Is Rule 608(b) a Rule of Exclusion? – North Carolina Criminal Law

In State v. Hamilton, No. COA22-847 (N.C. Ct. App. Nov. 21, 2023), the Court of Appeals held the prosecutor’s cross-examination of the defendant about statements he made in open court “was an inappropriate form of impeachment.”  Slip Op. p. 13.  In support of this conclusion, the Court of Appeals cited, among other things, Evidence Rule 608(b).  That rule generally bars evidence of specific instances of a witness’s conduct for the purpose of attacking or supporting his credibility; however, specific instances of conduct may be inquired into on cross-examination if probative of truthfulness or untruthfulness.  N.C.G.S. § 8C-1, Rule 608 cmt.  This post examines the use of Rule 608(b) in Hamilton to determine how a prosecutor can avoid improper impeachment.

I.     Specific instances of conduct as evidence of character

The North Carolina Rules of Evidence became effective in 1984 (making reconciliation with prior practice a perpetual preoccupation).  Cf. State v. McKoy, 385 N.C. 88, 95, 891 S.E.2d 74, 79 (2023).  Pre-Rule cases articulated conflicting rationales, one line stating that evidence of the defendant’s other crimes, wrongs, or acts was generally admissible, so long as it was not offered to show propensity, another stating that such evidence was generally inadmissible, subject to exceptions.  See 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 94, p. 297 (8th ed. 2008) (collecting cases).  Rule 404(b) codifies the former line: evidence of other crimes, wrongs, or acts is not admissible to prove a person’s character to show he acted in conformity therewith, but it may be admissible for other purposes.  Id.; cf. N.C.G.S. § 8C-1, Rule 404 cmt. (“consistent with North Carolina practice”).   Hence, “Rule 404(b) has been characterized as a rule of inclusion.”  State v. Pickens, __ N.C. __, __, 893 S.E.2d 194, 198 (2023) (citing State v. Coffey, 326 N.C. 268, 278–79, 389 S.E.2d 48 (1990)).

As noted by the commentary to Rule 405, evidence of specific instances of conduct is the most convincing method of proving character and has the greatest capacity to arouse prejudice, to confuse or surprise, and to waste time.  N.C.G.S. § 8C-1, Rule 405 cmt.  Accordingly, both the Rules and pre-Rule cases agree that when a person’s character is only collaterally in issue, character generally cannot be proved by specific acts.  1 Brandis & Broun § 97, p. 338.  For the same reason, even when inquiry into specific instances of conduct is permissible to show character (as upon cross-examination, see below), the witness’s answer is conclusive and cannot be contradicted by other testimony.  N.C.G.S. § 8C-1, Rule 608(b); 1 Brandis & Broun, § 97, p. 342.

Pre-Rules cases distinguished evidence of specific acts depending on whose conduct it was. Traditionally, a defendant could be cross-examined for impeachment purposes regarding any prior act of his own misconduct so long as the prosecutor had a good faith basis for the questions.  State v. Morgan, 315 N.C. 626, 634, 340 S.E.2d 84, 89 (1986); State v. Gallagher, 313 N.C. 132, 140, 326 S.E.2d 873, 879 (1985).  Rule 608(b) confines the inquiry to those specific instances of conduct probative of truthfulness or untruthfulness.  N.C.G.S. § 8C-1, Rule 608(b).  In this regard, Rule 608(b) is more restrictive than prior practice and operates as a rule of exclusion.  See State v. Bell, 338 N.C. 363, 382, 450 S.E.2d 710, 721 (1994) (larceny & drug possession not probative of truthfulness); State v. Clark, 324 N.C. 146, 167, 377 S.E.2d 54, 67 (1989) (smoking marijuana); State v. Strickland, 321 N.C. 31, 39, 361 S.E.2d 882, 886–87 (1987) (prior assaults); Morgan, 315 N.C. at 635, 340 S.E.2d at 90 (same); but see State v. Braxton, 352 N.C. 158, 196, 531 S.E.2d 428, 450 (2000) (prison infractions probative of untruthfulness); State v. Bishop, 346 N.C. 365, 391, 488 S.E.2d 769, 783 (1997) (evidence defendant took money from former boyfriend).

The requirement that the prosecutor have a good-faith basis for the cross-examination has been maintained from pre-Rules cases.  See State v. Warren, 327 N.C. 364, 373, 395 S.E.2d 116, 122 (1990) (citing State v. Dawson, 302 N.C. 581, 585, 276 S.E.2d 348, 351 (1981)); cf. Brandis & Broun, § 97, p. 341.  The questions are presumed proper absent any showing of bad faith.  State v. Roache, 358 N.C. 243, 318, 595 S.E.2d 381, 428 (2004).  Bad faith is shown when a prosecutor places before the jury incompetent and prejudicial matter, either by injecting his own opinions and beliefs or by insinuating facts unsupported by evidence.  See State v. Rodriguez, 371 N.C. 295, 316, 814 S.E.2d 11, 26 (2018); State v. Fleming, 350 N.C. 109, 139, 512 S.E.2d 720, 740 (1999).

