Summary
holding that, aside from one narrow exception, the prosecution is not permitted to admit evidence of a defendant's prior bad act for which he was acquitted at previous trial
Summary of this case from State v. JarmanOpinion
No. 330PA90
Filed 5 March 1992
1. Evidence and Witnesses 293 (NCI4th) — prior alleged offense — acquittal — probative value divested Evidence that defendant committed a prior alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends upon the proposition that defendant in fact committed the prior crime. Defendant's acquittal of the offense so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant, and the admission of such evidence violates Rule of Evidence 403.
Am Jur 2d, Evidence 332; Rape 71.
Admissibility of evidence as to other offense as affected by defendant's acquittal of that offense. 25 ALR4th 934.
2. Evidence and Witnesses 90 (NCI4th) — intrinsic nature of evidence — prejudice outweighing probative value — inadmissibility When the intrinsic nature of evidence itself is such that its probative value is always necessarily outweighed by the danger of unfair prejudice, the evidence becomes inadmissible under Rule of Evidence 403 as a matter of law.
Am Jur 2d, Evidence 253, 260.
3. Evidence and Witnesses 726 (NCI4th) — prior rape for which defendant acquitted — admission prejudicial on rape and kidnapping charges The trial court's erroneous admission of testimony that defendant had previously committed another rape for which he was acquitted was prejudicial to defendant on charges of rape and kidnapping and entitled defendant to a new trial on those charges where the principal question for the jury in those cases was whether to believe the prosecuting witnesses or the defendant on the element of consent, and there was a reasonable possibility that a different result would have obtained at trial had this testimony not been admitted given the similarity of the circumstances of the rape for which defendant was on trial and those of the prior alleged rape.
Am Jur 2d, Evidence 332; Rape 71.
Admissibility of evidence as to other offense as affected by defendant's acquittal of that offense. 25 ALR4th 934.
4. Evidence and Witnesses 726 (NCI4th) — prior rape for which defendant acquitted — admission harmless on crime against nature charge The trial court's erroneous admission of testimony that defendant had previously committed a rape for which he was acquitted was not so prejudicial as to warrant a new trial on a crime against nature charge because consent is not a defense to crime against nature, defendant admitted that he committed cunnilingus upon the prosecuting witness, and this testimony could have had no conceivable effect on whether the jury believed defendant committed the crime against nature.
Am Jur 2d, Evidence 332; Rape 71.
Admissibility of evidence as to other offense as affected by defendant's acquittal of that offense. 25 ALR4th 934.
ON discretionary review pursuant to N.C.G.S. 7A-31 from the decision of the Court of Appeals, 99 N.C. App. 113, 392 S.E.2d 621 (1990), finding no error in defendant's trial and conviction at 16 January 1989 Criminal Session of Superior Court, COLUMBUS County, Herring, J., presiding. Heard in the Supreme Court 12 March 1991.
Lacy H. Thornburg, Attorney General, by Mary Jill Ledford, Assistant Attorney General, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant-appellant.
Justice MEYER dissenting.
Justice LAKE did not participate in the consideration or decision of this case.
Upon duly returned indictments defendant was tried and convicted of crime against nature, second-degree kidnapping, and three counts of second-degree rape. After being sentenced to ten years' imprisonment on the crime against nature conviction, thirty years' imprisonment on the kidnapping conviction, and forty years' imprisonment on the consolidated rape convictions, defendant appealed. The Court of Appeals found no error in defendant's trial and the judgments entered against him. We dismissed defendant's appeal but allowed his petition for discretionary review of the Court of Appeals' determination of one of the issues raised: whether the State may introduce in a subsequent criminal trial evidence of a prior alleged offense for which defendant had been tried and acquitted in an earlier trial. We hold that where the probative value of such evidence depends upon defendant's having in fact committed the prior alleged offense, his acquittal of the offense in an earlier trial so divests the evidence of probative value that, as a matter of law, it cannot outweigh the tendency of such evidence unfairly to prejudice the defendant. Such evidence is thus barred by N.C. R. Evid. 403.
I.
