Impeachment by Prior Inconsistent Statement

Tag Archives: Evidence

Impeachment by Prior Inconsistent Statement

Posted on September 11, 2013 by Jessica Smith

Trial lawyers love a good gotcha moment and this method of impeachment–by prior inconsistent statement–presents lots of opportunities for that. Proving that a witness previously made statements inconsistent with his or her trial testimony impeaches the witness by casting doubt on the witness’s credibility. Note that use of a prior inconsistent statement for impeachment purposes is different from use of the statement for substantive purposes; the latter invariably involves application of the hearsay rules, whereas the former doesn’t. State v. Roper, 328 N.C. 337, 366 (1991). Even though this is one of the most common techniques for impeaching a witness, not everyone is fluent in the basic rules. With this post I hope to change that. Here’s what you need to know:

Form of the Prior Statement. No particular formality is required for the prior statement. State v. Ward, 338 N.C. 64, 97 (1994) (may be made in or out of court; may be oral or in writing); In re K.W., 192 N.C. App. 646, 650-51 (2008) (statement on MySpace page).

Must Be the Witness’s Statement. The prior inconsistent statement must have been made by the witness; a witness may not be impeached with a prior inconsistent statement made by someone else. Ward, 338 N.C. at 97-98 (fact that the witness made the statement must be proved by direct evidence; proper to exclude testimony from a defense witness who heard of the statement second hand); State v. Lynn, 157 N.C. App. 217, 226-27 (2003) (following Ward). Note, however, that when the witness testifies that material fact A occurred, a party may introduce testimony from another witness that material fact A did not occur; this is called impeachment by specific contradiction, a separate technique.

Statement Must Be Inconsistent. In order for a prior statement to be used for impeachment, it must in fact be inconsistent with the witness’s present testimony. McCormick at 210. As a general rule, a prior statement is inconsistent if there is any “material variance” between the trial testimony and the content of the statement. 1 Kenneth S. Broun et al., McCormick on Evidence 210 (7th ed. 2013). This issue may present a preliminary question of admissibility to be resolved by the trial judge under N.C. R. Evid. 104.

Cross-Examination. A party may cross-examine a witness about a prior inconsistent statement, even if it pertains to a collateral matter. The rationale for this rule is that by testifying the witness has put his or her credibility at issue. When examining a witness about his or her prior statement, the statement need not be shown to the witness, nor must its contents be disclosed to the witness. N.C. R. Evid. 613. However, on request the statement must be shown or disclosed to opposing counsel. Id.

Extrinsic Evidence. Extrinsic evidence of a prior inconsistent statement may be used to impeach when the issue is material; however, extrinsic evidence may not be used to impeach concerning collateral matters. State v. Hunt, 324 N.C. 343, 348 (1989); McCormick at 216. Here’s a simple rule of thumb for distinguishing collateral from material matters: A matter is material if it is independently relevant to the case, apart from its impeachment value. Consider this example. In a larceny case, a victim testifies that she is 32 years old. The defendant proffers the victim’s older sister who will say that the victim is 33. Since the victim’s age is irrelevant to any issue in the case, the defendant may not use extrinsic evidence to impeach the victim about her age. Suppose now that the charge is statutory rape and the victim testifies that she is 12 years old. The defendant proffers the victim’s older sister who will say that the victim is 15 years old. Now the defendant’s impeachment with extrinsic evidence is proper because the victim’s age is an element of the offense; the sister’s testimony is independently relevant as it is substantive evidence that the victim is not a person under 13 years of age.

Bias. Evidence that the witness is biased always is relevant to assessing a witness’s credibility. 98 C.J.S. Witnesses § 707. Thus, when the prior inconsistent statement reveals bias, extrinsic evidence may be used. Roger Park & Tom Lininger, The New Wigmore: A Treatise on Evidence: Impeachment and Rehabilitation § 5.9 (2012); State v. Whitley, 311 N.C. 656, 663 (1984). However, the prior statement first must be called to the attention of the witness. Whitley, 311 N.C. at 663.

Witness’s Denial of Making the Statement. When a witness denies making a prior statement, a party may not impeach that denial with extrinsic evidence of the substance of the prior inconsistent statement. State v. Hunt, 324 N.C. 343, 348-49 (1989) (error to allow witness to testify to the substance of first witness’s statement which she had denied making); State v. Williams, 322 N.C. 452, 455-56 (1988) (reversible error; after defense witness denied making prior inconsistent statement, the State presented two witnesses who testified to the substance of the statement). Note that when the witness denies having made the statement but goes on to testify inconsistently with it, extrinsic evidence of the substance of the statement may be used to impeach if the matter is material, as discussed above. State v. Gabriel, 207 N.C. App. 440, 447 (2010).

No Need to Bring Statement to the Attention of the Witness. As a general rule, when a witness’s prior statement relates to material matters and may be proved with extrinsic evidence, there is no requirement that the impeaching party call inconsistencies to the attention of the witness before introducing extrinsic evidence. State v. Whitley, 311 N.C. 656, 663 (1984); Brandis & Broun § 161. An exception however exists with regard to prior inconsistent statements showing bias, as noted above.

There you have it—the basic rules. Good luck with your gotcha moment.

Category: Evidence, Uncategorized | Tags: Evidence, impeachment, prior inconsistent statement

New Law Regarding Disposal of Seized Guns

Posted on September 9, 2013 by Jeff Welty

When the police seize a gun in the course of an investigation, what becomes of it after any resulting court case concludes? A recent legislative enactment has changed the most common answer to that question – and may leave a significant number of weapons in limbo.

