State v. Mason

• Decision Date: 18 February 1986
• Docket Number: No. 279A85,279A85
• Citation: 340 S.E.2d 430,315 N.C. 724
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Wendell MASON.

Page 430

340 S.E.2d 430

315 N.C. 724

STATE of North Carolina v. Wendell MASON.

No. 279A85.

Supreme Court of North Carolina.

Feb. 18, 1986.

Lacy H. Thornburg, Atty. Gen. by Francis W. Crawley, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Acting Appellate Defender by Gordon Widenhouse, Raleigh, for defendant-appellant.

BRANCH, Chief Justice.

At the conclusion of the State's case defendant requested an in camera hearing pursuant to N.C.G.S. § 8C-1, Rule 412. Defendant's purpose in requesting the hearing was to attempt to elicit from Ms. Hemmert evidence which would tend to show that he did not perform the sexual acts to which she testified.

N.C.R.Evid. 412 in pertinent part provides that:

(a) As used in this rule, the term 'sexual behavior' means sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial.

(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:

(1) Was between the complainant and the defendant; or

(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or

(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or

(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.

(c) Sexual behavior otherwise admissible under this rule may not be proved by reputation or opinion.

(d) Notwithstanding any other provision of law, unless and until the court determines that evidence of sexual behavior is relevant under subdivision (b), no reference to this behavior may be made in the presence of the jury and no evidence of this behavior may be introduced at any time during the trial of:

(1) A charge of rape or a lesser included offense of rape;

(2) A charge of a sex offense or a lesser included offense of a sex offense; or

(3) An offense being tried jointly with a charge of rape or a sex offense, or with a lesser included offense of rape or a sex offense.

Before any questions pertaining to such evidence are asked of any witness, the proponent of such evidence shall first apply to the court for a determination of the relevance of the sexual behavior to which it relates. The proponent of such evidence may make application either prior to trial pursuant to G.S. 15A-952, or during the trial at the time when the proponent desires to introduce such evidence. When application is made, the court shall conduct an in camera hearing, which shall be transcribed, to consider the proponent's offer of proof and the argument of counsel, including any counsel for the complainant, to determine the extent to which such behavior is relevant. In the hearing, the proponent of the evidence shall establish the basis of admissibility of such evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the proponent seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the in camera hearing or at a subsequent in camera hearing scheduled for that purpose, shall accept evidence on the issue of whether that condition of fact is fulfilled and shall determine that issue. If the court finds that the evidence is relevant, it shall enter an order stating that the evidence may be admitted and the nature of the questions which will be permitted.

Pursuant to N.C.R.Evid. 412 the trial judge convened an in camera hearing and required defendant's counsel to state what questions he intended to ask. Defense counsel proposed to ask Ms. Hemmert if she had been involved in any sexual activity during the twenty-four hours preceding the assault as well as a number of questions concerning the manner in which the act of rape was performed and her visual observations during the rape. The trial judge ruled that defendant could only ask Ms. Hemmert about sexual activity during the twenty-four hours preceding the assault. When he did so, Ms. Hemmert denied having engaged in any sexual activity during that period of time. When the trial judge asked if defendant had any other questions to offer, his counsel answered that he could think of nothing else to ask.

Defendant assigns as error the trial judge's refusal to allow him during the in camera hearing to ask all of the questions he proposed. He argues that his constitutional rights were violated because he was denied the full opportunity to present evidence, cross-examine witnesses, and in general make his offer of proof as provided by N.C.R.Evid. 412. We disagree.

The sixth amendment of the Federal Constitution as applied to the states through the fourteenth amendment guarantees the right of a defendant in a criminal trial to be confronted with the witnesses against him. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The principal purpose of confrontation is to secure to the defendant the right to test the evidence of the witnesses against him through cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). However, the right of cross-examination is not absolute and may be limited in appropriate cases. State v. Fortney, 301 N.C. 31, 36, 269 S.E.2d 110, 113 (1980). Trial judges retain broad discretion to preclude cross-examination that is repetitive or that is intended to merely harass, annoy or humiliate a witness. State v. Fortney, 301 N.C. 31, 36, 269 S.E.2d 110, 113; Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353.

In this case the trial judge acted well within his authority when he refused to allow defendant to question Ms. Hemmert about the manner in which her assailant performed the act of sexual intercourse. These questions did not present inquiry into evidence of sexual activity of Ms. Hemmert other than the sexual acts which were in issue, i.e., the rape and sexual offense, and so were not the proper subject of an in camera examination conducted pursuant to N.C.R.Evid 412. Further, defendant had already cross-examined Ms. Hemmert about the extent of penetration and ejaculation by her assailant during the rape, and the trial judge did not abuse his discretion by precluding repetitive cross-examination on that issue.

Defendant is simply in error when he claims that the trial judge terminated the hearing and denied his request for further examination after Ms. Hemmert testified that she had not engaged in any sexual activity in the twenty-four hours preceding the assault. Following Ms. Hemmert's negative answer the trial judge inquired of defendant's counsel whether he would like to proffer additional questions other than those that had already been ruled out. In declining to proffer further questions defense counsel stated that without having been able to ask any further questions, i.e., those questions that the trial judge had forbidden, he had no idea what else to ask. Since defendant did not proffer additional questions, he cannot show that his constitutional rights were violated. This assignment of error is overruled.

Defendant next assigns as error the State's introduction of testimony that contained references to his incarceration prior to trial. Defendant contends that these references were improper because they portrayed him as a prison inmate and their prejudicial effect outweighed their probative value. Defendant's objections were overruled and his motion for mistrial was denied.

"[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" is relevant. N.C.G.S. § 8C-1, Rule 401. 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. Unfair prejudice has been defined as "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Commentary to N.C.R.Evid. 403. Whether or not to exclude evidence under Fed.R.Evid. 403 is a matter within the sound discretion of the trial judge. United States v. MacDonald, 688 F.2d 224 (4th Cir.1982). We believe the MacDonald rule is a proper interpretation of Fed.R.Evid. 403 and adopt it for our N.C.R.Evid. 403, which is identical to its federal counterpart.

In other than capital cases a motion for mistrial is addressed to the sound discretion of the trial judge, State v. Yancey, 291 N.C. 656, 664, 231 S.E.2d 637, 642 (1977), and his ruling may be reversed for an abuse of discretion only upon a showing that it "was so arbitrary that it could not have been the result of a reasoned decision." State v. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78, 82 (1985).

During the investigation of the crime, a shoe print made by a tennis shoe was discovered at the scene of the rape and photographed. Officer Steve Smith interviewed defendant in the Lenoir County Jail and following a voir dire testified that he compared a photograph of the shoe print with the bottom of the tennis shoes defendant was wearing at the time of the interview. During the interview defendant told Officer Smith that the shoes were not his and that they had been supplied to him by the jail or belonged to a cellmate. Officer Smith made inquiries at the jail and told defendant that the shoes were not supplied to him by the Lenoir County Jail....