An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-793
Filed 20 May 2026
Cleveland County, Nos. 22CR001173-220, 22CR050761-220, 22CR050762-220, 22CR050797-220
STATE OF NORTH CAROLINA
v.
BRYAN KEITH HEAVNER, Defendant.
Appeal by defendant from judgment entered 29 September 2025 by Judge W.
Todd Pomeroy in Superior Court, Cleveland County. Heard in the Court of Appeals
13 August 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Adrian W. Dellinger, for the State.
The Carolina Law Group, by Kirby H. Smith, III, for defendant-appellant.
STROUD, Judge.
A jury convicted Defendant Bryan Heavner of trafficking methamphetamine,
heroin, and fentanyl, each by possession and by transportation, and of possession of
cocaine. He raises two challenges on appeal. First, he argues that the trial court
violated his constitutional right to confront the witnesses against him by limiting his STATE V. HEAVNER
Opinion of the Court
cross-examination of a State witness. See U.S. Const. amend. VI; N.C. Const. art. I,
§ 23. Second, he claims that the trial court erred in declining to give North Carolina
Pattern Jury Instruction 104.21 on the testimony of a witness with quasi-immunity.
We hold that Defendant received a fair trial, free of prejudicial error.
I. Background
The evidence at trial tended to show that in February 2022, the Gaston County
Police Department (GCPD) used a confidential informant “to conduct a controlled
purchase of methamphetamine” from Katie Montgomery. GCPD officers, including
Detective Val Omandi, then executed a search warrant on Montgomery’s hotel room.
Inside, they found “about 46 grams” of methamphetamine—plus an ounce and a half
or so on Montgomery.
Omandi testified that, rather than face prosecution, Montgomery (then on
probation) “decided to cooperate.” The GCPD “signed her up as a confidential
informant,” and she began assisting Omandi with the investigation of Defendant.
She identified Defendant as her supplier. Soon after, Montgomery told Omandi that
Defendant sourced his drugs from a South Carolina supplier and returned through
Cleveland County. Omandi contacted the Cleveland County Sheriff’s Department
(CCSD) to arrange a traffic stop during Defendant’s return. The CCSD agreed.
The next day, Montgomery accompanied Defendant to Spartanburg, South
Carolina, where he picked up a shipment. The pair stopped briefly at a Red Roof Inn.
Omandi surveilled them. At around 1:30 a.m., Montgomery texted Omandi a coded
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message signaling Defendant had the drugs and was heading back. Omandi watched
them leave the Red Roof Inn and trailed them toward North Carolina. As they
approached the state line, he notified CCSD to stop Defendant’s vehicle.
Deputy Mike Lawrence testified that CCSD deputies initiated a traffic stop as
Defendant crossed into Cleveland County. Defendant did not pull over, and a pursuit
ensued. Deputies saw packages being thrown from the passenger-side window,
though they could not identify who threw them. Eventually, a deputy deployed spike
strips and stopped the vehicle.
Deputies searched Defendant and recovered a red tin can containing two small
bags—one holding a white powder, the other a brown, tar-like substance. From the
shoulder of the road, deputies recovered a bag of methamphetamine, drug
paraphernalia, and a revolver. At trial, a forensic chemist with the North Carolina
State Crime Lab identified the seized substances as methamphetamine, cocaine,
heroin, and fentanyl. Deputies arrested Defendant and released Montgomery
without charges.
Omandi testified that the Gaston County District Attorney’s office did not
prosecute Montgomery for the methamphetamine seized during the February 2022
controlled buy. Montgomery continued working as a GCPD confidential informant
through August 2023, “provid[ing] . . . substantial assistance to gain favor for . . .
[Gaston County’s] pending investigation of her.” She completed fourteen additional
controlled buys for the GCPD on undisclosed terms.
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A Cleveland County grand jury returned indictments on 14 March 2022,
charging Defendant with trafficking methamphetamine (more than 400 grams) by
possession and by transportation; trafficking heroin (more than four grams but less
than fourteen grams) by possession and by transportation; possession of cocaine; and
possession of a firearm by a felon. On 10 October 2022, the grand jury returned
indictments charging Defendant with trafficking fentanyl (more than twenty-eight
grams) by possession and by transportation.
Defendant filed a motion requesting voluntary discovery under North Carolina
General Statute Section 15A-902 and Brady v. Maryland, 373 U.S. 83 (1963), on 10
November 2022. See N.C. Gen. Stat. § 15A-902(a) (2023) (“A party seeking discovery
under this Article must, before filing any motion before a judge, request in writing
that the other party comply voluntarily with the discovery request.”); Brady, 373 U.S.
at 87 (holding that “suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to
guilt or to punishment”). He sought, among other things, the identities of any
informants, the criminal records of the State’s witnesses, and any promises of
leniency made to people who would testify. The State produced discovery in response.
