State v. Tutt

Tyson, Judge

dissenting.

The majority holds N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) is inconsistent with Rule 10(b)(1) of the North Carolina Rules of Appellate *527 Procedure and strikes down as unconstitutional the General Assembly’s enactment amending North Carolina’s Rules of Evidence. Rule 103(a)(2) is a statutory rule of evidence, not of appellate procedure or practice. I respectfully dissent.

I. Standard of Review

A presumption exists that “any act passed by the legislature is constitutional, and the court will not strike it down if [it] can be upheld on any reasonable ground.” Ramsey v. Veterans Commission, 261 N.C. 645, 647 , 135 S.E.2d 659, 661 (1964) (citations omitted). The unconstitutionality of the statute must appear beyond a reasonable doubt. Turner v. Reidsville, 224 N.C. 42 , 46, 29 S.E.2d 211, 214 (1944); Assurance Co. v. Gold, Comr. of Insurance, 249 N.C. 461, 463 , 106 S.E.2d 875, 876 (1959) (“Every presumption favors the validity of a statute. It will not be declared invalid unless its unconstitutionality be determined beyond a reasonable doubt.”).

II. Rules of Procedure and Practice

Our Supreme Court, under both constitutional and statutory authority, promulgates the North Carolina Rules of Appellate Procedure which includes requirements for the preservation of issues for review by the appellate courts. See N.C. Const. Art. IV § 13(2) (“The Supreme Court shall have exclusive authority to make rules of procedure and practice for the Appellate Division.”) (emphasis supplied); see also N.C. Gen. Stat. § 7A-33 (2003) (“The Supreme Court shall prescribe rules of practice and procedure designed to procure the expeditious and inexpensive disposition of all litigation in the appellate division.”) (emphasis supplied). However, it is the power of the General Assembly, not the courts, to adopt Rules of Evidence and Civil Procedure. State v. Lassiter, 13 N.C. App. 292, 297 , 185 S.E.2d 478, 482 (1971) (“It is well settled in this State that it is within the power of the General Assembly to change the rules of evidence ....”) (citation omitted), cert. denied, 280 N.C. 495 , 186 S.E.2d 514 (1972); Bockweg v. Anderson, 328 N.C. 436, 452 , 402 S.E.2d 627, 637 (1991) (“the General Assembly is the sole source of the North Carolina Rules of Civil Procedure, unless this authority is expressly delegated to the Supreme Court”) (citations omitted).

A. N.C. Gen. Stat. $ 15A-1446(d)

Our Supreme Court has interpreted N.C. Const. Art. IV § 13(2) as authority for the Court to strike down conflicting criminal procedure statutes enacted by the General Assembly purportedly governing *528 appellate procedure and practice. Elam, 302 N.C. at 160-61, 273 S.E.2d at 664 (N.C. Gen. Stat. § 15A-1446(d)(6) “is in direct conflict with Rules 10 and 14(b)(2) of the Rules of Appellate Procedure ....”); Bennett, 308 N.C. at 532-33, 302 S.E.2d at 788 (Appellate Rule 10(b)(2) is in conflict with N.C. Gen. Stat. § 15A-1446(d)(13)); Stocks, 319 N.C. at 439, 355 S.E.2d at 493 (N.C. Gen. Stat. § 15A-1446(d)(5) is in conflict with Rule 10(b)(3) of the North Carolina Rules of Appellate Procedure); State v. Spaugh, 321 N.C. 550, 552-53 , 364 S.E.2d 368, 370 (1988) (N.C. Gen. Stat. § 15A-1446(d)(5) is in conflict with Rule 10(b)(3)); State v. Richardson, 341 N.C. 658, 676-77 , 462 S.E.2d 492, 504 (1995) (N.C. Gen. Stat. § 15A-1446(d)(5) is in conflict with Rule 10(b)(3)); State v. O’Neal, 77 N.C. App. 600, 603-04 , 335 S.E.2d 920, 923 (1985) (N.C. Gen. Stat. § 15A-1446(d)(5) is in conflict with Rule 10 of the North Carolina Rules of Appellate Procedure); State v. Bradley, 91 N.C. App. 559, 563-64 , 373 S.E.2d 130, 132-33 (1988) (N.C. Gen. Stat. § 15A-1446(d)(5) is in conflict with Rule 10(b)(3)), disc. rev. denied, 324 N.C. 114 , 377 S.E.2d 238 (1989); State v. Hinnant, 131 N.C. App. 591, 596-97 , 508 S.E.2d 537, 540 (1998) (N.C. Gen. Stat. § 15A-1446(d)(5) is in conflict with Rule 10(b)(3)), rev’d on other grounds, 351 N.C. 277 , 523 S.E.2d 663 (2000); State v. Moore, 132 N.C. App. 197, 201-02 , 511 S.E.2d 22, 25 (N.C. Gen. Stat. § 15A-1446(d)(5) is in conflict with Rule 10(b)(3)), cert. denied and appeal dismissed, 350 N.C. 103 , 525 S.E.2d 469 (1999).

