Appeal by defendant from judgments entered 10 September 1999
by Judge W. Robert Bell in Mecklenburg County Superior Court.
Heard in the Court of Appeals 17 May 2000.
Attorney General Michael F. Easley, by Assistant Attorney
General Stewart L. Johnson and Assistant Attorney General Anne
M. Middleton, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant
Appellate Defender Mark D. Montgomery, for defendant-
appellant.
MARTIN, Judge.
Defendant was tried upon bills of indictment charging him with
first degree rape and first degree kidnapping of Juanita McClendon
on 12 April 1996. The State's evidence tended to show that
McClendon was walking to a friend's house in Charlotte at
approximately 1:00 a.m. when she was grabbed from behind. Defendant stuck something sharp in her neck, which she believed was
a knife, and grabbed her by the mouth. Defendant pushed McClendon
down the street and took her back behind a building in an area that
was not lighted. He then threw McClendon on the ground and pulled
off her clothes. He forced McClendon to have vaginal, anal and
oral sex twice during the incident. When McClendon tried to get up
or scream he repeatedly hit her in the face and fractured her jaw.
Before defendant left, he asked McClendon “where was his knife.”
McClendon ran home and called the Charlotte-Mecklenburg Police
Department. She was taken to Carolinas Medical Center for an
examination, including a rape kit, and a police officer took her
statement. Following the examination, she underwent a three to
four hour surgery to repair her jaw. McClendon was unable to
identify defendant in a line-up; DNA evidence linked defendant to
the rape and kidnapping.
Defendant's motion to suppress the blood evidence was heard in
a voir dire hearing prior to the start of the trial. The State's
evidence tended to show that defendant was a suspect in a murder
investigation in June 1996. The police had information that
defendant was seen with the victim the night of the murder and that
he had admitted to committing the crime. On 11 June 1996,
defendant was picked up by police on a habitual felon indictment.
While in custody, he complained of an unrelated injury to his hand
and was escorted to Carolinas Medical Center for treatment. While
defendant was waiting for treatment by the physician, Investigator
Graue asked defendant if he would consent to give his blood to the
investigators. After defendant responded “no,” Officer Hollinformed defendant that he could obtain a search warrant.
Defendant then indicated that he would cooperate but would not sign
a consent form. After defendant was treated for the hand injury,
Officer Holl asked him again if he would voluntarily give the
police some blood and defendant responded “yes.” The blood was
drawn while he was at the hospital. Officer Holl testified that he
did not tell defendant why the blood was being drawn, and that
defendant was also a suspect in other crimes.
Defendant testified on his own behalf at the voir dire
hearing. He stated he understood that he was being arrested on an
indictment for habitual felon status stemming from possession of
cocaine, but that he was also made aware that he was a suspect in
a murder case. He further stated that the officers asked him
questions at the hospital regarding his knowledge of and contact
with the murder victim, but did not indicate that he was also a
suspect in a rape case. He testified that he understood that the
blood was drawn from his arm “strictly” to be used in comparison
with the DNA found in the murder case, and that he agreed to have
the blood drawn to obtain treatment and to exonerate himself of the
murder. While defendant conceded on cross-examination that no
officer told or promised him that the blood would be drawn solely
for use in the murder investigation, he stated that “the atmosphere
and the contents of their questioning lead me to believe that was
the purpose that the blood was being drawn for.” At the conclusion
of the hearing, the court denied the motion to suppress. The court
then heard defendant's motion to compel discovery of the records
pertaining to the collection of defendant's blood during the murderinvestigation; defendant was specifically concerned about the chain
of custody of the DNA samples. The court reviewed the materials in
camera, determined defendant had the necessary records and then
deemed the remainder of the records to be irrelevant and ordered
the clerk to seal them.
The court conducted another voir dire hearing during the trial
pertaining to admissibility of the testimony of Jacqueline Ferguson
pursuant to G.S. § 8C-1, Rule 404(b). At the hearing, Ferguson
testified that she was raped on 4 August 1990, and identified
defendant as her assailant. She described the events leading up
to and during the rape, and stated that she was not enticed to
testify based on a deal with the State. On cross-examination,
defendant attacked her credibility by inquiring about her drug use
and other allegations of rape. The court also heard testimony
regarding the admissibility of court records showing that defendant
had been convicted of second degree rape in Mecklenburg County in
connection with the assault on Ferguson. Defendant testified at
the hearing that his sexual encounter with Ferguson was in exchange
for drugs, and that he pled guilty to the charge because it would
be difficult to establish his innocence and he faced a life
sentence if found guilty. The court ruled that the testimony of
Ferguson was admissible pursuant to Rule 404(b) and also permitted
the evidence regarding his conviction. The court denied
defendant's motion for a continuance on the grounds that he was
given insufficient notice of the State's intent to present the
evidence concerning the rape of Ferguson.
