State v. Walston

• Decision Date: 19 December 2014
• Docket Number: No. 392PA13.,392PA13.
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Robert Timothy WALSTON, Sr.

367 N.C. 721

766 S.E.2d 312

STATE of North Carolina

v.Robert Timothy WALSTON, Sr.

No. 392PA13.

Supreme Court of North Carolina.

Dec. 19, 2014.

Roy Cooper, Attorney General, by Sherri Horner Lawrence, Assistant Attorney General, for the State-appellant.

Mark Montgomery for defendant-appellee.

NEWBY, Justice.

In this case we consider the admissibility of evidence of a pertinent character trait of a criminal defendant under North Carolina Rule of Evidence 404(a)(1). For character evidence to be admissible at trial under Rule 404(a)(1), an accused must "tailor the evidence to a particular trait that is relevant to an issue in the case." State v. Squire, 321 N.C. 541, 546, 364 S.E.2d 354, 357 (1988). Defendant's proffered evidence of being respectful towards children was not sufficiently tailored to the State's charges of child sexual abuse and was thus inadmissible. Separately, we consider the extent to which, if at all, use of the word "victim" in a trial court's jury charge amounts to prejudicial error. Based on long-standing precedent, the trial court's use of the term "victim" was not impermissible commentary on a disputed issue of fact. Thus, the trial court did not err in denying defendant's request to use the words "alleged victim" instead of "victim" in its charge to the jury. Accordingly, on both issues we reverse the decision of the Court of Appeals.

This case arose from incidents that occurred in 1988 and 1989 between defendant and the prosecuting witnesses, E.C. and J.C., sisters who at the time of the incidents were about seven and four years old, respectively. During the relevant period, defendant's wife operated an at-home day care where she watched E.C., J.C., and their younger brother in addition to her own three children. According to the State's evidence, on several occasions defendant sexually abused the prosecuting witnesses individually, with each child being unaware that the other had been abused. Apparently, at some point several years later, J.C. and E.C.'s mother became concerned that her daughters had been abused. As a result, in 1994 E.C. and J.C. were interviewed by a social services worker and two sheriff's deputies. In those interviews both girls denied having been abused. No physical exams were conducted at that time, and the sheriff's office concluded that nothing in the interviews indicated any type of sexual assault.

In 2001, for the first time, E.C. and J.C. confided in each other and their parents that defendant had abused them. Seven years later, J.C. contacted law enforcement to report the incidents; officers subsequently reached E.C., who detailed similar incidents of her own. In January 2009 defendant was indicted on two counts of first-degree sex offense with a child, five counts of first-degree rape of a child, and seven counts of taking indecent liberties with a child. Superseding indictments were filed on 14 November 2011.

The State's evidence at trial relied almost exclusively on the testimony of E.C. and J.C. The State also called witness K.B., who testified under North Carolina Rule of Evidence 404(b) regarding alleged incidents of sexual abuse involving defendant when she was approximately ten and defendant was eighteen. Defendant took the stand in his own defense and also sought to introduce witness testimony regarding his good character. Defense counsel summarized the character witnesses' proposed testimony in a voir dire proffer, stating that each witness would testify to defendant's traits of (1) being law-abiding, (2) having good character, and (3) being respectful towards children. The trial court ruled that the testimony regarding defendant's law-abiding character trait would be admissible, but that testimony about the other two traits was prohibited as a matter of law.

At another point in the trial, defendant proffered Dr. Moira Artigues's voir dire expert testimony on repressed and suggested memories, which the trial court prohibited in all respects. During the jury instruction conference, defendant unsuccessfully sought to have the word "victim" changed to " alleged victim" in the pattern jury instructions used by the trial court. The jury found defendant guilty of one count of first-degree sexual offense, three counts of first-degree rape, and five counts of taking indecent liberties with a minor. Defendant appealed.