Defendant later filed a “motion to reveal deals or concessions,” requesting any
deals, concessions, or inducements offered to potential State witnesses—even by
agencies other than “the Cleveland County District Attorney’s office or its direct
agents.” He alleged that the investigation had “crossed many jurisdictions” and that
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the GCPD and CCSD “were working jointly.”
The case was tried in Superior Court, Cleveland County, in September 2023.
Before jury selection, the trial court heard the parties’ pretrial motions. Defendant
moved to continue the trial so he could investigate Montgomery’s compensation as a
GCPD informant and her new drug charges. In particular, he sought the amounts
the GCPD had paid Montgomery for the fourteen additional controlled buys she
completed after his arrest. The State objected that those amounts involved
“[fourteen] separate situations that happened in Gaston County with Gaston County
charges” and thus fell “outside the scope of” Defendant’s trial.
Defense counsel pressed the relevance: how much Montgomery was paid per
transaction, how she worked for the GCPD, and how those fourteen buys compared
with her work on Defendant’s case—all, she argued, went to impeachment. The trial
court disagreed, finding the specific amounts’ relevance “tenuous” and limited “to the
Gaston County cases.” It nevertheless promised defense counsel “wide latitude” on
cross-examination:
You know, she’s a paid confidential informant. She’s working multiple counties. She received compensation. That she’s also received the benefit of testifying, getting charges reduced, modified, whatever it may be. I’ll certainly give you all that latitude to ask those questions, but I don’t know that the amounts are . . . relevant for these hearings.
Finally, defense counsel moved the court “to reveal the deal or any concessions”
the State had made with Montgomery. She argued that much of the State’s evidence
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would “hinge on [Montgomery’s] testimony,” for Montgomery was “heavily involved
in this case.” The State responded that it had already met with defense counsel and
Omandi and laid “out exactly . . . what [Montgomery] got for her work in this matter.”
The court denied the motion.
Defendant pleaded “not guilty to all counts.” After the State rested its case, he
moved to dismiss for insufficient evidence. The trial court denied the motion.
Defendant presented no evidence.
On 29 September 2023, the jury found Defendant guilty of trafficking
methamphetamine, heroin, and fentanyl, each by possession and transportation, and
of possession of cocaine. It acquitted him on the firearm charge.
Defendant gave oral notice of appeal in open court.
II. Jurisdiction
This Court has jurisdiction under North Carolina General Statute Sections 7A-
27(b)(1) and 15A-1444(a). See N.C. Gen. Stat. § 7A-27(b)(1) (2023) (“[A]ppeal lies of
right directly to the Court of Appeals . . . [f]rom any final judgment of a superior court
. . . .”); see also N.C. Gen. Stat. § 15A-1444(a) (2023) (“A defendant who has entered a
plea of not guilty to a criminal charge, and who has been found guilty of a crime, is
entitled to appeal as a matter of right when final judgment has been entered.”).
III. Discussion
Defendant raises two challenges on appeal. We address each in turn.
A. Confrontation Clause
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Defendant argues that the trial court’s limits on cross-examining Montgomery
violated his Sixth Amendment right to confront the witnesses against him.1 We
disagree.
1. Standard of Review
The parties disagree about the proper standard of review. Defendant argues
for de novo review, reasoning that whether he “was denied the right to confront his
accuser is an issue of constitutional law.”2 See State v. Barthel, ___ N.C. App. ___,
___, 924 S.E.2d 74, 82 (2025) (“We . . . review constitutional questions de novo.”
(citation omitted)). The State argues for abuse-of-discretion review, treating the trial
court’s rulings as evidentiary ones under Rules 401 and 403 of the North Carolina
Rules of Evidence. See State v. Petrick, 186 N.C. App. 597, 601, 652 S.E.2d 688, 691
(2007) (“[W]e review evidentiary rulings for an abuse of discretion[.]” (citation
omitted)).
Our Supreme Court resolved this dispute in State v. Bowman, 372 N.C. 439,
831 S.E.2d 316 (2019). The issue there was whether a trial court violated the
“defendant’s Sixth Amendment right to confront witnesses against him by limiting
1 Defendant also asserts that the trial court violated his rights under Article I, Section 23 of the state
constitution. See N.C. Const. art. I, § 23 (“In all criminal prosecutions, every person charged with crime has the right . . . to confront the accusers and witnesses with other testimony . . . .”). But he does not argue that the provision offers greater protection than the Sixth Amendment’s Confrontation Clause, and he relies only on cases interpreting that Amendment. Our analysis therefore focuses only on the federal Constitution.
2 At the same time, Defendant acknowledges later in his briefing that this Court reviews “issues raised
by [an] appellant regarding a trial court’s rulings on cross-examination . . . for an abuse of discretion.”
