In State v. Hamilton, No. COA22-847 (N.C. Ct. App. Nov. 21, 2023), the Court docket of Appeals held the prosecutor’s cross-examination of the defendant about statements he made in open court docket “was an inappropriate type of impeachment.” Slip Op. p. 13. In help of this conclusion, the Court docket of Appeals cited, amongst different issues, Proof Rule 608(b). That rule typically bars proof of particular situations of a witness’s conduct for the aim of attacking or supporting his credibility; nevertheless, particular situations of conduct could also be inquired into on cross-examination if probative of truthfulness or untruthfulness. N.C.G.S. § 8C-1, Rule 608 cmt. This submit examines the usage of Rule 608(b) in Hamilton to find out how a prosecutor can keep away from improper impeachment.
I. Particular situations of conduct as proof of character
The North Carolina Guidelines of Proof turned efficient in 1984 (making reconciliation with prior follow a perpetual preoccupation). Cf. State v. McKoy, 385 N.C. 88, 95, 891 S.E.2nd 74, 79 (2023). Pre-Rule instances articulated conflicting rationales, one line stating that proof of the defendant’s different crimes, wrongs, or acts was typically admissible, as long as it was not supplied to indicate propensity, one other stating that such proof was typically inadmissible, topic to exceptions. See 1 Kenneth S. Broun, Brandis & Broun on North Carolina Proof § 94, p. 297 (eighth ed. 2008) (accumulating instances). Rule 404(b) codifies the previous line: proof of different crimes, wrongs, or acts just isn’t admissible to show an individual’s character to indicate he acted in conformity therewith, however it could be admissible for different functions. Id.; cf. N.C.G.S. § 8C-1, Rule 404 cmt. (“in step with North Carolina follow”). Therefore, “Rule 404(b) has been characterised as a rule of inclusion.” State v. Pickens, __ N.C. __, __, 893 S.E.2nd 194, 198 (2023) (citing State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2nd 48 (1990)).
As famous by the commentary to Rule 405, proof of particular situations of conduct is probably the most convincing technique of proving character and has the best capability to arouse prejudice, to confuse or shock, and to waste time. N.C.G.S. § 8C-1, Rule 405 cmt. Accordingly, each the Guidelines and pre-Rule instances agree that when an individual’s character is just collaterally in subject, character typically can’t be proved by particular acts. 1 Brandis & Broun § 97, p. 338. For a similar cause, even when inquiry into particular situations of conduct is permissible to indicate character (as upon cross-examination, see beneath), the witness’s reply is conclusive and can’t be contradicted by different testimony. N.C.G.S. § 8C-1, Rule 608(b); 1 Brandis & Broun, § 97, p. 342.
Pre-Guidelines instances distinguished proof of particular acts relying on whose conduct it was. Historically, a defendant may very well be cross-examined for impeachment functions concerning any prior act of his personal misconduct as long as the prosecutor had an excellent religion foundation for the questions. State v. Morgan, 315 N.C. 626, 634, 340 S.E.2nd 84, 89 (1986); State v. Gallagher, 313 N.C. 132, 140, 326 S.E.2nd 873, 879 (1985). Rule 608(b) confines the inquiry to these particular situations of conduct probative of truthfulness or untruthfulness. N.C.G.S. § 8C-1, Rule 608(b). On this regard, Rule 608(b) is extra restrictive than prior follow and operates as a rule of exclusion. See State v. Bell, 338 N.C. 363, 382, 450 S.E.2nd 710, 721 (1994) (larceny & drug possession not probative of truthfulness); State v. Clark, 324 N.C. 146, 167, 377 S.E.2nd 54, 67 (1989) (smoking marijuana); State v. Strickland, 321 N.C. 31, 39, 361 S.E.2nd 882, 886–87 (1987) (prior assaults); Morgan, 315 N.C. at 635, 340 S.E.2nd at 90 (similar); however see State v. Braxton, 352 N.C. 158, 196, 531 S.E.2nd 428, 450 (2000) (jail infractions probative of untruthfulness); State v. Bishop, 346 N.C. 365, 391, 488 S.E.2nd 769, 783 (1997) (proof defendant took cash from former boyfriend).
