An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2003
STATE OF NORTH CAROLINA
Nos. 99 CRS 5218
HENRY EMORY STANTON 99 CRS 5219
Appeal by defendant from judgments entered 17 September 2001
by Judge Gregory A. Weeks in Bladen County Superior Court. Heard
in the Court of Appeals 12 March 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General James P. Longest, Jr., for the State.
Parish & Cooke, by James R. Parish, for defendant appellant.
Defendant Henry Emory Stanton was tried before a jury at the
4 September 2001 Session of Bladen County Superior Court after
being charged with one count of first-degree rape and one count of
first-degree kidnapping. The State's evidence at trial showed that
the victim, Ms. Emileigh Barker, was a salesperson for Bardusch
Corporation, a uniform supply company in Lumberton, North Carolina.
On 28 July 1999, a caller named Mr. Smalls indicated he wanted to
place an order for uniforms and was directed to call back the next
day to speak to Ms. Barker. The next day, the caller, who
identified himself as Dwayne Smalls, informed Ms. Barker that he
wanted to purchase twelve uniforms for workers at his company,
Pullium Construction. Ms. Barker testified that Mr. Smalls did notgive her a phone number or address, but did give her directions to
his office. Mr. Smalls said his office had no sign, but that she
would see a trailer 1/2 mile past the county line. Ms. Barker
called information, but was unable to get a phone number for Mr.
Smalls or Pullium Construction Company.
A short time later, Ms. Barker left to meet Mr. Smalls. She
drove her Jeep and took sample uniforms and other materials for
sales calls. On the way, she deposited her paycheck and withdrew
some cash. As she approached the area Mr. Smalls described, she
saw a man, later identified as defendant, flagging her down. She
pulled over, and the man asked, Are you Emileigh? Ms. Barker
asked if he was Mr. Smalls, to which defendant replied yes. He
told Ms. Barker to pull in front of the trailer, and she complied.
She retrieved her samples and apologized to defendant for
interrupting his lunch.
Defendant told Ms. Barker that he had to run some errands, and
that his wife was in the trailer waiting to pick out the uniforms.
Ms. Barker entered the trailer and looked for defendant's wife.
When she got to the end of the hall, she discovered no one was
there. Ms. Barker turned around to face defendant, who tackled her
and threw her to the floor. According to Ms. Barker, defendant
tied her arms and wrists together using electrical cord, tied her
ankles together, then forced her to lay face down while he tied her
hands to her ankles. Defendant then stuffed a cloth ball in Ms.
Barker's mouth, and wrapped a bungee cord around the back of her
head and attached the hook into the cloth in her mouth. Defendantthen wrapped her head in tape, which covered the gag and partially
covered her nose. Ms. Barker testified she was scared for her life
and had great difficulty breathing.
Defendant left the room for several minutes, then came back
and started asking, Where's Mike? Where's Mike? Where -- Mike
should -- Mike should be here by now. Where is he? Defendant
paced back and forth, then left momentarily and returned with a
large kitchen knife. Ms. Barker told defendant she could not
breathe and defendant used the kitchen knife to cut off the tape,
then removed the gag and the cord. She asked for a cigarette and
told defendant that her hands were numb. Defendant cut the cord
that held her ankles and hands tied together and moved her from
room to room before retying her hands in front of her body and
retying her ankles together. Defendant also tied a scarf around Ms.
Barker's eyes. As he did so, defendant began talking about drug
cartels, money owed by a man named Mike, and his belief that the
drug cartels were after him. Defendant untied Ms. Barker's ankles,
walked her down the hall, and made her sit on the edge of a bed.
When Ms. Barker asked defendant to remove the blindfold, he refused
and said, No, I can't take it off because there's things in this
room that you can't see. Ms. Barker indicated that she would
rather be tied up in the other room without the blindfold, so
defendant took her back to the end of the trailer and retied her
Defendant left the room and Ms. Barker heard him pacing up and
down the hallway and saw his reflection as he raised the blinds andlooked out the windows. He returned a few minutes later with a
blanket. He spread the blanket on the floor, then untied Ms.
Barker's ankles, removed her underwear and bra, lifted up her
dress, and raped her. Defendant untied Ms. Barker's hands and
ankles and allowed her to use the bathroom, but kept the door open
to prevent her escape. While Ms. Barker pleaded for her release,
defendant left the room, returned with her purse, and took her
money and credit cards.
Defendant continued to talk about drug cartels and his belief
that people were after him. Eventually, he decided to leave the
trailer with Ms. Barker and warned her not to run away. Once
outdoors, Ms. Barker ran to the road and tried to flag down a
passing truck, but it did not stop. She then made her way to her
Jeep, which had been moved further away from the trailer. Ms.
