State v. Grant

STEELMAN, Judge

concurring in the result.

I fully concur in the result reached in the majority’s opinion. However, I am compelled to write separately in the matter because I believe the standard of appellate review for decisions of the trial court under Rule 401 of the North Carolina Rules of Evidence as stated by the majority and the cases cited by that opinion is incorrect.

The majority states that: “Although a trial court’s rulings on relevancy are not discretionary and we do not review them for an abuse of discretion, we give them great deference on appeal.” The correct standard of appellate review for a trial court’s determinations of relevancy under Rule 401 should be “abuse of discretion.”

The concept that the standard of review is “great deference” rather than abuse of discretion first appeared in the case of State v. Wallace, 104 N.C. App. 498, 410 S.E.2d 226 (1991).¹ Wallace purports to paraphrase § 5166 of C. Wright & K. Graham, 22 Federal Practice and Procedure (1978) (hereinafter, Wright and Graham) as follows: “Thus, even though a trial court’s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.” Wallace, 104 N.C. App. at 502, 410 S.E.2d. at 228.

“Where our rule and the federal rule are similar, we may look to the federal rule’s legislative history and federal court interpretations for guidance in determining our General Assembly’s intent in adopting the rule.” Crawford v. Fayez, 112 N.C. App. 328, 333, 435 S.E.2d 545, 548 (1993). The discussion in § 5166 of Wright and Graham deals with the scope of the trial court’s discretion in determining relevancy under Rule 401 of the Federal Rules of Evidence compared to what existed prior to the adoption of those rules. This is then compared with the judge’s discretion to exclude evidence under Rule 403. The relevant portion of § 5166 of Wright and Graham contained in the 1978 treatise reads as follows:

[R]ule 401 sets a standard for relevance that judges are supposed to follow. This standard does give the judge great freedom to admit evidence, but it diminishes quite substantially his authority to exclude evidence as irrelevant. Since Rule 401 restricts mandatory exclusion for irrelevance, this means that the discretionary power to exclude under Rule 403 becomes even more important. But the discretion under Rule 403 is far from a license for freewheeling exclusion; it carefully delineates a balancing test that must be applied before evidence can be excluded. In any event, it is important to distinguish between the discretion granted in Rule 403 and the standard of relevance that governs the decision under Rule 401; in one case the Rule gives a greater leeway to exclude evidence, while in the other the judge is given greater freedom to admit evidence.

If one defines “discretion” as a relative immunity from appellate review, then it is correct to say that the trial judge will continue to have discretion in ruling on relevance under Rule 401.

22 C. Wright and K. Graham, Federal Practice and Procedure § 5166, 74-75 (1978).

According to Wright and Graham,, under Rule 401 the trial judge’s authority to exclude' evidence is substantially diminished. Id. However, this conclusion does not impact the standard of appellate review; it merely becomes part of the analysis of whether the trial judge abused his or her discretion. Id. This is confirmed by the language contained in § 5166 of the 2005 supplement to Wright and Graham: .

Increasingly federal courts have begun to say that virtually all evidence rulings will only be reviewed under an abuse of discretion standard.

Since evidence whose relevance is debatable is, by definition, evidence of questionable probative worth, the exclusion of such evidence on grounds of relevance will seldom be reversible error.

22 C. Wright & K. Graham, Federal Practice and Procedure § 5166, 21 (Supp. 2005).

Both federal and other state court cases hold the appropriate standard of appellate review for trial court decisions under Rule 401 is abuse of discretion. See e.g. United States v. Abel, 469 U.S. 45, 54, 83 L. Ed. 2d 450, 459 (1984); United States v. Masat, 948 F.2d 923, 933 (5th Cir. 1991); United States v. Harris, 542 F.2d 1283, 1317 (7th Cir. 1976); United States v. Williams 545 F.2d 47, 50 (8th Cir. 1976); Juniper v. Commonwealth, 626 S.E.2d 383, 415 (Va. 2006); State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997); People v. Sanders, 905 P.2d 420, 465 (Cal. 1995); Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993); State v. Fedorowicz, 52 P.3d 1194, 1203 (Utah 2002); Agan v. State, 417 S.E.2d 156, 160 (Ga. Ct. App. 1992). Similarly, the standard of our appellate review of a trial court’s determination to admit evidence under Rule 403 is abuse of discretion. State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986); State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907 (2006).

The standard of appellate review for Rule 401 enunciated in Wallace is “great deference,” which is stated to fall short of “abuse of discretion,” but apparently is not de novo review either. North Carolina does not need a different standard of appellate review for decisions under Rule 401 and Rule 403 of our Rules of Evidence. Under Rule 401, the trial court must determine whether the evidence makes the existence of any fact more or less probable. N.C. Gen. Stat. § 8C-1, Rule 401 (2006). Under Rule 403, the trial court must determine whether the probative value of evidence is substantially outweighed by several countervailing factors. N.C. Gen. Stat. § 8C-1, Rule 403 (2006). Both require the trial court to perform a balancing test to determine whether the evidence should be admitted or excluded. This is inherently a discretionary act. Thus, the correct standard of appellate review of these decisions should be abuse of discretion.

I acknowledge that this Court is bound by the holding in Wallace and its progeny. In the matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). However, I hope our Supreme Court will address this issue, in this or a future case, so that the standard of appellate review for Rule 401 rulings can be corrected. In addition, the Supreme Court should address this issue in order to remedy a split of authority at this Court. On the one hand there is Wallace and its progeny that carry forward the “great deference” standard of appellate review. On the other, there is the case of Dep’t of Transp. v. Elm Land Co., which articulated the standard of appellate review as follows: “This Court must determine whether the trial court abused its discretion in determining whether the proffered evidence was relevant to the issues being tried.” 163 N.C. App. at 267, 593 S.E.2d at 138.

1 . This analysis has been carried forward in numerous cases since its publication. See, e.g., State v. Davis, 177 N.C. App. 98, 627 S.E.2d 474 (2006); State v. Streckfuss, 171 N.C. App. 81, 614 S.E.2d 323 (2005); Dunn v. Custer, 162 N.C. App. 259, 591 S.E.2d 11 (2004); State v. Smith, 157 N.C. App. 493, 581 S.E.2d 448 (2003). Contra Dep’t of Transp. v. Elm Land Co., 163 N.C. App. 257, 267, 593 S.E.2d 131, 138, disc. review denied, 358 N.C. 542, 599 S.E.2d 42 (2004) (applying abuse of discretion standard of review to the trial court’s determination of whether proffered evidence was relevant to the issues being tried).