The requirement that the prosecutor have a good-faith foundation for the cross-examination has been maintained from pre-Guidelines instances. See State v. Warren, 327 N.C. 364, 373, 395 S.E.2nd 116, 122 (1990) (citing State v. Dawson, 302 N.C. 581, 585, 276 S.E.2nd 348, 351 (1981)); cf. Brandis & Broun, § 97, p. 341. The questions are presumed correct absent any displaying of dangerous religion. State v. Roache, 358 N.C. 243, 318, 595 S.E.2nd 381, 428 (2004). Unhealthy religion is proven when a prosecutor locations earlier than the jury incompetent and prejudicial matter, both by injecting his personal opinions and beliefs or by insinuating info unsupported by proof. See State v. Rodriguez, 371 N.C. 295, 316, 814 S.E.2nd 11, 26 (2018); State v. Fleming, 350 N.C. 109, 139, 512 S.E.2nd 720, 740 (1999).
Character witnesses had been handled in a different way from principals. In keeping with prior follow, a personality witness couldn’t be impeached with proof of particular situations of conduct by the witness about whose character he was testifying. State v. Oliver, 309 N.C. 326, 370, 307 S.E.2nd 304, 332 (1983); State v. Hunt, 287 N.C. 360, 374, 215 S.E.2nd 40, 49 (1975). Rule 608(b) offers, nevertheless, that particular situations of conduct could also be inquired into on cross-examination “regarding the character for truthfulness or untruthfulness of one other witness as to which character the witness being cross-examined has testified.” N.C.G.S. § 8C-1, Rule 608(b). For sure, a witness who has not testified as to a different’s character just isn’t topic to impeachment underneath this provision. See State v. Partitions, 342 N.C. 1, 44, 463 S.E.2nd 738, 760 (1995) (witness didn’t testify regarding one other’s character so couldn’t be cross-examined about particular situations of conduct). Nonetheless, concerning the cross-examination of character witnesses, Rule 608(b) is extra permissive than prior follow, granting the trial court docket discretion to confess the proof if probative of truthfulness.
II. Particular situations of conduct as proof of one thing else.
As famous above, the Guidelines’ restrictions on proof of a witness’s unrelated conduct are supposed to defend in opposition to the damaging tendency of character proof to painting the individual as worthy of reward or punishment no matter what different proof within the case reveals. See N.C.G.S. § 8C-1, Rule 404 cmt. In line with case legislation, Rule 404(b) acknowledges, nevertheless, that proof of a witness’s different acts could also be admissible for functions apart from delineating his character. N.C.G.S. § 8C-1, Rule 404(b). And because the commentary to Rule 608(b) acknowledges, “[e]vidence of wrongful acts admissible underneath Rule 404(b) just isn’t inside this rule and is admissible by extrinsic proof or by cross-examination of any witness.” N.C.G.S. § 8C-1, Rule 608 cmt.
Acknowledged in a different way, proof inadmissible for one function could also be admissible for an additional. State v. Williams, 330 N.C. 711, 719, 412 S.E.2nd 359, 364 (1992); accord N.C.G.S. § 8C-1, Rule 105 cmt. Consequently, the better-reasoned instances don’t relaxation on an evaluation of Rule 608(b) but additionally contemplate different bases for admissibility. See Williams, 330 N.C. at 719, 412 S.E.2nd at 364 (drug use and psychological instability had been probative of capability for truth-telling); Clark, 324 N.C. at 168, 377 S.E.2nd at 67 (proof additionally barred by Rule 404(b)); State v. Scott, 318 N.C. 237, 243, 347 S.E.2nd 414, 418 (1986) (rejecting argument that proof was admissible to indicate identification); cf. State v. Harris, 323 N.C. 112, 129, 371 S.E.2nd 689, 699 (1988) (state did not current different argument). Absent case legislation determined underneath Rule 608, pre-Guidelines instances could also be persuasive in arguing for the admission of other-acts proof. See Williams, 330 N.C. at 719, 412 S.E.2nd at 364.