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[his] cross-examination of the State’s . . . witness.” Id. at 440, 831 S.E.2d at 317. “In
general,” the Court explained, “we review a trial court’s limitation on cross-
examination for abuse of discretion.” Id. at 444, 831 S.E.2d at 319 (citing State v.
McNeil, 350 N.C. 657, 678, 518 S.E.2d 486, 499 (1999)). And “[i]f 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. We review Defendant’s challenge accordingly.
2. Analysis
The Sixth Amendment’s Confrontation Clause guarantees a criminal
defendant “the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI. A defendant exercises that right through cross-examination, Bowman,
372 N.C. at 444, 831 S.E.2d at 319-20—“the principal means by which the
believability of a witness and the truth of his testimony are tested.” Davis v. Alaska,
415 U.S. 308, 316 (1974). And a central function of cross-examination is to expose a
witness’s “possible biases, prejudices, or ulterior motives . . . as they may relate
directly to issues or personalities in the case.” Id. at 316 (citation omitted). That
function is “a proper and important” one, vital to the “constitutionally protected right
of cross-examination.” Id. at 316-17.
But that right can be limited. Trial courts “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,
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confusion of the issues, the witness’[s] safety, or interrogation that is repetitive or
only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The
Confrontation Clause, our Supreme Court has said, “guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” McNeil, 350 N.C. at 677, 518 S.E.2d
at 498 (citation omitted).
Our task is twofold. We determine first “whether the trial court violated
[D]efendant’s Sixth Amendment right by limiting his cross-examination” of
Montgomery—and if so, “whether that error was harmless beyond a reasonable
doubt.” Bowman, 372 N.C. at 444, 831 S.E.2d at 320. Before we get there, though,
we address a few preliminary matters.
a. Preliminary Observations
Several of Defendant’s factual claims on appeal lack any foundation in the
transcripts. That matters because, to state a Confrontation Clause violation,
Defendant must show he “was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of the
witness.” Van Arsdall, 475 U.S. at 680 (citing Davis, 415 U.S. at 318). A defendant
cannot meet that burden by pointing to cross-examination the trial court never
limited—or, still further afield, to cross-examination about arrangements that never
existed.
To begin, Defendant claims that the trial court “did not require the State to
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disclose” information about Montgomery’s pretrial release and denied him the chance
to inquire “why . . . Montgomery was in jail and/or why she was on a pre-trial release
through Cleveland County’s electronic monitoring program.” But Montgomery was
never on pretrial release in Cleveland County. As defense counsel told the court
before jury selection, Montgomery’s release was “[o]ut of Gaston,” and counsel could
“tell” that “she was on a monitor [there] because she ha[d] violations and charges for
interfering.” Montgomery’s trial testimony confirmed it: Her monitor, she said, arose
from Gaston County “domestic violence charges with [her] boyfriend” and the related
pretrial release there. There was no Cleveland County pretrial release for Defendant
to address in Montgomery’s cross-examination.
If Defendant’s argument is instead about Montgomery’s Gaston County
monitor, the record still contradicts him. Defense counsel asked Montgomery
whether her monitor charge arose “in Gaston County,” and Montgomery said yes.
The trial court sustained a single objection—to counsel’s question asking why
Montgomery was on a monitor. But counsel’s very next question drew the answer
tying the charge to Gaston County “domestic violence charges” and Montgomery’s
Gaston County pretrial services. The monitor, the underlying charges, and the
pretrial services all belonged to Gaston County, and no party suggested otherwise at
trial.
Defendant also asserts that the CCSD “wanted to use . . . Montgomery as a
confidential informant,” that she “was given an opportunity to work as [a]
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[c]onfidential [i]nformant in Cleveland County,” and that “it is unknown what
charges . . . Montgomery was working off in Cleveland County.” But Montgomery
worked as an informant for the GCPD, not the CCSD. Defendant rests his contrary
theory “[u]pon [his] information and belief,” but the transcripts say otherwise.
Montgomery testified on cross she “started working as a confidential informant
for [the GCPD]” days after she got “busted in the hotel room.” She had filled out a
GCPD informant packet and received roughly $200 per job. Omandi said as much
himself. When Montgomery asked about working off her Cleveland County charges,
he told her that GCPD could not help: She would have to “contact Cleveland County
since they [we]re the ones who charged her for that.” And defense counsel, at the
pretrial hearing, described Montgomery’s informant work—including the “[fourteen]
other targets” after Defendant’s arrest—as work “for Gaston County.”
