73 N.C. App. 420 | N.C. Ct. App. | 1985
Defendant noted numerous exceptions and made thirteen assignments of error. However, he brings forward on appeal only two of those assignments. Pursuant to N.C. App. R. 28(b)(5), we deem the remainder of his assignments of error to be abandoned.
Defendant first assigns error to the trial court’s denial of his motions for mistrial after the text of the plea agreements between the State and witnesses Hansen and Riggsbee were read to the jury by the court. He argues that this was error because the text of the agreements was highly prejudicial to him. He contends that the jury could have been told of the agreements, if necessary, without being made aware of the nature of the other charges pending against him. Defendant contends that this was prejudicial. He argues that the jury would deduce from the plea agreements that defendant had been charged in connection with the death of the person of whose estate he was the sole beneficiary and therefore would be more inclined to conclude that he had procured the forging of the document by which he was made the sole beneficiary — the essence of the offenses for which he was then on trial.
While we agree that in reading the full text of the agreement the court acted improperly, we find that the error was not prejudicial in this case. As defendant points out, it is error to allow a criminal defendant’s character to be impeached by evidence of indictments or other accusations of misconduct because “ ‘an indictment is a mere accusation and raises no presumption of guilt.’ ” State v. Williams, 279 N.C. 663, 673, 185 S.E. 2d 174, 180 (1971), quoting People v. Morrison, 195 N.Y. 116, 117, 88 N.E. 21, 22 (1909); State v. Shane, 304 N.C. 643, 285 S.E. 2d 813 (1982), cert. denied, --- U.S. ---,104 S.Ct. 1604 (1984).
That error is compounded when a trial judge on his own motion provides impeaching evidence when the defendant’s character was not in issue. See G.S. 15A-1222; State v. Miller, 271
Here, however, the agreements were read by the trial judge for the purpose of proving that the witnesses were testifying pursuant to agreements with the State. The evidence is admissible for that purpose even though it incidentally tends to impeach defendant’s character. State v. Fulcher, 294 N.C. 503, 243 S.E. 2d 338 (1978). See generally, Brandis N.C. Evidence Section 104 (1982 and Supp. 1983).
If this evidence had been offered by the defendant or by the State, it would not have been error to allow it. Ordinarily it is in the defendant’s interest to show that a witness against him is testifying pursuant to an agreement with the State and to disclose the terms of the bargain because such evidence tends to impeach the witness. In some cases the State may wish to make the jury aware of the specific terms of the plea bargain. G.S. 15A-1054 requires the State to disclose to the defendant whether prosecution witnesses are testifying pursuant to an agreement with the State. G.S. 15A-1052 requires the court to disclose to the jury whether a prosecution witness is testifying under immunity. Although G.S. 15A-1054 is the statute applicable here, neither statute requires the court to disclose the specific terms of a plea bargain to the jury. State v. Hardy, 293 N.C. 105, 235 S.E. 2d 828 (1977). Our statutes leave that decision to the parties. When the court, acting on its own motion, removes that decision from the parties, there is the potential for prejudicial reversible error to occur.
In some cases, such an error could require a new trial. Here, however, the error is not prejudicial and defendant does not persuasively argue otherwise. The State presented competent, firsthand testimony of two witnesses who participated in and directly observed defendant doing the acts he was accused of. Their testimony was not disputed and contained no substantial internal conflicts. Defendant has not demonstrated that the jury’s verdict was influenced by the trial court’s error and we cannot perceive, on the facts of this case, how the error could have prejudiced defendant. The trial court’s action, if it was error, did not in
Defendant next assigns error to the trial court’s finding as a factor in aggravation of his punishment that the subornation of perjury offenses were “committed against a present or former . . . clerk or assistant or deputy clerk of court . . . while engaged in the performance of [her] official duties.” This is a statutory aggravating factor. G.S. 15A-1340.4(a)(1)(e). Defendant argues that this finding, made as to both of the subornation of perjury charges was erroneous because neither offense was committed against the deputy clerk and because the evidence in support of the finding was used to support an element of the offense. We agree with defendant.
The intended application of this statutory factor, as defendant points out, is apparent from its language: to allow for aggravation of punishment when the victim of a criminal offense was a public official or a private citizen involved in the administration of justice or public safety. While the present offense clearly involved the deputy clerk, she was not the victim of the crime and the aggravating factor found by the court would not apply.
Further, even if that factor could be found to apply on these facts, it would have been error for the court to so find. Proving that an oath was duly administered is necessary for establishing perjury or subornation of perjury. Since the State in this case proved that the deputy clerk administered the oath to Ms. Hansen and Ms. Riggsbee, it could not use the same evidencfe to prove that defendant had committed the offense against the clerk. State v. Morris, 59 N.C. App. 157, 296 S.E. 2d 309 (1982), rev. denied and appeal dismissed, 307 N.C. 471, 299 S.E. 2d 227 (1983).
In the guilt phase of defendant’s trial we find no error. Since the court erroneously found as an aggravating factor that the offense was committed against the deputy clerk of court, the case must be remanded for resentencing.