{
  "id": 8526288,
  "name": "STATE OF NORTH CAROLINA v. HIRAM WATSON SHANNON",
  "name_abbreviation": "State v. Shannon",
  "decision_date": "1995-02-07",
  "docket_number": "No. 9429SC211",
  "first_page": "718",
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  "last_updated": "2023-07-14T20:31:41.091249+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges GREENE and JOHN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. HIRAM WATSON SHANNON"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nThe State charged defendant with sexually abusing his stepdaughter who was eighteen years old at the time of the trial. He was indicted for one count of first degree rape, three counts of first degree sexual offense, and four counts of taking indecent liberties with a child.\nThe evidence at trial tended to show the following. The stepdaughter testified that defendant repeatedly sexually abused her since she was eight years old. She stated that he regularly fondled her genitalia and made her engage in fellatio. The stepdaughter also testified that she noticed a mole on defendant\u2019s penis and a physician, Dr. James Irion, testified and confirmed that there was a mole on defendant\u2019s penis.\nDefendant\u2019s daughter, who was thirteen years old at the time of the trial, testified that he engaged in oral sex with her since she was eight or nine years old. Both girls stated that defendant threatened them that if their mother would not love them anymore and they would become oiphans.\nDefendant testified and categorically denied ever sexually abusing his stepdaughter or daughter. He admitted to pleading guilty in 1990 to committing indecent liberties with his daughter, but testified that he did so because he did not want her to have to testify in court.\nDefendant was convicted of second degree rape, three counts of first degree sexual offense, and four counts of taking indecent liberties with a child. The trial court sentenced him to an active term of imprisonment. From this judgment and sentence, he appeals.\nDefendant argues that the trial court erred by permitting the State to cross-examine him with written statements that the State had waived the right to use. He contends that at the pre-trial hearing the State expressly waived the right to use written statements he had made in the course of sex offender therapy that he received after his 1990 conviction for taking indecent liberties with his daughter. We agree but conclude that this error was harmless.\nDefendant made a pretrial motion to suppress the introduction of written statements he made to his counselor in the course of therapy which was part of his sentence for the 1990 indecent liberties conviction. Defendant argued in the motion that the statements were privileged communications given in the course of medical treatment. When the motion was heard before the trial court, there was the following exchange:\nMr. Stepp: [defendant\u2019s attorney] Your Honor, should he [defendant] elect to take the stand and testily, number one, I argue to you that it [the statements] would be privileged information.\nThe Court: Well, you want to hear it then, as I understand it, so he can determine whether he wants to take the stand; is that what you\u2019re saying or getting ready to?\nMr. Stepp: Yes, Your Honor.\nThe Court: Mr. D.A. isn\u2019t there a case that says the Court should make some ruling in regard to that, so it doesn\u2019t chill his rights to testify or not testify, so he knows whether or not it\u2019s going to be used or not used?\nMr. Edwards: Your Honor, I believe that is correct. At this point, as I say, I don\u2019t intend to use it. And at the appropriate time I believe a hearing \u2014 he\u2019d be entitled to one.\nAs I see it right now, I don\u2019t believe it\u2019s even going to become part of the case.\nThe Court: Well, if you desire to proceed that way, I\u2019ll proceed that way. But it may mean that the Court\u2019s saying in effect, if you go that way and he does testify the Court\u2019s not going to allow it unless I make some preliminary decision, so that he knows then that if he gets on the stand it\u2019s going to be used against him.\nSo my comment to you do you desire to hear it, Mr. District Attorney, or do you desire to waive your right to that Motion to Suppress understanding that you will not use it under any circumstances?\nMr. Edwards: I would waive my right to use this statement and let the trial proceed as follows. I don\u2019t think it\u2019s worth the paper written on anyway.