The defendant did not offer evidence before the jury. The court instructed the jury as to th
e offenses of first
degree rape and first degree kidnapping. With regard to the first
degree rape charge, the court instructed the jury that it could
find defendant guilty if it found that defendant employed a
dangerous weapon or if it found McClendon was seriously injured.
Defendant requested a charge on second degree kidnapping in the
charge conference but did not object to its omission.
The jury returned a verdict of guilty as to first degree rape
and first degree kidnapping. Defendant received a sentence of life
imprisonment without parole as to the first degree rape conviction.
The court arrested judgment as to first degree kidnapping, entered
judgment upon the offense of second degree kidnapping, and
sentenced defendant to a minimum term of 59 months to a maximum
term of 80 months in prison. Defendant appeals.
_______________________
I.
[1]/A HREF>Defendant first assigns error to the court's denial of his
motion to suppress the results of the analysis of his blood.
Defendant argues that he consented to have his blood drawn to
exonerate himself in the murder investigation and that the use of
his blood to implicate him in the present case violated his
constitutional right to be free from unreasonable searches.
An individual has both a state and federal constitutional
right to freedom from unreasonable searches and seizures. U.S.
Const. amend. IV; N.C. Const., art. 1, §§ 19, 20. Our courts have
held that the taking of blood from a person constitutes a search
under both constitutions.
Schmerber v. California, 384 U.S. 757,16 L.Ed.2d 908 (1966);
State v. Carter, 322 N.C. 709, 370 S.
E.2d
553 (1988).
Defendant asserts first that a blood sample obtained in an
uncharged crime cannot be used as evidence against him in another
unrelated crime without violating his constitutional rights under
the Fourth Amendment. Although this is an issue of first
impression in North Carolina, other jurisdictions have considered
the issue. In
New York v. King, 663 N.Y.S.2d 610, 232 A.D.2d 111
(1997), a case with similar facts to the one before us, the Supreme
Court of New York held that the defendant's Fourth Amendment rights
were not violated by using the defendant's blood sample, which was
drawn with probable cause in an August 1991 rape and robbery, to
convict the defendant of a May 1991 rape and robbery. After
determining that the blood was lawfully seized in the investigation
of the August rape, the court opined:
It is also clear that once a person's
blood sample has been obtained lawfully, he
can no longer assert either privacy claims or
unreasonable search and seizure arguments with
respect to the use of that sample. Privacy
concerns are no longer relevant once the
sample has already lawfully been removed from
the body, and the scientific analysis of a
sample does not involve any further search and
seizure of a defendant's person. In this
regard we note that the defendant could not
plausibly assert any expectation of privacy
with respect to the scientific analysis of a
lawfully seized item of tangible property,
such as a gun or a controlled substance.
Although human blood, with its unique genetic
properties, may initially be quantitatively
different from such evidence, once
constitutional concerns have been satisfied, a
blood sample is not unlike other tangible
property which can be subject to a battery of
scientific tests. In this regard it bears
noting that the defendant's sample wascontemporaneously tested against all the stain
evidence seized during both investigations in
a single scientific procedure.
Id. at 614-15, 232 A.D.2d at 117-18. A similar conclusion has been
reached by the courts in Indiana, Maryland, Georgia, and Florida.
See Smith v. State, ___ Ind. ___, 744 N.E.2d 437 (2001) (stating
once a DNA profile is obtained, the owner no longer has any
possessory or ownership interest in it);
Wilson v. State, 132 Md.
App. 510, 550, 752 A.2d 1250, 1272 (2000) (holding that the use of
the defendant's DNA in an unrelated case did not violate his Fourth
Amendment rights because “[a]ny legitimate expectation of privacy
that the appellant had in his blood disappeared when that blood was
validly seized”);
Bickley v. State, 227 Ga. App. 413, 415, 489
S.E.2d 167, 170 (1997) (holding that the defendant's Fourth
Amendment rights were not violated when the defendant's blood was
drawn pursuant to a warrant and used in an unrelated case and
noting “in this respect, DNA results are like fingerprints which
are maintained on file by law enforcement authorities for use in
further investigations");
Washington v. Florida, 653 So.2d 362
(1994),
cert. denied, 516 U.S. 946, 133 L.Ed.2d 309 (1995) (holding
once the samples were validly obtained in another case, the police
were not restrained from using them in the case before the court).