Prior law. Until recently, G.S. 15-11.1(b1) provided that once “the district attorney determines the firearm is no longer necessary or useful as evidence in a criminal trial,” the prosecutor should seek a court order disposing of the gun in one of the following ways:

Returning it to the rightful owner, if the owner isn’t the defendant and didn’t know of the defendant’s intention to use the gun illegally.
Returning it to the defendant, if he is the owner and lawfully may possess firearms, “but only if the defendant is not convicted of any criminal offense in connection with . . . the firearm.”
Destruction by the sheriff.
Turning it over to a law enforcement agency for its use or so that it may sell or trade the gun to a licensed dealer, with the proceeds, in the case of a sale, going to the public schools. This option is available only upon the written request of the agency head.

G.S. 14-269.1 contains a generally similar list of options, minus the option of returning the gun to the defendant, that applies when a defendant has been convicted of a weapons offense. My impression is that the most popular option by far has been destruction by the sheriff.

New law. This legislative session, the General Assembly enacted S.L. 2013-158, which changes the rules regarding the disposal of seized guns. (The new law became effective September 1, so some readers may have some thoughts about how it is starting to work in practice.)

In a nutshell, the new law provides that destruction by the sheriff is permitted only when the gun lacks a serial number or is unsafe due to age, wear, and the like. The idea behind the law may be that firearms are lawful items of monetary value, and that they should therefore either be returned to their owners or sold to generate revenue for the schools. (I’m speculating about the purpose, but Rep. Jacqueline Schaffer told WRAL that “[i]t seems fiscally responsible” to maintain rather than destroy seized guns.) The bill amends both G.S. 15-11.1 and G.S. 14-269.1.

Form. AOC-CR-218 is the AOC form designed for this procedure. It has been updated to reflect current law.

Practice problem? The new law may leave a significant number of guns in limbo, unable to be disposed of by any statutory means. For example, imagine that the police seize a gun when they arrest a defendant who sold drugs to an undercover officer, and that the defendant is subsequently convicted of sale of cocaine. What can be done with the gun? The defendant is, or was, the rightful owner, so there’s no other rightful owner to receive the gun. The defendant’s a felon, so the gun can’t be returned to him. It’s in working order and has a serial number, so under the new law, it can’t be destroyed. If no law enforcement agency wants the gun, for its own use or for its trade value, or wants to deal with selling it to benefit the schools, and so no agency head submits a “written request” for the gun, it isn’t clear what can be done with the weapon. I would be interested in comments about what is happening in practice with this type of weapon.

Unclaimed guns. The bill also changes the law concerning the disposal of unclaimed guns. The major changes are (1) that an unclaimed gun may not be destroyed unless it is missing a serial number or is unsafe due to age or wear (instead, it must be sold to a dealer, retained for training, or given to a museum), and (2) that the head of the law enforcement agency in possession of the gun may determine how the gun should be disposed of without seeking court approval.

Category: Procedure, Search and Seizure, Uncategorized | Tags: 15-11.1, Evidence, firearms, guns, property, seized property

The NC Supreme Court’s Recent Substitute Analyst Cases

Posted on July 10, 2013 by Jessica Smith

If you’re on my listserv, you know that the NC Supreme Court recently issued several confrontation clause decisions, all dealing with substitute analysts (if you’re not on my listserv, you can sign up here for my case summaries). I’ve previously written (here) about Williams v. Illinois, the US Supreme Court’s most recent confrontation decision on substitute analyst testimony. Because Williams was a fractured opinion in which no rationale garnered five votes, it left judges and litigants largely in the dark about the constitutionality of substitute analyst testimony. And this is a big deal. In a state as geographically large as NC and in tough budget times, getting the testing analyst to court is no easy matter, and in some cases impossible. In its most recent decisions the NC Supreme Court weighed in, with prosecution-pleasing results. Below I summarize my main take-away points from these cases. But here’s a cautionary note: While these cases are the law in NC, the final word from the US Supreme Court is still to come. Smart defenders will make objections at trial, thus preserving the issue.

1. Substitute analyst testimony is OK if the expert testifies to an independent opinion based on information reasonably relied upon by experts in the field. This was the holding of State v. Ortiz-Zape, __ N.C. __ (June 27, 2013), a cocaine drug case. Over the defendant’s objection, the trial court allowed the State’s expert witness, Tracey Ray of the CMPD crime lab to testify about the lab’s practices and procedures, her review of the testing in the case, and her opinion that the substance at issue was cocaine. Ray was not involved in the actual testing of the substance at issue; her opinion was based on tests done by a non-testifying analyst. The trial court excluded the non-testifying analyst’s report under Rule 403. The defendant was convicted and appealed. The NC Supreme Court upheld the conviction, finding that no confrontation clause violation occurred. It explained:

[W]hen an expert gives an opinion, [i]t is the expert opinion itself, not its underlying factual basis, that constitutes substantive evidence. Therefore, when an expert gives an opinion, the expert is the witness whom the defendant has the right to confront. In such cases, the Confrontation Clause is satisfied if the defendant has the opportunity to fully cross-examine the expert witness who testifies against him, allowing the factfinder to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible. Accordingly, admission of an expert’s independent opinion based on otherwise inadmissible facts or data of a type reasonably relied upon by experts in the particular field does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert.

Ortiz-Zape, slip op. at 12-13 (quotations and citations omitted). State v. Brewington, __ N.C. __ (June 27, 2013), another cocaine case, followed Ortiz-Zape and found no error where the testifying expert gave an independent opinion. A third decision, State v. Hurt, __ N.C. __ (June 27, 2013), applied Ortiz-Zape to a case involving substitute analysts in serology and DNA.