Barker started the Jeep and attempted to drive away, but the Jeep
was stuck in sand and would not move. Defendant pushed it out and
forced Ms. Barker to get into the passenger seat while he drove to
a location where he had to make a score. Defendant pulled into
a trailer park and warned Ms. Barker that the men he was meeting
were armed and dangerous. Defendant gave a man some money and
returned to the Jeep with small packets in his hand, which he told
her was crack cocaine. As defendant began driving, Ms. Barker told
him she wanted some beer so that he would take her to a public
area. Defendant agreed and drove to a convenience store. Ms.
Barker mouthed the words help me to a person parked next to her,
but did not attempt to flee because she was afraid of defendant. She and defendant went into the store, where defendant purchased
beer and cigarettes. When they left the store, the person whom Ms.
Barker asked for help was gone.
Defendant drove to a dirt road, took out a pipe, and began
smoking the crack cocaine. Ms. Barker drank one of the beers, and
defendant told her to smoke with him. Despite her protests,
defendant forced Ms. Barker to smoke the pipe. She pretended to
cough, and defendant told her to drink another beer. When the can
was empty, he used it to fashion another smoking implement because
his pipe was clogged. Soon thereafter, Ms. Barker's beeper went
off and she persuaded defendant to take her to a rest stop with pay
phones so she could call in. She went to a pay phone and defendant
followed her. She then pretended to dial some numbers, handed
defendant the phone, and asked, Can you make any sense of this?
While defendant was distracted, Ms. Barker ran screaming toward
several police officers. She told them she had been kidnapped and
raped by defendant.
Later that evening, Ms. Barker rode with law enforcement
officers to show them defendant's trailer. She was then taken to
the emergency room by her fiancé at the request of Bladen County
Sheriff's Sergeant Rodney Warwick, who met Ms. Barker at
At the conclusion of Ms. Barker's testimony, the State called
Ms. Tracie Crookham, who stated that she had been abducted, bound,
and serially raped by defendant in July of 1991. The State offered
Ms. Crookham's testimony as evidence of modus operandi. SergeantWarwick testified regarding his interaction with Ms. Barker on 29
July and her trip to the emergency room. He also testified that he
and several other officers conducted a search of defendant's
residence based on defendant's wife's consent. Sergeant Warwick
discovered a phone book open on a bed with a piece of paper lying
on the page. The paper had the victim's name on it, as well as the
name Dwayne Smalls. The phone book also had a notation near the
entry for Bardusch under the uniforms section of the yellow pages.
Sergeant Warwick also discovered a roll of duct tape, several
uniforms, a woman's scarf, a towel, a gag, a bedspread, electrical
cords, and duct tape with what appeared to be human hair on it.
Sergeant Warwick also photographed Ms. Barker from several
different angles to document her injuries, which included bruises
on her arms, scabbing wounds on her wrists and elbows, and a mark
on her neck.
State Bureau of Investigation (SBI) Agent Brenda Bissette
performed a DNA testing on evidence samples taken from Ms. Barker's
rape kit and testified that the semen found in Ms. Barker's body
was a genetic match for defendant. After calling seven witnesses,
the State rested.
Defendant presented the testimony of four witnesses, including
himself. Defendant testified he met Ms. Barker a week before 29
July 2001 at a shopping center in Fayetteville. According to
defendant, Ms. Barker asked him to walk to Food Lion with her to
get beer, and he did so. He stated they drank the beer in her SUV
and drove around looking for drugs. After defendant stopped by amotel to pay someone a debt, he agreed to follow Ms. Barker to
another motel. After a few minutes, defendant stated Ms. Barker
ran into some people she knew and told him they had to leave.
Defendant stated he and Ms. Barker drove around the Spring Lake
area, bought crack cocaine, smoked it, and went to a motel room.
Ms. Barker left and returned with another man, who repeatedly asked
defendant for money. Defendant testified he eventually called
security, who escorted Ms. Barker and the man off the premises.
Defendant stated he did not see Ms. Barker again until 29
July, when she arrived at his trailer looking for a man named
Dwayne Smalls; he told her his name was T.J. and that he was
handling things for Mr. Smalls. Defendant testified he thought Ms.
Barker was reaching for a gun, so he knocked her to the floor.
Defendant stated he was collecting money for a man named Mike, who
was coming to his trailer to get it. He also testified that Ms.
Barker knew Mike and suggested they could get the money from her
boyfriend by calling him and demanding money for her release, or
delay the collection by pretending to take her hostage if anyone
came to the trailer. When they heard a car, defendant tied her up
until they believed the car had passed. Afterwards, the two had
Defendant further testified he and Ms. Barker left in her Jeep
and drank beers and smoked crack cocaine. He indicated that he had
her money and credit cards because he was reluctantly helping her
with some money problems she was experiencing. Defendant
maintained that Ms. Barker begged him to drive south with her onInterstate 95 to get away, but he told her no because he loved his
wife. At that point, Ms. Barker allegedly looked at him like, you
know, she was crazy or something and just took off running toward
police officers at the rest stop.