Defendant raised, inter alia, three issues on appeal. Defendant first argued that the trial court erred in prohibiting witness testimony about his character under Rule of Evidence 404(a)(1). State v. Walston, –––N.C.App. ––––, ––––, 747 S.E.2d 720, 724 (2013). The Court of Appeals agreed, concluding that the trait of being respectful towards children was relevant and admissible under the rule. Id. at ––––, 747 S.E.2d at 725–26. As to defendant's second issue on appeal, the Court of Appeals agreed with defendant that the trial court erred in not substituting "alleged victim" for the word "victim" in the pattern jury instructions. Id. at ––––, 747 S.E.2d at 726. According to the Court of Appeals, the use of the word "victim" "intimate[d] the trial court's belief that E.C. and J.C. were sexually assaulted," which was "a disputed issue of fact for the jury to resolve." Id. at ––––, 747 S.E.2d at 727. Given that the State's and defendant's evidence "were in equipoise," id. at ––––, 747 S.E.2d at 728, the Court of Appeals ordered a new trial because "the jury reasonably might have reached a different verdict" had either of the trial court's errors not occurred, id. at ––––, 747 S.E.2d at 726, 728 ; see N.C.G.S. § 15A–1443(a) (2013). Lastly, defendant contended that the trial court erroneously excluded his proposed expert testimony on repressed and suggested memory under North Carolina Rule of Evidence 702. Id. at ––––, 747 S.E.2d at 728. The Court of Appeals determined that the trial court incorrectly relied on an earlier version of Rule 702 in arriving at its conclusion. Id. at ––––, 747 S.E.2d at 728. Rule 702 was amended in 2011. See Act of June 17, 2011, ch. 283, sec. 1.3, 2011 N.C. Sess. Laws 1048, 1049. The amended version applies to actions "commenced on or after" 1 October 2011. Id. at sec. 4.2, at 1051. Concluding that the "trigger date" for applying the new statute predated 14 November 2011, the date of the superseding indictments, the Court of Appeals instructed the trial court, on retrial, to apply the newly-amended rule. Walston, –––N.C.App. at ––––, 747 S.E.2d at 728.

In response to the Court of Appeals' holdings regarding the Rule 404(a)(1) character evidence and the use of the word "victim" in the jury instructions, the State petitioned this Court for discretionary review, which we allowed.

We first consider the State's contention that the Court of Appeals erred in holding that defendant should have been allowed to introduce evidence of his being respectful towards children under Rule 404(a)(1). We agree with the State that such character evidence was not sufficiently tailored to a relevant issue at trial to satisfy the specific requirements of Rule 404(a)(1).

A jury's perception of a defendant's character can have a strong impact on its determination of the defendant's innocence or guilt. As a result, our legislature has crafted specific rules to control the admission of character evidence at trial. See N.C.G.S. § 8C–1, Rules 404, 405 (2013). Effective 1 July 1984, Rule 404 governs the content of admissible character evidence and the contexts in which it may be admitted. Rule 404(a) is a general rule of exclusion, stating that "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." Id. § 8C–1, Rule 404(a). The rule's federal counterpart uses substantially the same language. Fed.R.Evid. 404(a)(1). The rule is of "fundamental importance in American law," implementing "the philosophy that a defendant should not be convicted because he is an unsavory person, nor because of past misdeeds, but only because of his guilt of the particular crime charged." 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:21 at 677 (4th ed.2013). As the United States Supreme Court stated in Michelson v. United States:

Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.

335 U.S. 469, 475–76, 69 S.Ct. 213, 218–19, 93 L.Ed. 168, 173–74 (1948) (internal citations and footnotes omitted).

Defendants in criminal cases, however, may utilize an exception under Rule 404(a) that "permits the accused to offer evidence of a ‘pertinent trait of his character’ as circumstantial proof of his innocence." State v. Bogle, 324 N.C. 190, 201, 376 S.E.2d 745, 751 (1989) (quoting N.C.G.S. § 8C–1, Rule 404(a)(1) (1988)). This exception should be "restrictively construed" though because " Rule 404(a), as a general rule, excludes character evidence." State v. Sexton, 336 N.C. 321, 360, 444 S.E.2d 879, 901 (...