Evidence--impeachment--victim's juvenile adjudications
The trial court did not abuse its discretion in a
prosecution which resulted in an indecent liberties conviction by
excluding evidence of the victim's juvenile adjudications where
the court stated that N.C.G.S. § 8C-1, Rule 609 had been
considered and found that the probative value of the evidence was
far outweighed by the prejudice and the creation of ancillary
issues. Despite the language used by the court, it is clear from
the record that the court understood the standard to be applied
under Rule 609 and believed that the evidence was not necessary
for a fair determination of the issue of guilt or innocence.
Judge GREENE dissenting.
Appeal by defendant from judgment entered 12 September 1997
by Judge James D. Llewellyn in Pender County Superior Court.
Heard in the Court of Appeals 25 January 1999.
Attorney General Michael F. Easley, by Assistant Attorney
General Amy R. Gillespie, for the State.
Nora Henry Hargrove for defendant-appellant.
TIMMONS-GOODSON, Judge.
Defendant was charged with first-degree kidnapping, first-
degree rape, first-degree sexual offense, and taking indecent
liberties with a child. Evidence was presented at trial by the
State as follows:
The prosecuting witness testified that on 28 November 1996,
she went to a friend's house where she encountered defendant.
Defendant pushed her onto the floor, forced her to remove her
clothes, placed his “private part” next to hers, touched her
private part with his hand, and placed his finger in her “private
part.”
Other witnesses testified that the prosecuting witness
recounted the incident to her mother, a police officer, and
medical personnel at the hospital. Evidence was also presented
showing that the prosecuting witness had been an “A/B” student
prior to the attack and that her grades had dropped since the
attack. A jury found defendant guilty of taking indecent liberties
with a minor but not guilty of rape or sexual offense. The trial
court sentenced defendant to a minimum of thirty-nine months and
a maximum of forty-seven months in prison. Defendant appeals.
Defendant argues that the trial court erred by excluding
evidence of the victim's juvenile adjudications. He contends
that the trial court applied the wrong standard in making its
ruling, abused its discretion, and denied him his constitutional
right to confront the witnesses against him. We disagree.
Prior to trial, defendant filed a motion seeking the
production of juvenile files pertaining to the prosecuting
witness. The trial court initially denied the motion. During
the trial, defendant requested that the trial court reconsider
its ruling and allow him to cross-examine the prosecuting witness
concerning any juvenile adjudications. The trial court reversed
its prior ruling to the extent that it would allow defendant to
cross-examine the prosecuting witness concerning the juvenile
adjudications. Further argument of counsel, however, revealed
that the offenses for which the prosecuting witness was
adjudicated delinquent occurred after she was sexually assaulted
by defendant. Therefore, the trial court again reversed itself
and ruled that defendant would not be allowed to cross-examine
the prosecuting witness about the adjudications. Rule 609(a) of the North Carolina Rules of Evidence provides
as a general rule that “[f]or the purpose of attacking the
credibility of a witness, evidence that he has been convicted of
a crime punishable by more than 60 days confinement shall be
admitted if elicited from him or established by public record
during cross-examination or thereafter.” N.C.R. Evid. 609(a).
However, Rule 609(d) provides an exception to the general rule:
Evidence of juvenile adjudications is
generally not admissible under this rule.
The court may, however, in a criminal case
allow evidence of a juvenile adjudication of
a witness other than the accused if
conviction of the offense would be admissible
to attack the credibility of an adult and the
court is satisfied that admission in evidence
is necessary for a fair determination of the
issue of guilt or innocence.
N.C.R. Evid. 609(d). While evidence of juvenile adjudications is
generally not admissible, the trial court may admit evidence of
juvenile adjudications of a witness if the offense would be
admissible to attack the credibility of an adult, and the trial
court is satisfied that admission of the evidence is necessary
for a fair determination of guilt or innocence. The final
decision is within the discretion of the trial court as to
whether admission of the evidence is necessary for a fair
determination of guilt or innocence. State v. Whiteside, 325
N.C. 389, 383 S.E.2d 911 (1989). In making its ruling in this case, the trial court stated
that Rule 609 had been considered and found “that the probative
value of the evidence of the juvenile petitions and convictions
is far outweighed by the prejudice that may be committed and the
creation of ancillary issues.” Despite the language used by the
trial court in making the ruling, it is clear from an examination
of the record that the trial court understood the standard to be
applied under Rule 609 and that the trial court believed the
evidence was not necessary for a fair determination of the issue
of guilt or innocence.
