1. Constitutional Law--right of confrontation--right to cross-examine child witness
about school disciplinary record
The trial court did not violate a juvenile's right to confrontation in a juvenile delinquency
hearing by allegedly denying defendant's right to cross-examine a minor child witness about her
school disciplinary record in an attempt to ascertain her credibility and whether she had any
possible biases or motives because: (1) after seeing the witness's disciplinary record prior to the
witness's testimony, defendant did not ask the witness about or direct the trial court's attention to
anything contained therein that was of an impeaching nature; (2) the court correctly determined
that confidentiality concerns are at issue when considering the release of a child's official student
records; and (3) the fact that the witness had a disciplinary record cannot, in and of itself,
establish the relevance of its content to determine possible credibility concerns.
2. Constitutional Law--right of confrontation--right to cross-examine principal about
child's school disciplinary record
The trial court did not violate a juvenile's right to confrontation in a juvenile delinquency
hearing by failing to allow the juvenile to cross-examine a principal about a minor child
witness's behavior or the contents of her disciplinary record, because: (1) N.C.G.S. § 8C-1, Rule
608(b) prevents defendant from cross-examining the principal about specific instances of the
child's conduct for the purpose of attacking the child's character for truthfulness if the principal
has not already testified regarding that character, and nothing in the record suggests the principal
testified as to the child's character prior to being cross-examined regarding it; and (2) defendant
failed to overcome the confidentiality concerns raised by defendant's questions with respect to
the child's official student records.
3. Constitutional Law--right of confrontation-_admission of school disciplinary record
into evidence
The trial court did not violate a juvenile's right to confrontation in a juvenile delinquency
hearing by refusing to admit a minor child witness's disciplinary record into evidence, because:
(1) defendant did not make an offer of proof whereby the disciplinary record was made a part of
the court record to support defendant's theory of relevance; and (2) the Court of Appeals
reviewed the disciplinary record and concluded that it was devoid of any relevant information
that would weigh on the child's credibility in this case.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Diane Martin Pomper, for the State.
UNC School of Law Criminal Law Clinic, by Supervising Attorney
Joseph E. Kennedy and Certified Third-Year Law Student Derrick
Charles Mertz, for defendant-appellant.
HUNTER, Judge.
Fifteen-year-old Jamarcus Q. Oliver (“defendant”) appeals a
juvenile adjudication order of delinquency based on findings that
defendant committed second degree sexual offense and crime against
nature when he inserted his penis into the mouth of a thirteen-
year-old girl (“H.M.”) by force and against her will. We affirm.
On 10 October 2001, defendant, H.M., and other students were
riding home on a public school bus from Lowe's Grove Middle School
in Durham, North Carolina. A significant amount of horseplay
ensued, which eventually resulted in defendant getting on top of
H.M. and pinning her down with his crotch in her face. Defendant
admittedly began touching H.M.'s breasts and her buttocks without
her permission. The next day however, H.M. told school officials
that defendant had also pulled out his penis and inserted it into
her mouth after pinning her down on the bus. Juvenile petitions
were immediately filed against defendant alleging second degree
sexual offense and crime against nature.
During the investigation and subsequent trial that followed,
H.M. stated on several occasions that defendant had only tried to
put his penis in her mouth. Only Tiernay Umstead (“Umstead”),
another student on the bus, claimed to have seen defendant's penis
in H.M.'s mouth. In an effort to ascertain Umstead's credibility
and whether she had any possible biases or motives to corroborate
H.M.'s accusation, defendant sought a duly subpoenaed schooldisciplinary record of Umstead. At the beginning of trial, the
court declined to release the disciplinary record to defendant at
that time due to the possible existence of some confidentiality
issues, but stated it would reconsider that decision if Umstead
testified. Thereafter, prior to Umstead's testifying, defendant
was allowed a few minutes to view the disciplinary record. Despite
defendant's request, the court refused to admit the disciplinary
record into evidence; however, it was sealed and designated as
“Exhibit I” for appellate review. At trial, defendant further
sought to discredit Umstead by attempting to cross-examine Umstead
and the school principal, Marsha Person (“Principal Person”), about
the child's disciplinary record. The State's objections to those
attempts were sustained by the court.
Defendant offered testimony from another student, Mark Ellis,
who testified that he had overheard H.M. and three other girls
conspiring to make up a story about defendant. However, the trial
judge concluded that despite there being some conflict in the
evidence,
I don't think that there is any reason to
believe that these girls conspired to make up
a story about [defendant]. So the question
. . . is whether or not [H.M.'s] telling the
truth when she says he actually did it.
And whether or not at the time he got on
top of her he had the intent to insert his
penis in her mouth, I believe that he got
carried away with the situation and, in fact,
did, and, therefore, I find him guilty beyond
a reasonable doubt of both charges . . . .
Defendant was adjudicated a juvenile delinquent on 5 December
2001. A juvenile disposition order was entered on 25 February 2002sentencing defendant to twelve months of supervised probation.
Defendant appeals.
