State v. Swindler

Judge McGee

dissenting.

I respectfully dissent to the part of the majority opinion which finds that the trial court did not err in allowing the State to question defendant concerning matters our Supreme Court has ruled inadmissible.

During defendant’s first trial, the State submitted a letter into evidence written by James Quick, an inmate in jail with defendant. Quick’s letter included defendant’s motive for killing Moore, as allegedly told to Quick by defendant. Despite Quick’s refusal to testify at the first trial, the letter was admitted into evidence. On appeal, however, our Supreme Court found that the letter should not have been admitted, noting that it lacked the “inherent trustworthiness” required for admission of a hearsay statement:

*11 Quick had no personal knowledge of the events to which he referred in the letter. . . . Quick was not motivated to speak the truth, but rather was motivated to say what the police wanted to hear. Quick had many past convictions and was in jail on pending charges at the time of defendant’s trial.

State v. Swindler, 339 N.C. 469, 474-75 , 450 S.E.2d 907, 911 (1994).

The Court held the letter was inadmissible hearsay in violation of the U. S. Constitution’s Confrontation Clause:

The declarant of the letter not having been subject to full and effective cross-examination by defendant, defendant’s rights under the Confrontation Clause were violated. Thus, the State must show that any error was harmless beyond a reasonable doubt, a burden which the State, in our view, cannot carry in the present case. The letter contained the only evidence of defendant’s motive to kill the victim. The letter also provided the greatest evidence that the murder was committed after premeditation and deliberation. In addition, the letter contained the most specific admission of defendant’s guilt in the murder.

Id. at 476 , 450 S.E.2d at 912 (citation omitted). Defendant’s motive for the shooting, as alleged in the letter, was that the victim had evicted defendant from his rented housing. The Supreme Court noted, however, that “no evidence had developed to support this fact. [In fact], Detective Grubb indicated that this portion of the letter was ‘totally without basis.’ ” Id. at 475 , 450 S.E.2d at 911 . These findings resulted in the Court ordering a new trial.

The information in the letter was important to the State in that it contained a possible motive of defendant, in addition to an admission of guilt by defendant. Thus, in defendant’s second trial, the State again attempted to get Quick’s alleged statements into evidence but did so by questioning defendant about statements he allegedly made to Quick. Quick again refused to testify and was therefore not available for cross-examination.

The majority holds that there is no showing in the record that the questions were asked in bad faith. However, the State had not been able to corroborate Quick’s allegations but continued with the line of questioning anyway. In State v. Bronson, our Supreme Court defined what constitutes permissible cross-examination:

*12 The bounds of cross-examination are limited by two general principles: 1) the scope of the cross-examination rests within the sound discretion of the trial judge; and 2) the questions must be asked in good faith. A prosecutor’s questions are presumed to be proper unless the record shows that they were asked in bad faith. Abuse of discretion is generally found when a prosecutor affirmatively places before the jury an incompetent and prejudicial matter by injecting his own knowledge, beliefs, or personal opinions or facts which are either not in evidence or not admissible.

333 N.C. 67, 79 , 423 S.E.2d 772, 779 (1992) (citations omitted); see State v. McLean, 294 N.C. 623, 633 , 242 S.E.2d 814, 820-21 (1978) (impeachment of witness as to prior specific criminal acts or specified reprehensible conduct proper only if questions based on information and asked in good faith).

The prosecutor in this case violated the good faith standard by attempting to present to the jury information that was inadmissible. The State could not offer into evidence the letter containing the alleged confession and motive because of our Supreme Court’s prior decision and because, once again, Quick repeatedly refused to testify. Thus, the State asked questions about which it had no evidence or proof to support.

We note that the State used this evidence not for impeachment purposes, but as substantive evidence of defendant’s motive and admission of guilt. “[T]he prior inconsistent statement of a witness ... is not admissible as substantive evidence unless it properly falls within an exception to the hearsay rule or except as provided by statute.” State v. Minter, 111 N.C. App. 40, 53 , 432 S.E.2d 146, 153 , cert. denied, 335 N.C. 241 , 439 S.E.2d 158 (1993). Even if the State pursued the line of questioning for impeachment purposes, the evidence would arguably still be inadmissible. “Inconsistent statements are admissible simply for the consideration of the jury in determining the witness’s credibility. Hence they are not ordinarily admissible until the witness has testified to something with which they are inconsistent.” State v. Ward, 338 N.C. 64, 97-98 , 449 S.E.2d 709, 727 (1994), cert. denied, 514 U.S. 1134 , 131 L. Ed. 2d 1013 (1995). Defendant had not testified about the contents of the letter and therefore should not have been questioned about it even to show inconsistencies.

Because he failed to object until after several questions about this issue had been asked and answered, defendant submits this error *13 under the “plain error” rule. The plain error rule has been defined by our Supreme Court as follows:

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “ ‘resulted in a miscarriage of justice or in the denial to appellant of a fair trial’ ” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceeding's].]”

State v. Odom, 307 N.C. 655, 660 , 300 S.E.2d 375, 378 (1983). Considering that the line of questioning was being used for substantive purposes, that Quick’s statements were inherently untrustworthy, and that defendant had no opportunity to cross-examine Quick, the level of prejudice to defendant rises .to that of plain error. This cross-examination of defendant was grossly unfair and prejudicial to defendant. Defendant was denied due process of law and should therefore be awarded a new trial.