State v. Walston

• Decision Date: 20 August 2013
• Docket Number: No. COA12–1377.,COA12–1377.
• Citation: 747 S.E.2d 720
• Parties: STATE of North Carolina v. Robert T. WALSTON, Sr., Defendant.
• Court: North Carolina Court of Appeals

747 S.E.2d 720

STATE of North Carolina

v.Robert T. WALSTON, Sr., Defendant.

No. COA12–1377.

Court of Appeals of North Carolina.

Aug. 20, 2013.

Appeal by Defendant from judgments entered 17 February 2012 by Judge Cy A. Grant in Superior Court, Dare County. Heard in the Court of Appeals 21 May 2013.

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

Mark Montgomery for Defendant–Appellant.

McGEE, Judge.

Robert T. Walston, Sr. (Defendant) was indicted for offenses involving two sisters, E.C. and J.C., ranging from June 1988 to October 1989. In 1994, E.C. and J.C. were interviewed by “law enforcement and/or Social Services[.]” They did not report the incidents with which Defendant was later charged. E.C. and J.C. told each other of the incidents in January 2001, but they did not share details or specifics. They told their parents, but no one called law enforcement.

“[N]ear the end of 2008[,]” J.C. contacted law enforcement to report the offenses. The indictments were filed 12 January 2009, approximately two decades after the alleged events. Superseding indictments were filed 14 November 2011. At the time of trial, E.C. was twenty-nine years old, and J.C. was twenty-seven years old. Defendant was convicted on 17 February 2012 of one count of first-degree sex offense, three counts of first-degree rape, and five counts of indecent liberties with a child. Defendant appeals.

I. Character Evidence of Defendant's Respectful Treatment of Children

Defendant first argues the trial court erred in excluding testimony that Defendant was “respectful around children and interact[ed] in a positive way with children.”

A. Preservation of the Error for Review

We must first address whether the issue is preserved for our review. Counsel and the trial court evidently discussed “issues” regarding certain witnesses. This discussion was not recorded or transcribed. Counsel then presented arguments as to whether the trial court should admit Defendant's evidence “with regard to specific character traits of [Defendant].” Specifically, Defendant sought to introduce good character evidence of Defendant's respectful treatment of children. The trial court denied Defendant's request to make a “brief proffer” of evidence through witness testimony, stating: “I'm not going to allow that. I don't think I need to do a proffer on that.”

Defendant filed a motion for appropriate relief with this Court on the same date that he filed his brief, arguing that his constitutional right to present a defense was denied when the trial court refused his request to make a proffer of evidence. Although Defendant stated in his MAR that his counsel “did not make a formal proffer of the testimony of these witnesses[,]” his counsel did make the following statement to the trial court:

If I may, Judge, in the way of proffer rather than calling the witnesses and offering them later, if I might just offer, Your Honor, that it would have been [D]efendant's intention and in anticipation that I would have been asking Mr. Anthony Ralph, Mr. Jessie Walston, Timmy Walston, Bett Beasley, Jim Beasley, Molly Walston, Amelia Twiddy, Crystal Maqueda, Christina Purtee, Carolyn Ambrose, would have asked each and every one of those people this same series of questions about observing interactions with children. Based on my interviews each would say they have seen him in several different settings with numerous groups of children. I would have asked each of them if they had an opinion as to whether these allegations are consistent or inconsistent with his character for how he deals or treats children. Each of those individuals, Your Honor, based on my interviews, would have testified that they do have an opinion and that in their opinion these allegations are inconsistent with the caring, respectful way they have always seen him dealing with children, that that—this is not part of his character and it is inconsistent with his character. There would be other witnesses to testify to that but hopefully that is enough to preserve our exception, Judge, and we'd ask the Court to accept that as our proffer and what that testimony would be.

“[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.” State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985); see also

State v. Mackey, 352 N.C. 650, 660, 535 S.E.2d 555, 560 (2000). The “essential content or substance of the witness' testimony must be shown before we can ascertain whether prejudicial error occurred.” Simpson, 314 N.C. at 370, 334 S.E.2d at 60.

