State v. Bowman

IN THE SUPREME COURT OF NORTH CAROLINA

No. 274A18

Filed 16 August 2019

STATE OF NORTH CAROLINA

v.
DUVAL LAMONT BOWMAN

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 818 S.E.2d 718 (N.C. Ct. App. 2018), vacating a judgment

entered on 27 July 2016 by Judge Richard S. Gottlieb in Superior Court, Forsyth

County, and remanding for a new trial. On 24 October 2018, the Court allowed the

State’s petition for discretionary review of additional issues. Heard in the Supreme

Court on 14 May 2019 in session in the Pitt County Courthouse in the City of

Greenville pursuant to section 18B.8 of Chapter 57 of the 2017 Session Laws of the

State of North Carolina.

Joshua H. Stein, Attorney General, by Joseph L. Hyde, Assistant Attorney
General, for the State-appellant.

Richard Croutharmel for defendant-appellee.

EARLS, Justice.

At defendant Duval Bowman’s trial for the 2014 murder of Anthony Johnson,

Lakenda Malachi was the only witness to provide direct evidence of Bowman’s

presence at the scene. Bowman sought to impeach Malachi’s testimony by

introducing evidence that Malachi was in plea negotiations over pending charges
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Opinion of the Court

against her and that she would receive favorable treatment for her testimony against

Bowman, but the trial court sustained objections to defense counsel’s questions.

Bowman was found guilty of attempted robbery with a dangerous weapon, possession

of a firearm by a felon, and the first-degree murder of Anthony Johnson. He was

sentenced to life imprisonment without parole.

Defendant argued at the Court of Appeals that the trial court committed

reversible error by preventing his counsel from adequately cross-examining Malachi

regarding the pending charges. The Court of Appeals’ majority agreed with

defendant, holding that the trial court committed constitutional error by restricting

defendant’s cross-examination of Malachi and that the error was not harmless beyond

a reasonable doubt. State v. Bowman, 818 S.E.2d 718, 719 (N.C. Ct. App. 2018).

Judge Dillon agreed that the trial court erred by limiting the cross-examination of

Malachi but concluded the error was harmless beyond a reasonable doubt. Id. at 722

(Dillon, J., dissenting). The State filed its appeal of right based on Judge Dillon’s

dissenting opinion. We must now determine whether the trial court violated

defendant’s Sixth Amendment right to confront witnesses against him by limiting

defendant’s cross-examination of the State’s principal witness and whether that error

was harmless beyond a reasonable doubt. Because we agree that the trial court

committed prejudicial error, we affirm the Court of Appeals’ holding and its order

that defendant receive a new trial.

Factual and Procedural Background

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Opinion of the Court

A. Facts

Defendant, Johnson, and Malachi were all involved in the illicit drug business.

Around the time of his murder, Johnson was engaged to Malachi and they lived

together with their four-year-old son. At trial, the State presented no physical

evidence linking defendant to the shooting but argued that Malachi’s testimony

established defendant’s guilt. Defendant also testified at trial, denying his

involvement in the murder, and raising the suggestion that Malachi may have

murdered Johnson. Necessarily either defendant or Malachi must have been

misrepresenting essential facts about Johnson’s death.

According to Malachi’s trial testimony, around 3:00 a.m. on 23 February 2014,

defendant went to Malachi’s house to confront Johnson about money he owed

defendant. Once in the living room where Johnson and Malachi were on the couch,

defendant asked Malachi, “Where your gun at?” Defendant was referring to Malachi’s

9-millimeter, semiautomatic pistol. Malachi told defendant she had her gun on her,

but she was lying to him. Malachi then looked on the shelf in the living room where

she normally kept her weapon, but did not see it there. Malachi testified that she left

the living room to look for the gun but turned around and saw defendant wearing

white latex gloves and holding a gun in each hand. Defendant was standing over

Johnson and stated, “Ya’ll did me dirty.” Malachi turned and ran to her bedroom and

heard shots being fired as she ran away. She also heard defendant rattling things in

the living room. Malachi then ran to the couple’s son’s room, locked the door, and hid

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Opinion of the Court

in the closet. The couple’s son was asleep in his bedroom when defendant kicked in

the door then walked towards the son’s bed. Upon seeing this, Malachi came out of

the closet and told defendant that she would find the money for him. The couple’s

son continued to sleep throughout the encounter.

Malachi asked Johnson where the money was before defendant began

stomping on Johnson as he lay motionless on the floor. As Malachi looked for the

money, defendant hit her with the two handguns and threatened to shoot her in the

feet. Defendant said he was going to kill Johnson and walked into the kitchen. Seeing

her chance to escape, Malachi ran out of the house and hid near her neighbor’s house

until she saw what appeared to be a green station wagon drive away from her house.

Malachi then rang her neighbor’s doorbell until they responded. Once inside, Malachi

asked to use their telephone and made calls to two different male friends whom she

hoped would come pick up her son before police arrived. The neighbors called the

police after Malachi finished her calls.