2. The State must lay a proper foundation for substitute analyst testimony. The Ortiz-Zape court found that the prosecutor had laid a proper foundation for Ray’s testimony. Specifically, that the information she relied upon—the tests done by the non-testifying analyst—was reasonably relied upon by experts in the field and that Ray was asserting her own independent opinion. Ortiz-Zape, slip op. at 18. In a footnote it elaborated on the foundational requirements: “[W]e suggest that prosecutors err on the side of laying a foundation that establishes compliance with Rule of Evidence 703, as well as the lab’s standard procedures, whether the testifying analyst observed or participated in the initial laboratory testing, what independent analysis the testifying analyst conducted to reach her opinion, and any assumptions upon which the testifying analyst’s testimony relies.” Ortiz-Zape, slip op. at 19 n.3.

3. “Surrogate” testimony isn’t OK. This was the holding of State v. Craven, __ N.C. __ (June 27, 2013), another cocaine drug prosecution. In that case, the testifying expert was asked whether she agreed with non-testifying analysts’ conclusions in two lab reports. When she replied in the affirmative, she was asked what the non-testifying analysts’ conclusions were and the underlying reports were introduced into evidence. In Craven the court concluded that the substitute analyst did not offer an independent opinion regarding the identity of the substance but rather was merely a surrogate who “parroted” the conclusions of the non-testifying analysts. Craven, slip op. at 8. This, the court held, is impermissible. See also Ortiz-Zape, slip op. at 13 (expert must present an independent opinion and “not merely ‘surrogate testimony’ parroting otherwise inadmissible statements”); Brewington, slip op. at 5 (expert gave an independent opinion, not “mere surrogate testimony”).

4. A defendant’s admission that the substance is a controlled substance may be sufficient evidence for conviction. This conclusion is suggested by two of the cases. First, in State v. Williams, __ N.C. __ (June 27, 2013), a cocaine drug case, the court held that even if a confrontation clause error occurred with regard to the substitute analyst’s testimony, it was harmless beyond a reasonable doubt because the defendant testified that the substance at issue was cocaine. Slip op. at 8. In Ortiz-Zape, the court found that any possible confrontation error was harmless, noting in part that the defendant told the arresting officer that the substance was cocaine. Ortiz-Zape, slip op. at 21. In retrospect, the court’s decision in State v. Nabors (discussed here) may have hinted at this result.

5. “Machine-generated” raw data likely will be non-testimonial. The Ortiz-Zape court stated in dicta that “machine-generated raw data,” such as a printout from a gas chromatograph, is non-testimonial. Ortiz-Zape, slip op. at 14. As a result, the court suggested, if such data is reasonably relied upon by experts in the field, this information may be disclosed at trial. Id. at 15. Note however that a non-testifying analyst’s opinion based on machine-generated data is testimonial. Craven, slip op. at 8. Thus while the raw data may be admissible, the non-testifying analyst’s conclusion based on that data is not. Id.

Those are my main take away points. If you have others, please weigh in.

Category: Evidence, Procedure, Uncategorized | Tags: confrontation clause, crawford, Evidence, substitute analysts, supreme court

Rule 404(b): The Requirement of Temporal Proximity

Posted on May 21, 2013 by Jessica Smith

As I noted in my last post on Rule 404(b) evidence, even when the evidence is relevant to an issue other than propensity or disposition, admissibility is “constrained by the requirements of similarity and temporal proximity.” State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 159 (2012) (quoting State v. Al-Bayyinah, 356 N.C. 150, 154 (2002)). In this, my final post on Rule 404(b) evidence, I’ll explore the requirement of temporal proximity.

Temporal proximity is part of the analysis because, as a general rule, the probative value of the other crime, wrong, or act diminishes as the event becomes more remote. See, e.g., State v. Barnett, __ N.C. App. __, 734 S.E.2d 130, 134 (2012). There are no bright line rules regarding temporal proximity for purposes of Rule 404(b) admissibility. State v. Maready, 362 N.C. 614, 623-24 (2008). Compare, e.g., State v. Jones, 322 N.C. 585, 587–91 (1988) (in a child sex case, a seven-year gap between the last act on the witness and the first act on the victim made the event too remote to show common plan or scheme), with State v. Carter, 338 N.C. 569, 588–89 (1994) (in a murder case, an eight-year gap between a prior assault and the homicide at issue did not make the incident too remote for purposes of establishing identity). The North Carolina Supreme Court has instructed that remoteness must be considered in light of the specific facts of each case. State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 160 (2012).

The proffered purpose of the 404(b) evidence affects the temporal proximity analysis. Beckelheimer, 726 S.E.2d at 160. For example, remoteness in time may be significant when the 404(b) evidence is introduced to show that the crime arose out of a common scheme or plan. State v. Lloyd, 354 N.C. 76, 91 (2001); State v. Carter, 338 N.C. 569, 588 (1994); State v. Mobley, 200 N.C. App. 570, 577 (2009). On the other hand it may be less significant when the evidence is proffered to show

modus operandi, Beckelheimer, 726 S.E.2d at 160;
state of mind, such as malice, State v. Maready, 362 N.C. 614, 624 (2008);
motive, State v. Locklear, 363 N.C. 438, 448 (2009); State v. Haskins, 104 N.C. App. 675, 682 (1991); or
lack of accident, Locklear, 363 N.C. at 448.

In these instances, remoteness goes to the weight of the evidence rather than to its admissibility. Beckelheimer, 726 S.E.2d at 160; Locklear, 363 N.C. at 448; Maready, 362 N.C. at 624.

