STATE OF NORTH CAROLINA
Durham County
v
.
Nos. 00 CRS 61211, 61212
00 CRS 18778
SHERROD LAMAR NEALE
Attorney General Roy Cooper, by Assistant Attorney General
Neil Dalton, for the State.
Brian Michael Aus for defendant-appellant.
WALKER, Judge.
Defendant was convicted of second-degree rape, second-degree
sexual offense, and attempted second-degree sexual offense. The
State's evidence tended to show the following: In March of 2000,
defendant and Nancy Duke met at Northgate Mall, talked, and
exchanged information. Ms. Duke only knew defendant as “Devonte”
and not by his real name. On the afternoon of 11 April 2000, Ms.
Duke paged defendant because her vehicle was stuck in the mud
behind her house. Defendant agreed to come and help her move her
vehicle. He arrived at her house at approximately 9:00 p.m. with
two male friends. Defendant and his friends freed the vehicle and
then cleaned up. Ms. Duke agreed that defendant could return to
her house after he dropped off his friends. When he returned, defendant and Ms. Duke sat on the couch in
the livingroom. They talked and watched television while her
infant daughter slept in the bedroom. As it was getting late, Ms.
Duke suggested that it was time for defendant to leave. She
testified that defendant reached across her, turned off the lamp
beside the couch, and straddled her by putting one leg on each side
while pulling her towards him. Ms. Duke tried to pull away and
asked what he was doing. At first, she believed he was only
playing. Defendant then put his hand up her shirt. Ms. Duke
testified that defendant told her to stop playing and that she
should have expected it. She realized from his demeanor and facial
expressions that he was not playing. He then demanded that she
take off her shirt. Ms. Duke testified as follows that when she
did not do as he demanded:
I remember him putting his hand like in his --
I don't know if it was his waist, his pocket,
or what. He said, “You know, I can shoot you
right now.” And he said -- he said -- he said
something about my baby. I just remember him
saying he can hurt her, or it's just me and
her in the house, or something to that effect.
And that's all I heard him say, was something
about my child. And that kind of made me
listen to whatever he said, because I didn't
want him to hurt her.
And I took my shirt off, and I thought he was
going to stop. But it was just like just a
sequence of events. After I took my shirt
off, then he said, “Take off your pants.”
Ms. Duke further testified that defendant wanted to teach her a
lesson because she had invited him over to her house. Defendant
finally told Ms. Duke to take off her underwear and bend over thecouch. She testified, “[H]e said that that was going to be the
last thing he was going to tell me to do, and then he would leave.”
She testified:
The first thing he did was, he stuck his
finger inside of my vagina . . . . I tried to
pull away and I told him to stop. And I said,
“You told me you weren't going to touch me.”
And I just kept saying, “Please don't hit me,”
because I thought he was going to hit me.
Because I wasn't looking at him, I didn't know
what he was doing behind me.
While she was bent over the couch, defendant placed his penis in
her vagina. When she would not participate with him, he removed
his penis and attempted to place it in her anus. Ms. Duke
testified that she begged him not to and so he placed it back into
her vagina. When he finished with her, he went back to the bedroom
where Ms. Duke's baby was sleeping, kissed the baby, and then left
the house saying, “I'm going to call you.”
After he left, Ms. Duke immediately called the police. She
was taken to a hospital where she was examined and a rape kit was
collected. Although she was unable to provide police with
defendant's real name, she provided the name “Devonte” and the
pager and cell phone number which the police ultimately traced back
to being in the possession and use of defendant. Ms. Duke
identified defendant as the perpetrator from a photographic lineup.
Martin Charles Walkowe, an investigator with the Durham Police
Department, testified that he interviewed Ms. Duke at the hospital
on the night of the incident. He testified that Ms. Duke “was very
upset. At times during discussing what happened, she became very
tearful. But for the most part, the thing that stuck out in mymind was that she was very exhausted.” In his testimony, he read
the statement given by Ms. Duke on 14 April 2000. In her
statement, Ms. Duke told Investigator Walkowe that the acts of
defendant were not consensual.