The dispositive issue on appeal pertains to Umstead's
corroboration of H.M.'s accusation against defendant and whether
the trial court deprived defendant of the right to confront this
corroborative evidence as guaranteed by both the United States and
North Carolina Constitutions. Defendant argues his right to
confrontation was violated when the court: (1) denied defendant's
request to be provided with a duly subpoenaed school disciplinary
record of Umstead at the beginning of trial; (2) refused to allow
defendant to cross-examine Umstead with respect to her disciplinary
record; (3) refused to allow defendant to cross-examine Principal
Person about Umstead's disciplinary record; and (4) refused to
admit Umstead's disciplinary record into evidence. Of these four
arguments, defendant's brief primarily focuses on his second
argument while vaguely mentioning his remaining three arguments.
Thus, we shall address his arguments in a similar manner.
“The sixth amendment of the Constitution, made applicable to
state criminal proceedings by Pointer v. Texas, 380 U.S. 400, 85 S.
Ct. 1065, 13 L. Ed. 2d 923 (1965), guarantees the right of an
accused in a criminal trial to be confronted with the witnesses
against him.” State v. Fortney, 301 N.C. 31, 36, 269 S.E.2d 110,
112-13 (1980). However, a defendant's right to cross-examination
is subject to the sound discretion of the court and is therefore
not absolute. See State v. Coffey, 326 N.C. 268, 389 S.E.2d 48
(1990); State v. Pallas, 144 N.C. App. 277, 548 S.E.2d 773 (2001).
The testimony sought to be elicited on cross-examination “'must berelevant to some defense or relevant to impeach the witness[]'”
and, in certain instances, may “'bow to accommodate other
legitimate interests in the criminal trial process[]'” such as the
rules of evidence. Id. at 283, 548 S.E.2d at 779 (citations
omitted).
Rule 608(b) of the North Carolina Rules of Evidence governs
the admissibility of a witness' specific instances of conduct for
the purpose of attacking that witness' credibility. It provides
that a witness' prior conduct may,
in the discretion of the court, if probative
of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1)
concerning his character for truthfulness or
untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness
of another witness as to which character the
witness being cross-examined has testified.
N.C. Gen. Stat. § 8C-1, Rule 608(b) (2001). Thus, an inquiry
regarding a witness' prior conduct is relevant if it is probative
of veracity, and its probative value is not outweighed by the
prejudicial effect of the evidence. State v. Leroux, 326 N.C. 368,
382, 390 S.E.2d 314, 324 (1990).
[1] In the case sub judice, defendant sought to cross-examine
Umstead about her school disciplinary record in an attempt to
ascertain her credibility and whether Umstead had any possible
biases or motives. Yet, defendant, having seen the disciplinary
record prior to Umstead's testimony, did not ask Umstead about or
direct the trial court's attention to anything contained therein
that was of an impeaching nature. Moreover, the trial court
correctly determined that confidentiality concerns are at issue
when considering the release of a child's official student records. See N.C. Gen. Stat. § 115C-402 (2001) (providing that the official
records of students in the North Carolina school system are not
public and should be kept confidential). The fact that Umstead had
a disciplinary record cannot, in and of itself, establish the
relevance of its content to determine possible credibility
concerns. Thus, it was in the trial court's discretion to preclude
a line of questioning that would have resulted in the dissemination
of information as to Umstead's behavior in school where defendant
had not shown its relevance in impeaching her credibility.
[2] Defendant further argues that the trial court erred in not
allowing him to cross-examine Principal Person about Umstead's
behavior or the contents of her disciplinary record. However, Rule
608(b) prevents defendant from cross-examining Principal Person
about specific instances of Umstead's conduct for the purpose of
attacking the child's character for truthfulness if the principal
has not already testified regarding that character. Nothing in the
record suggests that Principal Person testified as to Umstead's
character prior to being cross-examined regarding it. Also, as
mentioned previously, defendant failed to overcome the
confidentiality concerns raised by defendant's questions with
respect to Umstead's official student records. Therefore, this
argument of defendant's is overruled.
[3] Finally, despite the State's contention to the contrary,
defendant did make an offer of proof whereby the disciplinary
record was made a part of the court record to support defendant's
“theory of relevance” that it might indicate a “pattern of behavior
which reflects on the credibility of [Umstead].” It is firmlyestablished that once the trial court refuses a defendant's line of
questioning, that defendant can preserve his argument for appellate
review by providing a specific offer of proof of the excluded
evidence unless the significance of that excluded evidence was
obvious from the record. See State v. Braxton, 352 N.C. 158, 213,
531 S.E.2d 428, 460 (2000). Nevertheless, having since reviewed
the disciplinary record ourselves, we conclude that it is devoid of
any relevant information that would weigh on Umstead's credibility
in this case.
For the aforementioned reasons, we affirm the trial court's
adjudication of defendant as a juvenile delinquent based on his
committing second degree sexual offense and crime against nature.
Affirmed.
Judges MARTIN and GEER concur.
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