Johnson was pronounced dead when police arrived. He had been shot once in

the leg and twice in the back. A revolver was used in the killing, as well as a 9-

millimeter, semiautomatic pistol, but the police found no guns. They did find a box

for a 9-millimeter Glock handgun in a shoe box on the top shelf of the closet in the

master bedroom, along with various rounds of ammunition, a handgun magazine, and

a receipt for the purchase of the gun. A gunshot residue test on Malachi’s hands

showed some amounts of lead, antimony, and barium but overall was an inconclusive

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Opinion of the Court

result. However, Malachi had washed her hands while at the neighbor’s house.

Bowman was apprehended three weeks later in New York and denied any

involvement in Johnson’s death.

At trial, defendant denied murdering Johnson. Defendant also testified that

Malachi and Johnson had a violent relationship and that Malachi carried a gun.

Malachi was jealous of Johnson because he cheated on her and she would become

physically violent with Johnson. She was particularly violent when she drank

alcohol. Malachi admitted that she drank alcohol the night of Johnson’s murder. A

few weeks before the murder, Malachi was upset with Johnson over another woman

who was at a liquor house with him.

On the night in question, defendant went to a liquor house around 11:00 p.m.

Defendant then met a friend named Lorenzo Peace around 11:30 p.m. Peace had

defendant drop him off at a friend’s house before defendant drove back to the liquor

house in Peace’s vehicle. Around midnight, defendant left the liquor house to conduct

a drug transaction with a man named Jay. Afterwards, defendant returned to the

liquor house. Defendant met Peace at Bill’s Truck Stop at about 5:00 a.m. before

returning home. Sometime after arriving home, defendant received a phone call

alerting him that Johnson was dead. Defendant fled to New York after receiving

threatening messages and learning he was accused of Johnson’s murder.

B. Pretrial Proceedings

The State filed a motion in limine to preclude the defense from questioning

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Opinion of the Court

Malachi about her pending drug trafficking charges in Guilford County. Defendant

objected to the State’s request, arguing that there was an e-mail exchange between

the Guilford County prosecutor handling Malachi’s drug charges and the Forsyth

County prosecutor involved in defendant’s murder trial. Based on the e-mail

exchange concerning a possible plea deal, the trial court ruled that defendant could

question Malachi about the pending drug charges, as well as what she knew about

any potential deals or favorable treatment as a result of her testimony at trial.

C. Trial

During cross-examination, defense counsel questioned Malachi regarding

several drug charges pending against her including: one count of trafficking in

methamphetamine, one count of conspiracy to traffic in methamphetamine, one count

of trafficking in marijuana, and one count of conspiracy to traffic in marijuana.

Malachi admitted that these charges were pending against her in Guilford County

and admitted that she was aware that each of the charges involving

methamphetamine carried a sentence of 90 months to 120 months in prison.

Similarly, Malachi acknowledged that each of the charges involving marijuana

carried a mandatory sentence of 25 to 30 months in prison. Defense counsel then

questioned Malachi about a possible plea deal.

Q. What, if anything, have you been offered from
the State at this point regarding those pending charges?

A. I don’t know nothing about that.

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Opinion of the Court

Q. So nothing has been finalized in Guilford
County?

[PROSECUTOR]: Objection.

THE COURT: Sustained.
[]

Q. You’re not aware of any current plea offer at
this point. Correct?

A. Yes, sir.

Q. Have you – – are you aware that there are
such things as plea offers?

[PROSECUTOR]: Objection.

THE COURT: I’ll allow that one
question.

[]

Q. Ma’am?

A. Yes, sir.

Q. What, if anything, do you hope to gain out of
testifying here for the State with regard to those five
pending charges?

A. Justice for Anthony Johnson.

Q. So you don’t think you’re going to get
anything out of it for the charges you got?

[PROSECUTOR]: Objection.

THE COURT: Sustained.

[]

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Opinion of the Court

Q. Are you aware of any other considerations you
might have for those pending charges right now?

[PROSECUTOR]: Objection.

THE COURT: Sustained.

The jury found defendant guilty of first-degree murder, attempted robbery

with a dangerous weapon, and possession of a firearm by a felon. The trial court

arrested judgment on the conviction for attempted armed robbery and consolidated

the other two convictions. Defendant was sentenced to life in prison without parole.

Analysis

In general, we review a trial court’s limitation on cross-examination for abuse

of discretion. See State v. McNeil, 350 N.C. 657, 678, 518 S.E.2d 486, 499 (1999). If

the trial court errs in excluding witness testimony showing possible bias, thus

violating the Confrontation Clause, the error is reviewed to determine whether it was

harmless beyond a reasonable doubt. Id. at 678, 518 S.E.2d at 499. “The Sixth

Amendment to the Constitution guarantees the right of an accused in a criminal

prosecution ‘to be confronted with the witnesses against him.’ ” Davis v. Alaska, 415

U.S. 308, 315 (1974). An accused confronts the witnesses against him through cross-

examination, which tests “the believability of a witness and the truth of his

testimony.” Id. at 316. By way of the Confrontation Clause, the accused is

guaranteed effective cross-examination, but “[t]rial judges retain broad discretion to

preclude cross-examination that is repetitive or that is intended to merely harass,

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Opinion of the Court

annoy or humiliate a witness.” State v. Mason, 315 N.C. 724, 730, 340 S.E.2d 430,

434 (1986) (citations omitted). Here, we must first determine whether the trial court

violated defendant’s Sixth Amendment right by limiting his cross-examination of

Malachi and if so, whether that error was harmless beyond a reasonable doubt.