When the 404(b) acts occurred some time ago but show a pattern of similar activity over time, courts have found that the passage of time can actually reinforce rather than undercut the value of the evidence. State v. Shamsid–Deen, 324 N.C. 437, 445 (1989) (prior sexual acts occurring over a 20–year period were not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually; “[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than to disprove the existence of a plan”); State v. Khouri, __ N.C. App. __, 716 S.E.2d 1, 8-9 (2011) (in a child sex case, 404(b) evidence that the defendant sexually assaulted another child from 2001 to until she turned eighteen in 2007 was admissible where the defendant’s sexual assault on the child victim at issue began in 2007; once the defendant discontinued his acts on the first girl, he initiated contact with the victim). This rule applies with special force in second-degree murder cases where the 404(b) evidence is a pattern of prior motor vehicle offenses being offered to show malice. State v. Maready, 362 N.C. 614, 622-24 (2008) (no plain error occurred when the trial judge admitted 404(b) evidence of the defendant’s six prior DWI convictions where four occurred in the sixteen years before the events at issue, including one within six months of the event at issue; the convictions “constitute part of a clear and consistent pattern of criminality that is highly probative of his mental state”). However, that does not mean that any combination of prior motor vehicle offenses will be admissible as part of a pattern of behavior to show malice for purposes of second-degree murder. See, e.g., State v. Davis, 208 N.C. App. 26, 43-46 (2010) (the trial court committed prejudicial error by admitting evidence of three of the defendant’s four prior DWI convictions to show malice; three of her convictions occurred eighteen or nineteen years prior to the accident at issue and one occurred two years prior; given the gap between the older convictions and the more recent one, there was not a clear and consistent pattern of criminality and the older convictions were too remote to be admissible).

The age of a conviction may be discounted for periods when the defendant’s activity was interrupted by, for example, a prison sentence or lack of access to victims. See, e.g., State v. Barnett, __ N.C. App. __, 734 S.E.2d 130, 134 (2012) (five year gap between incidents of rape was explained by the defendant’s lack of access to the victim for three years); State v. Brooks, 138 N.C. App. 185, 200 (2000) (17 year gap between incidents of assaults on his wives was explained by the defendant’s incarceration and lack of marital discord); State v. Frazier, 121 N.C. App. 1, 11 (1995) (gaps between the defendant’s acts of sexual abuse on children were explained by the defendant’s lack of access to victims). However, in order for a period of time to be excluded from the analysis, the proponent must introduce competent evidence of the period of the interruption. State v. Gray, 210 N.C. App. 493, 509 (2011) (declining to toll the time period during the defendant’s incarceration because the State failed to offer competent evidence as to the length of his incarceration); State v. Delsanto, 172 N.C. App. 42, 51-52 (2006) (State failed to establish interruption).

Category: Evidence, Uncategorized | Tags: 404(b), Evidence, recency, temporal proximity

Street Names and Nicknames

Posted on May 14, 2013 by Jeff Welty

Suppose that a murder defendant goes by the street name “Hit Man.” The prosecution wants the investigating officer to testify that she received a tip that “Hit Man” committed the crime, and that she knew that the defendant used the nickname “Hit Man.” Defense counsel moves to prohibit all references to the nickname during the trial, arguing that it is de facto character evidence, which is generally prohibited under Rule 404(a), and that it is in any event far more prejudicial than probative and so barred under Rule 403. How should the judge rule?

Case law suggests that a brief reference to a defendant’s unflattering street name is permissible. However, the officer and the prosecutor should not unduly emphasize the nickname.

North Carolina cases. Our appellate courts have decided several nickname cases, and in every case, the courts have ruled in favor of the state:

In State v. Bonnett, 348 N.C. 417 (1998), the court ruled that a witness’s references to defendant’s nickname, “Homicide,” were not prejudicial given that defense counsel and the defendant used the same term. In any event, the court stated, it is not error to refer to the defendant by the name by which he is generally known.
In State v. Swift, 290 N.C. 383 (1976), the court said, “we do not believe it would have been error to refer to defendant by the name by which he was generally known [in this case, “Poison Ivy” or “Poison”]. The fact that his nickname may have been demeaning does not create error per se. Defendant had an opportunity to explain his nickname.”
In State v. Riley, 159 N.C. App. 546 (2003), the court concluded that an officer’s reference to defendant’s nickname, “Dirty,” was not prejudicial in light of the overwhelming evidence of the defendant’s guilt and so was not plain error.

These cases don’t completely close the door to defense objections about nicknames. The nicknames in Swift and Riley, while unflattering, were not unambiguous references to criminal activity. The nickname at issue in Bonnett was much worse, but the defendant’s appeal was undermined by the fact that defense counsel and the defendant used the name themselves.

National cases. Although the vast majority of decisions nationally have rejected appeals based on references to defendants’ nicknames, a few cases have found the use of a defendant’s nickname to be so prejudicial as to require a new trial. The leading case is United States v. Farmer, 583 F.3d 131 (2d Cir. 2009), where the Second Circuit condemned the prosecution’s repeated references to the defendant’s nickname, “Murder.” The court distinguished other nickname cases in which no prejudicial error was found, noting that those cases generally involved less damning nicknames, fewer references to the nicknames, or limiting instructions regarding the nicknames. See also Taylor v. State, 23 A.2d 851 (Del. 2011) (awarding a new trial on other grounds to a murder defendant and recommending that “in the retrial, the court should make an effort to delete all references to [the defendant’s nickname, “Murder”] if possible”). But see Com. v. Williams, 58 A.3d 795 (Pa. Super. 2012) (no error in allowing prosecutor and prosecution witnesses to refer to the defendant by his nickname, “Killa”; prosecution “did not use [the] nickname to suggest [the defendant] had a violent character, but used it to show that the witnesses recognized [him] . . . even though the witnesses did not know [his] real name”); Burtts v. State, 499 S.E.2d 326 (Ga. 1998) (no error where witnesses identified the defendant as “Killer Corey” because they did not know his full name; “the use of a nickname does not place the character of an accused in issue”).