In short, the trial court did not prohibit cross-examination about a Cleveland
County pretrial release program, nor about Cleveland County informant work,
because neither existed to be cross-examined about. Defendant’s Confrontation
Clause arguments, to the extent they depend on those theories, fail.3
3 Defendant also contends that the State should have disclosed more: As he puts it, “[d]espite implicitly
admitting it had an arrangement, the State never disclosed any delays, promises, or incentive . . . it made with . . . Montgomery, or any threats made, or any type of coercion used against” her “to get her to cooperate and[ ] testify for the State.” In a single sentence, Defendant adds that this non-disclosure “denied the basic information required by Brady . . . to be able to effectively cross-examine the State’s witness’s against him.” But Defendant has not developed the Brady argument. His briefing on this issue is a lone Brady citation with no attendant analysis. See N.C. R. App. P. 28(b)(6) (“Issues . . . in support of which no reason or argument is stated, will be taken as abandoned.”). So we do not reach it.
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b. Merits
Defendant’s remaining arguments, those grounded in the record, concern three
topics on which he says the trial court improperly limited Montgomery’s cross-
examination. In his view, Montgomery was a “vulnerable” witness under Davis, 415
U.S. at 318, subject to several sources of State pressure: (1) the risk that the State
would prosecute her for the methamphetamine seized from her in February 2022 and
for any misconduct during her work as a GCPD informant; (2) her Gaston County
pretrial supervision and electronic monitoring, both tied to unrelated domestic
violence charges; and (3) her probationary status. The trial court’s limits on each,
Defendant argues, thwarted his “ability to contest the credibility of the witnesses
against him and to demonstrate the biases of those witnesses.”
“Generally, a defendant may not cross-examine a witness regarding pending
charges.” Bowman, 372 N.C. at 444, 831 S.E.2d at 320 (citation omitted). But the
Confrontation Clause carves out an exception when a “defendant seeks to show bias
or undue influence by the [S]tate because of the [witness’s] pending charges.” Id.
(citing Davis, 415 U.S. at 315). As we have explained, “[t]he constitutional right to
cross-examine a witness includes the right to examine that witness about any
pending criminal charges or any criminal convictions for which he is currently on
probation.” State v. Ferguson, 140 N.C. App. 699, 705, 538 S.E.2d 217, 222 (2000)
(citing State v. Prevatte, 346 N.C. 162, 163-64, 484 S.E.2d 377, 378 (1997)). That’s
because “the jury is entitled to consider, in evaluating a witness’s credibility, the fact
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the State has a ‘weapon to control the witness.’ ” Id. (quoting Prevatte, 346 N.C. at
164, 484 S.E.2d at 378).
The scope of permissible cross-examination to show bias, though, depends on
where the witness faces the pending charges. See State v. Murrell, 362 N.C. 375, 404,
665 S.E.2d 61, 80 (2008) (holding that where “charges pending against [the witness]
were being handled in a different jurisdiction, and [the] defendant provide[d] no
supporting documentation of any discussion between the two district attorneys’
offices,” the defendant did not show “that [the witness’s] testimony was biased”). As
our Supreme Court stated in Bowman:
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. . . . 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 is biased.”
Bowman, 372 N.C. at 444-45, 831 S.E.2d at 320 (quoting Murrell, 362 N.C. at 404,
665 S.E.2d at 80 (internal brackets omitted)).
At the outset, we take judicial notice that Gaston County is in a different
prosecutorial district than Cleveland County, where this case was tried. See State v.
Alston, 233 N.C. App. 152, 161, 756 S.E.2d 70, 76 (2014) (taking judicial notice that
the trial county and other-district counties “are each located in different prosecutorial
districts”). Two of the three sources of pressure Defendant identifies came from
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Gaston County, not Cleveland. Montgomery’s informant work—the fourteen
controlled buys, the $200 payments, the alleged breach of her informant agreement—
was for the GCPD. And her electronic monitoring and pretrial supervision stemmed
from her Gaston County domestic violence charges. Cleveland County prosecuted
this case.
That matters because the rule permitting cross-examination about pending
charges rests on a specific premise: that the charges give the prosecution a “weapon
to control the witness.” Prevatte, 346 N.C. at 164, 484 S.E.2d at 378. When the
charges sit in another district, that premise fails. A Cleveland County prosecutor has
no leverage over a witness through a Gaston County charge, a Gaston County
informant arrangement, or Gaston County pretrial supervision—because none of
those things is his to control. See Murrell, 362 N.C. at 404, 665 S.E.2d at 80.
Defendant has a response. He theorizes an “implicit agreement” between
Montgomery and the GCPD: that she would avoid prosecution for the
methamphetamine seized from her in February 2022 in exchange for cooperating in
the investigation of Defendant. But even accepting that theory, it shows only that
the Gaston County District Attorney’s office held leverage over Montgomery—not the
Cleveland County District Attorney’s office that prosecuted this case. Defendant
offered no evidence of coordination between the two offices. And Montgomery denied
receiving any benefit for her testimony. The Confrontation Clause did not require
the trial court to permit more cross-examination about the details of Montgomery’s
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Gaston County informant work, her Gaston County electronic monitoring, or her
Gaston County pretrial supervision. See id.; see also Alston, 233 N.C. App. at 161, 756
S.E.2d at 76 (holding that the trial court did not abuse its discretion by limiting cross-
examination about different-district pending charges where the defendant “failed to
provide any evidence of discussions between” the district attorneys’ offices and the
witnesses “did not believe testifying in th[e] case could help them in any way with
proceedings in other counties”).