Generally, a defendant may not cross-examine a witness regarding pending

charges. See State v. Abraham, 338 N.C. 315, 353, 451 S.E.2d 131, 151 (1994) (error

to allow cross-examination of prior bad acts, plea deal, and pending warrant). See

also State v. Jones, 329 N.C. 254, 259, 404 S.E.2d 835, 837 (1991) (cross-examination

of a pending charge could not be used to impeach a witness). An exception to this

rule is compelled by the Sixth Amendment Confrontation Clause when defendant

seeks to show bias or undue influence by the state because of the pending charges.

See Davis, 415 U.S. at 315. Such potential bias or influence is present when a witness

faces pending charges in the same jurisdiction he testifies in, allowing a defendant to

cross-examine the witness concerning the charges. See State v. Murrell, 362 N.C.

375, 404, 665 S.E.2d 61, 80 (2008). However, where a witness faces pending charges

in a separate jurisdiction than the one he testifies in, a defendant must “provide[ ] [ ]

supporting documentation of a[ ] discussion between the two district attorneys’ offices

to demonstrate that [the witness]’s testimony [i]s biased.” Murrell at 404, 665 S.E.2d

at 80.

This issue was addressed by this Court in State v. Prevatte, 346 N.C. 162, 484

S.E.2d 377 (1997). In Prevatte, the defendant was on trial for first-degree murder

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Opinion of the Court

where the state’s principal witness was an eyewitness to the murder. 346 N.C. at

162, 484 S.E.2d at 378. The eyewitness had been indicted on nine charges of forgery

and uttering forged checks in another county at the time he testified. Id. at 163, 484

S.E.2d at 378. Even though it was a different county, the same district attorney was

in charge of both cases. Id. at 163, 484 S.E.2d at 378. During trial, the court

prohibited the defendant from questioning the witness regarding the pending

criminal charges and whether he had been promised anything in exchange for his

testimony. Id. at 163–64, 484 S.E.2d at 378. Instead, the court held a voir dire

hearing outside the presence of the jury in which the defendant was allowed to cross-

examine the witness about the charges. Id. at 164, 484 S.E.2d at 378. Because the

questioning took place outside their presence, jurors were prevented from hearing the

testimony that could have shown the witness’s bias. Id. at 164, 484 S.E.2d at 378.

This Court stated, “[t]he fact that the trial of [the witness] 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.” Id. at 164, 484 S.E.2d at 378. As a result, this Court issued the defendant

a new trial, holding that the trial court committed constitutional error in limiting the

cross-examination of the witness and “that the error was not harmless.” Id. at 164,

484 S.E.2d at 378–79. The State argued that during the voir dire hearing, the

defendant testified that there was no agreement for his pending charges in exchange

for his testimony. Id. at 164, 484 S.E.2d at 378. In response, the Court reasoned that

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Opinion of the Court

even if the witness’s “testimony show[ed] that [the witness] expected nothing from

the State for his testimony against the defendant[,] [t]he effect of the handling of the

pending forgery and uttering charges on the witness was for the jury to determine”

and “[n]ot letting the jury do so was error.” Id. at 164, 484 S.E.2d at 378–79. The

Court based its reasoning on Davis v. Alaska in holding that the error was not

harmless beyond a reasonable doubt. Id. at 163–64, 484 S.E.2d at 378.

Davis involved a witness who was on probation for burglarizing two residences

when he testified as an eyewitness against the defendant. 415 U.S. at 310–11. Since

the witness was a juvenile at the time, the State made a motion for a protective order

regarding the witness’s juvenile record, which the trial court granted. Id. at 311. The

protective order barred the defendant from inquiring about the witness’s

probationary status or criminal record. Id. at 312. As a result, it was impossible for

the defendant to show the witness’s possible bias during cross-examination. Id. at

312. On appeal, the Supreme Court determined:

Since defense counsel was prohibited from making inquiry
as to the witness’ being on probation under a juvenile court
adjudication, [the witness]’s protestations of unconcern
over possible police suspicion that he might have had a part
in the [crime] and his categorical denial of ever having been
the subject of any similar law enforcement interrogation
went unchallenged.

Id. at 313–14. The Court emphasized that “the jurors were entitled to have the

benefit of the defense theory before them so that they could make an informed

judgment as to the weight to place on [the witness]’s testimony which provided ‘a

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Opinion of the Court

crucial link in the proof . . . of [the defendant’s] act.’ ” Id. at 317 (second alteration in

original) (quoting Douglas v. Alabama, 380 U.S. 415, 419 (1965)). Because the jury

was prohibited from learning about the witness’s probationary status and whether

the witness’s criminal record motivated his testimony, the defendant was “denied the

right of effective cross-examination . . . ‘and no amount of showing of want of

prejudice would cure it.’ ” Id. at 318 (citation omitted) (quoting Smith v. Illinois, 390

U.S. 129, 131 (1968)).

