pipe” should not have been admitted because the testimony violated Rule 701. Thus, defendant’s fourth assignment of error does not provide “the legal basis” for an argument that the testimony at issue violated Rule 701. Moreover, the Court of Appeals majority opinion correctly concluded that the remainder of this assignment of error, that the testimony “otherwise violated the N.C. Rules of Evidence, and denied defendant due process, а fair trial and his legal and constitutional rights,” is too broad and thus ineffectual.
E.g., Hines v. Frink,
Appellate Rule 2 specifically gives “either court of the appellate division” the discretion to “suspend or vary the requirements or provisions of any of [the] rules” in order “[t]o prevent manifest injustice to a party, or to expedite decision in the public interest.” N.C. R. App. P. 2. Although this Court concluded in
Viar
that the Court of Appeals improperly applied Rule 2 under those particular circumstances,
Because we disavow this interpretation, which led the majority below to conclude incorrectly that the Court of Appeals had no authority to apply Rule 2, we reverse this portion of the majority opinion. In so doing, we note that Rule 2 must be applied cautiously. The text of Rule 2 provides two instances in which an appellate court may waive compliance with the appellate rules: (1) “[t]o prevent manifest injustice to a pаrty”; and (2) “to expedite decision in the public interest.” N.C. R. App. P. 2. “While it is certainly true that Rule 2 has been and may be so applied in the discretion of the Court, we reaffirm that Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of im
*316
portance in the public interest or to prevent injustice which appears manifest to the Court and only in such instances.”
Steingress,
When the North Carolina Rules of Appellate Procedure were adopted by this Court, the rules drafting committee saw fit to note that Rule 2 “expresses an obvious residual power possessed by any authoritative rule-making body to suspend or vary operation of its published rules in specific cases
where this is necessary to accomplish a fundamental purpose of the rules.”
N.C. R. App. P. 2 drafting comm, comment.,
reprinted in
While an appellate court has the discretion to alter or suspend its rules, exercise of this discretion should only be undertaken with a view toward the greater object of the rules. This Court has tended to invoke Rule 2 for the prevention of “manifest injustiсe” in circumstances in which substantial rights of an appellant are affected.
See State v. Sanders,
Although this Court has exercised Rule 2 in civil cases,
see, e.g., Potter v. Homestead Pres. Ass’n,
Before exercising Rule 2 to prevent a manifest injustice, both this Court and the Court of Appeals must be cognizant of the appropriate circumstances in which the extraordinary step of suspending the operation of the appellate rules is a viable option. Fundamental fairness and the predictable operation of the courts for which our Rules of Appellate Procedure were designed depend upon the consistent exercise of this authority. Furthermore, inconsistent application of the Rules may detract from the deference which federal habeas courts will accord to their application. Although a petitioner’s failure to observe a state procedural rule may constitute an “adequate and independent state ground[]” barring federal habeas reviеw,
Wainwright v. Sykes,
We remand this case to the Court of Appeals for consideration of whether to exercise such discretion and whether other sanctions ' should be imposed pursuant to appellate Rule 25(b) or Rule 34. 1
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
Notes
. We note that current appellate counsel did not represent defendant in the Court of Appeals or at trial.