On cross-examination, defendant admitted that he pleaded
guilty to the 1991 crimes involving Ms. Crookham; however,
defendant denied any wrongdoing and stated he pleaded guilty to
protect other people, whose names he could not remember. Defendant
also recited his telephone number and admitted that his number was
listed in official phone records as the one used to call Bardusch
Uniforms on 28 and 29 July. However, he stated he did not
personally make the call and that the drug dealers in his trailer
could have made the call.
As part of his case-in-chief, defendant also called Dr. Myra
Guzman, who examined Ms. Barker at the Bladen County Hospital on 29
July 1999. She testified that there was bruising on Ms. Barker's
head, but the rest of her physical examination was normal. Ms.
Barker's blood was drawn and tested; it was negative for alcohol
and was positive for cocaine.
On rebuttal, the State presented the testimony of four
witnesses, including defendant's former wife, Mary Elizabeth Avery,
and three law enforcement officers. Ms. Avery stated she was
married to defendant on 29 July 1999 and came home that evening and
noticed uniforms, cigarettes, and her scarf on the floor of her
trailer. She also stated she believed something was wrong and hit
redial on the phone and spoke to a man at a uniform servicecompany. She then called her sister and left, but later got a call
from law enforcement officers and returned home. Once there, she
consented to a search of the trailer.
Deputy Timothy J. Bailer of the Cumberland County Sheriff's
Department testified that he detained defendant and questioned him
at the rest stop after Ms. Barker indicated that he had kidnapped
and raped her. Upon searching Ms. Barker's Jeep, he found a knife
between the door and the driver's seat. When he searched
defendant, Deputy Bailer found a crack pipe and a fuel card issued
to Bardusch Rental Uniforms. Deputy Bailer further testified that
defendant told him Ms. Barker asked him to buy some crack cocaine
near the Fayetteville airport, that she had been paged by a drug
dealer to whom she owed money, and that they were headed to an ATM
machine to get money before meeting the drug dealer at a motel to
give him the money. Deputy Mark Hart, Deputy Bailer's partner,
testified that he spoke to both Ms. Barker and defendant at the
rest stop and got their versions of what happened. Finally, Agent
Mark Oxendine testified that defendant gave a completely different
version of events when they talked around 1:00 a.m. on 30 July
After deliberating, the jury found defendant guilty of first-
degree rape and second-degree kidnapping. The trial court
determined defendant had a prior record level of V and sentenced
him to 433-529 months' imprisonment for the first-degree rape
conviction, and a consecutive term of 53-73 months' imprisonment
for the second-degree kidnapping conviction. Defendant gave noticeof appeal in open court.
On appeal, defendant argues the trial court erred by (I)
allowing the testimony of Tracie Crookham into evidence; (II)
allowing the State to introduce into evidence his 1994 judgment and
commitment for multiple counts of sex offense, rape, kidnapping and
common law robbery; (III) allowing the State to introduce the
substance of statements he made to SBI Agent Mark Oxendine; (IV)
failing to arrest judgment for first-degree rape; (V) allowing Ms.
Mary Elizabeth Avery to testify against him; (VI) denying his
motions to strike the jury panel; (VII) instructing the jury as to
serious personal or bodily injury of the victim; and (VIII) failing
to declare a mistrial at his request. For the reasons stated
herein, we disagree with defendant's arguments and hold he received
a trial free from reversible error.
Ms. Crookham's Testimony
By his first assignment of error, defendant contends the trial
court erred by allowing the introduction of his prior crimes
against Tracie Crookham into evidence. During the trial, Ms.
Crookham testified, over defendant's objection, that defendant
kidnapped, raped, and robbed her in 1991. Defendant ultimately
pled guilty and was convicted of three counts of second-degree
rape, three counts of second-degree sexual offense, first-degree
kidnapping, and common law robbery. The State offered the evidence
to show modus operandi, and since the trial court admitted the
evidence over defendant's objection, a limiting instruction was
given at the time the evidence was offered. When defendant tookthe stand, he admitted to those convictions without any objection
and answered the prosecutor's questions about the underlying facts
related to those crimes. He has therefore failed to preserve this
issue for our review. See N.C. Gen. Stat. § 15A-1446 (2001).
Even if we review this assignment of error on the merits,
defendant cannot prevail. We review this assignment of error under
the plain error standard. N.C.R. App. P. 10(c)(4) (2002); State v.
Black, 308 N.C. 736, 739-41, 303 S.E.2d 804, 806-07 (1983). Under
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001),
[e]vidence of other crimes, wrongs or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
Rule 404(b) has been characterized as a general rule of inclusion
of relevant evidence of other crimes, wrongs, or acts which is
subject to but one exception, evidence should be excluded if its
only probative value is to show that the defendant has the
propensity or disposition to commit an offense of the nature of the
crime charged. State v. Blackwell, 133 N.C. App. 31, 34, 514
S.E.2d 116, 119, cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999).