Here, the trial judge allowed defendant to cross-examine Malachi in the

presence of the jury concerning the pending charges against her. Although the court

did not completely deny defendant the right to cross-examine Malachi, it did place “a

significant limitation on [ ] defendant’s cross-examination of the State’s principal

witness.” State v. Hoffman, 349 N.C. 167, 180, 505 S.E.2d 80, 88 (1998) (emphasis

added). Thus, defendant was “denied the right of effective cross-examination.” Davis,

415 U.S. at 318 (emphasis added). Malachi, like the witnesses in Prevatte and Davis,

was the State’s principal witness and was present when Johnson was murdered. At

the time of the trial, Malachi was facing criminal charges that, if convicted, could

result in her imprisonment for more than nineteen years.

In a voir dire hearing that was held outside the presence of the jury,

defendant’s evidence demonstrated that the prosecutor responsible for Malachi’s drug

charges was in communication with the prosecutor responsible for defendant’s

murder trial. The two prosecutors had exchanged e-mails concerning a possible plea

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Opinion of the Court

deal for Malachi based on her testimony at defendant’s trial. Recognizing that

Malachi was the only witness to the crime and that she was facing more than a decade

in prison because of her pending drug charges, the State “had a strong[ ] weapon to

control [Malachi].” Prevatte, 346 N.C. at 164, 484 S.E.2d at 378.

During trial, the court limited defendant’s cross-examination of Malachi

several times. When defendant asked Malachi whether a deal had been finalized in

Guilford County concerning her pending charges, the prosecutor objected and the

court sustained the objection. Likewise, when defendant asked Malachi whether she

thought she was “going to get anything out of it” for the charges pending against her

based on her testimony, the court again sustained the prosecutor’s objection. Finally,

defendant asked Malachi whether she was aware of any current considerations she

might have for her pending charges. Before Malachi could answer, the prosecutor

again objected and the court sustained the motion. Here, the concern with the court’s

limitations on cross-examination lies not with whether Malachi received a plea deal,

but with the jury’s inability to consider her testimony. By limiting Malachi’s

testimony, the court prohibited the jury from considering evidence that could have

shown bias on Malachi’s part. To reiterate, “[t]he effect of the handling of the pending

. . . charges on [Malachi] was for the jury to determine” and “[n]ot letting the jury do

so was error.” Prevatte at 164, 484 S.E.2d at 378–79. Accordingly, the trial court

abused its discretion in limiting defendant’s cross-examination of Malachi, thereby

violating the Confrontation Clause.

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Opinion of the Court

This Court in State v. Hoffman held that although the trial court erred in

prohibiting the defendant’s cross-examination of a witness about charges pending

against him, the error was harmless. 349 N.C. at 181, 505 S.E.2d at 89. Unlike here,

the witness in Hoffman was not a principal witness but only a corroborating witness.

Id. at 180, 505 S.E.2d at 88. As such, the State’s case did not rest solely on the

witness’s testimony. Id. at 180, 505 S.E.2d at 88 (“[The witness’s] minimal

importance [wa]s evidenced by the fact that the prosecutor scarcely mentioned him

in his closing argument.”). In addition to the witness’s lack of significance to the

State’s case, the defendant was able to “thoroughly impeach[ ]” the witness regarding

prior inconsistent statements and a lengthy history of past convictions. Id. at 180–

81, 505 S.E.2d at 88–89. Finally, there was substantial evidence showing the

defendant’s guilt aside from the witness’s testimony. Id. at 181, 505 S.E.2d at 89.

The defendant was charged with robbery with a dangerous weapon and first-degree

murder. Id. at 173, 505 S.E.2d at 84. The State presented evidence at the defendant’s

trial showing that the defendant was seen outside of the victim’s store before the

robbery and murder occurred. Id. at 181, 505 S.E.2d at 89. Another witness testified

that the defendant had asked him to rob the store with the defendant. Id. at 181, 505

S.E.2d at 89. Other witnesses testified that the defendant admitted to murdering the

victim. Id. at 181, 505 S.E.2d at 89. Finally, physical evidence found at the scene of

the crime was consistent with a witness’s testimony regarding what the defendant

had told the witness about the crime. Id. at 181, 505 S.E.2d at 89. Because there

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Opinion of the Court

was substantial evidence against the defendant along with the impeachment

evidence against the State’s corroborating witness, the trial court’s error “was

harmless beyond a reasonable doubt.” Id. at 181, 505 S.E.2d at 89.

In this case, the State argues that any error committed by the trial court was

harmless beyond a reasonable doubt based on the thoroughness of defendant’s cross-

examination of Malachi and her impeachment over prior inconsistent statements.