Evidence presented by the State tended to show defendant approached the prosecuting witness, a woman with whom he was acquainted, some time after 11:30 p.m. on 26 June 1988 at a convenience store where she had come to buy food for a friend. Defendant asked her for a ride home, and she agreed. She first drove with defendant to deliver the food. Around 1:30 a.m., she drove defendant at his request back to the convenience store to buy some cigarettes. As they were leaving the parking lot, defendant threatened her with a pocket knife and ordered her to drive elsewhere, where he forced her to have vaginal intercourse. Defendant subsequently forced her to drive to his house, enter, and engage in vaginal intercourse and fellatio.
The State introduced the testimony of Wanda Freeman, also a past acquaintance of defendant, who stated defendant had raped her two years earlier under similar circumstances. Defendant objected on the ground that he had been tried for the rape of Freeman and acquitted by the jury. The trial court ruled the evidence was admissible to show "opportunity, intent, preparation and plan" under Evidence Rule 404(b) and that its probative value outweighed any danger of unfair prejudice under Evidence Rule 403. The trial court later instructed the jury that it could consider this evidence on the issue of defendant's "intent, knowledge, plan, scheme, or design."
Defendant testified that he had accompanied the prosecuting witness with her consent from the convenience store, that she agreed to accompany him and that they engaged in consensual sexual relations at his house only. He admitted that they engaged in consensual cunnilingus (but said nothing regarding fellatio).
The Court of Appeals found no error in its review of five issues raised by defendant on appeal. Defendant argued before the Court of Appeals that the testimony of Wanda Freeman should not have been admitted. As he had been acquitted of the rape of Freeman, defendant argued that admission of her testimony concerning the rape violated the fundamental fairness component of due process, and any probative value this evidence might have was outweighed by its tendency unfairly to prejudice defendant. It was therefore inadmissible under Evidence Rule 403. The Court of Appeals concluded that defendant had not objected to the testimony on constitutional grounds at trial; therefore he was precluded from arguing constitutional grounds for its inadmissibility on appeal. The Court of Appeals did not address admissibility of this testimony under the Rules of Evidence.
Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C.G.S. 8C-1, Rule 403 (1988). Defendant also argued the evidence had no tendency to prove any of the matters listed in Rule 404(b) and thus was inadmissible on that ground.
We conclude that evidence that defendant committed a prior alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime. To admit such evidence violates, as a matter of law, Evidence Rule 403.
We acknowledge that, ordinarily, whether the probative value of evidence is "substantially outweighed by the danger of unfair prejudice," as Rule 403 provides, is a determination resting in the trial judge's discretion. E.g., State v. Meekins, 326 N.C. 689, 700, 329 S.E.2d 346, 352 (1990). The trial court's discretion, however, is not unlimited. Sound judicial discretion is "that [which] is . . . exercised . . . with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result." State v. Tolley, 290 N.C. at 367, 226 S.E.2d at 367-68 (quoting Langnes v. Green, 282 U.S. 531, 541, 75 L.Ed. 520, 526 (1931)). Its exercise is reviewable; and we have on occasion found the exercise of this discretion in favor of admission of the evidence to be error. See, e.g., State v. Hennis, 323 N.C. 279, 287, 372 S.E.2d 523, 527 (1988); State v. Jones, 322 N.C. 585, 590-91, 369 S.E.2d 822, 825 (1988); State v. Kimbrell, 320 N.C. 762, 769, 360 S.E.2d 691, 695 (1987). When the intrinsic nature of the evidence itself is such that its probative value is always necessarily outweighed by the danger of unfair prejudice, the evidence becomes inadmissible under the rule as a matter of law. The evidence at issue here is of that sort.
Two principles support this conclusion. First, fundamental to the admissibility of evidence of charges of which the defendant has been acquitted is the judicial presumption of innocence. This Court has recognized:
An acquittal is the "legal and formal certification of the innocence of a person who has been charged with a crime." Black's Law Dictionary 23 (5th ed. 1979). Once a defendant has been acquitted of a crime he has been "set free or judicially discharged from an accusation; released from . . . a charge or suspicion of guilt." People v. Lyman, 53 A.D. 470, 473, 65 N.Y.S. 1062, 1065 (1900) (quoting 1 Am. Eng. Enc. Law (2d ed. p. 573)) (emphasis added).
