Opinion
No. COA03-916
Filed August 17, 2004 This case not for publication
Appeal by defendant from judgment entered 17 May 2002 by Judge Donald W. Stephens in Durham County Superior Court. Heard in the Court of Appeals 26 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General Marc Bernstein, for the State. Rudolf Maher Widenhouse Fialko, by Andrew G. Schopler, for defendant-appellant.
Durham County Nos. 01 CRS 55103, 01 CRS 55104.
James Randall Harris ("defendant") appeals from convictions of second-degree kidnapping and second-degree rape. For the reasons stated herein, we hold that defendant is entitled to a new trial.
At trial, the prosecuting witness, Alicia Bass ("Ms. Bass"), testified as follows: On 28 September 2001, Ms. Bass went for a morning jog on a bike trail. After running for about twenty minutes, Ms. Bass first saw defendant. Defendant was riding a bicycle and passed Ms. Bass as she jogged into Northgate Park. Ms. Bass saw defendant several more times while she was sitting down resting. After Ms. Bass resumed jogging, she again encountered defendant; this time on a deserted part of the jogging trail. Defendant initiated small talk with Ms. Bass and then struck her on the jaw. Defendant grabbed Ms. Bass, threatened to kill her if she did not stop screaming, and pushed Ms. Bass off the trail and into a wooded area. Defendant then forcefully removed Ms. Bass's clothing and raped her. As a result of this incident, a grand jury indicted defendant on charges of second-degree kidnapping and second-degree rape.
On 4 March 2002, Ms. Bass was involved in a disturbance outside the Durham County Judicial Building. Several charges were filed against Ms. Bass as a result of her participation in the disturbance. These matters were referred to dispute resolution by Assistant District Attorney Tracy Cline ("ADA Cline"). During defendant's trial, at least some of these charges remained pending against Ms. Bass. ADA Cline was also assigned to prosecute the kidnapping and rape charges against defendant. Defendant's attorney filed a written motion to disqualify the office of the district attorney or ADA Cline from prosecuting the charges against defendant, citing ADA Cline's involvement in both defendant's and Ms. Bass's cases. The trial court denied this motion. The trial court also precluded defense counsel from cross-examining Ms. Bass concerning the pending charges. The jury found defendant guilty of second-degree kidnapping and second-degree rape. Defendant appeals.
Defendant first contends that the trial court's refusal to disqualify the assistant district attorney rendered the trial fundamentally unfair. Specifically, defendant contends that ADA Cline's prosecuting of defendant while being in a position to dismiss charges against the prosecuting witness, Ms. Bass, violated defendant's rights under the North Carolina and United States constitutions. For the reasons stated herein, we disagree.
The rule, as articulated by our Supreme Court, is that "a prosecutor may not be disqualified from prosecuting a criminal action in this State unless and until the trial court determines that an actual conflict of interests exists." State v. Camacho, 329 N.C. 589, 601, 406 S.E.2d 868, 875 (1991); see also State v. Anthony, 354 N.C. 372, 394, 555 S.E.2d 557, 574 (2001). The Camacho Court explained that an example of an actual conflict of interests occurs where in the course of a former attorney-client relationship, "the prosecution has obtained confidential information which may be used to the defendant's detriment at trial." Camacho, 329 N.C. at 601, 406 S.E.2d at 875. In the present case, no attorney-client relationship existed between defendant and ADA Cline. Thus, no conflict of the type described by the Court in Camacho occurred. Nor does a review of the pertinent facts and arguments reveal any actual conflict of interests stemming from ADA Cline's involvement in the two cases.
The trial court conducted a voir dire of Ms. Bass on this issue. During the voir dire, Ms. Bass testified that she had not received any promises or expectations from the district attorney's office in exchange for her testimony in defendant's trial. Thus, defendant does not assert an actual conflict of interests, but rather, argues that ADA Cline's role in prosecuting both defendant and Ms. Bass raised a specter of impropriety. In Camacho our Supreme Court rejected this argument, holding "that the trial court erred by ordering that the District Attorney and his staff withdraw from this case solely because their prosecution of the defendant might create an appearance of a conflict of interests." Id. at 597, 406 S.E.2d at 873. Based on the law as articulated in Camacho, therefore, we do not find any merit in defendant's argument that the trial court erred by failing to disqualify ADA Cline from prosecuting defendant's case. Accordingly, this assignment of error is overruled.
Defendant next contends that the trial court committed reversible error by prohibiting defendant from cross-examining Ms. Bass concerning her pending charges. We are bound by State v. Prevatte, 346 N.C. 162, 484 S.E.2d 377 (1997), and, thus, must order a new trial. The principal witness for the State in Prevatte was subject to pending criminal charges. The North Carolina Supreme Court held that it was constitutional error to bar defense counsel from cross-examining the witness about any promises or expectations made or given in exchange for the witness's testimony. Id. at 164, 484 S.E.2d at 378. Further, the Court specifically rejected the State's argument that cross-examination should not be allowed because no showing of bias stemmed from the voir dire conducted on that issue. "The effect of the handling of the pending . . . charges on the witness was for the jury to determine. Not letting the jury do so was error." Id. at 164, 484 S.E.2d at 379. Because we see no significant difference between the facts of the present case and those of Prevatte, we hold that the trial court committed reversible error by not allowing the requested cross-examination.
New trial.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).