See McNeil, 350 N.C. at 680, 518 S.E.2d at 500 (evidence of the thorough

impeachment of a witness regarding inconsistent statements may result in harmless

error). In McNeil this Court reasoned that “as in Hoffman, [the] defendant here

thoroughly impeached [the witness] regarding her prior inconsistent statements and

prior convictions.” 350 N.C. at 680, 518 S.E.2d at 500. The Court found no error in

McNeil and pointed out that the defendant had pleaded guilty to both counts of first-

degree murder and only challenged errors in his sentencing phase. 350 N.C. at 680,

518 S.E.2d at 500. See also State v. Atkins, 349 N.C. 62, 505 S.E.2d 97 (1998) (finding

no error where the defendant argued the trial court denied him the right to confront

a witness testifying against him in his sentencing phase after pleading guilty to first-

degree murder).

However, as in Prevatte, here Malachi was the key witness against defendant

and was vital to the State’s case due to the lack of other evidence against defendant.

There was no physical evidence linking defendant to the crime and no other witnesses

who placed him at the scene. While the State presented circumstantial evidence at

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Opinion of the Court

trial, its case relied heavily on Malachi’s testimony. Therefore, it was crucial for

defendant to demonstrate Malachi’s possible bias to the jury. The trial court erred

by limiting the cross-examination of the State’s principal witness when there was a

lack of substantial evidence linking defendant to the crime and the error was not

harmless beyond a reasonable doubt.

Conclusion

Because the trial court erred in limiting defendant’s cross-examination of the

State’s principal witness and because that error was not harmless beyond a

reasonable doubt, defendant is entitled to a new trial. Accordingly, we affirm the

decision of the Court of Appeals vacating the verdict and judgment of the superior

court. The cause is remanded to the Court of Appeals for further remand to the

Superior Court in Forsyth County for a new trial.

AFFIRMED AND REMANDED.

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 Justice ERVIN dissenting.

I do not believe, for the reasons set forth in more detail below, that the trial

court impermissibly limited defendant’s ability to cross-examine Ms. Malachi. On

the contrary, while the trial court did sustain the State’s objections to certain

questions that defendant attempted to pose to Ms. Malachi on cross-examination, the

record clearly reflects that defendant “was . . . able to get his contentions before the

jury,” State v. Ray, 336 N.C. 463, 473, 444 S.E.2d 918, 925 (1994), and the Court has

not identified any information necessary to support his bias-related challenge to Ms.

Malachi’s credibility that the jury did not hear. As a result, I respectfully dissent

from the Court’s decision to affirm the Court of Appeals’ decision to award defendant

a new trial.

As a general proposition, the scope of cross-examination is committed to the

sound discretion of the trial court. In other words, “defendant’s right to cross-

examination is not absolute,” State v. Guthrie, 110 N.C. App. 91, 93, 428 S.E.2d 853,

854 (1993), with “the scope of cross-examination [being] subject to appropriate control

in the sound discretion of the court.” State v. Coffey, 326 N.C. 268, 290, 389 S.E.2d

48, 61 (1990); see also Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39

L.Ed.2d 347, 353 (1974) (stating that the right of cross-examination is “[s]ubject

always to the broad discretion of a trial judge to preclude repetitive and unduly

harassing interrogation”); State v. Ward, 354 N.C. 231, 261, 555 S.E.2d 251, 270

(2001) (holding that “the limits placed by the trial court on defendant’s cross-
 STATE V. BOWMAN

Ervin, J., dissenting

examination of these witnesses [constituted] an appropriate exercise of its discretion”

given that “the questions called for incompetent hearsay testimony, were unduly

repetitive or argumentative, or were simply improper in form”); State v. Mason, 315

N.C. 724, 730, 340 S.E.2d 430, 434 (1986) (stating that “trial judges retain broad

discretion to preclude cross-examination that is repetitive”).

The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him.” U.S. Const. amend VI. In

Davis, the United States Supreme Court held that the defendant had a Sixth

Amendment right to question a witness who was on probation about his probationary

status in order to establish that the witness might be motivated to testify for the

prosecution for the purpose of reducing or eliminating his own exposure to criminal

prosecution or other adverse consequences. Davis, at 415 U.S. 316–319, 94 S. Ct. at

1110–11, 39 L. Ed.2d at 347. Even in that context, however, “trial judges retain wide

latitude insofar as the Confrontation Clause is concerned to impose reasonable limits

on such cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant[, with] ‘the Confrontation Clause [serving to]

guarantee[ ] an opportunity for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever extent, the defense might wish.’ “

Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674,

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Ervin, J., dissenting

683 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 295, 86 L.

Ed. 2d 15, 19 (1985) (per curiam) (emphasis in the original)).

A number of decisions of this Court have considered the appropriateness of

various trial court rulings concerning the extent to which criminal defendants were

entitled to cross-examine prosecution witnesses concerning pending criminal charges

for the purpose of showing that those witnesses were biased in favor of the

prosecution and against the defendant. For example, in State v. Prevatte, 346 N.C.