Investigator Walkowe arrested defendant on 12 August 2000.
After being informed of his Miranda rights, defendant waived them
and gave a statement to Investigator Walkowe. In his statement,
defendant admitted that he had helped Ms. Duke move her vehicle but
that neither he nor his friends had entered her house. He also
denied ever having sex with Ms. Duke. Investigator Walkowe
testified that, based on his investigation and interviews with
witnesses, he caused a search warrant to be executed in an attempt
to obtain hair, saliva, and blood samples from defendant.
Jennifer Elwell, a forensic serologist in the molecular
genetics unit of the State Bureau of Investigation, testified that
she detected the presence of semen in samples obtained from Ms.
Duke's vagina, rectum, and underwear. David Alan Freeman, with the
State Bureau of Investigation, performed DNA analysis on the
samples obtained from Ms. Duke and the samples obtained pursuant to
the warrant from defendant. Mr. Freeman testified that, based on
his training and experience, it was “scientifically unlikely that
this profile could be generated from anyone else except from [the
defendant].”
Defendant testified that he met Ms. Duke on a telephone chat
line. Although he had a girlfriend, he gave Ms. Duke a cell phone
and pager number where he could be reached. On 10 August 2000,defendant called Ms. Duke and learned that her vehicle was stuck in
the mud. Defendant agreed to get some friends and come help her
get the vehicle out. Once it was free, Ms. Duke drove the vehicle
to the front of the house while defendant and his friends were
there. While she did this, defendant held Ms. Duke's baby who fell
asleep in his arms. Ms. Duke gave paper towels to defendant and
his friends so they could clean off the mud. Defendant then
carried Ms. Duke's baby into the house and put her on the bed.
Defendant's friends remained outside.
While inside, defendant made a telephone call from the
livingroom. After the call, he sat on the couch and watched
television for a minute or two. Defendant testified that Ms. Duke
came into the livingroom and asked what she could do to repay him
for moving her car. He testified, “I asked her could she caress
me.” Defendant testified that Ms. Duke consented to performing
oral sex on him and then consented to having sex with him.
Frederick Cannady testified that he did not loan his cell
phone to defendant on the day in question and that his cell phone
bill showed no incoming or outgoing calls from the cell phone to
Ms. Duke's number. John Townes testified he was a friend of the
defendant and helped move Ms. Duke's vehicle that night. He
testified that defendant went into the house with Ms. Duke to get
the paper towels. After cleaning off the mud, he sat in
defendant's car with the other friend while defendant was in Ms.
Duke's house. After about five minutes, defendant and Ms. Duke
came out of the house, kissed, and then they left. Mr. Townesfurther testified that after dropping off the other friend,
defendant and Mr. Townes sat outside Mr. Townes' house drinking
beer and talking for twenty to twenty-five minutes before defendant
left.
On rebuttal, the State recalled Investigator Walkowe through
whom the State introduced the search warrant to corroborate his
previous testimony. Investigator Walkowe further testified that
the previous statement given by Mr. Townes varied somewhat from his
testimony at trial. Both the search warrant and the statement of
Mr. Townes were admitted into evidence.
On appeal, defendant first contends that the trial court erred
in admitting the search warrant into evidence. Defendant claims
there was error because the affidavit of Investigator Walkowe was
attached to the search warrant. The affidavit stated the following
in part:
Based upon the factual information hereinafter
described in detail, I believe probable cause
exists to conclude that the evidence described
in this application probably is located on the
person to be searched as described in this
application. The information related in this
affidavit is based upon the personal knowledge
of this Investigator executing this
application and upon information received from
the people interviewed in the course of this
investigation. All the citizens interviewed
appeared creditable and truthful in relation
to whatever information they had relevant to
this investigation. None of the persons
interviewed have an apparent motive to be
untruthful. None of the persons interviewed
have any reputation or history for being
untruthful [or] uncooperative with Law
Enforcement Officers performing in an
investigation. The information received by me
in the course of this investigation is
discussed in detail in this affidavit and isbelieved to be accurate and true. No
significant contradictions or difference
exists in the information I have received from
the victim interviewed since April 11, 2000.
