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Univ. of South Carolina School of Law

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Thursday, February 9, 2012

No Bull: Court Of Appeals Of North Carolina Finds No Rule 612 Error In Dog Larceny Appeal

Similar to its federal counterpart, North Carolina Rule of Evidence 612 allows an attorney to refresh a witness' recollection through a "writing." If this works, the witness may now testify based upon his refreshed recollection but may not red the "writing" to the jury. In State v. Harrison, 2012 WL 387844 (N.C.App.), the defendant appealed his conviction for larceny of a dog, claiming, inter alia, that the trial court erred by allowing a witness for the prosecution to read her prior statement to the jury pursuant to Rule 612. So, he won right? Well, not exactly.

In Harrison, Lavorace Harrison was convicted of larceny of dog after he allegedly stole aone-year-old white pit bull with a brown patch over his eye. Harrison was convicted in large part due to the testimony of Kristyn Stanco, who was friends with Harrison and also braided his hair. After Harrison was arrested, Stanco gave the following statement to an investigator:

On 02–04–09, Lavorace Harrison came to my house and was talking to me [,] Charleston, and Travis. Lavorace said that the police came and talked to him about stolen dogs and speakers. Lavorace then said that the police asked him about a blue pitt [sic] bull and Judy's white pitt [sic] bull with a brown patch. Lavorace then said that they will never find those dogs because I had pictures of them on my phone but I erased them and I also took them to Rocky Mount where they will never look. Lavorace then said that Buck Wheless helped them get Judy's dog the night it was stolen. Lavorace then stated that Buck then went back and broke into Judy's property after he helped them get the white pitt [sic] bull. I saw the pictures of the dogs in Lavorace's phone. He had four pictures of the blue pitt [sic] bull and 2 pictures of Judy's white pitt [ sic ] bull with the brown patch on his left eye.

At trial, Stanco took the witness stand and indicated that she lacked complete recollection of her encounter with Harrison. Thereafter, the prosecutor showed her the above written statement. As noted, in his appeal, Harrison claimed that the court then improperly allowed Stanco to read this prior statement to the jury.

But according to the Court of Appeals of North Carolina, that's not what happened. Instead, the court found that

Stanco had an independent recollection of her conversation with defendant as well as of making her statement to the investigator. When asked, she affirmed that her recollection had been refreshed. She then testified from memory, and that testimony included some details that were not contained in the statement, such as braiding defendant's hair and seeing defendant erase the photos of the dogs from his phone. Her testimony shows that she was not using her prior statement as a testimonial crutch for something beyond her recall. Accordingly, the trial court properly allowed Stanco to use her statement to refresh her recollection....

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/02/612-state-v-harrison-se2d-2012-wl-387844ncapp2012.html

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