Montgomery’s Cleveland County trafficking charge stood on different footing—
it arose in the same jurisdiction where she was now testifying, which Murrell
recognized as probative of bias, 362 N.C. at 404, 665 S.E.2d at 80. The trial court
allowed cross-examination about that charge. Montgomery testified on cross she had
been “charged with trafficking in Cleveland County in meth” with a “little over an
ounce” the week before trial and that she had been in Cleveland County custody
because of that charge. The trial court’s treatment of Montgomery’s Cleveland
County trafficking charge raises no Confrontation Clause concern.
That leaves Defendant’s argument on Montgomery’s probationary status.4
4 Defendant also posits that the trial court erred in preventing Omandi from identifying “what crimes
. . . Montgomery was charged with in Cleveland County.” But the trial court sustained one objection to Omandi’s testimony about Montgomery’s outstanding warrants—not her pending charges. Every Confrontation Clause case Defendant cites—indeed, every case concerning this right in our jurisprudence—turned on a defendant’s right to cross-examine the biased witness herself about her own pending charges. See, e.g., State v. Ferguson, 140 N.C. App. 699, 705, 538 S.E.2d 217, 222 (2000) (noting “the right to examine that witness about any pending criminal charges” (emphasis added)). Defendant’s claim is different: he asked to cross-examine one witness about another witness’s
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When defense counsel asked Montgomery whether she was “currently on probation,”
the State objected, and the trial court sustained, calling the question “[i]mproper.”
Relying primarily on Davis, Prevatte, and Bowman, Defendant argues that the
exclusion violated his right to effective cross-examination.
But in each of those cases, the trial court foreclosed the defendant’s only
meaningful path to showing bias. The trial court in Davis barred cross-examination
about the witness’s probation following a juvenile-delinquency adjudication, leaving
defense counsel “unable to make a record from which to argue why” the witness might
be biased. Davis, 415 U.S. at 310-11, 318. The trial court in Prevatte went further,
blocking every question about the witness’s nine pending charges and any promise or
expectations about “the charges in exchange for his testimony.” Prevatte, 346 N.C. at
163, 484 S.E.2d at 378. And the trial court in Bowman prohibited every question
about whether a deal had been finalized “concerning [the witness’s] pending charges,”
whether the witness thought she was “going to get anything out of it,” and whether
she was “aware of any current considerations she might have [had] for her pending
charges.” Bowman, 372 N.C. at 447, 831 S.E.2d at 321. Each defendant was thus
“denied the right of effective cross-examination,” Davis, 415 U.S. at 318—not because
every question drew an objection, but because the questions that mattered did. Id.;
see also Bowman, 372 N.C. at 446, 831 S.E.2d at 321 (recognizing a violation where
outstanding warrants. That right our cases have not recognized. Defendant had the right to confront Montgomery—and he exercised it, questioning her directly and at length about her charges.
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the trial court imposed “a significant limitation on [the] defendant’s cross-
examination of the State’s principal witness,” even short of a total denial (citations
This case is different. The trial court gave defense counsel “wide latitude” to
expose Montgomery’s “alleged bias and motive” in testifying for the State, and defense
counsel used it. McNeil, 350 N.C. at 677, 518 S.E.2d at 499. Counsel questioned
Montgomery about the pending Cleveland County trafficking charge in detail—its
substance, its timing, and her custody on that charge the week before trial. And the
trial court allowed counsel to cross-examine Montgomery about her two pending
Gaston County charges and her prior Gaston County convictions. See N.C. Gen. Stat.
§ 8C-1, Rule 609 (2023) (permitting the admission of prior convictions to attack a
witness’s credibility).
Counsel also asked Montgomery directly whether she was “testifying to benefit
[her]self.” The State objected, and the trial court overruled. Montgomery denied any
benefit: She was “subpoenaed by both sides” and had “no ill will towards either side[ ]
or part[y].” Counsel pressed again—“you get some benefit for that, don’t you?”—and
the court overruled again. Montgomery denied any benefit a second time.