We agree with the conclusion reached by the courts in these
jurisdictions. The United States Supreme Court stated “[t]he
overriding function of the Fourth Amendment is to protect personal
privacy and dignity against unwarranted intrusion by the State.”
Schmerber, 384 U.S. at 767, 16 L.Ed.2d at 917. In the case beforeus, defendant does not challenge the validity of the taking of the
blood sample; rather defendant concedes it was done with his
consent. Once the blood was lawfully drawn from defendant's body,
he no longer had a possessory interest in that blood. The use of
the DNA analysis of his blood in this case required no additional
chemical analysis which might infringe any privacy interest he
might have in the blood; rather, it involved only a comparison of
the characteristics of his blood with the evidence in this case.
Therefore, defendant suffered no additional intrusion, and for the
reasons cited in the foregoing cases, we conclude that his Fourth
Amendment rights were not violated by the use of the DNA analysis
in the present case.
Nevertheless, defendant argues the use of the DNA analysis
should have been limited by the scope of his consent. The taking
of blood requires a search warrant unless an exception applies.
State v. Cooke, 306 N.C. 132, 291 S.E.2d 618 (1982). Consent to
the search by the owner of the item constitutes one exception to
the warrant requirement.
State v. Vestal, 278 N.C. 561, 180 S.E.2d
755 (1971). Defendant argues that he limited his consent to the
use of the DNA analysis in the murder investigation only.
The trial court made findings of fact and conclusions of law
following a suppression hearing on this issue. The standard of
appellate review is whether the findings of fact are supported by
competent evidence and whether the findings support the court's
conclusions of law.
State v. Brooks, 337 N.C. 132, 446 S.E.2d 579
(1994). Defendant asserts that the court erred in entering thefollowing conclusion of law:
That the Defendant freely, voluntarily,
understandingly, and knowingly consented to
having his blood withdrawn for investigative
purposes on June the 11th, 1996.
The court's conclusions of law are “fully reviewable on appeal.”
Id. at 141, 446 S.E.2d at 585
(citing
State v. Mahaley, 332 N.C.
583, 423 S.E.2d 58 (1992)). In
Florida v. Jimeno, 500 U.S. 248,
251, 114 L.Ed.2d 297, 302 (1991), the Supreme Court stated that
“[t]he standard for measuring the scope of a suspect's consent
under the Fourth Amendment is that of 'objective'
reasonableness--what would the typical reasonable person have
understood by the exchange between the officer and the suspect?”
The court's findings indicate that: (1) defendant was arrested
on a habitual offender indictment; (2) he was taken to the hospital
for treatment on his hand at his own request; (3) he initially
refused to give a blood sample, but after being told by the
officers that they could apply for a search warrant, he consented;
(4) he knew he was a suspect in the murder case; (5) he consented
to have his blood drawn “because he had nothing to hide” but would
not sign a consent form; (6) Investigator Holl knew at the time
that the Rape Unit was looking for someone named Donald, and (7)
the officers made no promises that the blood would solely be used
in the investigation of the murder case. We hold that these
findings support a conclusion that a reasonable person would have
understood by the exchange that his blood analysis could be used
generally for investigative purposes, and not exclusively for the
murder investigation.
II.
[2]Defendant next assigns error to the court's admission of
the testimony of Jacqueline Ferguson, who accused defendant of
raping her in 1990, and to the admission of evidence that defendant
was convicted of the rape of Mrs. Ferguson. While the assignment
of error in the record on appeal is premised on federal and state
constitutional grounds, the argument in his brief is based
primarily on G.S. § 8C-1, Rules 404(b) and 403, as was his argument
at trial. Notwithstanding the apparent inconsistency between the
question presented by the assignment of error and the argument
presented in defendant's brief, we will exercise the discretion
granted us by N.C.R. App. P. 2 and consider his appellate argument.
Evidence of prior crimes is admissible under Rule 404(b) as
long as it is “'relevant to any fact or issue other than
defendant's propensity to commit the crime.'”
State v. Hamilton,
132 N.C. App. 316, 319, 512 S.E.2d 80, 83 (1999) (quoting
State v.