Proof of different acts might likewise be admissible when the defendant has “opened the door” throughout direct examination. State v. White, 340 N.C. 264, 289, 457 S.E.2nd 841, 855, cert. denied, 516 U.S. 994, 133 L. Ed. 2nd. 436 (1995); State v. Lamb, 321 N.C. 633, 649, 365 S.E.2nd 600, 609 (1988). The place, for instance, the defendant testified that he had not injured the theft sufferer or anybody else, he thereby opened the door for the prosecutor to inquire into different particular situations of violent conduct. See State v. Darden, 323 N.C. 356, 359, 372 S.E.2nd 539, 541 (1988). However the precept will lengthen solely to date: the defendant’s testimony about his spouse’s prior sexual misconduct didn’t open the door for the prosecutor to query the defendant about his personal unrelated sexual misconduct. See Scott, 318 N.C. at 244, 347 S.E.2nd at 418.
III. Improper impeachment in Hamilton.
As famous above, Hamilton cited Rule 608(b) in help of its conclusion that the prosecutor’s cross-examination of the defendant about statements he made in open court docket was inappropriate. The Court docket of Appeals additionally cited State v. Morgan, 315 N.C. 626, 634, 340 S.E.2nd 84, 89 (1986). Morgan is instructive as an early illustration of Rule 608(b)’s software.
The defendant in Morgan shot to demise his enterprise associate exterior of the flea market they operated in Alexander, North Carolina. The defendant claimed the decedent was coming by a door at him and that he fired in self-defense. Morgan, 315 N.C. at 628-30, 340 S.E.2nd at 86-87. At trial, the prosecutor cross-examined the defendant about prior assaults he had dedicated in opposition to others (similar place, similar weapon, totally different victims), one occasion of which he denied. Id. at 631, 340 S.E.2nd at 88. Upon evaluation, our Supreme Court docket described the scope of Rule 608(b) as follows:
Rule 608(b) addresses the admissibility of particular situations of conduct (versus opinion or fame proof) solely within the very slender occasion the place (1) the aim of manufacturing the proof is to question or improve credibility by proving that the witness’ conduct signifies his character for truthfulness or untruthfulness; and (2) the conduct in query is in reality probative of truthfulness or untruthfulness and isn’t too distant in time; and (3) the conduct in query didn’t end in a conviction; and (4) the inquiry into the conduct takes place throughout cross-examination.
Id. at 634, 340 S.E.2nd at 89–90. It concluded the prosecutor’s cross-examination was improper underneath Rule 608(b) as a result of the proof of unrelated assaults was not probative of the witness’s character for truthfulness. Id. at 635, 340 S.E.2nd at 90. Additional, it rejected the State’s argument that the proof was admissible underneath Rule 404(b) to indicate the defendant was the aggressor within the affray as “an impermissible use” of particular situations of conduct. Id. at 638, 340 S.E.2nd at 92.
Noting that the rule governing admissibility just isn’t at all times clear, Morgan warned judges to find out admissibility underneath Rule 404(b) as a “preliminary subject.” Morgan, 315 N.C. at 636, 340 S.E.2nd at 91; cf. N.C.G.S. § 8C-1, Rule 608 cmt. (Rule 608(b) doesn’t apply to Rule 404(b) proof). However, Morgan decreed the prior-acts proof inadmissible underneath Rule 608(b) earlier than contemplating whether or not it might are available in underneath Rule 404(b). With out disavowing Morgan, our Supreme Court docket has blunted its affect by subsequently adopting a extra liberal perspective towards other-acts proof. See State v. Berry, 356 N.C. 490, 507, 573 S.E.2nd 132, 144 (2002) (prior assault admissible to indicate intent, motive, information); State v. Larrimore, 340 N.C. 119, 152, 456 S.E.2nd 789, 807 (1995) (prior assaults upon testifying witness related to truthfulness).