Still, Defendant sees the probation exclusion as decisive. According to his
reading of Davis, any limitation on cross-examination into a witness’s probationary
status is a Confrontation Clause violation. And because Montgomery was under
active State supervision, he contends, she was especially “vulnerable” to State
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pressure. But Davis does not sweep that broadly. The Supreme Court’s holding was
fact-bound: “On these facts,” the Court wrote, the defendant “should have been
permitted to expose to the jury the facts from which jurors . . . could appropriately
draw inferences relating to the [witness’s] reliability.” Davis, 415 U.S. at 318
(emphasis added). Those facts were narrow. The defendant in Davis faced one
avenue to show bias—the witness’s probation—and the trial court closed it. Id. Here,
defense counsel developed multiple avenues for the same showing: the Cleveland
County trafficking charge, the informant work for GCPD, the motive questions, and
the prior convictions. Excluding probation would have added another form of State
supervision to the record; it would not have given the jury a reason to doubt
Montgomery’s impartiality that it otherwise lacked. That is a meaningful difference
under Davis.
In sum, the trial court allowed defense counsel to expose Montgomery’s
“alleged bias and motive” on cross-examination, including through questioning about
her pending Cleveland County trafficking charge, her custody on that charge, her
informant work for GCPD, her motive to testify, and her prior convictions. McNeil,
350 N.C. at 677, 518 S.E.2d at 499. The narrow limits the court enforced fell within
its “wide latitude . . . to impose reasonable limits on . . . cross-examination.” Van
Arsdall, 475 U.S. at 679. The trial court did not abuse its discretion. See McNeil, 350
N.C. at 678, 518 S.E.2d at 499.
B. Jury Instructions
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At the charge conference, defense counsel asked the trial court to give North
Carolina Pattern Jury Instruction 104.21. See N.C.P.I. – Crim. 104.21 (Testimony of
a Witness with Immunity or Quasi-Immunity). That instruction states:
There is evidence which tends to show that a witness testified [under a grant of immunity] [under an agreement with the prosecutor for a charge reduction in exchange for the testimony] [under an agreement with the prosecutor for a recommendation for sentence concession in exchange for the testimony]. If you find that the witness testified for this reason, in whole or in part, you should examine this testimony with great care and caution. If, after doing so, you believe the testimony, in whole or in part, you should treat what you believe the same as any other believable evidence.
Id. (footnote omitted). The trial court denied the request, reasoning that “the
instruction doesn’t fit” and “almost implies something that’s not in evidence.”
Instead, it gave North Carolina Pattern Jury Instructions 104.20 and 104.30. See
N.C.P.I. – Crim. 104.20 (Testimony of Interested Witness), 104.30 (Informer or
Undercover Agent).
The court instructed the jury, in relevant part:
You may find that a witness is interested in the outcome of this trial. You may take the witness’s interest into account in deciding whether to believe a witness. If you believe the testimony of the witness in whole or in part, you should treat what you believe the same as any other believable evidence.
You may find that a State’s witness is interested in the outcome of this case because of the witness–witness’s activities as a confidential informant. If so, you should examine the testimony of the witness with care and
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caution. After doing so, if you believe the testimony in whole or in part, you should treat what you believe the same as any other believable evidence.
Defendant argues that the trial court erred by declining pattern instruction
104.21 and giving 104.20 and 104.30 instead. In his view, Montgomery had “quasi-
immunity” because the State declined to prosecute her in Gaston County in exchange
for her cooperation. And so the trial court had to instruct the jury to “examine [her]
testimony with great care and caution” under pattern instruction 104.21. We
As mentioned, Defendant requested pattern jury instruction 104.21 orally at
the charge conference. See generally State v. Puckett, 54 N.C. App. 576, 581, 284
S.E.2d 326, 329 (1981) (“An instruction to scrutinize the testimony of a witness on
the grounds of interest or bias relates to a subordinate feature of a criminal case, and
the trial court is not required to charge as to such matters in the absence of a request
for special instructions.” (citation omitted)). A request for a special jury instruction
must be (1) “[i]n writing,” (2) “[e]ntitled in the cause,” and (3) “[s]igned by counsel
submitting them.” N.C. Gen. Stat. § 1-181(a) (2023). When a request is not submitted
in writing and signed as the statute requires, “it is within the discretion of the [trial]
court to give or refuse such instruction.” State v. Mewborn, 178 N.C. App. 281, 292,
631 S.E.2d 224, 231 (2006) (citation omitted). We therefore review the trial court’s
denial of Defendant’s oral request for abuse of discretion. Id.
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2. Preservation
The State argues that Defendant waived appellate review under State v. White,
349 N.C. 535, 570, 508 S.E.2d 253, 275 (1998), which declared that “[w]here a
defendant tells the trial court that he has no objection to an instruction, he will not
be heard to complain on appeal.” It points to two exchanges between the trial court
and defense counsel during the charge conference. The first was the court’s
explanation for declining pattern instruction 104.21:
The [c]ourt: The informant and the interested witness has more of a fit. That almost implies something that’s not in evidence so –
....
The [c]ourt: –that’s why I didn’t include [pattern jury instruction 104.201].
[The prosecution]: I think the instruction for confidential informant takes cares of that.