162, 162–64, 484 S.E. 2d 377, 377–79 (1997), the defendant was under indictment for

nine counts of forgery and uttering. The trial court refused to allow the defendant to

question or elicit testimony from a prosecution witness concerning that witness’s

pending charges for the purpose of establishing that the witness “had been promised

or expected anything in regard to the charges in exchange for his testimony.” Id. at

163, 484 S.E.2d at 378. In holding that the trial court’s ruling was erroneous and

awarding the defendant a new trial, this Court stated, in reliance upon Davis, that,

when the State “had a strong[ ] weapon to control the witness,” such as the ability to

utilize the plea negotiation process to persuade the witness in question to testify on

behalf of the State, the defendant must be allowed to question the witness concerning

his or her pending criminal charges. Id. at 164, 484 S.E.2d at 378–79.

On the other hand, in State v. Atkins, 349 N.C. 62, 80–81, 505 S.E.2d 97, 109

(1998), the trial court, after refusing to allow the defendant to question the State’s

principal witness about whether she could receive the death penalty in the event that

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Ervin, J., dissenting

she declined to testify for the State, permitted the defendant to ask the witness

“[w]hat kind of promises . . . has the State made you in exchange for your testimony,”

to which the witness replied, simply, “None.” Atkins, 349 N.C. at 81, 505 S.E.2d at

109. Although the defendant in Atkins challenged the trial court’s decision to sustain

the State’s objection to the question asking, “[s]o you can’t get the death penalty, can

you,” on appeal, this Court rejected defendant’s contention that the trial court’s ruling

impermissibly interfered with his confrontation rights on the grounds that “[t]he trial

court allowed exactly the type of questioning mandated by Prevatte” and that

“[d]efendant was clearly allowed to inquire into any potential bias of [the witness]

based upon any arrangement between the witness and the prosecution.” Id. at 80–

81, 505 S.E.2d at 109. As a result, this Court’s confrontation-related jurisprudence

focuses upon whether the defendant was allowed to engage in sufficient cross-

examination to support an argument to the jury that the witness was biased in favor

of the prosecution rather than upon whether the trial judge sustained an objection to

any particular question.

As the majority notes, limitations upon the scope of cross-examination imposed

by trial judges are reviewed on appeal using an abuse of discretion standard. See

State v. McNeil, 350 N.C. 657, 678, 518 S.E. 2d 486, 499 (1999). “[A] trial court may

be reversed for abuse of discretion only upon a showing that its ruling was manifestly

unsupported by reason and could not have been the result of a reasoned decision.”

State v. McGrady, 368 N.C. 880, 893, 787 S.E.2d 1, 11 (2016) (quoting State v.

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 STATE V. BOWMAN

Ervin, J., dissenting

Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)). “Absent a showing of an abuse

of discretion or that prejudicial error has resulted, the trial court’s ruling will not be

disturbed on review.” State v. Maynard, 311 N.C. 1, 10, 316 S.E.2d 197, 202–03

(1984).

A careful examination of the record reveals that defendant was afforded ample

opportunity to cross-examine Ms. Malachi concerning her pending Guilford County

drug charges, which had been the subject of communications with those responsible

for prosecuting defendant. In anticipation of trial, the State filed a motion in limine

seeking the entry of an order that, among other things, precluded defendant from

cross-examining Ms. Malachi about the criminal charges that were pending against

her in Guilford County. Prior to the beginning of the trial, the trial court heard

arguments concerning the State’s motion in limine. At the conclusion of those

arguments, the trial court determined that:

[H]aving heard arguments of counsel, having reviewed the
motion on the limited question of whether or not the
charges and any potentially favorable treatment as a result
– that testimony will be allowed, and the motion is
overruled to that limited extent.

The defendant will be allowed to ask about the nature of the
charges and what the defendant knew about any potential
deals or favorable treatment as a result of her testimony
here.

In reaching that decision, I have done a balancing test.
And I find that it is relevant. I also find that it’s – in order
to actually get a context requires a little bit of background

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Ervin, J., dissenting

to it. But it’s not going to be at this point an in-depth
discussion of those facts.

(emphasis added). After the completion of Ms. Malachi’s testimony on direct

examination and prior to the beginning of her cross-examination, the trial court

conducted additional proceedings out of the presence of the jury for the purpose of

addressing a number of potential evidentiary issues, including the extent to which

defendant would be allowed to question Ms. Malachi concerning her pending criminal

charges. Following a recitation of the questions that defendant intended to ask Ms.

Malachi concerning those pending charges, the trial court delineated the scope of the

cross-examination questioning that it intended to permit:

You may ask if she – you may ask about the charges. You
may ask if she has been offered any incentive to testify.
And you may ask if she is hoping to gain a benefit, either a
reduction in sentence if she pleads guilty or otherwise, as
a result of her testimony here. You may also ask her – and
it may be a lead-up question – if she’s aware of the potential
sentences that she would be facing.

During her cross-examination in the presence of the jury by defendant’s trial counsel,

Ms. Malachi testified that

Q. Isn’t it true on [21 January 2015], you were charged by
the High Point Police Department with one count of
trafficking in methamphetamine, one count of conspiracy
to traffic in methamphetamine, one count of trafficking in
marijuana and one count of conspiracy to traffic in
marijuana?

....