Because there was no objection when the search warrant and
affidavit were admitted, this Court reviews for plain error. State
v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000), cert. denied,
___ U.S. ___, 151 L. Ed. 2d 55 (2001). “Plain error is
'“fundamental error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done.”'” Id. (quoting
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).
Here, Investigator Walkowe testified without objection to
facts similar to those contained in the affidavit. It was not
until the State's rebuttal that the affidavit and search warrant
were offered to corroborate Investigator Walkowe's earlier
testimony. Thus, we find there was no prejudicial error in the
admission of the search warrant with the affidavit attached.
Defendant also contends he was denied effective assistance of
counsel for failure to object to the admission of the search
warrant. To show ineffective assistance of counsel, defendant must
meet a two-prong test to show that the conduct of counsel fell
below an objective standard of reasonableness. The first prong is
that the performance of the counsel was deficient such that the
error was “so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment.” State
v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248
(1985)(citations omitted). The second prong is that the defendant
was prejudiced by the deficiency such that “there is a reasonableprobability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698 (1984).
Here, the contents of the search warrant and affidavit had
already been admitted through the testimony of Investigator Walkowe
during the State's case-in-chief. There is nothing in the record
to indicate that a failure to object to the admission of the search
warrant denied defendant a fair trial or that there was a
reasonable probability that the result of the trial would have been
different if counsel had objected. Thus, we find defendant was not
denied effective assistance of counsel by the failure to object to
the admission of the search warrant and affidavit.
Defendant next contends the trial court erred in failing to
conduct an inquiry of the remaining jurors after the alternate
juror was dismissed. After the jury and alternates had been
selected, it was brought to the trial court's attention that at
least one of the jurors had been verbally abused by three men in
the hallway outside of the courtroom. When the trial court
inquired as to who had encountered the verbal abuse, only the
alternate juror responded. In the presence of the jury, the three
men were brought before the trial court which determined the men
were not affiliated with this case. The trial court admonished
them and banned them from the courtroom and from loitering in the
hallway. The trial court then instructed the jury that these men
were not connected with the case and that the jury should not hold
their actions against either the State or the defendant. Prior to court convening the following day, defendant informed
the trial court that the alternate juror had made a comment that he
could no longer be fair and impartial because of this incident.
Defendant requested that the alternate juror and the remaining
jurors be individually questioned regarding their impartiality.
The trial court granted the motion but withheld ruling on
questioning the other jurors until the alternate juror had been
questioned.
Pursuant to questioning outside the presence of the other
jurors, the alternate juror testified that “I believe that I am
biased because of what occurred . . . . I just feel that I was
targeted, and I don't think that I can be as impartial as I should
be . . . . Even though they said that they not [sic] connected,
it's hard for me to believe that, since they followed me into this
courtroom instead of from farther away.” The trial court
questioned the alternate juror regarding possible comments to the
rest of the jury which may have affected their impartiality as
follows:
THE COURT: There have been no statements,
implications, insinuendoes [sic] whatsoever
that, first of all, what happened offended
you, and that which offended you as it being
part of anybody that's involved in this trial?
THE ALTERNATE JUROR: Correct.
THE COURT: All right, sir.
THE ALTERNATE JUROR: I have not mentioned it
at all to the other jurors, that anything was
said.
The trial court then excused the alternate juror but denied the
motion to individual questioning of the remaining jurors “based on
the fact that the reason for that was stated by the alternate juror
that he had made no statements whatsoever to other members of the
jury.”