Practice pointers. The upshot for the prosecution is to exercise restraint. The more frequently a defendant’s nickname is used, the more closely it relates to criminal activity, and the more careful the defendant is to avoid using the nickname himself and to object when it is used by others, the more likely that the use of the nickname will be deemed improper. If a defendant’s nickname is likely to feature prominently in a trial, it would be wise to ask the judge to give a limiting instruction.

The defense should tread carefully, too. Sometimes the shoe is on the other foot and the defense wants to make the defendant’s nickname known to the jury. But that can carry unintended consequences, as in State v. Berry, 356 N.C. 490 (2002). In that case, a murder defendant elicited testimony that his nickname was “Crazy K,” “apparently in an attempt to tie the nickname to defendant’s purported lack of mental stability.” But that “gave the State the opportunity to establish the source of the nickname,” which was gang-related.

Category: Evidence, Uncategorized | Tags: character evidence, Evidence, hit man, homicide, murder, nicknames, rule 403, street names

Rule 404(b): The Requirement of Similarity

Posted on May 13, 2013 by Jessica Smith

Even when Rule 404(b) evidence is relevant to an issue other than propensity or disposition, admissibility is “constrained by the requirements of similarity and temporal proximity.” State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 159 (2012) (quoting State v. Al-Bayyinah, 356 N.C. 150, 154 (2002)). In this, my fourth post on Rule 404(b) evidence, I’ll explore the requirement of similarity.

As a general rule, 404(b) evidence must be sufficiently similar to the act in question. The evidence is sufficiently similar if there are unusual facts present in both incidents. Beckelheimer, 726 S.E.2d at 159. However, the similarities need not “rise to the level of the unique and bizarre.” Id. (quotation omitted). Nor must the incidents be identical. Id. at 160. As the North Carolina Supreme Court has stated: “near identical circumstances are not required; rather, the incidents need only share some unusual facts that go to a purpose other than propensity.” Id. (quotation and citation omitted); see also State v. Khouri, __ N.C. App. __, 716 S.E.2d 1, 8 (2011) (in a child sex case, rejecting the defendant’s argument that the defendant’s sex acts with another child were different from those charged because one occurred in private and the other occurred in public).

By the same token, for most 404(b) purposes, some degree of similarity is required; when the requisite similarity is lacking, the evidence is inadmissible. See State v. Davis, __ N.C. App. __, 731 S.E.2d 236, 239-42 (2012) (in a child sex case in which the defendant was charged with assaulting his six-year-old son, the trial court committed reversible error by admitting evidence of the defendant’s writings in a composition book about forcible, non-consensual anal sex with an adult female acquaintance; the events described in the book were not sufficiently similar to the case at bar given that “the only overlapping fact was anal intercourse”; the actual force described in the book was “not analogous to the constructive force theory that applies with sexual conduct between a parent and child”; aside from anal intercourse, “the acts bore no resemblance to each other, involving different genders, radically different ages, different relationships between the parties, and different types of force”); State v. Flood, __ N.C. App. __, 726 S.E.2d 908, 913-14 (2012) (in a case involving a 2007 drug-related murder, the trial court committed reversible error by admitting evidence that the defendant was involved in a 1994 homicide in which he broke into an apartment, found his girlfriend in bed with the victim, and shot the victim to show identity; the acts where not sufficiently similar); State v. Gray, 210 N.C. App. 493, 510-13 (2011) (in a child sex case involving a five-year-old female victim and allegations of digital penetration, the trial court committed prejudicial error by admitting evidence that the defendant had anal intercourse with a four-year-old male 18 years earlier; although the incidents both involved very young children and occurred at a caretaker’s house where the defendant was a visitor, the nature of the assaults was very different).

When the prior acts are very old, the requirement of similarity may be heightened. See, e.g., State v. Webb, 197 N.C. App. 619, 623 (2009) (in a child sexual abuse case, evidence that the defendant abused two witnesses 21 and 31 years ago was improperly admitted requiring a new trial; in light the fact that the prior incidents were decades old, more was required in terms of similarity than that “the victims were young girls in the defendant’s care, the incidents happened in [the defendant’s] home, and [the defendant] told the [victims] not to report his behavior”).

By contrast, in certain circumstances, the requirement of similarity may not apply, such as when the 404(b) evidence establishes

identity by connecting the defendant to the weapon used in the current offense, State v. Dean, 196 N.C. App. 180, 191-92 (2009) (in a murder case, evidence of an assault committed by the defendant two days before the murder at issue was admissible to show identity when ballistics evidence established that the same weapon was used in both incidents; the court rejected the defendant’s argument that the incidents were dissimilar);
motive, State v. Haskins, 104 N.C. App. 675, 682-83 (1991); and
chain of events leading up to the incident in question, State v. Golden, __ N.C. App. __, 735 S.E.2d 425, 429-32 (2012) (in perpetrating a hoax by use of a false bomb case, the trial court did not err by admitting evidence of the defendant’s acts against his estranged wife where those incidents were part of the chain of events leading up to the crime and thus completed the story of the crime for the jury; the court rejected the defendant’s argument that the prior acts were not sufficiently similar to the act charged on grounds that similarity was “not pertinent to the purpose for which the evidence was admitted”).

