State v. McCrimmon

ARNOLD, Judge. Defendant contends that he was “deprived of his right to confrontation and to a fair trial by the exclusion of evidence offered to impeach and rebut the evidence offered by the State as to the alleged victim’s general good character.” The thrust of defendant’s contention is that because Henry McCloud stated at trial that he thought the victim was a “nice person” and detective Arthur Summey stated that McCloud had voiced a similar opinion during a recorded statement given to the police on 14 May 1986, certain portions of that recorded statement concerning the victim’s prior sexual history should have been admitted into evidence. We disagree. Rule 412(b) of the North Carolina Rules of Evidence states “[notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution” unless the behavior falls within certain exceptions listed in the rule. Defendant, in his brief, recognizes that the portion of Mc-Cloud’s statement in question “does not fit neatly into any of the four categories of admissible evidence of prior sexual behavior described in Rule 412(b).” However, defendant argues that these exceptions are not exclusive and cites the following: “the statute was not intended to act as a barricade against evidence which is used to prove issues common to all trials.” State v. Younger, 306 N.C. 692, 697, 295 S.E. 2d 453, 456 (1982). Defendant’s reliance on the Younger case and on State v. Johnson, 66 N.C. App. 444, 311 [528] S.E. 2d 50, disc. rev. denied, 310 N.C. 747, 315 S.E. 2d 707 (1984), is misplaced. The Younger case allowed the defendant to impeach the credibility of the prosecutrix by cross-examining her about a prior inconsistent statement. At trial she testified that she had sex on the night of the alleged rape with the defendant’s roommate but she told the examining physician only hours after the alleged rape that she had last had sex with her boyfriend one month earlier. State v. Younger, 306 N.C. 692, 295 S.E. 2d 453 (1982). The Johnson case allowed the defendant “to introduce statements concerning the prosecuting witness’ prior rape, which statements were allegedly made by the prosecuting witness both to defendant and to the examining physician, and statements concerning the fact that at the preliminary hearing she denied making any such statements.” State v. Johnson at 445, 311 S.E. 2d at 51, disc. rev. denied, 310 N.C. 747, 315 S.E. 2d 707 (1984). Neither the Younger case nor the Johnson case is applicable here. The present case does not concern such inconsistent statements by the prosecutrix about her sexual activity. Defendant also argues that Rule 106 of the North Carolina Rules of Evidence allows him to introduce McCloud’s statement into evidence. Rule 106 states that “[w]hen 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.” We first note that the State never introduced a part of Mc-Cloud’s statement into evidence at trial. Second, we reemphasize the language of Rule 412(b) which states that “/notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant” unless it falls within the four exceptions listed within the rule. (Emphasis added.) The statement that defendant attempted to introduce in the case sub judice is the precise type of evidence that Rule 412 was intended to exclude. No error. Judges Phillips and Cozort concur.