“ ‘The practice of permitting counsel to insert answers rather than have the witness give them in the presence of the court should not be encouraged.’ ” Id. (quoting State v. Willis, 285 N.C. 195, 200, 204 S.E.2d 33, 36 (1974)). “The words of the witness, and not the words counsel thinks the witness might have used, should go in the record.” Simpson, 314 N.C. at 370, 334 S.E.2d at 60. “The better practice is to excuse the jury and complete the record in open court in the absence of the jury.” Id. “While the principles are usually cited in situations where particular testimony of a witness already on the stand is excluded, they apply with equal vigor when the witness is not permitted to testify at all.” Simpson, 314 N.C. at 370, 334 S.E.2d at 60–61.

The trial court in Simpson denied the defendant's request “to have the assistant district attorney testify.” Simpson, 314 N.C. at 370–71, 334 S.E.2d at 61. Counsel's offer of proof as to what the witness would have testified to was:

His observations, if Your Honor please, are what I'm interested in, what he observed on the 13th of June 1983 and what he saw and how the defendant appeared to him; whether or not it would be the same as what's in the motion, Judge, I don't know.

Simpson, 314 N.C. at 371, 334 S.E.2d at 61 (emphasis removed). Our Supreme Court held the offer “insufficient to establish the ‘essential content or substance’ of the witness' testimony. Defense counsel himself admitted that he did not know what the prosecutor's testimony would be.” Id.

The trial court's decision in the present case to deny a proffer of witness testimony is incorrect. The words of the witnesses should go in the record, not the words counsel thinks the witnesses might have used. Willis, 285 N.C. at 200, 204 S.E.2d at 36. Since the trial court denied a proffer from the witnesses, we have only the proffer from Defendant's counsel to review. The offer of proof, quoted above, was a specific forecast of what the testimony would be. Counsel did not express doubt as to the content of the testimony. Rather, he based his forecast on interviews with the witnesses. This fact indicates that counsel did not merely guess what the witnesses might say, but gave a reasonable forecast of the evidence. We hold that counsel's offer of proof is sufficient to establish the essential content or substance of the excluded testimony.

Because of this holding, the affidavits attached to Defendant's motion for appropriate relief are unnecessary to preserve this issue for review. We therefore deny Defendant's motion for appropriate relief and analyze the merits of Defendant's argument.

B. Analysis of the Merits

Defendant argues that the trial court erred in excluding testimony that Defendant was respectful around children and interacted in a positive way with children. We agree.

i. Rule

“Generally, [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[.]” State v. Banks, 191 N.C.App. 743, 746, 664 S.E.2d 355, 358 (2008) (quoting N.C. Gen.Stat. § 8C–1, Rule 404(a)) (alterations in original) (internal quotation marks omitted). See also State v. Squire, 321 N.C. 541, 546, 364 S.E.2d 354, 357 (1988).

“However, an exception is provided for an accused, who may present evidence of a pertinent trait of his character in an attempt to prove he acted in accord with this trait.” Banks, 191 N.C.App. at 746, 664 S.E.2d at 358. The exception harbors an important right of the accused to present evidence which tends to lessen the likelihood of the accused's guilt. See 1 Brandis & Broun on North Carolina Evidence § 88 (7th ed.2011).

“[T]he use of the word ‘pertinent,’ in the context of Rule 404(a)(1), is ‘tantamount to relevant.’ ” Banks, 191 N.C.App. at 746–47, 664 S.E.2d at 358 (quoting Squire, 321 N.C. at 547, 364 S.E.2d at 358).

Thus, in determining whether evidence of a character trait is admissible under Rule 404(a)(1), the trial court must determine whether the trait in question is relevant; i.e., whether it would “make the existence of any fact that is of consequence to the determination of the action” more or less probable than it would be without evidence of the trait.

Banks, 191 N.C.App. at 747, 664 S.E.2d at 358.

An “accused must tailor his character evidence to a ‘pertinent’ trait, but the trait may be general in nature provided that it is relevant in the context of the crime charged.” Squire, 321 N.C. at 548, 364 S.E.2d at 358. “The trial judge may, in his sound discretion, limit the number of character witnesses a defendant may call to the stand.” State v. McCray, 312 N.C. 519, 537, 324 S.E.2d 606, 618 (1985).

In McCray, “the defendant was permitted to offer some evidence of his good character, but was not permitted to offer all of evidence which he was prepared to offer on this issue.” Id. (emphasis in original). Our Supreme Court assumed arguendo that the exclusion of additional character witnesses was error and concluded that “any possible error was harmless[.]” Id.

By contrast, in the present case, the trial court excluded all testimony of Defendant's character for respectful treatment of children. D...