With respect to sexual offense cases, our courts have liberally
admitted evidence of similar sex offenses by a defendant under Rule
404(b), recognizing that [s]uch evidence is relevant and
admissible under Rule 404(b) if the incidents are sufficiently
similar and not too remote. State v. Bagley, 321 N.C. 201, 207,362 S.E.2d 244, 247-48 (1987), cert. denied, 458 U.S. 1036, 99 L.
Ed. 2d 912 (1988); see also State v. Cotton, 318 N.C. 663, 666, 351
S.E.2d 277, 279 (1987).
In the present case, the State introduced evidence of
defendant's prior crimes to show modus operandi. To admit evidence
of a prior sexual offense under Rule 404(b), the State must show
both similarity and temporal proximity. State v. Sexton, 336 N.C.
321, 353, 444 S.E.2d 879, 897, cert. denied, 513 U.S. 1006, 130 L.
Ed. 2d 429 (1994). A prior act or crime is similar if there are
some unusual facts present in both crimes or particularly similar
acts which would indicate that the same person committed both
crimes. State v. Moore, 309 N.C. 102, 106, 305 S.E.2d 542, 545
(1983). See also State v. White, 331 N.C. 604, 612, 419 S.E.2d
557, 561-62 (1992). With regard to temporal proximity, our courts
have stated that [e]vidence may be admitted even though remote in
time, if its 'signature' value is high. State v. Wortham, 80 N.C.
App. 54, 62, 341 S.E.2d 76, 81 (1986), rev'd in part on other
grounds, 318 N.C. 669, 351 S.E.2d 294 (1987).
Defendant argues that the evidence of his prior crimes was
offered by the State to negate consent, although the State argued
at trial that the evidence was offered to establish modus operandi.
Defendant contends his cross-examination of Ms. Barker focused
squarely on the issue of consent and points out that, even though
she maintained she denied consenting to any of defendant's actions,
there was never a question of defendant's identity. Defendant also
directs our attention to State v. Pace, 51 N.C. App. 79, 275 S.E.2d254 (1981), wherein this Court granted the defendant a new trial
because the trial court admitted testimony of prior crimes in
violation of Rule 404(b).
In Pace, the defendant was tried for second-degree rape and
second-degree sexual offense. During the trial, the State presented
the testimony of another woman who, like the prosecuting witness,
stated defendant wore a plaid jacket and called her Baby Girl when
he raped her. Id. at 81-82, 275 S.E.2d at 255. Upon review, the
Pace Court noted that (1) there was no issue of identity, because
defendant admitted to the sexual contact with the victim, but argued
it was consensual; (2) none of the permissible purposes for which
the witness's testimony could have been used were relevant in the
case; (3) there was an issue as to the prosecuting witness's state
of mind; and (4) the evidence provided by the witness did not show
modus operandi. Id. at 83-84, 275 S.E.2d at 256-57. The Pace Court
concluded that the witness's testimony of prior crimes tended to
show identity, which was not at issue in the case, thereby entitling
the defendant to a new trial. Id. at 84, 275 S.E.2d at 256-57.
In the present case, defendant argues that he is entitled to
a new trial because Ms. Crookham's testimony tended to show his bad
character and his disposition to commit sexual crimes, rather than
an acceptable exception to Rule 404(b). Because consent, not
identity, was at issue in his case, he believes the admission of Ms.
Crookham's testimony amounted to reversible error. However, we note
[t]he list of permissible purposes for which such
evidence may be introduced as set forth in the statute is
not exclusive, and the fact that evidence cannot be
brought within a [listed] category does not necessarily
mean that it is inadmissible. State v. DeLeonardo, 315
N.C. 762, 770, 340 S.E.2d 350, 356 (1986). In fact, as
a careful reading of Rule 404(b) clearly shows, evidence
of other offenses is admissible so long as it is relevant
to any fact or issue other than the character of the
accused. State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d
791, 793 (1986) (quoting 1 Brandis on North Carolina
Evidence § 91 (2d rev. ed. 1982)) (emphasis added).
Bagley, 321 N.C. at 206, 362 S.E.2d at 247. The State argues, and
we agree, that Ms. Crookham's testimony was primarily offered to
show modus operandi . Defendant's crimes against Ms. Crookham and
Ms. Barker were temporally proximate because, although the crimes
occurred eight years apart, much of that time gap was attributable
to the fact that defendant was incarcerated and could not harm
anyone. Though defendant argues there are many differences between
the crimes, we believe the crimes demonstrate several relevant
similarities. Initially, both women were brutally assaulted by
defendant, who then exerted control over the women by restraining
them, tying them up, gagging them, and otherwise confining them.