State v. Marley, 321 N.C. 415, 424, 364 S.E.2d 133, 138 (1988). Although a jury may acquit simply because the State has failed to prove a defendant's guilt beyond a reasonable doubt, we cannot enter the jury's "inner sanctum" to divine whether acquittal was based upon the State's failure to meet its burden of proof or upon the jury's belief in the defendant's innocence. Id.
The inescapable point is that . . . [the] law requires proof beyond a reasonable doubt in criminal cases as the standard of proof commensurate with the presumption of innocence; a presumption not to be forgotten after the acquitting jury has left and sentencing has begun.
Id. at 424-25, 364 S.E.2d at 138 (quoting State v. Cote, 129 N.H. 358, 374, 530 A.2d 775, 784 (1987)).
Nor is the presumption of innocence to be forgotten in subsequent trials for other offenses. The presumption of innocence enters the courtroom with the accused, and it leaves with the acquitted: neither accusation nor suspicion may again enter the courtroom. "By definition, when the Government fails to prove a defendant guilty . . ., the defendant is considered legally innocent. . . . `[T]he acquitted defendant is to be treated as innocent and in the interests of fairness and finality made no more to answer for his alleged crime.'" Dowling v. United States, 493 U.S. 342, 361 n. 4, 107 L.Ed.2d 708, 726 n. 4 (1990) (Brennan, J., dissenting, joined by Marshall, J., and Stevens, J.) (quoting State v. Wakefield, 278 N.W.2d 307, 308 (Minn. 1979)).
"Acquittal" is the judicial recognition of the innocence of a person who has been charged with a crime and whose presumed innocence, tested, is not overcome. One acquitted is "judicially discharged" from the accusation and released from both the charge and the suspicion of guilt. State v. Marley, 321 N.C. at 424, 364 S.E.2d at 138. A person acquitted of a charge should not be required again to defend himself against that charge in subsequent criminal proceedings in which he may become involved.
Second, the overwhelming potential for prejudice when such evidence is introduced, with or without limiting instructions, is a factor "which may `undermine the fairness of the fact-finding process' and thereby dilute `the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.'" State v. Tolley, 290 N.C. 349, 365, 226 S.E.2d 353, 366 (1976) (quoting Estelle v. Williams, 425 U.S. 501, 503, 48 L.Ed.2d 126, 130 (1976)). See Dowling v. United States, 493 U.S. at 361-62, 107 L.Ed.2d at 726 (Brennan, J., dissenting, joined by Marshall, J., and Stevens, J.) ("One of the dangers inherent in the admission of extrinsic offense evidence is that the jury may convict the defendant not for the offense charged but for the extrinsic offense." (quoting United States v. Beecham, 582 F.2d 898, 914 (5th Cir. 1978))).
The North Carolina Rules of Evidence must be interpreted and applied in light of this proposition: an acquittal and the undefeated presumption of innocence it signifies mean that, in law, defendant did not commit the crime charged. When the probative value of evidence of this other conduct depends upon the proposition that defendant committed the prior crime, his earlier acquittal of that crime so erodes the probative value of the evidence that its potential for prejudice, which is great, must perforce outweigh its probative value under Rule 403. See State v. Little, 87 Ariz. 295, 307, 350 P.2d 756, 763 (1960) ("The fact of an acquittal, . . . when added to the tendency of such evidence to prove the defendant's bad character and criminal propensities, lowers the scale to the side of inadmissibility of such evidence."); State v. Holman, 611 S.W.2d 411, 413 (Tenn. 1981) ("[T]he probative value of such evidence cannot be said to outweigh its prejudicial effect upon the defendant. For such evidence to have any relevance or use in the case on trial, the jury would have to infer that, despite the acquittal, the defendant nevertheless was guilty of the prior crime. No such inference can properly be drawn from an acquittal").