Finally, “[a]lthough the decision to join offenses for trial often involves considerations similar to those reviewed when determining whether to admit evidence of a prior offense under Rule 404(b), the decision to join or not to join offenses does not determine admissibility of evidence under Rule 404(b).” State v. Locklear, 363 N.C. 438, 446 (2009).

Category: Evidence, Uncategorized | Tags: 404(b), Evidence

Rule 404(b): Proper Purpose Other than Propensity

Posted on May 7, 2013 by Jessica Smith

Rule 404(b) is a rule of inclusion subject to one exception: the evidence must be excluded if its only probative value is to show that the defendant had the propensity or disposition to commit the charged offense. Evidence of other crimes, wrongs, or acts is admissible, however, for other purposes. In this post, my third on 404(b) evidence, I’ll explore the proper purposes of this evidence.

Motive. 404(b) evidence may be admitted to prove motive. N.C.R.Evid. 404(b). Thus, for example, 404(b) evidence showing that the defendant submitted false information in a loan application was admissible to show a financial motive for a murder. State v. Britt, __ N.C. App. __, 718 S.E.2d 725, 730-31 (2011).

Opportunity. 404(b) evidence is admissible to show the defendant’s opportunity to commit the crime charged. N.C.R.Evid. 404(b); see, e.g., State v. McAbee, 120 N.C. App. 674, 680-81 (1995) (in a homicide case evidence that the defendant was unemployed was admissible to show opportunity; being unemployed put him frequently at home with the child victim).

Intent. 404(b) evidence may be admitted to show intent. N.C.R.Evid. 404(b). Thus, for example, evidence that the defendant possessed incestuous pornography was admissible to show the defendant’s intent to engage in sexual acts with his own child. State v. Brown,__ N.C. App. __, 710 S.E.2d 265, 270 (2011).

Plan. 404(b) evidence may be admitted to show plan. N.C.R.Evid. 404(b). Thus, for example, 404(b) evidence that the defendant broke into a pharmacy but failed to procure narcotics was admissible to show a plan to obtain controlled substances through the drug store break-in at issue, State v. Woodard, 210 N.C. App. 725, 728-29 (2011).

Preparation. 404(b) evidence may be admitted to show preparation. N.C.R.Evid. 404(b); see, e.g., Williams, 318 N.C. at 631-32 (court properly admitted 404(b) evidence that the defendant took his daughter to an x-rated movie and told her to look at scenes depicting graphic sexual acts; the evidence showed preparation for rape and incest).

Knowledge. 404(b) evidence is admissible to show that the defendant acted knowingly, N.C.R.Evid. 404(b), such as when the defendant is charged with knowingly possessing a controlled substance. See, e.g., State v. Weldon, 314 N.C. 401, 404-407 (1985) (evidence that controlled substances were on the defendant’s premises on other occasions properly admitted to show her guilty knowledge that heroin was present at the time in question).

Identity. 404(b) evidence may be admitted to identify the defendant as the perpetrator of the crime at issue. N.C.R.Evid. 404(b). For example, evidence that the defendant committed another act very similar to the one charged may be probative of identity.

Not all 404(b) evidence offered to show identity will involve evidence of an act committed by the defendant similar to the one at issue. Evidence that the defendant used a weapon connected to the present offense during another incident also is probative of identity. See, e.g., State v. Garner, 331 N.C. 491, 509 (1992) (in a robbery and murder case, the trial court properly admitted 404(b) evidence that the defendant attempted to murder a taxicab driver three weeks after the incident in question where the same gun was used on both occasions).

Lack of Accident or Mistake. 404(b) evidence is admissible to show lack of accident or mistake. N.C.R.Evid. 404(b). Where a defendant claims accident, evidence of a prior act with a “concurrence of common features” to the charged offenses, tends to negate the claim of accident. State v. Lloyd, 354 N.C. 76, 90 (2001) (in a murder case in which the defendant claimed that a shooting was accidental, evidence of a prior assault by the defendant in which he shot the victim showed lack of accident).

Lack of Entrapment. 404(b) evidence is admissible to challenge the defense of entrapment. N.C.R.Evid. 404(b); see, e.g., State v. Goldman, 97 N.C. App. 589, 593-95 (1990) (in a drug case, 404(b) evidence of the defendant’s prior drug use and possession was properly admitted to show predisposition).

Other Permissible Purposes. Rule 404(b)’s listing of permissible purposes is not exclusive. Other proper purposes are listed below.

Common Plan or Scheme. Courts sometimes admit 404(b) evidence to show the defendant’s common plan or scheme to engage in the charged conduct. See, e.g, State v. Twitty, __ N.C. App. __, 710 S.E.2d 421, 424-25 (2011) (where the defendant was charged with obtaining property by false pretenses after he lied to church members to gain sympathy and collect funds, no abuse of discretion to admit 404(b) evidence that the defendant engaged in the same behavior at other churches to show common plan or scheme).

Chain of Events/Context Evidence. 404(b) evidence is admissible to establish the chain of circumstances or context of the charged crime. State v. White, 340 N.C. 264, 284 (1995). Such evidence is admissible if it “serves to enhance the natural development of the facts or is necessary to complete the story of the charged crime for the jury.” Id. (404(b) evidence admissible for this purpose). For example, in State v. Rollins, __ N.C. App. __, 725 S.E.2d 456, 460-61 (2012), a second-degree murder case stemming from a vehicle accident during a high speed chase following a shoplifting incident, details of the shoplifting incident were properly admitted to explain the reason for the defendant’s flight.