Furthermore, defendant has failed to show that the trial
court abused its discretion by excluding the evidence of the
juvenile adjudications. The offenses for which the prosecuting
witness was adjudicated delinquent were committed after she was
sexually assaulted and after she had made her initial accusations
against defendant. The trial court's decision to exclude the
evidence was reasonable in light of the fact that at the time the
victim made her initial accusations, she was a thirteen-year-old
child with good grades and no history of criminal activity.
The Sixth Amendment to the United States Constitution
guarantees the right of an accused in a criminal trial to
confront the witnesses against him. Davis v. Alaska, 415 U.S.
308, 39 L. Ed. 2d 347 (1974). “However, the right to confrontand to cross-examine is not absolute and may, in appropriate
cases, bow to accommodate other legitimate interests in the
criminal trial process[.]” State v. Fortney, 301 N.C. 31, 36,
269 S.E.2d 110, 113 (1980). Indeed, there is no right to ask a
witness irrelevant questions. Id.
In Davis, the defendant sought to cross-examine the witness
concerning his juvenile court probation and the possibility that
the state of Alaska had some power over him as a result of his
probationary status. The United States Supreme Court held that
the trial court denied the defendant's right to confront
witnesses by refusing to allow the cross-examination. See also
State v. Prevatte, 346 N.C. 162, 484 S.E.2d 377 (1997) (holding
that the trial court erred by refusing to let the defendant ask a
witness for the State about pending criminal charges and whether
the witness expected or was promised anything in regard to the
charges in exchange for his testimony).
In this case, defendant was not attempting to show that the
State had any power over the prosecuting witness or that she was
biased against him. Instead, he sought to simply impeach her
credibility with evidence of offenses committed well after the
commission of the offense for which he was charged and well after
she made her initial accusations against defendant. The trial
court's determination that the evidence was not necessary for afair determination of guilt or innocence was essentially a
determination that the evidence was not relevant. See N.C.R.
Evid. 401 (stating that “relevant evidence” is “evidence having
any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence”). Since he
had no right to elicit irrelevant evidence on cross-examination,
defendant was not denied his constitutional right to confront the
witnesses against him. The trial court did not err by refusing
to allow defendant to cross-examine the prosecuting witness about
her juvenile adjudications.
We hold that defendant had a fair trial, free from
prejudicial error.
No error.
Judge HUNTER concurs.
Judge GREENE dissents.
In this case, such circumstances are undoubtedly presented.
The testimony of the prosecuting witness was crucial to the
State's case against defendant. Neither medical evidence nor
physical evidence of a sexual assault was presented by the State.
Dr. Dalbec, the physician who examined the prosecuting witness on
the day of the alleged assault, gathered evidence for a North
Carolina sexual assault evidence kit in accordance with standard
procedure. Dr. Dalbec testified that he had checked the
prosecuting witness "head to toe" for physical damage, and that
"there were no areas that she told me were tender, and I looked
for bruises or scrapes or abrasions, swelling, and I didn't find
anything." Although Dr. Dalbec collected hair samples, vaginal
and anal smears and swabs, and saliva from the prosecuting
witness for subsequent testing at a forensic lab, no subsequent
testing was conducted. The prosecuting witness was the only
witness to the alleged crime; the remaining State's witnesses
testified to what the prosecuting witness had told them. The
State also elicited testimony, from a "lifelong friend" of the
prosecuting witness, that she was "a truthful person." Inaddition, the evidence of the prosecuting witness's juvenile
adjudications was a matter of record, and there was no other
equally convincing method of impeaching her testimony.
Accordingly, evidence of her juvenile adjudications, which would
have been admissible if committed by an adult, was necessary for
a fair determination of defendant's guilt or innocence. Indeed,
when applying this Rule 609(d) standard, the trial court came to
this conclusion. Accordingly, it was a violation of defendant's
rights under the Confrontation Clause to exclude the prosecuting
witness's juvenile adjudications in this case.
The majority opinion makes two separate arguments to support
the trial court's exclusion of these adjudications. First, it
states that the trial court "understood the standard to be
applied under Rule 609 and . . . believed the evidence was not
necessary for a fair determination of the issue of guilt or
innocence." State v. McAllister, 132 N.C. App. 300, 302, 511
S.E. 2d 660 (1999). My review of the record, however, reveals
that the trial court found:
[T]he focal point of the trial in progress is
the testimony of the prosecuting witness and
victim, therefore, her character for the
truth is directly an issue, and the Court
finds that the ends of justice would best be
served if . . . defendant's counsel [is]
allowed to cross examine the prosecutingwitness/victim . . . as to these three
offenses as they would be admissible if the
prosecuting witness was an adult, and the
Court does determine that it is necessary,
this to be necessary for a determination of
the issues of guilt or innocence in this
case.
