State v. Prevatte , 346 N.C. 162 ( 1997 )

484 S.E.2d 377 (1997) 346 N.C. 162

STATE of North Carolina,
v.
Ted Anthony PREVATTE.

No. 126A95.

Supreme Court of North Carolina.

May 9, 1997.

Michael F. Easley, Attorney General by Debra C. Graves, Assistant Attorney General, for the State.

Center for Death Penalty Litigation by Kenneth J. Rose, Durham, for the defendant-appellant.

WEBB, Justice.

We shall discuss only one of the defendant's assignments of error which we hold entitles him to a new trial. The State's principal witness was Jeffrey Burr, who was an eyewitness to the shooting. At the time of the trial in this case, Mr. Burr was under indictment in another county on nine charges of forgery and uttering forged checks. The other county, however, was under the same district attorney. The trials on these charges had been continued for eighteen months at the time of the trial in this case. The defendant wanted to cross-examine Mr. Burr about these charges and whether Mr. Burr had been promised or expected anything in regard to the charges in exchange for his testimony in this case. The court refused to let the defendant ask these questions.

We believe we are bound by Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), to order a new trial. In Davis, the principal witness against the defendant was on probation. The defendant was not allowed to cross-examine the witness about his probationary status, and the United States Supreme Court held this violated the defendant's Sixth Amendment right "to be confronted with the witnesses against him." Id. at 315, 94 S.Ct. at 1110, 39 L. Ed.2d at 353. The Supreme Court said that the defendant had the right to show that the witness was afraid he would be charged with the crime because he was on probation and the right to show that the fact he was on probation gave the State of Alaska some power over him. The Supreme Court said, "Petitioner was thus denied the right of effective cross-examination which `would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.' Brookhart v. Janis, 384 U.S. 1, 3, [86 S.Ct. 1245, 1246, 16 L.Ed.2d 314, 316-17 (1966) ]." Id. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 355 (quoting Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956, 959 (1968)).

The defendant in this case had a stronger argument than the defendant in Davis. Mr. Burr was facing criminal charges. The witness in Davis was on probation. The State in this case had a stronger weapon to control the witness. The fact that the trial of Mr. Burr on the forgery and uttering charges had been continued for eighteen months might have led the jury to believe the State was holding those charges in abeyance pending the witness' testimony in this case. Mr. Burr was the principal witness against the defendant. We believe Davis requires us to hold it was constitutional error not to allow the questions on cross-examination that the defendant proposed to put to the witness. We also believe Davis requires us to hold that the error was not harmless.

The State argues that there was no showing that Mr. Burr was prejudiced against the defendant because of the pending forgery and uttering charges against him. A voir dire hearing out of the presence of the jury was held before the court ruled on the objection to the questions posed by the defendant. Mr. Burr testified that there was no agreement in regard to the forgery and uttering charges in exchange for his testimony in this case. Mr. Burr's attorney testified to the same effect. The State argues that this testimony shows that Mr. Burr expected nothing from the State for his testimony against the defendant. The effect of the handling of the pending forgery and uttering charges on the witness was for the jury to determine. Not letting the jury do so was error.

We do not consider the defendant's other assignments of error, as the questions they pose may not recur at a new trial.

NEW TRIAL.