White, 340 N.C. 264, 284, 457 S.E.2d 841, 853,
cert. denied, 516
U.S. 994, 133 L.Ed.2d 436 (1995)). In this case, the State argued
the evidence of defendant's rape of Jacqueline Ferguson was
admissible because it was relevant to show the identity of the
perpetrator and to show evidence of a common plan or scheme.
Evidence of another crime “must be sufficiently similar to the
crime charged and not too remote in time such that it is more
prejudicial than probative under Rule 403.”
Id.
A prior act or crime is sufficiently
similar to warrant admissibility under Rule
404(b) if there are “some unusual facts
present in both crimes or particularly similar
acts which would indicate that the same personcommitted both crimes.” It is not necessary
that the similarities between the two
situations “rise to the level of the unique
and bizarre.” However, the similarities must
tend to support a reasonable inference that
the same person committed both the earlier and
later acts.
State v. Sokolowski, 351 N.C. 137, 150, 522 S.E.2d 65, 73 (1999)
(citations omitted).
We conclude that the similarities between the rapes of
Ferguson and McClendon support a reasonable inference that the
crimes were committed by the same person. Both victims were young
black females accosted in Charlotte in the early morning hours. In
both cases, the victims were grabbed from behind by the mouth and
the assailant held a sharp object to their throats while directing
them to a dark secluded area. In addition defendant disrobed both
victims and forced them to have vaginal and anal sex.
We also conclude the incident involving Ms. Ferguson was not
too remote in time from the incident involving Ms. McClendon. In
State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645 (1990),
disc.
review denied, 328 N.C. 574, 403 S.E.2d 516 (1991), this Court held
that a ten year lapse in time between the crimes did not make the
earlier crime too remote where the defendant was incarcerated for
all but 132 days of that period. Although, in the present case,
the rapes were six years apart, the record indicates that defendant
was paroled following his conviction for the Ferguson rape only
three and a half months prior to the McClendon rape. We hold the
rape of Ferguson was not too remote in time and the trial court did
not err in admitting Ferguson's testimony pursuant to Rule 404(b)
and Rule 403. For the same reason, we also hold that the court did not err
in admitting evidence that defendant was convicted of Ferguson's
rape.
See State v. Murillo, 349 N.C. 573, 595, 509 S.E.2d 752, 765
(1998) (quoting
State v. Stager, 329 N.C. 278, 303, 406 S.E.2d 876,
890 (1991))
(stating “[a] prior conviction may be a bad act for
purposes of Rule 404(b) if substantial evidence supports a finding
that defendant committed both acts, and the 'probative value is not
limited solely to tending to establish the defendant's propensity
to commit a crime such as the crime charged.'”). We additionally
reject defendant's argument that the trial court abused its
discretion under G.S. § 8C-1, Rule 403 in admitting the testimony
regarding his conviction. Defendant contends that since he
attempted to enter an Alford plea, without admitting his guilt of
the Ferguson rape, the evidence was unduly prejudicial. However,
the evidence admitted before the jury showed only that defendant
was convicted, not that he pled guilty. Therefore defendant has
failed to show that the court's ruling could not have been the
result of a reasoned decision.
[3]Finally, defendant argues that because he was not given
notice prior to trial that the State would offer Ferguson's
testimony, the trial court erred by denying his motion for a
continuance after ruling the evidence admissible. The appellate
standard of review of the denial of a motion to continue is abuse
of discretion, unless the denial raises a constitutional issue.
State v. McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977). Defendant
asserts that he was deprived of a fair opportunity to defend
himself because he was not given notice that the State would offerFerguson's testimony. “Even when a motion for a continuance raises
a constitutional issue and is denied, the denial is grounds for a
new trial only when a defendant shows that the denial was erroneous
and also that his case was prejudiced as a result of the error.”
State v. Hill, 116 N.C. App. 573, 578, 449 S.E.2d 573, 576,
disc.
review denied, 338 N.C. 670, 453 S.E.2d 183 (1994). The record
establishes that the State timely notified defendant of hearsay
statements made by defendant which were to be offered by a non-law
enforcement officer pursuant to Rule 404(b).
Defendant argued
before the trial court that the State failed to give him necessary
information as to who would offer the statements and what the
surrounding circumstances were (i.e. that Jacqueline Ferguson would
be testifying), and he therefore needed additional time to prepare
for Ferguson's testimony. Pursuant to G.S. § 15A-903(a), however,
the State is not required to disclose the name of the witness
testifying to the statement or the circumstances surrounding the
oral statement.