Three cases above, Stocks, Bennett, and Elam, are cited in the majority’s opinion as authority to support its holding that N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) constitutionally fails. These cases are inapposite and do not support the conclusion reached by the majority.

In Stocks, the defendant argued the trial court erred in denying his motion to dismiss at the conclusion of the State’s evidence. 319 N.C. at 438-39, 355 S.E.2d at 492-93. The defendant did not renew his motion to dismiss after offering evidence. Id. N.C. Gen. Stat. § 15A-1446(d)(5) provided at the time that such renewals were unnecessary to preserve error based upon insufficiency of the evidence for appellate review. Id. This statute was held to be in conflict with Rule 10(b)(3) of the North Carolina Rules of Appellate Procedure which requires renewal of the motion to dismiss at the close of all evidence. Id. Our Supreme Court held the “statute must fail” to the extent it was inconsistent with Rule 10(b)(3). Id.

In Bennett, the defendant argued the jury instructions were improper. 308 N.C. at 532, 302 S.E.2d at 788. However, defendant *529 failed to request instructions or to object to the instructions given before the jury retired. Id. at 535, 302 S.E.2d at 790. At the time, N.C. Gen. Stat. § 15A-1446(d)(13) permitted appellate review of jury instructions “even though no objection, exception or motion has been made in the trial division.” Id. (citing N.C. Gen. Stat. § 15A-1446(d)(13)). Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure states, “No party may assign error to any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider the verdict....” Id.; N.C.R. App. R. 10(b)(2). Our Supreme Court followed this Court’s discussion of the conflict between N.C. Gen. Stat. § 15A-1446(d)(13) and Rule 10(b)(2) and held, “[t]o the extent [it] is inconsistent with Rule 10(b)(2), the statute must fail.” Id.

In Elam, the defendant argued for the first time on appeal his conviction violated his constitutional rights. 302 N.C. at 159, 273 S.E.2d at 663. This Court overruled his argument for failing to raise the issue before the trial court in violation of Rule 14(b)(2) of the North Carolina Rules of Appellate Procedure. Id. at 160, 273 S.E.2d at 664. The defendant appealed to our Supreme Court arguing this Court erred in overruling “his constitutional attack” of the statute, in contravention of N.C. Gen. Stat. § 15A-1446(d)(6). Id. N.C. Gen. Stat. § 15A-1446(d)(6) provided that an objection, exception, or motion was not necessary to preserve errors based upon “[t]he defendant [being] convicted under a statute that is in violation of the Constitution of the United States or the Constitution of North Carolina.” Id. The Court held N.C. Gen. Stat. § 15A-1446(d)(6) was “in direct conflict with Rules 10 and 14(b)(2) of the Rules of Appellate Procedure....” Id.