A. Yes, sir.

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Ervin, J., dissenting

Q. And those charges are still pending, are they not?

A. Yes, sir.

After establishing that Ms. Malachi knew that “the trafficking in methamphetamine

and the conspiracy to traffic in methamphetamine carry a sentence of 90 months

minimum to 120 months maximum,” that “the trafficking in marijuana charges”

“each . . . carr[y] a mandatory sentence of 25 months minimum to 30 months

maximum active prison time,” that these cases were pending in Guilford County, and

that she was represented by counsel, the following additional proceedings occurred:

Q. What, if anything, have you been offered from the State
at this point regarding those pending charges?

A. I don’t know nothing about that.

Q. So nothing has been finalized in Guilford County?

MR. TAYLOR: Objection.

THE COURT: Sustained.

BY MR. JAMES:

Q. You’re not aware of any current plea offer at this point.
Correct?

A. Yes, sir.

Q. Have you – are you aware that there are such things as
plea offers?

MR. TAYLOR: Objection.

THE COURT: I’ll allow that one question.

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 STATE V. BOWMAN

Ervin, J., dissenting

BY MR. JAMES:

Q. Ma’am?

A. Yes, sir.

Q. What, if anything, do you hope to gain out of testifying
here for the State with regard to those five pending
charges?

A. Justice for Anthony Johnson.

Q. So you don’t think you’re going to get anything out of it
for the charges you got?

MR. TAYLOR: Objection.

THE COURT: Sustained.

BY MR. JAMES:

Q. Are you aware of any other considerations you might
have for those pending charges right now?

MR. TAYLOR: Objection.

THE COURT: Sustained.

As a result, defendant’s trial counsel was allowed to establish that, at the time of

defendant’s trial, Ms. Malachi had been charged in Guilford County with one count

of trafficking in methamphetamine, one count of conspiracy to traffic in

methamphetamine, one count of trafficking in marijuana, and one count of conspiracy

to traffic in marijuana; that she faced sentences of 90 to 120 months imprisonment

in each of the methamphetamine-related cases and sentences of 25 to 30 months

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Ervin, J., dissenting

imprisonment in each of the marijuana-related cases; that she was aware of the plea

negotiation process; that she was not aware that any plea offer had been extended to

her in these Guilford County cases; and that she “hoped to gain” “[j]ustice for Anthony

Johnson” by testifying for the State against defendant. I am hard put to understand

why this information, without more, does not suffice to support an argument to the

jury that Ms. Malachi was biased in favor of the State and against defendant by virtue

of the leverage given to the State by virtue of the existence of these pending Guilford

County charges.

In holding that the trial court placed impermissible limitations upon

defendant’s ability to cross-examine Ms. Malachi about the potentially biasing effect

of her pending Guilford County drug charges, the Court focuses solely upon the fact

that the trial court sustained the State’s objections to questions inquiring whether

anything “had been finalized in Guilford County,” whether she thought that she was

“going to get anything out of [testifying] for the charges you got,” and whether she

was “aware of any other considerations you might have for her pending charges right

here.” Although the Court states that, “[b]y limiting [Ms.] Malachi’s testimony, the

court prohibited the jury from considering evidence that could have shown bias on

[Ms.] Malachi’s part,” the record contains no support for the Court’s apparent

assumption that Ms. Malachi’s answers to the questions to which the State’s

objections were sustained would have benefitted defendant. On the contrary, Ms.

Malachi testified on voir dire that she was not expecting to receive any benefit for

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Ervin, J., dissenting

testifying on the State’s behalf at defendant’s trial and that the only goal that she

sought to achieve by testifying for the State against defendant was to obtain justice

for Anthony Johnson.

In addition, the record reflects that the trial court had ample justification for

sustaining the State’s objections to each of the three questions upon which the Court’s

decision rests and certainly did not act in an arbitrary and capricious manner in

making the challenged rulings, particularly given the extensive cross-examination of

Ms. Malachi that the trial court otherwise allowed.1 After the trial court sustained

the State’s objection to defendant’s question inquiring whether anything had “been

finalized in Guilford County,” the trial court allowed defendant to ask Ms. Malachi

whether she was “aware of any current plea offer at this point” and received what

amounted, in substance, to a negative answer. Thus, the record establishes that Ms.

Malachi actually provided the information that defendant sought to obtain by posing

the first question to which the trial court sustained the State’s objection.

Furthermore, the questions to which the second and third of the State’s successful

objections were directed inquired if Ms. Malachi thought that she was “going to get

anything out of [testifying] for the charges you got” and if she was “aware of any other

considerations she might have for those pending charges right now.” Immediately

1 Although the Court acknowledges that defendant’s claim is subject to abuse of
discretion, rather than de novo, review in stating the applicable standard of review, the Court
does not, as best I can tell, ever take the applicable standard of review into consideration at
any point in its analysis and never makes reference to the applicable standard of review in
analyzing the validity of defendant’s claim.