In Hamilton, the defendant and an confederate robbed the supervisor and patrons of a gaming enterprise. Hamilton, No. COA22-847, Slip Op. at 2-3. On the defendant’s trial for armed theft, the prosecutor cross-examined the defendant about statements he made in court docket earlier than trial:
Q. Did you say that you simply had been “getting raped”?
A. What’s occurring? I’m being took from my household.
Q. Is {that a} sure?
A. I didn’t deny it.
Q. Did you say that I used to be a racist?
A. You act prefer it.
Q. Is {that a} sure?
A. No. Since you didn’t hear that come out of my mouth and say you racist. I stated Davidson County, interval.
Q. You don’t bear in mind pointing at me and screaming that I used to be a racist from Soar Road?
A. Properly, if I did, I did. I don’t recall.
Id. at 12. Protection counsel did not object to this portion of the cross-examination. Id.
On attraction, the defendant argued the cross-examination was irrelevant and an improper type of impeachment. The Court docket of Appeals agreed. First, it stated, the alternate occurred “over 5 years after” the crimes, and “it has no tendency to make a consequential truth regarding these crimes kind of possible.” Id. at 12. Second, although the defendant’s pretrial statements “might have been probative regarding his common character, his examined conduct was irrelevant to his character for truthfulness.” Id. at 13. The Court docket of Appeals concluded that “the State’s inquiry into these actions was an inappropriate type of impeachment.” Id. (citing Morgan and Rule 608(b)).
For a difficulty that failed to impress any objection at trial, the Court docket of Appeals devoted little consideration to potential bases for admission. Regardless of Morgan, Rule 404(b) was by no means addressed. And whereas the Court docket of Appeals didn’t touch upon whether or not the defendant really made the contested statements (which presumably would seem within the trial transcript), there isn’t a indication the prosecutor’s questions had been requested in dangerous religion. As for relevance, bias has lengthy been deemed related to credibility and a correct topic for cross-examination. State v. Lewis, 365 N.C. 488, 494, 724 S.E.2nd 492, 497 (2012). It’s a minimum of controversial that the prosecutor right here was entitled to inquire into the defendant’s obvious bias in opposition to Davidson County legislation enforcement. Absent any proposed justification for the questions, the Court docket of Appeals handled the other-acts proof as inadmissible character proof and deemed the cross-examination inappropriate underneath Rule 608(b).
IV. Conclusion
The prosecutor looking for to introduce proof of different acts ought to beware. As our Supreme Court docket stated in Morgan, “[t]he higher follow is for the proponent of the proof . . . to acquire a ruling on its admissibility previous to providing it.” Morgan, 315 N.C. at 640, 340 S.E.2nd at 93. Usually, it will take the type of a pre-trial listening to on proposed Rule 404(b) proof. However, as Hamilton illustrates, proof of particular situations of conduct isn’t any much less open to problem when supplied on cross-examination. And this contains proof of the defendant’s in-court statements.
A prosecutor wishing to elicit such proof on cross-examination ought to first search a ruling on admissibility exterior of the presence of the jury. See N.C.G.S. § 8C-1, Rule 104 (preliminary questions on admissibility to be decided by the court docket). When there’s a believable argument that the proof is related to one thing apart from the defendant’s character, the prosecutor ought to search admission underneath Rule 404(b), avoiding the strictures of Rule 608(b) altogether. If the proof is probative of truthfulness, Rule 608(b) nonetheless permits admission (within the trial court docket’s discretion), however the prosecutor shall be caught with the witness’s reply, unable to contradict it with extrinsic proof. In any occasion, the prosecutor who anticipates an objection and obtains a positive ruling earlier than providing the proof has a greater probability of avoiding a declaration of improper cross-examination.