The common element in all of the cases listed above, including those cited within the majority’s opinion, is the statute considered and held to be in conflict in each case was N.C. Gen. Stat. § 15A-1446 entitled, Requisites for preserving the right to appeal. This statute is found within Chapter 15A, The Criminal Procedure Act and Article 91 entitled, Appeal to Appellate Division. The conflicting provisions stricken were all located within subsection (d) which begins, “[e]rrors based [upon any of] the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.” N.C. Gen. Stat. § 15A-1446(d) (emphasis supplied).

Here, Rule 103 sets out instances where an objection, exception, or motion is not necessary in order to preserve an issue for appellate *530 review, and uniformly applies to all civil, criminal, and administrative proceedings where the Rules of Evidence apply.

B. N.C. Gen. Stat. $ 1A-1. Rule 46(a)(1)

North Carolina’s appellate courts have previously upheld legislative exceptions to the appellate rules requiring an objection to preserve error for appellate review. Under N.C. Gen. Stat. § 1A-1, Rule 46(a)(1) (2003), “when there is an objection to the admission of evidence involving a specified line of questioning, it shall be deemed that a like objection has been taken to any subsequent admission of evidence involving the same line of questioning.” This rule operates “to preserve the continued effect of a specific objection, once made, to a particular line of questioning.” Power Co. v. Winebarger, 300 N.C. 57, 68 , 265 S.E.2d 227, 233 (1980); see also Dep’t of Transportation v. Fleming, 112 N.C. App. 580, 586 , 436 S.E.2d 407, 411 (1993) (“Rule 46(a)(1) . . . preserves the effect of a seasonably made objection to a specified line of questioning.”) (citing N.C. Gen. Stat. § 1A-1, Rule 46(a)(1)).

III. Rule 103

A. Federal Rule of Evidence

In 2000, Federal Rule of Evidence 103 was amended to include additional language. Fed. R. Evid. 103. Under the Federal Rule, a new paragraph was added at the end of the rule separate from, cumulative of, and equally applicable to subsections (1) and (2):

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not *531 renew an objection or offer of proof to preserve a claim of error for appeal.

Id. (emphasis supplied).

All federal courts that have considered the 2000 amendment in either a civil, criminal, or administrative context have upheld its validity and not voiced any concerns regarding encroachment upon their appellate rule making or procedural authority. Dell Computer Corp. v. Rodriguez, 390 F.3d 377, 387 (5th Cir. 2004) (“A renewed objection at trial is no longer required to preserve error.”); United States v. Malik, 345 F.3d 999, 1001 (8th Cir. 2003) (holding a pretrial objection preserved the issue for review under Rule 103(a) of the Federal Rules of Evidence); Micro Chemical, Inc. v. Lextron, Inc., 317 F.3d 1387, 1391 (Fed. Cir. 2003) (Pursuant to Rule 103, the plaintiff’s contention that the defendants waived their right to challenge on appeal the admission of an expert’s testimony is rejected.); Crowe v. Bolduc, 334 F.3d 124, 133-34 (1st Cir. 2003) (“Our circuit rule has now been codified in a 2000 amendment to Rule 103, Federal Rules of Evidence.”); United States v. Brown, 303 F.3d 582, 600 (5th Cir. 2002) (“As the Advisory Committee Notes to Rule 103 make clear, ‘[w]hen the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity.’ ”), cert. denied, 537 U.S. 1173 , 154 L. Ed. 2d 915 (2003); United States v. Harrison, 296 F.3d 994, 1002 (10th Cir. 2002) (The 2000 amendment to Rule 103 provides parties need not renew an objection “once the Court makes a definitive ruling.”) (citing Fed. R. Evid. 103), cert. denied, 537 U.S. 1134 , 154 L. Ed. 2d 825 (2003); Mathis v. Exxon Corp., 302 F.3d 448, 459 (5th Cir. 2002) (a pretrial objection was sufficient to preserve error of proposed expert testimony for appellate review); Elsayed Mukhtar v. Cal. State University, Hayward, 299 F.3d 1053, 1062-63 (9th Cir. 2002) (Citing Rule 103(a)(2), the court held a “[contemporaneous objection is not required where, as here, the trial court definitively ruled on a motion in limine after exploring [the defendant’s] objection.”), amended by, 519 F.3d 1073 (9th cir. 2003); Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 791-92 (6th Cir. 2002) (the defendant did not waive introduction of expert testimony by not renewing proper objection in pretrial hearing), cert. denied, 537 U.S. 1148 , 154 L. Ed. 2d 850 (2003).