While in the presence of his victims, defendant engaged in
irrational, nonsensical talk. As the victims made concessions
toward him, defendant reciprocated by removing some of their
restraints and gags. In both cases, defendant used physical
restraint and psychological intimidation to frighten his victims and
to exert control over them. Defendant raped both women, then forced
them to take drugs with him and stay with him for an extended period
of time. Both victims tried to normalize their situations bytalking to defendant and placating him, and he responded by
gradually releasing their physical bonds and lessening the degree
of control he exerted over them. Unlike Pace, where the witness's
testimony showed only two similarities and was insufficient to
demonstrate modus operandi, we believe Ms. Crookham's testimony
sufficiently demonstrated defendant's modus operandi (a pattern of
We also agree with the State's argument that Ms. Crookham's
testimony demonstrated defendant's modus operandi for the rape and
the intent element of the kidnapping charge. The trial court gave
an appropriate limiting instruction prior to Ms. Crookham's
testimony. Defendant admitted to sexual intercourse with Ms.
Barker, but did not admit to restraining her against her will.
Thus, even if Ms. Crookham's testimony was not admissible for the
rape charge, it was admissible to demonstrate defendant's intent
with regard to restraining his victims and kidnapping them. As the
testimony was admitted for an acceptable purpose under Rule 404(b),
we conclude defendant's assignment of error is without merit, and
it is overruled.
1994 Judgment and Commitment
In a related assignment of error, defendant contends the trial
court committed reversible error by allowing the admission of his
1994 judgment and commitment for his crimes against Ms. Crookham.
We do not agree.
As previously discussed, evidence of a defendant's prior
crimes, wrongs, or acts is not admissible to show action inconformity therewith; however, such evidence may be admissible for
other purposes under Rule 404(b). N.C. Gen. Stat. § 8C-1, Rule
609(a) (2001) permits admission of prior convictions in order to
assess a defendant's credibility as a witness if the evidence of the
convictions is elicited from the witness or established by public
record during cross-examination or thereafter.
In the present case, Ms. Crookham's testimony provided the
facts and circumstances underlying the 1991 crimes for which
defendant pleaded guilty and showed similarities between the prior
convictions and the crimes which are the subject of this appeal.
Defendant later took the stand and was cross-examined about the
prior convictions. We must now address whether prejudicial error
Defendant maintains per se error occurred because the 1994
judgment and commitment came in during the State's case-in-chief as
substantive evidence and also corroborated the testimony of Ms.
Crookham. He contends the judgment and commitment should have come
in solely for impeachment purposes after he began his case-in-chief.
In support of his position, defendant notes that this was a
contested case which resulted in a hung jury after the first trial
and was replete with questions during the second trial.
Essentially, defendant argues Ms. Crookham testified, then his 1994
judgment and commitment were admitted to buttress her testimony.
He argues that this practice violated Rule 609 because the judgment
and commitment were admitted as substantive evidence of modus
operandi. To resolve this issue, we must examine the recent cases of
State v. Wilkerson, 356 N.C. 418, 571 S.E.2d 583 (2002) and State
v. Hairston, ___ N.C. App. ___, 576 S.E.2d 121 (2003) and determine
whether the admission of this evidence during the State's case-in-
chief was so prejudicial as to warrant a new trial in the factual
context of this case.
In order to show prejudice necessary for
a new trial, a defendant alleging error must
show 'there is a reasonable possibility that,
had the error in question not been committed,
a different result would have been reached at
the trial out of which the appeal arises.'
State v. Goodman, 149 N.C. App. 57, 64, 560
S.E.2d 196, 201 (quoting N.C. Gen. Stat. § 15A-
1443(a) (1999)), disc. review allowed on
additional issues, 356 N.C. 170, 568 S.E.2d 852
(2002). An instructional error is not
prejudicial where other evidence against the
defendant is overwhelming. State v. Williams,
355 N.C. 501, 565 S.E.2d 609 (2002), cert.
denied, ___ U.S. ___, ___ L. Ed. 2d ___ (Jan.
13, 2003) (No. 02-7283).
Hairston, ___ N.C. App. at ___, 576 S.E.2d at 123.
As previously discussed, a proper limiting instruction
regarding Ms. Crookham's testimony was provided. Following her
testimony, the State offered the prior judgment and commitment with
no further elaborating instruction. Defendant's sole objection at
this stage was to relevance and as to too far back in time. When
defendant testified at trial, he was impeached by the 1991 crimes
and several others pursuant to Rule 609. The prosecutor also
impeached defendant's credibility by showing his numerous
inconsistent statements in both the incident involving Ms. Crookham
and the incident involving Ms. Barker. Such impeachment was proper. State v. Aguallo, 322 N.C. 818, 824, 370 S.E.2d 676, 679 (1988).
Defendant's incredible testimony, the extensive corroborating
physical evidence, and the damaging impeachment of defendant on
grounds other than his prior conviction all constitute overwhelming
evidence of his guilt. Certainly, this defendant cannot show that,
had the error not been committed, a different result would have been
reached. We conclude that where otherwise proper jury instructions
were rendered, the error in this case was harmless beyond a
reasonable doubt. Accordingly, this assignment of error is
Statements Made to Special Agent Oxendine
By his next assignment of error, defendant contends the trial
court erred by denying his motion to exclude the statements he made
to Special Agent Oxendine during an interview that took place at
12:58 a.m. on 30 July 1999, several hours after defendant had been
arrested. Defendant objected to the introduction of his statement
because it was not provided to him with the rest of the discovery
and should therefore have been excluded. Special Agent Oxendine was
permitted to testify as to the substance of the interview over
defendant's objection, and the trial court instructed the jury that
the statement was being admitted for the purpose of impeaching
defendant. Defendant moved for a mistrial pursuant to N.C. Gen.
