State v. Scott

• Decision Date: 05 March 1992
• Docket Number: No. 330PA90,330PA90
• Citation: 413 S.E.2d 787,331 N.C. 39
• Parties: STATE of North Carolina v. Berry SCOTT.
• Court: North Carolina Supreme Court

Page 787

413 S.E.2d 787

331 N.C. 39

STATE of North Carolina v. Berry SCOTT.

No. 330PA90.

Supreme Court of North Carolina.

March 5, 1992.

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, Atty. Gen. by Mary Jill Ledford, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Mark D. Montgomery, Asst. Appellate Defender, Raleigh, for defendant-appellant.

EXUM, Chief Justice.

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. ¹ 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.

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, 392 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. 349, 367, 226 S.E.2d 353, 367-68 (1976) (quoting Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 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, 110 S.Ct. 668, 679 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, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126, 130 (1976)). See Dowling v. United States, 493 U.S. at 361-62, 110 S.Ct. at 679, 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. Beechum, 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...