Federal cases, although not binding on this Court, are instructive and persuasive authority. House v. Hillhaven, Inc., 105 N.C. App. 191, 195 , 412 S.E.2d 893, 896 , disc. rev. denied, 331 N.C. 284 , 417 S.E.2d 252 (1992). When the North Carolina rule of evidence is “identical” to *532 the Federal rule, “[t]he intent is to make applicable, as an aid in construction, the federal decisional law construing identical or similar provisions of the Federal Rules of Evidence.” N.C. Gen. Stat. § 8C-1, Rule 102 commentary. “[Tjhese rules are not adopted in a vacuum. A substantial body of law construing these rules exists and should be looked to by the courts for enlightenment and guidance in ascertaining the intent of the General Assembly in adopting these rules.” Id.

B. North Carolina Rule of Evidence

Rule 103 of the North Carolina Rules of Evidence contained verbatim language to that of the Federal Rule of Evidence prior to its amendment in 2000. Effective 1 October 2003, the General Assembly amended Rule 103 by adding the following lánguage to subsection (a)(2): “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” 2003 N.C. Sess. Laws ch. 101, §§ 1-2. The language of the amendment is verbatim with Rule 103 of the Federal Rules of Evidence and Rule 103 of the Uniform Rules of Evidence. Id.) Fed. R. Evid. 103.

The basis for and intent of the amendment to the North Carolina rule is to follow the format and language of Federal Rule 103. 2003 N.C. Sess. Laws ch. 101, §§ 1-2 (“An Act conforming Rule 103 of the North Carolina Rules of Evidence to the corresponding Federal Rule.”). Despite the published version showing this added language under subsection (a)(2), the General Assembly clearly intended to apply the amendment to both objections under subsection (a)(1) and offers of proof under subsection (a)(2). The language in the amendment addresses and applies to both subsections.

This Court recently considered amended Rule 103 in State v. Rose, 170 N.C. App. 284, 288 , 612 S.E.2d 336, 339 (2005) and in In re S.W., 171 N.C. App. 335, 337 , 614 S.E.2d 424, 426 (2005). In Rose, the defendant’s sole argument on appeal was the trial court erred in denying his pretrial motion to suppress evidence. 170 N.C. App. at 287 , 612 S.E.2d at 338 . The defendant failed to object when the evidence he had sought to suppress was offered at trial. Id. at 288 , 612 S.E.2d at 339 . We held that under the amendment to Rule 103, effective 1 October 2003, “once the trial court denied defendant’s motion to suppress, he was not required to object again at trial in order to preserve his argument for appeal.” Id.

*533 In In re S.W., the juvenile filed a motion to suppress evidence obtained during an alleged illegal search, which the trial court denied. 171 N.C. App. at 337 , 614 S.E.2d at 426 . The juvenile did not object when the evidence was admitted during trial. However, we held:

the juvenile properly preserved his assignment of error by objecting when the trial court denied his motion to suppress in conformity with the amended North Carolina Rules of Evidence 103. N.C. Gen. Stat. § 8C-1, Rule 103 (2003); 2003 N.C. Sess. Laws ch. 101, §§ 1-2 (effective 1 October 2003); see also State v. Rose, 170 N.C. App. 284, 288 , 612 S.E.2d 336, 339 (2005) (holding once the trial court denied the defendant’s motion to suppress, he was not required to object again to preserve argument for appeal).

