State v. Bumgarner

255 S.E.2d 663, 42 N.C. App. 71, 1979 N.C. App. LEXIS 2735

Opinion

WEBB, Judge.

The appellant assigns as error the action of the judge, which he contends prevented him from calling a witness he had intended to use at the trial. As we read the Canons of Ethics of the North Carolina State Bar, it is not unethical for an attorney to call a witness who he knows will plead the Fifth Amendment. Nevertheless, the interpretation of the law by the presiding judge must be accepted during a trial. We assume the defendant’s attorney knew the severe penalty to which he might be subject if he did something the presiding judge considered unethical. See In re Palmer, 296 N.C. 638, 252 S.E. 2d 784 (1979). On the facts of this case it appears defendant was prevented from calling as a witness an eyewitness to the alleged crime because of an erroneous interpretation of the law by the presiding judge. We hold this to be prejudicial error.

We do not discuss defendant’s other assignments of error as they may not recur.

New trial.

Chief Judge MORRIS and Judge HEDRICK concur.