Stat. § 15A-1061 for the perceived discovery violation and the trial
court denied his motion. Defendant now argues that the admission
of the statement resulted in substantial and irreparable prejudice
to his case. On 5 February 2001, the prosecutor's office filed a discovery
disclosure certificate which certified that the State had provided
defendant with a copy of its investigative file. On 31 July 2001,
defendant filed a motion for production of exculpatory, favorable
or impeaching evidence. Thereafter, the trial court entered an
order directing the State to disclose, among other things:
Any written, oral, or recorded statement made
by any person to the North Carolina State
Bureau of Investigation, the Sheriff's
Department, any Law Enforcement Officer, or to
the Assistant District Attorney, which tends to
establish the Defendant's innocence, or to
impeach or contradict the testimony of any
witness whom the State will call at the trial
of this case.
Defendant argues his statement to Special Agent Oxendine was
exculpatory because he admitted a prior sexual relationship with Ms.
Barker, maintained they had consensual sex, and offered his version
of the events of 29 July 1999. Defendant maintains he was entitled
to the statement prior to trial, see Brady v. Maryland, 373 U.S. 83,
10 L. Ed. 2d 215 (1963), and that the State's failure to disclose
the statement to him prior to trial constituted error.
Upon defendant's motion, the trial court must order the State
[t]o permit the defendant to inspect and copy
or photograph any relevant written or recorded
statements made by the defendant, or copies
thereof, within the possession, custody, or
control of the State the existence of which is
known or by the exercise of due diligence may
become known to the prosecutor[.]
N.C. Gen. Stat. § 15A-903(a)(1) (2001). The prosecutor's office
maintained an open file policy allowing defendant open access to its
files. The prosecutor filed a discovery certificate that it hadproduced its entire file to defendant by mailing a copy to
defendant's attorney. The only contradiction to these facts is
defendant's attorney's representation in the record.
Neither the North Carolina discovery
statute, N.C.G.S. §§ 15A-902 to -910, nor the
case of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L. Ed. 2d 215 (1963), requires
the trial court to impose any sanctions for
failure to comply with discovery. The
determination as to whether the state
substantially failed to comply with discovery
is within the trial judge's discretion. This
Court has held that discretionary rulings of
the trial court will not be disturbed on the
issue of failure to make discovery absent a
showing of bad faith by the State in its
noncompliance with the discovery requirements.
State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 48-49 (1986)
Defendant has made no showing of bad faith on the part of the
State. Even assuming defendant's statement to Special Agent
Oxendine was not included with the rest of the discovery, the
State's actions amount to a discovery violation rather than a
constitutional one. Defendant never alleged a constitutional
violation at trial and any objections on constitutional grounds have
been waived. See State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d
535, 539 (1982). Moreover, even if the admission of the statement
was erroneous, it was harmless beyond a reasonable doubt, given the
overwhelming evidence of defendant's guilt and the significantly
varied stories offered by defendant at various points in the
investigation. Defendant's third assignment of error is overruled.
Short Form Rape Indictment
By his fourth assignment of error, defendant contends the short
form rape indictment, N.C. Gen. Stat. § 15-144.1 (2001), is invalid
because he lacked proper notice of the charge against him. To rule
in defendant's favor, we would be required to hold that the short
form indictment statute is unconstitutional. Defendant did not
raise this issue at trial and constitutional issues not raised below
will ordinarily not be considered on appeal. Hunter, 305 N.C. at
112, 286 S.E.2d at 539.
Despite defendant's failure to object to the validity of the
indictment below, we note that our Supreme Court has found the
statutory short form rape indictment legally sufficient, even though
the indictment does not specifically allege each and every element
of the offense. State v. Lowe, 295 N.C. 596, 604, 247 S.E.2d 878,
883-84 (1978). Even in light of recent Supreme Court cases,
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and
Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), we
believe the reasoning of Lowe remains viable. See State v. Wallace,
351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43, cert. denied, 531 U.S.
1018, 148 L. Ed. 2d 498 (2000); and State v. Love, 152 N.C. App.
608, 618-19, 568 S.E.2d 320, 327 (2002), disc. review denied, ___
N.C. ___, ___ S.E.2d ___ (2003). Defendant's fourth assignment of
error is overruled.
Testimony of Ms. Avery
By his next assignment of error, defendant contends the trial
court committed plain error by allowing his wife to testify becausehe did not waive confidential privilege. We do not agree.
In North Carolina, a spouse may testify against the other
spouse as a competent witness if he or she wishes to do so. State
v. Josey, 328 N.C. 697, 705, 403 S.E.2d 479, 483 (1991). N.C. Gen.