The use of evidence of conduct underlying a prior charge of a crime for which the defendant has been tried and acquitted has been permitted in the exceptional case in which the conduct occurred in the same "chain of circumstances" as the crime for which the defendant is being tried. In State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990), we held testimony that the defendant had possessed marijuana, despite his earlier acquittal of the possession charge, was admissible because that conduct was part of the same chain of circumstances which included the charged offense for which the defendant was on trial. Introduction of testimony about the marijuana possession was, despite the acquittal, necessary for the testifying witness to complete his story about what led to defendant's arrest and was inextricably entwined with the offense for which the defendant was then being tried. Holding this evidence was thus relevant under Rule 401, we examined its admissibility as a "crime, wrong or act" under Rule 404(b), and noted its essential identity to the "chain of circumstances" category of evidence when the two acts occurred contemporaneously. Under the particular circumstances of that case, evidence of the marijuana possession "form[ed] an integral and natural part of an account of the crime, or [was] necessary to complete the story of the crime for the jury." Agee, 326 N.C. at 548, 391 S.E.2d at 174 (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)).
Under our view of Rule 404(b) as a general rule of inclusion, the evidence presented in Agee did not fit the single exception "requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54 (1990). This Court thus assumed, despite the defendant's acquittal, that evidence of his marijuana possession had some probative value by virtue of its inextricable connection to the chain of circumstances. Noting that evidence which is probative is inevitably prejudicial but that its balance is a question of degree within the discretion of the trial court, we held that under the circumstances of that case, the trial court had not abused its discretion. State v. Agee, 326 N.C. at 550, 391 S.E.2d at 176.
The logic of Agee does not apply to the case before us. The "chain of circumstances" link that arguably made this evidence probative in Agee by virtue of its temporal relevance to the crime for which the defendant was on trial is absent here. Unlike the evidence that defendant raped Freeman, the probative value of the evidence in Agee did not depend on defendant's having committed the crime of possession of marijuana.
The error in admitting the testimony of Wanda Freeman entitles defendant to a new trial on the charges of kidnapping and rape. The test for prejudicial error is whether there is a reasonable possibility that, had the error not been committed, a different result would have been reached at trial. N.C.G.S. 15A-1443(a) (1988). Defendant admitted being with the prosecuting witness and engaging in sexual relations with her. He testified she consented to being with him and to the sexual conduct which ensued. The State's evidence tended to show the prosecuting witness did not consent. Both the State's evidence and the defendant's were corroborated to some extent by the testimony of other witnesses. The principal question for the jury in the kidnapping and rape cases was whether to believe the prosecuting witnesses or the defendant on the element of consent. Given the similarity of the circumstances of the rape for which defendant was on trial and those of the rape about which Ms. Freeman testified, we conclude there is at least a reasonable possibility that had the error in admitting Ms. Freeman's testimony not been committed and this evidence excluded a different result would have obtained at trial. This determination is underscored by the high potential for prejudice inherent in the introduction of evidence of prior offenses, as we have already recognized.
Consent, however, is not a defense to crime against nature. E.g., State v. Adams, 299 N.C. 699, 700, 264 S.E.2d 46, 50 (1980). Defendant admitted he had committed cunnilingus upon the prosecuting witness. Given this admission, Ms. Freeman's testimony could have had no conceivable effect on whether the jury believed defendant had committed the crime against nature. As to this charge, therefore, the error in admitting Ms. Freeman's testimony is not so prejudicial as to warrant a new trial.
The result is: As to the crime against nature conviction (No. 88CRS3806), the decision of the Court of Appeals is affirmed and that conviction will stand. As to the kidnapping conviction (No. 88CRS3807) and the three convictions for rape (Nos. 88CRS3808, 88CRS3809, 88CRS3810), the decision of the Court of Appeals is reversed and defendant is given a new trial; these cases are remanded to the Court of Appeals for further remand to the Superior Court, Columbus County, for further proceedings consistent with this opinion.
Affirmed in part, reversed in part and remanded.
Justice LAKE did not participate in the consideration or decision of this case.