(emphasis added). The trial court then changed its ruling and
refused to allow evidence of the prosecuting witness's juvenile
adjudications for impeachment after erroneously finding:
[Rule] 404 sets a guideline, but not a
directive for the Court's ruling and makes
the ruling under Rule 609 totally
discretionary with the Court, and the Court
having considered that both of these
statutes, having not done so before now,
finds that the probative value of the
evidence of the juvenile petitions and
[adjudications] is far outweighed by the
prejudice that may be committed and the
creation of ancillary issues.
The Rule 609(d) "necessary for a fair determination" standard is
not the equivalent of the Rule 403 "probative value versus
prejudicial effect" standard, and the application of one does not
satisfy the requirements of the other. See 28 Wright & Gold on
Federal Practice and Procedure § 6138, at 276-77; see also Food
Stores v. Board of Alcoholic Control, 268 N.C. 624, 628-29, 151
S.E.2d 582, 586 (1966) (noting that where one statute deals with
a subject in detail or with reference to a particular situation
and another statute deals with the same subject in general andcomprehensive terms, the particular statute is generally
controlling). In addition, the trial court believed that Rule
404 was relevant to its determination on this issue. According
to North Carolina's foremost commentator on evidence, however:
[S]everal statutes, including . . . N.C.R.
Evid. 404(b), were amended [in 1994] to
permit a trial judge to order that a record
of a juvenile offense that would be a Class
A-E felony be admitted under Rule 404(b) or
to prove an aggravating factor at sentencing.
Admission under Rule 609(d) is not mentioned
and the amendments, on their face, would not
seem to affect the application of [Rule
609(d)].
1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence §
98, at 305, n. 262 (5th ed. 1998) [hereinafter Brandis & Broun on
North Carolina Evidence] (citations omitted). I agree that Rule
404(b), ordinarily used by the State to enter into evidence
juvenile adjudications of a criminal defendant, does not alter
the requirements of Rule 609(d), enacted to protect a criminal
defendant's constitutional right to confront the witnesses
against him.
The majority opinion's second ground for upholding the trial
court's exclusion of the prosecuting witness's juvenile
adjudications is that these adjudications were "irrelevant"
because the delinquent behavior occurred after the date of thecrime alleged in this case. McAllister, 132 N.C. App. 302, 511
S.E. 2d 662. These adjudications go to the prosecuting witness's
character for truthfulness, however, and are therefore relevant
for the jury's consideration regardless of when they occurred.
See 1 Broun & Brandis on North Carolina Evidence § 98, at 303
(noting that the crime does not have to have a rational relation
to truthfulness to be admissible for impeachment of the witness's
credibility under Rule 609). The State's argument that the
prosecuting witness "acted out" as a result of the alleged
assault by defendant is for the jury's consideration; it does not
make her juvenile adjudications irrelevant on the issue of her
credibility as a matter of law. While Rule 609 generally makes
any conviction over ten years old inadmissible for impeachment,
N.C.G.S. § 8C-1, Rule 609(b), it contains no prohibition limiting
the admissibility of convictions that occurred after the date of
the alleged crime. Indeed, convictions of adult offenders that
occurred after the date of the alleged offense have been admitted
by our courts for impeachment purposes as a matter of course.
See, e.g., State v. Cunningham, 97 N.C. App. 631, 389 S.E.2d 286
(allowing, for impeachment purposes, admission of a conviction
which occurred after the alleged crime for which the defendant
was being tried), disc. review denied, 326 N.C. 802, 393 S.E.2d905 (1990). As subsection (d) of Rule 609 allows juvenile
adjudications to be admitted "if conviction of the offense would
be admissible to attack the credibility of an adult," a witness's
juvenile adjudications occurring after the date of the
defendant's alleged crime should likewise be admissible.
In summary, I believe the trial court's exclusion of the
prosecuting witness's juvenile adjudications, after finding
admission of these adjudications to be necessary for a fair
trial, violated defendant's constitutional right to confront the
witnesses against him. In any event, even if the trial court
itself had not found admission of the prosecuting witness's
juvenile adjudications to be necessary, the circumstances of this
case make exclusion of these juvenile adjudications a
constitutional error and an abuse of the trial court's
discretion. Accordingly, I would remand for a new trial.
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