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North Carolina v. Harris9/7/1988
ns of impeaching defendant's credibility. We disagree.
Rule 608(b) governs the impeachment of a witness' credibility through extrinsic evidence of specific instances of his conduct. The rule provides as follows:
(b) Specific instances of conduct. -- Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
As we noted in State v. Morgan, 315 N.C. 626, 634, 340 S.E.2d 84, 89 (1986):
Rule 608(b) represents a drastic departure from the former traditional North Carolina practice which allowed a defendant to be cross-examined for impeachment purposes regarding any prior act of misconduct not resulting in conviction so long as the prosecutor had a good-faith basis for the questions.
Now, under the rule, "the only character trait relevant to the issue of credibility is veracity or the lack of it. The focus, then, is upon whether the conduct sought to be inquired into is of the type which is indicative of the actor's character for truthfulness or untruthfulness." Id. at 634-35, 340 S.E.2d at 90.
The state's assertion that questions about the fight were addressed to the issue of defendant's credibility is disingenuous at best. Clearly "extrinsic instances of assaultive behavior, standing alone, are not in any way probative of the witness' character for truthfulness or untruthfulness." Id. at 635, 340 S.E.2d at 90.
We reject the credibility theory advanced by the state and hold that it was error to admit the extrinsic conduct evidence. We note that the state made no attempt to present an alternative argument for admissibility under Rule 404(b). We therefore express no opinion as to whether the evidence was elicited solely to prove a propensity for violence or aggressive behavior, in violation of Rule 404(a), or was elicited for a legitimate purpose under the exceptions of Rule 404(b).
Although we have determined that the cross-examination was error, we find this error to be a harmless one under the facts of this case. Defendant's testimony revealed that the brief altercation at Dix was not a fist fight. He had merely pushed another patient down as a means of defending himself when the man attacked him. Defendant did not remain hostile and was not disciplined or "locked down" by the hospital staff. This testimony, portraying defendant as the victim rather than the aggressor in the incident, tended to cast him in a favorable light. Under the circumstances there was no reasonable possibility that a different result would have been reached at trial absent the error in question. N.C.G.S. § 15A-1443(a) (1983).
Defendant next assigns error to the trial court's denial of his motion to dismiss the charge of premeditated and deliberate murder. We note at the outset that the denial of defendant's motion to dismiss at the close of the state's evidence is not properly at issue on this appeal. Defendant chose to offer evidence after his motion was denied and thereby waived appellate review of the trial judge's decision. State v. Griffin, 319 N.C. 429, 355 S.E.2d 474
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