Malice. Evidence of a defendant’s prior motor vehicle-related convictions is admissible to show malice in a second-degree murder case based on a vehicular homicide. State v. Maready, 362 N.C. 614, 620 (2008).

If the evidence is offered for a proper purpose, the trial court then must assess similarity and temporal proximity. I’ll address those issues in my next posts.

Category: Evidence, Uncategorized | Tags: 404(b), Evidence, purposes

The Opinion Question: Myth or Magic?

Posted on May 2, 2013 by Shea Denning

Even the greenest of prosecutors knows to ask it. And all officers, from rookie to veteran, know how to answer. Rare is the impaired driving case without it. What’s the it? The opinion question, of course.

You’ll find the following exchange recorded in many a DWI transcript.

Q: Did you form an opinion, satisfactory to yourself, that the defendant had consumed a sufficient amount of some impairing substance so as to appreciably impair his mental or physical faculties or both?
A: Yes, I did.
Q: What was that opinion?
A: It was my opinion that the defendant had consumed a sufficient quantity of an impairing substance so that his mental and physical faculties were both appreciably impaired.
Q: Did you have an opinion as to what the impairing substance was?
A: I believed it to be some type of alcohol.

This line of questioning is as proper as it is prevalent. North Carolina’s courts have long held that a lay witness who has personally observed a person may express an opinion as to whether the person was impaired by an impairing substance. See State v. Lindley, 286 N.C. 255 (1974). Though officers frequently base such opinions in part upon their training and experience regarding the physical manifestations of having consumed alcohol or some other impairing substance in addition to their personal observations, courts have considered such opinions to be those of a lay rather than an expert witness. See id.

Perhaps because the question is so ubiquitous, it has taken on a talismanic quality. Defendants sometimes argue that the State’s evidence is insufficient as matter of law if an officer does not testify as to his opinion that the defendant was “appreciably impaired,” by an “impairing substance.” Such opinion testimony is not, however, essential to proving the elements of impaired driving.

Certainly the State must prove that the defendant was impaired. The State may establish this element by proving that the defendant (1) was under the influence of an impairing substance, (2) consumed sufficient alcohol that he or she had, at any relevant time after the driving, an alcohol concentration of 0.08 or more, or (3) had any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine. See G.S. 20-138.1(a)(1), (2), (3). Chemical testing can establish impairment for purposes of the .08 and Schedule I controlled substances theory, and fact testimony from witnesses can establish that a defendant was “under the influence,” or, in other words, “appreciably impaired,” by an impairing substance. Thus, an officer’s testimony regarding his or her observations, which might include faulty driving, an odor of alcohol, red, glassy, eyes, poor performance on field sobriety tests, and slurred speech, among other observations, often ~~are~~ is legally sufficient, without the opinion based on those perceptions, to prove impairment.

So, while the officer’s opinion often will be ~~was~~ helpful to the jury, see State v. Adkerson, 90 N.C. App. 333, 338 (1988), it is not essential to the State’s case. It’s not magic. That’s a myth.

Category: Crimes and Elements, Evidence, Motor Vehicles | Tags: appreciable impairment, DWI, Evidence, lay opinion, opinion testimony

Rule 404(b): Did He Really Do It?

Posted on April 30, 2013 by Jessica Smith

In this second post on Rule 404(b) evidence [editor’s note: the first post in this occasional series is here], I’ll address a point that sometimes gets overlooked in the admissibility analysis: In order for Rule 404(b) evidence to be relevant, there must be sufficient evidence that the defendant committed the other act in question. State v. Haskins, 104 N.C. App. 675, 679 (1991). Only once that preliminary threshold is satisfied, does the standard Rule 404(b) analysis of similarity and temporal proximity apply. Id. at 679-80 (“the trial court is required to make an initial determination pursuant to Rule 104(b) of whether there is sufficient evidence that the defendant in fact committed the extrinsic act”). At the outset I note that Rule 404(b) isn’t limited to evidence offered against the defendant. N.C.R.Evid. 404(b). However, since that’s how the issue most commonly arises, I’ll use the term “defendant” in this post when describing Rule 404(b) scenarios.

When the defendant has been convicted of the prior conduct, the requirement that the evidence sufficiently establishes that the defendant committed the act presents no special issues. Similarly, this requirement is easily satisfied when a witness credibly testifies that the defendant committed the other act. Haskins, 104 N.C. App. at 681 (the 404(b) evidence was of an attempted robbery; the victim positively identified the defendant as the perpetrator and testified at trial to that effect). However, if the defendant has been tried and acquitted of the conduct, evidence of the other act is inadmissible. State v. Ward, 199 N.C. App. 1, 7-20 (2009) (the trial court erred by admitting 404(b) evidence of earlier charges when they were dismissed for insufficient evidence; the probative value of the evidence depended on the defendant’s having committed those offenses; so ruling under a Rule 403 balancing). A dismissal by the prosecution, however, does not have the same preclusive effect. State v. Flaugher __ N.C. App. __, 713 S.E.2d 576, 583-84 (2011) (prosecutorial dismissal did not preclude admission of 404(b) evidence).

