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Univ. of South Carolina School of Law

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Saturday, March 20, 2010

Objectionable Objection?: Court Of Appeals Of North Carolina Affirms Impeachment Ruling Based Upon Lack Of Specific Objection

Like its federal counterpartNorth Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

As the Advisory Committee Note to Federal Rule of Evidence 609 makes clear, "Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." In other words, convictions more than 10 years old are almost never admissible for impeachment purposes. Of course, as the recent opinion of the Court of Appeals of North Carolina in State v. Graham, 2010 WL 916389 (N.C.App. 2010), makes clear, none of those matters unless opposing counsel raised a specific objection to the admission of such a remote conviction.

In GrahamMarcus Anthony Graham was convicted of felony child abuse inflicting serious bodily injury. Before trial, Graham brought a motion in limine to exclude evidence in response to the prosecution's notice of intention to seek the admission of convictions more than 10 years old under North Carolina Rule of Evidence 609(b). The trial court, however, reserved judgment until trial, where it could determine whether Graham was even going to testify.

At trial, Graham did indeed testify, and defense counsel did not initially renew his objection to the admission of Graham's remote convictions. Thereafter, 

during cross-examination, [Graham] was asked a series of questions relating to his previous criminal convictions. Specifically, counsel for the State questioned [Graham] about any prior history of arrests for and convictions of giving false information to the police. After [Graham] admitted to a series of driving infractions, counsel for the State asked [Graham] whether "part of the driving violation is, when they pull you over, you give false names and other names; isn't that true, Mr. Graham, so you don't get charged?" At that point, defendant's trial counsel made a general objection, which the court overruled. Then, the following colloquy occurred:

Q: Well, Mr. Graham, five times in the past you've been convicted of giving false information to law enforcement, haven't you?

A: Can I explain?

Q: Absolutely.

A: All right. I don't deny the fact I been stopped when I had no business driving. I had no license. And I been stopped and in court for driving while license revoked and I have given another name, which is considered fictitious information to an officer.

After Graham was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed for him to be impeached through evidence of his remote convictions. The Court of Appeals of North Carolina noted, however, that pursuant to North Carolina Rule of Appellate Procedure 10(a)(1), "In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context."

According to the court, defense counsel failed to comply with this Rule. Specifically, the court held that

In the instant case, defendant made a general objection after being asked a compound question with respect to the defendant's history of providing fictitious names and information to law enforcement officials in order to avoid criminal charges. It is unclear from the record what the specific grounds for the objection were. It is not the duty of this Court to postulate the various grounds for counsel's objection. Furthermore, defendant's objection was overruled without any further action. As the line of questioning reached the convictions that were the subject matter of defendant's motion in limine, the record is completely devoid of any further objection from defendant. It is well-established that a “ ‘motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.'"...Furthermore, we note that defendant does not allege plain error on appeal....Accordingly, we hold that defendant's general objection at the outset of the questioning is insufficient to preserve the question for appellate review.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/03/609bstate-v-grahamslip-copy-2010-wl-916389-tablencapp2010.html

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