State v. Knox
383 S.E.2d 698
N.C. Ct. App.
1989
Check Treatment
LEWIS, Judge.

Defendant makes two assignments of error. First, defendant contends that the trial court erred in denying his motion to dismiss his 31 May 1988 indictment for robbery with a dangerous weapon of Kenneth Broome. Secondly, defendant contends that the trial court erred in sustaining the prosecutor’s objections concerning whether any of the employees of the restaurant had confused the defendant with his brother and in sustaining the prosecutor’s objections to defense counsel asking defendant’s brother whether there was anyone else who resembled the defendant.

I

Defendant argues that the defendant’s second indictment for the robbery of Kenneth Broome was the product of prosecutorial vindictiveness.

*702Prior to trial, the court conducted a hearing on defendant’s motion to dismiss. Defendant called James Gronquist, the Assistant Public Defender who had first represented the defendant on the two charges. Mr. Gronquist stated that there had been no plea offer by the prosecution. On cross-examination he admitted that prior to a plea conference on the first indictment, the prosecutor informed him of the possibility of a second indictment. During the conference on 4 May 1988, the judge indicated the sentence that likely would be imposed and defense counsel requested a continuance to consider a possible plea. On 16 June, the defendant rejected the offer. When asked if defendant had accepted the judge’s offer, would defense counsel have insisted that the prosecution not seek an indictment on the other charge of armed robbery, Mr. Gronquist replied that since defendant had not been indicted, “it would probably not have been a formal part of the agreement. But I think it certainly would have been understood.”

On 16 May 1988, Mr. Gronquist sent a letter to Ms. Ponder, the former Assistant District Attorney assigned to prosecute the defendant, requesting additional information in order to complete preparation for trial. Ms. Ponder responded by letter of 19 May 1988 in which she stated, “I am sending another count of robbery with a dangerous weapon to the grand jury on May 31, 1988, due to your indication in your letter that you are preparing for trial.” Ms. Ponder testified that she knew “that we would need to try to join all related incidents, and I wanted to go ahead and have them together.” Defendant argues that obtaining an additional indictment based on facts known to the prosecutor prior to the time of the original indictment constitutes vindictive prosecution in violation of defendant’s right to due process of law. We disagree.

In United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed. 2d 74 (1982), the defendant was initially charged with several federal misdemeanors and petty offenses. At first, the defendant expressed a desire to engage in plea bargaining regarding these charges. Id. at 371, 73 L.Ed. 2d at 79. However, the defendant later refused to plead guilty to the charges and requested a jury trial. Approximately six weeks later, the prosecutor sought and received an indictment including one felony count arising out of the same facts which constituted the lesser offenses. The jury convicted the defendant on the felony count and the defendant moved to set aside the verdict on the ground of prosecutorial *703vindictiveness. Id. In declining to apply a presumption of vindictiveness or make a finding of it, the court recognized that

‘additional’ charges obtained by a prosecutor could not necessarily be characterized as an impermissible ‘penalty.’ Since charges brought in an original indictment may be abandoned by the prosecutor in the course of plea negotiation — in often what is clearly a ‘benefit’ to the defendant — changes in the charging decision that occur in the context of plea negotiation are an inaccurate measure of improper prosecutorial ‘vindictiveness.’ An initial indictment — from which the prosecutor embarks on a course of plea negotiation — does not necessarily define the extent of the legitimate interest in prosecution. For just as a prosecutor may forego legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded.

457 U.S. 380, 73 L.Ed. 2d 84 (citing Bordenkircher v. Hayes, 434 U.S. 357, 54 L.Ed. 2d 604, 98 S.Ct. 663 (1978). We find the present case controlled by Goodwin, supra. Defendant failed to show any actual prosecutorial vindictiveness on the part of the State. Here, the defense counsel knew of the second pending complaint. The two complaints arose from the same criminal transaction but involved different victims. Furthermore, and most significantly, there was never a formal plea offer by the prosecution to indicate any motive for actual prosecutorial vindictiveness. Absent any actual vindictiveness, “[t]he possibility that a prosecutor would respond to a defendant’s pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as penalty imposed on the defendant is so unlikely that a presumption of vindictiveness is certainly not warranted.” (Emphasis original), 457 U.S. at 384, 73 L.Ed. 2d at 87. We find no error.

II

Defendant argues that the trial court erred by sustaining the prosecutor’s objections concerning whether any of the employees of the restaurant had confused defendant with his brother. The record reflects that during the direct examination of Joe Knox, defendant’s brother, by defense counsel the witness was asked:

Q. Have you ever had any incidence where anyone has confused you with anyone else over there?
*704Mr. WOLFE: Object.
COURT: Objection sustained.
Q: What about the women who work there, do you talk to them?
A: Yea, all of, all the women; I always talk to the women there.
Q: Do you know them?
A. Yea, I don’t know them by name exactly, but I know them.
Q: And have you ever had, have they ever told you who they
thought you were?
Mr. WOLFE: Object.
COURT: Objection sustained.
Q: Have they ever confused you with any of your brothers?
Mr. WOLFE: Object.
COURT: Objection sustained.

As the testimony above indicates, the questioning called for hearsay responses; and therefore, the objections were properly sustained pursuant to G.S. Section 8C-1, Rules 801 and 803.

Defendant also has excepted to the trial court’s rulings which sustained the objections to defense counsel asking David Knox, brother of defendant, whether there was anyone else who resembled defendant. Following an offer of proof in which the witness testified that there was another man who looked similar to defendant, the trial court excluded the evidence.

This case is indistinguishable from State v. Allen, 80 N.C. App. 549, 342 S.E.2d 571, disc. rev. denied, 317 N.C. 707, 347 S.E.2d 441 (1986). The defendant was convicted of robbery with a dangerous weapon. The defendant argued that evidence that another robbery perpetrated by a man resembling defendant and utilizing an almost identical modus operandi was directly and substantially relevant to the sole issue in dispute, i.e., the identity of the perpetrator of the robbery. The court excluded the evidence, finding that there was no evidence which pointed directly to another person’s guilt: “Therefore, the proffered evidence could do nothing more than create an inference or conjecture as to another’s guilt of the crime charged and it was therefore properly excluded.” 80 N.C. App. at 551, 342 S.E.2d at 573; see, also, State v. Cotton, 318 N.C. 663, *705667, 351 S.E.2d 277, 279 (1987) (“[e]vidence that another committed the crime for which the defendant is charged generally is relevant and admissible as long as it does more than create an inference or conjecture in this regard.”). In the present case there was no proof that another person was even remotely connected with the crime. Defendant did not seek to offer evidence that another person had committed the crime. Instead, he sought to introduce evidence that there was possibly someone in the community who might have resembled the defendant and thereby caused the witnesses all to make an error in their identification. Based upon the extensive identification testimony given by Mrs. Housiadas and Mrs. Koútroulakis and the complete lack of any other evidence linking another person to the crime, the evidence tendered by the defendant is pure conjecture and was properly excluded by the trial court.

No error.

Chief Judge HEDRICK and Judge ORR concur.