Where the incident did not result in a conviction against the defendant and where no witnesses credibly testify that the defendant committed the act in question, the relevancy inquiry is more complex. With respect to the quantum of evidence required to establish relevancy, it is sometimes said that the proponent must present “sufficient evidence” to establish that the defendant committed the act in question. State v. Peterson, 361 N.C. 587, 601 (2007) (in a case in which the defendant was tried for murdering his wife, the trial court properly admitted 404(b) evidence regarding another woman’s death where there was “sufficient circumstantial evidence that defendant was involved in [the other woman’s] death—such as defendant being the last known person to see [her] alive; defendant being with [her] the night of her death; and there being no sign of forced entry and nothing missing from the residence, which indicated that [she] likely knew her assailant”); State v. Matthews, __ N.C. App. __, 720 S.E.2d 829, 834-36 (2012) (evidence of another break-in by the defendant was properly admitted where DNA evidence was “sufficient” to link the defendant to the crime); Haskins, 104 N.C. App. at 679-80 (citing Rule 104(b) and stating that the trial judge must determine that there is “sufficient evidence that the defendant in fact committed the extrinsic act”); see generally N.C.R.Evid. 104(b) (when relevancy is conditioned on the fulfillment of fact, there must be “evidence sufficient to support a finding of the fulfillment of the condition”). However, when articulating the required quantum of evidence, the courts sometimes use the terms “sufficient” and “substantial” interchangeably. See, e.g., Haskins, 104 N.C. App. at 679-80; Peterson, 361 N.C. at 601 (quoting State v. Stager, 329 N.C. 278, 303 (1991)) (“substantial evidence tending to support a reasonable finding by the jury that the defendant committed [the other crimes, wrongs, or acts]”).

Whatever the standard, the evidence offered to meet it need not be direct evidence; circumstantial evidence is sufficient. Peterson, 361 N.C. at 600 (quoting State v. Jeter, 326 N.C. 457, 459 (1990) (the Rule “includes no requisite that the evidence tending to prove defendant’s identity as the perpetrator of another crime be direct evidence”; holding that sufficient circumstantial evidence linked the defendant to the prior act); State v. Moore, 335 N.C. 567, 594 (1994) (same). However, when the evidence that the defendant committed the prior act is sufficient but weak, this will be relevant to the trial court’s Rule 403 balancing. Id.

Although cases can be found in which the 404(b) evidence was held to be inadmissible because there was insufficient evidence connecting the defendant to the act in question, State v. English, 95 N.C. App. 611, 614 (1989) (prejudicial error occurred when there was no “demonstrable nexus between the defendant and the act sought to be introduced against him”), other decisions are relatively permissive as to this requirement. See Peterson, 361 N.C. at 600-03; Adams, 727 S.E.2d 577 (in the defendant’s trial for breaking and entering into his ex-wife’s Raleigh residence and for burning her personal property, the trial court did not abuse its discretion by admitting 404(b) evidence of a prior break-in at the victim’s Atlanta apartment for which the defendant was not investigated, charged, or convicted; the police could not locate any fingerprints or DNA evidence tying the defendant to the crime and no eyewitnesses placed the defendant at the scene).

If the evidence is sufficient to establish that the defendant committed the other act, the trial court must determine if the evidence is offered for a proper purpose. My next post will address that issue.

Category: Evidence, Uncategorized | Tags: 404(b), Evidence, peterson

Rule 404(b) and Noncriminal Conduct

Posted on January 30, 2013 by Jeff Welty

I have been asked several times whether the state may admit, under N.C. R. Evid. 404(b), evidence of noncriminal conduct. The answer is yes, assuming of course that the evidence is offered for a proper purpose under the Rule and meets the other requirements for admissibility.

Examples. This issue can arise in many kinds of cases. When a defendant is charged with selling illegal steroids, the state may wish to admit evidence of prior sales of legal muscle-builders to show a common scheme or plan. Or, when a defendant is charged with possession of child pornography, the state may seek to introduce evidence of the defendant’s possession of sexually suggestive, but not pornographic, images of children in order to show the defendant’s motives.

Analysis. By its terms, Rule 404(b) applies to “acts” as well as to “crimes” and “wrongs.” Therefore, as the court explained in State v. Wilson, 108 N.C. App. 117 (N.C. App. 1992), Rule 404(b) “evidence is not limited to evidence of other criminal or unlawful acts on the part of the defendant, but also includes any extrinsic conduct or misconduct by the defendant which is relevant to an issue in the case other than to show that the defendant has the propensity for the type of conduct with which he is charged.” So the fact that the conduct at issue was lawful does not, in itself, provide a basis for objecting to its admissibility under Rule 404(b).

Other jurisdictions. Out of state cases uniformly agree with the conclusion reached in Wilson. United States v. Scott, 677 F.3d 72 (2d Cir. 2012) (noting the every federal circuit court “to consider the issue has concluded that Rule 404(b) extends to non-criminal acts or wrongs,” collecting cases, and joining the consensus); United States v. Long, 328 F.3d 655 (D.C. Cir. 2003) (defendant engaged in sexual activity with, and took explicit pictures of, underage teen boys; he was charged with related crimes; the government’s evidence included testimony from overage teen boys with whom the defendant had engaged in similar conduct; the testimony was properly admitted under Rule 404(b) to show, inter alia, intent, pattern, and modus operandi); Meece v. Commonwealth, 348 S.W.3d 627(Ky. 2011) (observing that Rule 404(b) evidence “is not limited to other acts that are criminal or unlawful” and citing precedent).

Commentators. Commentators also concur. See, e.g., 2 Weinstein’s Federal Evidence § 404.20[2][a] (2d ed. 2003) (“Rule 404(b)’s terminology ‘other crimes, wrongs, or acts’ includes conduct that is neither criminal nor unlawful if it is relevant to a consequential fact”); State v. Stout, 237 P.3d 37 (Mont. 2010) (collecting the uniform views of commentators, including Imwinkelried, Mueller & Kirkpatrick, Wright & Graham, and Weinstein).

Category: Evidence, Uncategorized | Tags: 404(b), Evidence, other crimes, prior bad acts

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