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Ervin, J., dissenting

prior to the posing of these questions, defendant had asked Ms. Malachi what she

“hope[d] to gain out of testifying here for the State with regard to those five pending

charges” and was told, consistently with the answer that she had given to essentially

the same question on voir dire, “[j]ustice for Anthony Johnson.” Aside from the fact

that Ms. Malachi had already effectively answered the second of these two questions

when she testified that she did not have a plea offer at the time that she testified for

the State at defendant’s trial, the second and third of the three questions to which

the trial court sustained the State’s objections essentially repeated a question that

the trial court had already allowed defendant to pose and that Ms. Malachi had

already answered.2 As a result, rather than impermissibly constraining defendant’s

ability to question Ms. Malachi concerning bias-related issues arising from the

existence of the charges that were pending against her in Guilford County, the trial

court rulings to which the Court’s holding is directed represent nothing more than

the appropriate exercise of the trial court’s discretion to control the scope and extent

of cross-examination for the purpose of preventing confusion and eliminating undue

repetition. Ward, 354 N.C. at 261, 555 S.E.2d at 270 (holding that “the questions

[that defendant sought to pose concerning the events that took place on the day of a

murder and the witness’s plea agreements] called for incompetent hearsay testimony,

were unduly repetitive or argumentative, or were simply improper in form”); McNeill,

2 In the event that defendant believes that Ms. Malachi’s statement that she hoped to
achieve “[j]ustice for Anthony Johnson” was not responsive to the question that defendant
posed, he could have moved to strike Ms. Malachi’s statement as unresponsive.

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Ervin, J., dissenting

350 N.C. at 678, 518 S.E.2d 499 (holding that “further cross-examination relating to

[the witness’s] unserved warrants . . . would be repetitive and cumulative of the

evidence already presented”) (citing State v. Howie, 310 N.C. 613, 616, 313 S.E.2d

554, 556 (1984)).

The Court’s decision in this case cannot, at least in my opinion, be squared

with our existing decisional law concerning the nature and extent of the trial court’s

authority to control the scope and extent of a defendant’s ability to question a

prosecution witness concerning bias-related issues arising from the existence of

pending criminal charges. For example, this case does not involve the total preclusion

of cross-examination concerning a witness’s pending charges of the type that this

Court determined to have been erroneous in Prevatte, 346 N.C. at 164, 484 S.E.2d at

378–79, and State v. Hoffman, 349 N.C. 167, 181, 505 S.E.2d 80, 89 (1998) (holding

that “the trial court erred by not allowing defendant to cross-examine [a prosecution

witness] regarding his pending charges for breaking and entering”). On the contrary,

the cross-examination that the trial court allowed concerning Ms. Malachi’s pending

charges in this case was much more extensive than that deemed to be sufficient in

McNeill, 350 N.C. at 676–78, 518 S.E.2d. at 498–99 (holding that the trial court

permitted a sufficient inquiry into a prosecution witness’s pending charges by

allowing “defendant wide latitude to expose [the witness’s] alleged bias and motive

by allowing cross-examination regarding all of [her] prior convictions” and instructing

the jury that the witness was testifying pursuant to a plea agreement that provided

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Ervin, J., dissenting

her with a charge reduction and a sentence concession in return for her testimony,

that the witness was an accomplice deemed to have an interest in the outcome of the

proceeding, and that defendant contended that the witness had made false,

contradictory, and conflicting statements), and Atkins, 349 N.C. at 81, 505 S.E.2d at

109 (holding that the trial court had allowed a sufficient inquiry into a prosecution’s

pending charges by permitting defendant to inquire “[w]hat kind of promises . . . has

the State made you in exchange for your testimony”). Simply put, the result reached

by the Court in this case is fundamentally inconsistent with our prior decisions

concerning the nature and extent of a defendant’s right to cross-examine prosecution

witnesses concerning any pending charges that they might be facing at the time of

their testimony, at least two of which have held that much more limited questioning

than that which the trial court allowed in this case satisfied the requirements of the

Confrontation Clause.

In summary, a careful review of the record reveals that the trial court allowed

an extensive exploration of the criminal charges that Ms. Malachi was facing at the

time that she testified on behalf of the State and against defendant. The evidence

that defendant’s trial counsel elicited during his thorough cross-examination of Ms.

Malachi supplied sufficient information to support a concentrated attack upon her

credibility given that Ms. Malachi admitted that she was facing serious criminal

charges in Guilford County, that she was familiar with the plea negotiation process,

and that no proposed plea agreement had been extended to her at the time of

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Ervin, J., dissenting

defendant’s trial. The trial court had legitimate justification for sustaining each of

the successful objections that the State asserted during the relevant portion of Ms.

Malachi’s cross-examination, and the Court has failed to point to any additional

evidence or any additional bias-related argument that defendant would have been

able to elicit in the absence of the trial court’s ruling. Finally, the Court’s decision

conflicts with our existing jurisprudence concerning the nature and extent of a

criminal defendant’s right to cross-examine prosecution witnesses concerning

pending criminal charges. As a result, for all of these reasons, I respectfully dissent

from the Court’s decision to affirm the Court of Appeals’ decision that defendant

should be awarded a new trial.

Justice NEWBY joins in this dissenting opinion.

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