Character witnesses were treated differently from principals.  According to prior practice, a character witness could not be impeached with evidence of specific instances of conduct by the witness about whose character he was testifying.  State v. Oliver, 309 N.C. 326, 370, 307 S.E.2d 304, 332 (1983); State v. Hunt, 287 N.C. 360, 374, 215 S.E.2d 40, 49 (1975).  Rule 608(b) provides, however, that specific instances of conduct may be inquired into on cross-examination “concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.”  N.C.G.S. § 8C-1, Rule 608(b).  Needless to say, a witness who has not testified as to another’s character is not subject to impeachment under this provision. See State v. Walls, 342 N.C. 1, 44, 463 S.E.2d 738, 760 (1995) (witness did not testify concerning another’s character so could not be cross-examined about specific instances of conduct).  Still, regarding the cross-examination of character witnesses, Rule 608(b) is more permissive than prior practice, granting the trial court discretion to admit the evidence if probative of truthfulness.

II.     Specific instances of conduct as evidence of something else.

As noted above, the Rules’ restrictions on evidence of a witness’s unrelated conduct are meant to protect against the dangerous tendency of character evidence to portray the person as worthy of reward or punishment regardless of what other evidence in the case shows.  See N.C.G.S. § 8C-1, Rule 404 cmt.  Consistent with case law, Rule 404(b) recognizes, however, that evidence of a witness’s other acts may be admissible for purposes other than delineating his character.  N.C.G.S. § 8C-1, Rule 404(b).  And as the commentary to Rule 608(b) acknowledges, “[e]vidence of wrongful acts admissible under Rule 404(b) is not within this rule and is admissible by extrinsic evidence or by cross-examination of any witness.”  N.C.G.S. § 8C-1, Rule 608 cmt.

Stated differently, evidence inadmissible for one purpose may be admissible for another.  State v. Williams, 330 N.C. 711, 719, 412 S.E.2d 359, 364 (1992); accord N.C.G.S. § 8C-1, Rule 105 cmt.  Consequently, the better-reasoned cases do not rest on an analysis of Rule 608(b) but also consider alternative bases for admissibility.  See Williams, 330 N.C. at 719, 412 S.E.2d at 364 (drug use and mental instability were probative of capacity for truth-telling); Clark, 324 N.C. at 168, 377 S.E.2d at 67 (evidence also barred by Rule 404(b)); State v. Scott, 318 N.C. 237, 243, 347 S.E.2d 414, 418 (1986) (rejecting argument that evidence was admissible to show identity); cf. State v. Harris, 323 N.C. 112, 129, 371 S.E.2d 689, 699 (1988) (state failed to present alternative argument).  Absent case law decided under Rule 608, pre-Rules cases may be persuasive in arguing for the admission of other-acts evidence.  See Williams, 330 N.C. at 719, 412 S.E.2d at 364.

Evidence of other acts may likewise be admissible when the defendant has “opened the door” during direct examination.  State v. White, 340 N.C. 264, 289, 457 S.E.2d 841, 855, cert. denied, 516 U.S. 994, 133 L. Ed. 2d. 436 (1995); State v. Lamb, 321 N.C. 633, 649, 365 S.E.2d 600, 609 (1988).  Where, for example, the defendant testified that he had not injured the robbery victim or anyone else, he thereby opened the door for the prosecutor to inquire into other specific instances of violent conduct.  See State v. Darden, 323 N.C. 356, 359, 372 S.E.2d 539, 541 (1988). But the principle will extend only so far: the defendant’s testimony about his wife’s prior sexual misconduct did not open the door for the prosecutor to question the defendant about his own unrelated sexual misconduct.  See Scott, 318 N.C. at 244, 347 S.E.2d at 418.

III.     Improper impeachment in Hamilton.

As noted above, Hamilton cited Rule 608(b) in support of its conclusion that the prosecutor’s cross-examination of the defendant about statements he made in open court was inappropriate.  The Court of Appeals also cited State v. Morgan, 315 N.C. 626, 634, 340 S.E.2d 84, 89 (1986).  Morgan is instructive as an early illustration of Rule 608(b)’s application.

The defendant in Morgan shot to death his business partner outside of the flea market they operated in Alexander, North Carolina.  The defendant claimed the decedent was coming through a door at him and that he fired in self-defense.  Morgan, 315 N.C. at 628-30, 340 S.E.2d at 86-87.  At trial, the prosecutor cross-examined the defendant about prior assaults he had committed against others (same place, same weapon, different victims), one instance of which he denied.  Id. at 631, 340 S.E.2d at 88.  Upon review, our Supreme Court described the scope of Rule 608(b) as follows:

Rule 608(b) addresses the admissibility of specific instances of conduct (as opposed to opinion or reputation evidence) only in the very narrow instance where (1) the purpose of producing the evidence is to impeach or enhance credibility by proving that the witness’ conduct indicates his character for truthfulness or untruthfulness; and (2) the conduct in question is in fact probative of truthfulness or untruthfulness and is not too remote in time; and (3) the conduct in question did not result in a conviction; and (4) the inquiry into the conduct takes place during cross-examination.