Stat. § 8-57 (2001) states:
(b) The spouse of the defendant shall be
competent but not compellable to testify for
the State against the defendant in any criminal
action or grand jury proceedings, except that
the spouse of the defendant shall be both
competent and compellable to so testify:
[Naming five circumstances, none of which
are applicable here.]
(c) No husband or wife shall be
compellable in any event to disclose any
confidential communication made by one to the
other during their marriage.
The privilege belongs to the spouse, not to the defendant. State
v. Britt, 320 N.C. 705, 709, n.1, 360 S.E.2d 660, 662, n.1 (1987).
In the present case, defendant never raised the issue of
spousal privilege, nor did he preserve in the record the evidence
needed to determine whether the privilege may have applied. Though
he objected during Ms. Avery's testimony, the objection was to
leading and relevance, rather than the assertion of privilege. The
only evidence before us is that defendant called Ms. Avery from jail
and told her not to speak with law enforcement officers regarding
the case. Furthermore, in determining whether a spouse's testimony
includes a confidential communication, the question is whether the
communication, whatever it contains, was induced by the marital
relationship and prompted by the affection, confidence, and loyaltyengendered by such relationship. State v. Freeman, 302 N.C. 591,
598, 276 S.E.2d 450, 454 (1981). The communications between
defendant and Ms. Avery did not concern the disclosure of
confidential communications arising out of intimate trust and
confidence. See State v. Holmes, 330 N.C. 826, 835, 412 S.E.2d 660,
665 (1992). We also note that the record lacks any evidence of a
confidential communication, and there is no evidence that the State
compelled Ms. Avery to testify. Accordingly, defendant's argument
fails and this assignment of error is overruled.
Victim's Mental State as Serious Personal Injury
Defendant next contends the trial court improperly instructed
the jury that Ms. Barker's mental anguish could serve as serious
personal or bodily injury. Specifically, defendant argues that the
trial court's instruction did not leave for the jury the
determination of whether Ms. Barker's injuries to her mind and
nervous system constituted serious personal injury and whether
those injuries had in fact extended for some appreciable period of
time after the crime. Again, we disagree.
During the course of the trial, the State came forward with
evidence of serious personal injury, which elevated the crime of
second-degree rape to first-degree rape. Upon objection by
defendant, the trial court resolved the wording of the instruction
and instructed the jury on first-degree rape as follows:
Now I charge for you to find the Defendant
guilty of first degree rape, the State must
prove four things beyond a reasonable doubt.
First, that the Defendant engaged invaginal intercourse with the victim. . . .
Second, that the Defendant used or
threatened to use force sufficient to overcome
any resistance the victim might make. . . .
Third, that the victim did not consent and
it was against her will. . . .
Fourth, the State must prove beyond a
reasonable doubt either or both that (a) the
Defendant employed or displayed a dangerous or
deadly weapon or an object the victim
reasonably believed was a dangerous or deadly
weapon. . . .
Or (b) the State must prove beyond a
reasonable doubt that the Defendant inflicted
serious personal injury upon the victim.
I instruct you that under the law proof of
the element of infliction of serious personal
injury may be met by the showing of mental
injury. However, I further instruct you that
the law intends that the mental injury
inflicted must be more than that ordinarily
present in every forcible rape.
Before you may find serious personal
injury because of injury to the mind or nervous
system, the State must prove beyond a
reasonable doubt that such injury was not only
caused by the Defendant, but that the injury
extended for some appreciable period of time
beyond the incident surrounding the crime
Now the law recognizes that it would defy
reason and common sense to say that there could
be a forcible rape which did not humiliate,
terrorize or inflict some degree of mental
injury upon the victim. Therefore, the mental
injury inflicted must be more than that which
is coincident with or immediately results from
every forcible rape.
I instruct you that if you find from the
evidence beyond a reasonable doubt that the
defendant caused Emileigh Barker to suffer
mental injury to the mind or nervous system
which extended for some appreciable period oftime beyond the incident itself that would be
a serious personal injury within the meaning of
It is well settled that
[r]egardless of requests by the parties, a
judge has an obligation to fully instruct the
jury on all substantial and essential features
of the case embraced within the issue and
arising on the evidence. The trial judge may
in his discretion also instruct on the
subordinate and nonessential features of a case
without requests by counsel. The purpose of a
charge is to give a clear instruction which
applies the law to the evidence in such a
manner as to assist the jury in understanding
the case and in reaching a correct verdict.
The trial judge has wide discretion in
presenting the issues to the jury. This
responsibility cannot be delegated to or
usurped by counsel.
State v. Harris, 306 N.C. 724, 727-28, 295 S.E.2d 391, 393 (1982).