The [c]ourt: Yeah.
[Defense counsel]: Thank you, sir.
The second came at the close of the charge conference:
The [c]ourt: So we’re satisfied with the verdict sheets?
[Defense counsel]: Yes, sir.
The [c]ourt: Not asking for any additional instructions?
[The prosecution]: No, sir.
[Defense counsel]: No, sir.
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Because defense counsel “affirmatively approved the proposed jury instruction” and
“fail[ed] to object or make any attempt to clarify the instruction prior to submission
to the jury,” the State maintains, Defendant “waived any appeal over the content of
the instruction.” We disagree.
Our Supreme Court rejected that reading of White in State v. Hooper, 382 N.C.
612, 879 S.E.2d 549 (2022). There, the defendant initially agreed to the trial court’s
proposed instructions at the charge conference. Id. at 618, 879 S.E.2d at 553. But
the next morning, he reversed course and requested a self-defense instruction. Id. at
618-19, 879 S.E.2d at 553-54. The trial court denied the request. Id. at 619, 879
S.E.2d at 554. On appeal, the issue was whether that sequence preserved the
defendant’s jury-instruction challenge. Id. at 613, 879 S.E.2d at 550. The Court held
that it did. Id. at 624, 879 S.E.2d at 557. North Carolina Rule of Appellate Procedure
10(a)(2) requires a party to object to the jury charge “before the jury retires to consider
its verdict,” and the defendant had requested the instruction before the trial court
gave its charge. Id. at 624-25, 879 S.E.2d at 557. That was enough. The Court said
that Rule 10(a)(2)’s purpose “is met when a request to alter an instruction has been
submitted and the trial judge has considered and refused the request.” Id. at 625,
879 S.E.2d at 557 (quoting Wall v. Stout, 310 N.C. 184, 189, 311 S.E.2d 571, 575
(1984)). Once the trial court has ruled, “further objections [are] not only useless but
wasteful of the court’s time.” Id.
Hooper distinguished White. In White, the Court explained, the defendant had
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agreed to the trial court’s proposed jury instruction, offered no alternative language,
and did not object after the court delivered the instructions. Id. at 625 n.3, 879 S.E.2d
at 558 n.3 (citing White, 349 N.C. at 569). The trial court thus “had no basis for
believing that [the] defendant objected to the manner in which it had instructed the
jury.” Id. at 626 n.3, 879 S.E.2d at 558 n.3. But in Hooper, the trial court “was
presented with and rejected a request” for a self-defense instruction. Id.
So too here. Defense counsel asked for pattern instruction 104.21 during the
charge conference itself. The trial court considered and rejected the request, opining
that the instruction did not “fit” and “almost implie[d] something that[ ] [was] not in
evidence.” The court was on notice of defense counsel’s position from that point
forward, and counsel was not required to renew the objection after the court ruled.
See id. at 625-26, 879 S.E.2d at 557-58; see also State v. Smith, 311 N.C. 287, 290,
316 S.E.2d 73, 75 (1984) (stating that the defendant is not required “to repeat his
objection to the jury instructions, after the fact, in order to properly preserve his
exception for appellate review”). If anything, Defendant’s preservation argument is
stronger than the one in Hooper. The Hooper defendant initially agreed to the
instructions and requested his self-defense instruction only the next morning,
Hooper, 382 N.C. at 618, 879 S.E.2d at 553—here, however, Defendant requested
104.21 at the charge conference itself. This issue is preserved.
3. Merits
When a defendant requests “a special instruction, which is correct in itself and
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supported by evidence, the court must give the instruction at least in substance.”
State v. Carwile, 297 N.C. App. 145, 157, 909 S.E.2d 913, 924 (2024) (citation
omitted). If the trial court refuses “to instruct the jury in accordance with a criminal
defendant’s request,” the trial court’s judgment will not be reversed “unless the error
in question has prejudiced the defendant, such that there is a reasonable possibility
that, had the trial court given the [requested instruction], a different result would
have been reached at trial.” Id. at 158, 909 S.E.2d at 924 (internal quotation marks
and citation omitted).
As noted earlier, pattern jury instruction 104.21 applies when “there is
evidence which tends to show that a witness testified [under a grant of immunity]
[under an agreement with the prosecutor for a charge reduction in exchange for the
testimony] [under an agreement with the prosecutor for a recommendation for
sentence concession in exchange for the testimony].” N.C.P.I. – Crim. 104.21
(footnote omitted). When the evidence supports one of those three arrangements, the
instruction tells the jury that “[i]f [it] find[s] that the witness testified for this reason,
in whole or in part, [it] should examine this testimony with great care and caution.”