Id. at 634, 340 S.E.2d at 89–90.  It concluded the prosecutor’s cross-examination was improper under Rule 608(b) because the evidence of unrelated assaults was not probative of the witness’s character for truthfulness.  Id. at 635, 340 S.E.2d at 90.  Further, it rejected the State’s argument that the evidence was admissible under Rule 404(b) to show the defendant was the aggressor in the affray as “an impermissible use” of specific instances of conduct.  Id. at 638, 340 S.E.2d at 92.

Noting that the rule governing admissibility is not always clear, Morgan warned judges to determine admissibility under Rule 404(b) as a “preliminary issue.”  Morgan, 315 N.C. at 636, 340 S.E.2d at 91; cf. N.C.G.S. § 8C-1, Rule 608 cmt. (Rule 608(b) does not apply to Rule 404(b) evidence).  Notwithstanding, Morgan decreed the prior-acts evidence inadmissible under Rule 608(b) before considering whether it could come in under Rule 404(b).  Without disavowing Morgan, our Supreme Court has blunted its impact by subsequently adopting a more liberal attitude toward other-acts evidence.  See State v. Berry, 356 N.C. 490, 507, 573 S.E.2d 132, 144 (2002) (prior assault admissible to show intent, motive, knowledge); State v. Larrimore, 340 N.C. 119, 152, 456 S.E.2d 789, 807 (1995) (prior assaults upon testifying witness relevant to truthfulness).

In Hamilton, the defendant and an accomplice robbed the manager and patrons of a gaming business.  Hamilton, No. COA22-847, Slip Op. at 2-3.  At the defendant’s trial for armed robbery, the prosecutor cross-examined the defendant about statements he made in court before trial:

Q. Did you say that you were “getting raped”?

A. What’s happening? I’m being took from my family.

Q. Is that a yes?

A. I didn’t deny it.

Q. Did you say that I was a racist?

A. You act like it.

Q. Is that a yes?

A. No. Because you didn’t hear that come out of my mouth and say you racist. I said Davidson County, period.

Q. You don’t remember pointing at me and screaming that I was a racist from Jump Street?

A. Well, if I did, I did. I don’t recall.

Id. at 12.  Defense counsel failed to object to this portion of the cross-examination.  Id.

On appeal, the defendant argued the cross-examination was irrelevant and an improper form of impeachment.  The Court of Appeals agreed.  First, it said, the exchange occurred “over five years after” the crimes, and “it has no tendency to make a consequential fact concerning those crimes more or less probable.”  Id. at 12.  Second, though the defendant’s pretrial statements “may have been probative concerning his general character, his examined conduct was irrelevant to his character for truthfulness.”  Id. at 13.  The Court of Appeals concluded that “the State’s inquiry into these actions was an inappropriate form of impeachment.”  Id. (citing Morgan and Rule 608(b)).

For an issue that failed to provoke any objection at trial, the Court of Appeals devoted little consideration to potential bases for admission.  Despite Morgan, Rule 404(b) was never addressed. And while the Court of Appeals did not comment on whether the defendant actually made the contested statements (which presumably would appear in the trial transcript), there is no indication the prosecutor’s questions were asked in bad faith.  As for relevance, bias has long been deemed relevant to credibility and a proper subject for cross-examination.  State v. Lewis, 365 N.C. 488, 494, 724 S.E.2d 492, 497 (2012).  It is at least arguable that the prosecutor here was entitled to inquire into the defendant’s apparent bias against Davidson County law enforcement.  Absent any proposed justification for the questions, the Court of Appeals treated the other-acts evidence as inadmissible character evidence and deemed the cross-examination inappropriate under Rule 608(b).

IV.     Conclusion

The prosecutor seeking to introduce evidence of other acts should beware.  As our Supreme Court said in Morgan, “[t]he better practice is for the proponent of the evidence . . . to obtain a ruling on its admissibility prior to offering it.”  Morgan, 315 N.C. at 640, 340 S.E.2d at 93.  Typically, this will take the form of a pre-trial hearing on proposed Rule 404(b) evidence.  But, as Hamilton illustrates, evidence of specific instances of conduct is no less open to challenge when offered on cross-examination.  And this includes evidence of the defendant’s in-court statements.

A prosecutor wishing to elicit such evidence on cross-examination should first seek a ruling on admissibility outside of the presence of the jury.  See N.C.G.S. § 8C-1, Rule 104 (preliminary questions on admissibility to be determined by the court).  When there is a plausible argument that the evidence is relevant to something other than the defendant’s character, the prosecutor should seek admission under Rule 404(b), avoiding the strictures of Rule 608(b) altogether.  If the evidence is probative of truthfulness, Rule 608(b) still allows admission (in the trial court’s discretion), but the prosecutor will be stuck with the witness’s answer, unable to contradict it with extrinsic evidence.  In any event, the prosecutor who anticipates an objection and obtains a favorable ruling before offering the evidence has a better chance of avoiding a declaration of improper cross-examination.

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