State v. Carey

Chief Justice Sharp

dissenting.

According to the State’s evidence, Mr. Sloop died 3 July 1973 from wounds inflicted by a sawed-off shotgun discharged by James Calvin “Peanut” Mitchell on 19 June 1973.

Defendant testified he did not know Mitchell prior to his arrest on 10 July 1973 on charges relating to the attempted robbery of 19 June' 1973.

*283 Pamela Carey, defendant’s wife, testified she first met Mitchell on 10 July 1973 when she and her mother went to the Mecklenburg jail.

The court admitted in evidence, over defendant’s objections, State’s Exhibits 12 and 13, statements purporting to have been made by Pamela on 10 July 1973. At trial, under cross-examination, Pamela admitted she had signed these exhibits but testified the statements therein were not true'.

Exhibit 12 shows that the statement first quoted in the court’s opinion was made with reference to “Complaint #73-50216; Re: U-Drive It Rental Company; 1501 South Boulevard; Armed Robbery 6/8/73.” Exhibit 13 shows that the statement last quoted in the court’s opinion was made with reference to, “Complaint #73-50268; Re: Wyatt’s Spur Station; 2815 Rozzells Ferry Road; Armed Robbery; 6-9-73.”

When Exhibits 12 and 13 were admitted, the court instructed the jury they were for consideration only as bearing upon the credibility of Pamela’s testimony not as bearing upon the guilt of the defendant.

The statements in these exhibits indicate that Pamela had testified falsely when she said she had not known Mitchell prior to 10 July 1973. However, they go far beyond the purpose for which they were purportedly offered, that is,- to discredit Pamela’s testimony by prior inconsistent statements. They are to the effect that defendant also testified falsely when he said he had not known Mitchell until after his arrest in connection with the attempted robbery of 19 June 1973. Further, although they fall far short of charging defendant, Mitchell, and others, with robberies on South Boulevard and on Rozzells Ferry Road the statements strongly suggest that defendant was involved in these robberies with Mitchell and others.

In State v. Reid, 178 N.C. 745, 747 , 101 S.E. 104, 105 (1919), Justice (later Chief Justice) Hoke, speaking for the Court said: “Under our statute, Revisal, secs. 1634 and 35 [G.S. 8-57,1974 Supp.] the wife was neither competent nor compellable to testify to her husband’s hurt in a proceeding of this character and, a fortiori, her declarations against him should not be received when not made in his presence nor by his authority.” Also, see State v. Warren, 236 N.C. 358, 360 , 72 S.E. 2d 763, 764 (1952) ; State v. Dillahunt, 244 N.C. 524 , 94 S.E. 2d 479 (1956) ; *284 1 Stansbury’s North Carolina Evidence (Brandis Rev. 1978) § 59. Since the introduction or use of such evidence is forbidden by statute, in the furtherance of public policy, it is the duty of the trial judge, on his own motion, to disallow the evidence. State v. Warren, supra at 360 , 72 S.E. 2d at 764 .

Assuming arguendo that whether Pamela knew “Peanut” Mitchell on June 8th and 9th was material and not collateral to the issue whether defendant participated with him in the robbery on June 19th, the sole purpose for which these exhibits were admissible might have been attained by excising all portions of the statements except those to the effect that Pamela knew Mitchell and was with him and others on June 8th and June 9th of 1973. The instructions that the jury exclude from their consideration the prejudicial effect of thesé exhibits upon the credibility of defendant and upon his guilt was a futile gesture. See State v. Gardner, 226 N.C. 310 , 37 S.E. 2d 913 (1946).

The Court holds applicable to the present factual situation the rule that “[e] vidence of other crimes is admissible when it tends to establish a common plan or scheme • embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission,” this being the sixth exception to the exclusionary rule as stated by Justice Ervin in State v. McClain, 240 N.C. 171, 176 , 81 S.E. 2d 364, 367 (1954). I disagree. When' this • exception is applicable the other crimes must be proven by competent substantive evidence, not by declarations admissible solely to impeach the credibility of the testimony of a defense witness. See 1 Stansbury’s North- Carolina Evidence (Brandis Rev. 1973) § 46.

For the reasons stated I vote to remand the case to the Superior Court for a trial de novo.

Justice Branch concurs in this dissenting opinion.