Defendant now contends the trial court erred in failing to
grant a mistrial sua sponte. N.C. Gen. Stat. § 15A-1063 (2001)
empowers the trial court to grant a mistrial on his own motion if
it is impossible to proceed in conformity with the law, such as
where there is evidence of jury tampering not done at the direction
of the defendant or his lawyer. State v. Cooley, 47 N.C. App. 376,
383, 268 S.E.2d 87, 92, disc. rev. denied, 301 N.C. 96, 273 S.E.2d
442 (1980). The decision to grant such a motion is within the
sound discretion of the trial court and will not be disturbed
absent an abuse of discretion. State v. Johnson, 295 N.C. 227,
234-35, 244 S.E.2d 391, 396 (1978).
Here, the trial court questioned all of the jurors regarding
this incident. Only the alternate juror responded that he had
encountered it. He testified that he did not speak to any of the
other jurors regarding the incident nor express his feelings about
the individuals. The trial court instructed the remaining jurors
that the individuals were not connected with the case nor with any
parties. We find the trial court's actions were appropriate and
did not abuse its discretion in failing to grant a mistrial sua
sponte. Alternatively, defendant contends he should have been
permitted the opportunity to examine the remaining jurors. Since
there has been no showing that the alternate juror discussed this
incident with the remaining jurors, the trial court did not err in
denying defendant's motion to individually question the remaining
jurors.
Defendant finally contends the trial court erred in denying
his motion to dismiss for insufficient evidence. A motion to
dismiss should be granted only where the State fails to present
substantial evidence of each element of the crime charged. State
v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 214 (1991).
“Substantial evidence is evidence from which any rational trier of
fact could find the fact to be proved beyond a reasonable doubt.”
State v. Sumpter, 318 N.C. 102, 108, 347 S.E.2d 396, 399 (1986).
“The State is entitled to every reasonable inference. Evidence
favorable to the State must be deemed to be true, and any
inconsistencies or contradictions therein must be disregarded.”
State v. Brown, 332 N.C. 262, 269, 420 S.E.2d 147, 151 (1992).
Defendant was charged with second-degree rape, second-degree
sexual offense and attempted second-degree sexual offense.
Defendant contends the State failed to present substantial evidence
that the sexual acts occurred “by force and against the will of the
other person.” N.C. Gen. Stat. §§ 14-27.3(a)(1), 14-27.5(a)(1).
Our Supreme Court has held that force “may be established either by
actual, physical force or by constructive force in the form of
fear, fright, or coercion.” State v. Etheridge, 319 N.C. 34, 45,352 S.E.2d 673, 680 (1987). Constructive force may be proven by
threats which compel the victim to submit to sexual acts. Id.
“Threats need not be explicit so long as the totality of
circumstances allows a reasonable inference that such compulsion
was the unspoken purpose of the threat.” Id. (citing State v.
Barnette, 304 N.C. 447, 284 S.E.2d 298 (1981)).
Here, Ms. Duke testified that defendant forced her to stay
with him on the couch by straddling her and pulling her back
against him, thus preventing her from leaving. Further, she
attempted to pull away but was not allowed to do so. When
defendant demanded that she remove her clothing and she refused, he
put his hands at his waist and said, “You know, I can shoot you
right now.” He made statements about her baby which she
interpreted as threats to her baby's safety. Furthermore, she
repeatedly told him to stop. She was afraid that he would hit her
if she did not cooperate. Thus, we find there was overwhelming
evidence of threatening language and forceful actions by defendant
such that a reasonable person could find defendant committed the
sexual acts by force and against Ms. Duke's will.
In conclusion, we find there was no prejudicial error in the
admission of the search warrant and affidavit into evidence.
Furthermore, the trial court did not err in denying defendant's
motion for individual questioning of the jurors and in not ordering
a mistrial sua sponte. The trial court further did not err in
submitting all of the charges to the jury. The defendant received
a fair trial free from prejudicial error.
No error.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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