Id. at 337 , 614 S.E.2d at 426 ; see also In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384 , 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”) (citations omitted).

IV. The Majority’s Opinion

The majority’s holding will adversely affect forum selection by creating a conflict between the North Carolina and Federal Rules of Evidence. See State v. Bogle, 324 N.C. 190, 202-03 , 376 S.E.2d 745, 752 (1989) (“[T]here is merit in uniformity of interpretation of similar rules by state and federal courts. The commentary to Rule 102 (purpose and construction of our Rules of Evidence) notes that federal precedents are not binding on our courts in construing the rules. However, ‘[u]niformity of evidence rulings in the courts of this State and federal courts is one motivating factor in adopting these rules and should be a goal of our courts in construing those rules that are identical.’ N.C.G.S. § 8C-1, Rule 102 commentary (1988).”).

Application of Article IV, § 13(2) of the North Carolina Constitution to strike the General Assembly’s enactments which prescribe rules of procedure or practice for the appellate courts has been solely limited to N.C. Gen. Stat. § 15A-1446(d), a criminal procedure statute. The North Carolina case law cited above and by the majority’s opinion focuses exclusively on N.C. Gen. Stat. § 15A-1446, which does not directly concern alleged error resulting from a trial court’s decision to admit or suppress evidence during a pretrial hearing. No North Carolina case law or any authority cited within the majority *534 opinion indicates not preserved errors and omitted objections considered by our appellate courts under N.C. Gen. Stat. § 15A-1446 resulted from the admission or suppression of evidence. The cases cited by the majority’s opinion solely concern: (1) sufficiency of evidence; (2) jury instructions; and (3) a statute’s constitutionality. Neither the State’s brief nor the majority’s opinion cite any basis to overcome the presumption of constitutionality of enactments of the General Assembly or to conclude the statute is unconstitutional beyond a reasonable doubt. Turner, 224 N.C. at 46 , 29 S.E.2d at 214 (citations omitted).

V. Conclusion

Under their express constitutional authority, our General Assembly enacted the additional language of Rule 103 that is identical to the Federal Rule of Evidence and the Uniform Code of Evidence. It is an evidentiary rule, not an appellate procedure rule. The application of Article IV, § 13(2) of the North Carolina Constitution to declare void the General Assembly’s enactment of statutes in conflict with the rules of appellate procedure and practice has been limited solely to N.C. Gen. Stat. § 15A-1446, a criminal procedure statute.

Until today, no prior North Carolina court has struck down a rule of evidence as procedurally unconstitutional due to Article IV, § 13(2) of the North Carolina Constitution. This ruling extends beyond the criminal context as the rules of evidence also apply in civil and administrative proceedings.

Rule 103(a)(2) of the North Carolina Rules of Evidence: (1) is presumed constitutional; (2) has not been shown to be unconstitutional beyond a reasonable doubt; and (3) does not conflict with our Rules of Appellate Procedure, despite the majority’s bald assertion otherwise.

The majority’s opinion holds defendant’s objection was not preserved by Rule 103. Defendant does not argue and the majority does not discuss plain error. The majority’s opinion fails to follow established precedent of this Court to reach and review the merits of defendant’s claims. See State v. Jordan, 49 N.C. App. 561, 568 , 272 S.E.2d 405, 410 (1980) (“Failure to object at trial is normally held to constitute a waiver of the error.”); State v. Nobles, 350 N.C. 483, 514-15 , 515 S.E.2d 885, 904 (1999) (the defendant failed to argue in his brief that the assigned error amounted to plain error, thus, he *535 waived appellate review) (citing N.C.R. App. P. 10(c)(4), 28(a), and 28(b)(5)). Under the majority’s holding that defendant failed to object when the evidence sought to be suppressed was admitted at trial, defendant’s appeal should be dismissed for failure to preserve error, waiver, or defendant’s failure to assign and argue plain error. I respectfully dissent.