State v. Scott

347 S.E.2d 414, 318 N.C. 237, 1986 N.C. LEXIS 2568
CourtSupreme Court of North Carolina
DecidedAugust 29, 1986
Docket506A85
StatusPublished
Cited by36 cases

This text of 347 S.E.2d 414 (State v. Scott) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Scott, 347 S.E.2d 414, 318 N.C. 237, 1986 N.C. LEXIS 2568 (N.C. 1986).

Opinions

EXUM, Justice.

Defendant’s appeal presents two evidentiary questions: Whether the trial court committed reversible error in allowing the prosecutor, over objection, (1) to cross-examine defendant concerning specific instances of sexual misconduct unrelated to the offense charged; and (2) to cross-examine his sister, Debra, regarding sexual misconduct between her and defendant occurring some eight years before the offenses charged. We conclude both rulings constituted reversible error, and grant defendant a new trial.

[239]*239Defendant was convicted of committing first degree sex offense, cunnilingus, against his sister’s two daughters, aged four and three years, respectively, at the time of the offenses alleged in the indictments. At that time the two girls and their mother, Debra, were staying with defendant Scott, aged 21, and his fifteen-year-old wife, Crystal, in the Scotts’ trailer. The various witnesses’ testimony conflicted on precisely when the incident occurred. Generally their testimony placed it during the summer of 1984 when Debra put her daughters to bed and went out for the evening, leaving the Scotts to babysit.

I.

The state’s evidence consisted largely of the testimony of the older of the two victims and defendant’s wife Crystal. The girl testified as follows: After Debra had put the girls to bed and gone out for the evening, Crystal and defendant went into the girls’ bedroom and brought them into the Scotts’ own bedroom. There, after all four were disrobed, defendant and Crystal performed cunnilingus on both girls. Defendant told the girls not to tell anyone or “the boogerman will get us out of our bed and stab us in the heart.” The older victim also testified she had been molested by Crystal on numerous other occasions, as well as by their mother, Debra, and two of Debra’s male friends.

Crystal, who faced prosecution for the crimes, testified she was afraid to watch and did not know whether defendant had oral sex with the girls; but she noted he had “plenty of opportunity.” She claimed he forced her to engage in these sexual acts; she complied because he had beaten and assaulted her in the past. Near the end of August 1984 and after six months of marriage, Crystal separated from defendant. They were not living together at the time of trial.

Evidence presented through defendant and his sister Debra, the children’s mother, testifying for defendant, tended to show:

Debra and her two daughters moved into the Scotts’ trailer during the summer of 1984. Defendant and Crystal, and sometimes Crystal alone, frequently babysat for the girls. On the night in question, which was in early June according to Debra, and June or early July according to defendant, Debra put the children to bed before going out for the evening, but they soon began cry[240]*240ing. Defendant told Crystal to calm them while he showered. When he stepped out of the shower and returned to the bedroom, he found Crystal and the two girls in bed nude. Crystal was engaging in cunnilingus with the girls. Defendant remonstrated with Crystal, telling her “she could get a lot of time for something like that,” and told the children not to tell Debra, else Crystal “would get a lot of time and something bad could happen” and the police could get Debra or Crystal. Defendant denied ever engaging in sexual acts with the children.

Debra testified she first learned from defendant in August 1984 that her children had been molested. The older girl, when questioned, confirmed then that Crystal had performed cunnilingus on both girls as defendant had described while defendant was in the bathroom, and that Crystal had committed similar acts in the past.

II.

Defendant first contends the trial court committed reversible error by permitting the state over his objection to cross-examine him concerning specific instances of sexual misconduct to attack his credibility as a witness.

The prosecutor cross-examined defendant concerning his California and North Carolina criminal convictions, which included felony joy-riding, possession of stolen property, contributing to the delinquency of a minor, and breaking, entering and larceny. He also cross-examined defendant thus:

Q. Mr. Scott, have you ever forced your sister, Debra or Debbie, to have sexual intercourse with you with the use of a knife or threatening to kill her?
Mr. Hundley: Objection, Your Honor.
COURT: Members of the jury, evidence of any misconduct, if there should be evidence of any misconduct, is admitted here for the sole purpose of attacking the credibility of this witness. You may not convict this defendant on the present charges except because of something he may have done in the past. All right. Exception No. 7
[241]*241A. No sir, but there were times when my sister, my brother and I would, as all little kids do, play little nasty games and things together.
Q. Does that include sexual intercourse?
A. No sir.
Q. Did you ever use a knife to force her to do that?
A. No sir.
Q. Did you ever threaten to kill her if she did not do these things?
A. No sir.

During further cross-examination, when the prosecutor asked if defendant had reported this matter to the police in July when he was in court on another charge, defendant volunteered that he had told Crystal to “straighten . . . up” on the night in question, but had turned her in later when he caught her having sex with a twelve-year-old boy. Subsequently, after a voir dire and over defendant’s objection, Judge Morgan permitted the following questioning “for the purpose of attacking and challenging the credibility of defendant”:

Q. You were in the trailer with [the boy’s] sister, [Melissa,] were you not?
A. [His] sister and Joey Watts.
Q. How old was she?
A. Fifteen.
Q. Do you like fifteen year old girls?
A. No sir.
Q. You were trying to have sex with Melissa, weren’t you?
A. No sir. Joey Watts was in there, how was I going to have sex with her when Joey was in there?
Q. There’s been — STRIKE THAT.
Do you know Leara Tate?
A. Yes sir.
[242]*242Q. Did you ever encourage your wife to have relations with Leara Tate while you and her husband took pictures?
Mr. Hundley: Objection.
No sir.
Court: Over-ruled. Members of the jury — strike that. Objection is over-ruled. Exception No. 8
Q. Did you, sir?
A. No sir.

Defendant argues such cross-examination is impermissible.

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Bluebook (online)
347 S.E.2d 414, 318 N.C. 237, 1986 N.C. LEXIS 2568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scott-nc-1986.