\nThe Court: All right, then with that statement that you do not intend to use it under any circumstances, the Court will not proceed, just say it\u2019s a moot question at this time.\nAt trial, defendant testified and specifically denied molesting his stepdaughter. Defendant also stated that he had pled guilty to committing indecent liberties with his daughter because \u201c[he] did not want her to be interrogated.\u201d The State then sought to cross-examine defendant with the written statements that were the subject of his motion to suppress. Among other things, defendant had written that being touched and rubbed by his daughter gave him a feeling of control. After a voir dire, the trial court denied defendant\u2019s motion to suppress and permitted the State to cross-examine him regarding the written statements.\nDefendant contends that he was prejudiced by the trial court\u2019s failure to rule on his motion to suppress the statements at the pretrial hearing. Defendant also argues that the trial court erred by permitting the State to cross-examine defendant about the statements. We conclude that the exchange between the trial court, the State, and defendant\u2019s attorney shows that the State agreed that if it intended to use the written statements in its cross-examination of defendant, it would raise the issue during trial and prior to defendant taking the witness stand. Otherwise, the State would not use the contested statements. The State did not raise the issue prior to defendant taking the stand and therefore waived its right to use the defendant\u2019s written statements in its cross-examination. We find that the trial court erred by overruling defendant\u2019s objection and allowing the State to cross-examine defendant about the statements.\nWe hold, however, that this error was harmless. See State v. McCarroll, 336 N.C. 559, 445 S.E.2d 18 (1994); State v. Milby, 302 N.C. 137, 273 S.E.2d 716 (1981); N.C. Gen. Stat. \u00a715A-1443 (1988). The burden is upon defendant to show that there is a reasonable probability that had the error in question not been committed, a different result would have been reached at trial. State v. Knox, 78 N.C. App. 493, 337 S.E.2d 154 (1985). The evidence of defendant\u2019s guilt was overwhelming. His stepdaughter and daughter both testified that he repeatedly sexually abused them by fondling their genitalia and forcing them to engage in oral sex with him. The girls\u2019 mother testified that in 1982 she saw defendant in the nude \u201cgoing back and forth on top of\u2019 his stepdaughter. The girls\u2019 testimony that defendant had a mole on his penis was corroborated by a physician who examined defendant. We conclude, therefore, that defendant has not meet his burden of showing that even if the State had not cross-examined him regarding his written statements, a reasonable probability exists that there would have been a different result at trial.\nNo error.\nJudges GREENE and JOHN concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Associate Attorney General Daniel D. Addison and Investigative Law Clerk Paula A. Bridges, for the State.",
      "Stepp & Groce, by Christopher S. Stepp, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HIRAM WATSON SHANNON\nNo. 9429SC211\n(Filed 7 February 1995)\nEvidence and Witnesses \u00a7 2893 (NCI4th)\u2014 defendant\u2019s written statements to counselor \u2014 waiver of use by State \u2014 cross-examination as harmless error\nIn a prosecution of defendant for rape, sexual offenses and indecent liberties involving his stepdaughter, the State waived its right to cross-examine defendant about written statements he made to a counselor during sex therapy following a previous conviction for taking indecent liberties with his daughter when the State agreed at a pretrial suppression hearing that it would not use the statements unless it raised the issue at trial before defendant took the stand and it failed to raise the issue before defendant testified. However, error by the trial court in permitting the State to cross-examine defendant about the statements was not prejudicial in light of the other overwhelming evidence of defendant\u2019s guilt.\nAm Jur 2d, Witnesses \u00a7\u00a7 484 et seq.\nAppeal by defendant from judgment entered 6 October 1993 by Judge Claude S. Sitton in Henderson County Superior Court. Heard in the Court of Appeals 26 October 1994.\nAttorney General Michael F. Easley, by Associate Attorney General Daniel D. Addison and Investigative Law Clerk Paula A. Bridges, for the State.\nStepp & Groce, by Christopher S. Stepp, for defendant-appellant."
  },
  "file_name": "0718-01",
  "first_page_order": 750,
  "last_page_order": 753
}