Id. Each alternative tracks a specific statutory provision. See N.C. Gen. Stat. §§ 15A-
1052 (2023) (Grant of immunity in court proceedings), 15A-1054 (2023) (Charge
reductions or sentence concessions in consideration of truthful testimony). The
instruction is “supported by the evidence,” Carwile, 297 N.C. App. at 157, 909 S.E.2d
at 924, only when one of those three arrangements is shown. See Mewborn, 178 N.C.
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App. at 292, 631 S.E.2d at 231-32.
Mewborn illustrates the point. There, the State’s witness had entered a plea
agreement that dismissed nine narcotics charges in exchange for his guilty plea on a
tenth. Id. at 285, 631 S.E.2d at 227. At the time of the defendant’s trial, the witness
had not been sentenced. Id. The defendant requested pattern instruction 104.21,
and the trial court denied the request, giving pattern instructions 104.20 and
104.30—the same two instructions given here. Id. at 291, 631 S.E.2d at 231.
On appeal, we concluded that pattern instruction 104.21 “was not supported
by the evidence”:
[N]o evidence was presented at trial that [the witness] testified under an agreement for a charge reduction or an agreement for a sentencing concession. [The] [d]etective . . . testified that three of [the witness’s] charges were dismissed pursuant to a plea agreement with the State, but that there was no agreement between [the] [d]etective . . . and [the witness] that resulted in the dismissals. [The] [d]etective . . . testified he advised [the witness] that “it would look better if he . . . cooperated with the police, that way [the detective] could go to court and tell the judge that [the witness] had done wrong but also had done things to try to help himself out.” At the time of [the] defendant’s trial, [the witness] had not yet been sentenced for his conviction, and there was no evidence of a sentencing concession. [The witness] testified that no one made promises to him in exchange for his testimony.
Id. at 292, 631 S.E.2d at 231-32. Because there was no evidence that the witness
“had been granted immunity or quasi-immunity for his testimony against” the
defendant, we held that the trial court did not “abuse[ ] its discretion in denying [the]
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defendant’s requested special jury instruction.” Id. at 292, 631 S.E.2d at 232.
Here, Defendant concedes that the pattern instruction’s first and third
arrangements do not apply. See N.C.P.I. – Crim. 104.21. He does not argue that
Montgomery testified under a grant of immunity—and in fact acknowledges that
“Montgomery did not receive an actual grant of immunity in any of her cases.” Nor
does he identify any evidence of a sentence-concession arrangement.
That leaves pattern instruction 104.21’s “charge reduction” circumstance:
testimony given “under an agreement with the prosecutor for a charge reduction in
exchange for the testimony.” Id. Defendant contends that Montgomery had “an
arrangement with the State to testify in these matters” under which “she would not
be prosecuted for trafficking methamphetamines in Gaston County, in exchange for
assistance in charging and prosecuting . . . Defendant with these crimes in Cleveland
County.”
The record, however, shows no such arrangement. Omandi testified that he
reported Montgomery’s “substantial assistance” in his investigation of Defendant to
the Gaston County Assistant District Attorney, who then declined to prosecute her.
But none of that shows Montgomery testified “in exchange for” Gaston County’s
decision not to prosecute. Id.; see also Mewborn, 178 N.C. App. at 292, 631 S.E.2d at
231. Omandi and Montgomery both denied any such exchange. “There was no deal
made,” Omandi testified, and “[n]o . . . promises” had been made to Montgomery. And
Montgomery emphasized that she was “subpoenaed on both sides to come to court”
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and had “no ill will towards either side[ ] or part[y]”; asked whether she was “getting
any benefit for testifying,” she answered, “No. I’m just subpoenaed to be here.”
Defendant’s fallback rests on the pattern instruction’s title: “Testimony of
Witness with Immunity or Quasi-Immunity.” N.C.P.I. – Crim. 104.21. Montgomery,
Defendant surmises, “may have received a quasi-grant of immunity”—“something
that has some, but not all, of the characteristics of an actual grant of immunity.” He
describes her situation as “very similar to a grant of immunity, with the exception
being that . . . [she] was not compelled to testify in these matters by a [s]uperior
[c]ourt order.” The “quasi-immunity” label does not fill the gap. Our cases applying
pattern instruction 104.21 ask whether the record shows one of the three
arrangements listed in the instruction’s text—immunity, charge reduction, or
sentence concession. See, e.g., Mewborn, 178 N.C. App. at 292, 631 S.E.2d at 231-32.
The record here shows none of them. The instruction therefore “was not supported
by the evidence,” and the trial court did not abuse its discretion in declining to give
it. Id. at 292, 631 S.E.2d at 231, 232.
IV. Conclusion
We hold that the trial court did not abuse its discretion in either limiting
Defendant’s cross-examination of Montgomery or denying his oral request for North
Carolina Pattern Jury Instruction 104.21. Defendant received a fair trial, free from
prejudicial error.
NO ERROR.
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Judges FLOOD and FREEMAN concur.
Report per Rule 30(e).
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