State v. Strickland,
346 N.C. 443, 488 S.E.2d 194
(1997),
cert. denied, 522 U.S. 1078, 139 L.Ed.2d 757 (1998).
Therefore, we cannot say that the court erred or abused its
discretion in failing to grant defendant's motion for a continuance
because the basis for such request had no merit.
III.
[4]Defendant next assigns error to the court's jury
instruction on alternative theories of first degree rape, and to
the court's failure to require the jury to be unanimous as to the
theory upon which it found defendant guilty. The trial court
instructed the jury that it could find defendant guilty of firstdegree rape if it found defendant used a dangerous weapon or if it
found the victim was seriously injured. Although defendant stated
his concerns about this instruction during the charge conference,
he did not object to the instruction given by the court as required
by N.C.R. App. P. 10(b)(2). We therefore review for plain error.
State v. Holbrook, 137 N.C. App. 766, 529 S.E.2d 510 (2000). His
argument has been previously addressed by our Supreme Court in
State v. Johnson, 320 N.C. 746, 360 S.E.2d 676 (1987). In
Johnson,
the trial court gave a disjunctive instruction, similar to the one
given in this case, with respect to a first degree rape charge.
The Court held that there was evidence to support both theories;
therefore, the trial court did not err in submitting the general
verdict to the jury.
Id. at 749-50, 360 S.E.2d at 679 (citing
State v. Belton, 318 N.C. 141, 164, 347 S.E.2d 755, 769 (1986)).
In the present case, there was also evidence to support both
theories. McClendon testified that defendant held a sharp object
against her neck, and a box cutter with the blade exposed was found
at the crime scene. In addition, a physician testified that
McClendon suffered compound fractures of the jaw.
See State v.
Locklear, 320 N.C. 754, 360 S.E.2d 682 (1987) (holding that the
defendant inflicted a serious injury on a rape victim where the
victim's jaw was fractured). We hold the trial court did not err
in instructing the jury on the alternate theories shown by the
evidence.
IV.
[5]Defendant next assigns error to the trial court's failureto instruct
the jury on the issue of defendant's guilt
of second
degree rape as a lesser offense. Although defendant did not object
to the jury charge and this assignment of error is not properly
before us, N.C.R. App. P. 10(b)(2), we consider his argument
pursuant to N.C.R. App. P. 2. “'A lesser-included offense
instruction is only proper where the charged greater offense
requires the jury to find a disputed factual element which is not
required for conviction of the lesser-included offense.'”
State v.
Mustafa, 113 N.C. App. 240, 245, 437 S.E.2d 906, 909,
cert. denied,
336 N.C. 613, 447 S.E.2d 409 (1994) (quoting
Sansone v. United
States, 380 U.S. 343, 350, 13 L.Ed.2d 882, 888 (1965)).
The crime of first degree rape and second
degree rape contain essentially the same
elements. The sole distinction between first
degree rape and second degree rape is the
element of the use or display of a dangerous
weapon.
Id. (citation omitted).
“To sustain a conviction for first degree rape, the evidence
need only show that a weapon was 'displayed or employed in the
course of the rape.'"
Id. (quoting
State v. Blackstock, 314 N.C.
232, 241, 333 S.E.2d 245, 251 (1985)). All of the evidence in this
case established that some type of sharp weapon was placed against
the victim's neck, either a knife or a box cutter. Therefore, we
hold this issue was not in dispute and the court did not err in
failing to submit the lesser offense of second degree rape to the
jury.
V.
[6]Defendant next argues the first degree rape indictment wasinsufficie
nt to confer jurisdiction on the Superior C
ourt.
Specifically, he contends the use of a short form indictment for
rape was deemed unconstitutional in
Jones v. United States, 526
U.S. 227, 143 L.Ed.2d 311 (1999). The identical argument has
previously been considered and rejected in
State v. Harris, 140
N.C. App. 208, 535 S.E.2d 614,
disc. review denied, 353 N.C. 271,
546 S.E.2d 122 (2000). Accordingly, this assignment of error is
overruled.
VI.
[7]Finally, defendant assigns error to the court's refusal to
turn over to him all of the records and documents regarding the DNA
analysis and forensic evidence in the unrelated murder case. The
trial court reviewed the records
in camera and provided defendant
with the chain of custody records for the blood samples taken from
him and compared to the evidence in this case. We have reviewed
the sealed documents and find no evidence relevant or exculpatory
in this case. Thus, we hold that the trial court did not err in
denying defendant's request.
No error.
Judges HUNTER and JOHN concur.
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