One Time Offer: Court Of Appeals Of North Carolina Rejects Rule 106 Appeal Based Upon Lack Of Offer Of Proof

Like its federal counterpart, North Carolina Rule of Evidence 106 provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

And, like its federal counterpart, North Carolina Rule of Evidence 103(a)(2) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n 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.

In other words, if the judge excludes evidence that a party offers under Rule 106 -- the rule of completeness -- the party must make an offer of proof regarding the excluded evidence under Rule 103(a)(2) or the issue will not be preserved for appellate review. Unfortunately for the defendant in State v. Jacobs, 2010 WL 3001653 (N.C.App. 2010), this is something that he failed to do.

In Jacobs, Deangelo Donnell Jacobs was convicted of discharging a weapon into an occupied dwelling, possession of a firearm by a convicted felon, discharging a firearm in the city, and injury to real property. After Jacobs allegedly committed the subject crimes, he was brought to the Clinton Police Department and gave a written statement.  Later that day, he was interrogated by Detective Sergeant Pietrolaj and gave a statement to Pietrolaj. At trial, Pietrolaj testified regarding this second statement. Thereafter,

During his cross-examination of Detective Sergeant Pietrolaj, defendant attempted to introduce an additional written statement he had made prior to Detective Sergeant Pietrolaj's questioning him. The State objected, and the court considered the issue after it excused the jury. Defendant's counsel identified the statement as a copy of a handwritten statement defendant had written approximately ten minutes before the interview. The State argued that defendant's handwritten statement would be hearsay unless and until defendant testified, and the trial court sustained the objection. Defendant never testified at trial, and the statement was not introduced into evidence.

After trial, Donnell appealed, claiming, inter alia, that the trial court erred in excluding his written statement, which should have been admissible under North Carolina Rule of Evidence 106. The Court of Appeals of North Carolina disagreed, finding that

Here, because defendant's handwritten statement obviously was available to defendant, as it was discussed during the trial and it appears that the trial court reviewed it. However, defendant did not make an offer of proof of the statement, and it is not included in our record, so defendant has not met his burden of demonstrating that his statement was "explanatory or relevant."...Because "we cannot say that the trial court's decision...was so arbitrary that it could not have been supported by reason[, t]his assignment of error is overruled."

-CM