The trial court must, however, give the substance of a requested
instruction if it is a correct statement of the law and is supported
by the evidence. State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163,
With regard to mental injury and its qualification as serious
personal injury, our Supreme Court has stated:
It is impossible to enunciate a bright
line rule as to when the acts of an accused
cause mental upset which could support a
finding of serious personal injury. It would
defy reason and common sense to say that there
could be a forcible rape or forcible sexual
offense which did not humiliate, terrorize and
inflict some degree of mental injury upon the
victim. Yet, the legislature has seen fit to
create two degrees of rape and provide that one
of the elements which may raise the degree of
the crime from second degree to first-degree
rape is the infliction of serious personal
injury. . . . . We therefore believe thatthe legislature intended that ordinarily the
mental injury inflicted must be more than the
res gestae results present in every forcible
rape and sexual offense. In order to support
a jury finding of serious personal injury
because of injury to the mind or nervous
system, the State must ordinarily offer proof
that such injury was not only caused by the
defendant but that the injury extended for some
appreciable time beyond the incidents
surrounding the crime itself. Obviously, the
question of whether there was such mental
injury as to result in serious personal
injury must be decided upon the facts of each
State v. Boone, 307 N.C. 198, 205, 297 S.E.2d 585, 589-90 (1982),
overruled on other grounds by State v. Richmond, 347 N.C. 412, 495
S.E.2d 677 (1998). See also State v. Ackerman, 144 N.C. App. 452,
460-61, 551 S.E.2d 139, 144-45, cert. denied, 354 N.C. 221, 554
S.E.2d 344 (2001). Thus, if a mental injury extends for some
appreciable time, it is therefore a mental injury beyond that
normally experienced in every forcible rape. State v. Easterling,
119 N.C. App. 22, 40, 457 S.E.2d 913, 924, disc. review denied, 341
N.C. 422, 461 S.E.2d 762 (1995).
Ms. Barker testified that she stayed out of work for a week
following her ordeal and could not continue to work for Bardusch
because she was afraid to go out on sales calls. She stated she
experienced nightmares, flashbacks, anxiety, depression and panic
attacks since 29 July 1999, continuing through the time of trial in
September 2001. She stated that she often cried, stayed away from
her family, had an eating disorder, was hyperactive, was antisocial,
and continued to feel uneasy in her surroundings. In 1999, Ms.
Barker described her symptoms to a psychiatrist, who gave her aprescription medication, Welbutrin, for her mental problems. She
continued to take the medication up to the time of trial. Ms.
Barker also stated that her experience with defendant has strained
her relationships with others, including her fiancé and her son.
Under the facts of this case, we believe the State successfully
showed it was entitled to an instruction on serious personal
injury within the first-degree rape instruction.
Although defendant argues the trial court's instruction
impermissibly removed the burden of proof from the State on the
issue of serious personal injury, we are not persuaded by his
argument. Both at the beginning and at the end of the instruction,
the trial court indicated that the burden of proof was on the State.
The trial court simply added that serious physical injury could be
proven by showing mental injury. It was left to the jury to
determine whether Ms. Barker's injuries rose to the level of
serious personal injury and whether they extended for an
appreciable time after the crime occurred. Finally, we note that
the jury found that defendant used or displayed a weapon during the
commission of the rape. This finding alone supports defendant's
conviction of first-degree rape, even if no serious personal injury
was established. Defendant's assignment of error is therefore
Motion for Mistrial
By his final assignment of error, defendant contends the trial
court abused its discretion by denying his motion for a mistrial.
Specifically, defendant argues the trial court should have grantedhis motions to strike the jury panel for juror irregularities, and
further maintains the trial court made improper comments and
references to his previous trial, which ended in a mistrial. We now
turn to each of defendant's contentions.
Prospective juror Lorenzo McDowell informed the trial court
that some people in the hallway were discussing the case among
themselves and were forming opinions. When questioned by the trial
court, Mr. McDowell could not recall the specifics of what was said,
nor could he identify the people whose conversations he had
overheard. The trial court denied defendant's motion for a mistrial
and also denied his motion to strike the jury panel. Instead, the
trial court individually examined each juror who had been seated in
the jury box for an extended period of time. Both the State and
defendant were permitted to ask each juror questions to ascertain
whether the juror had heard the comments described by Mr. McDowell
or whether the juror had personally made comments. Each juror
indicated they had neither heard nor made comments related to the
Defendant also directs our attention to an instance during
which he was being cross-examined and was approached by the
prosecutor with a knife that had been marked for identification.
Defendant's attorney objected to the display of the knife as no
foundation had been laid and it had not been introduced into
evidence. Both parties were asked to approach the bench. As they
approached, the prosecutor stated that the knife was provided in
discovery at the last trial, referencing the first trial on thismatter. The jury then left the courtroom. The prosecutor returned
to his table and asked a detective seated there if he heard the
comments, to which the detective stated he did not hear the
prosecutor's comment, but did hear the trial court state, Jesus
help me. Upon defendant's motion for a mistrial based on the
prosecutor's reference to the last trial, as well as the trial
court's exclamation, the trial court heard arguments from both
parties and took the matter under advisement. The trial court then
brought the jury back in and asked if any of them heard any of the
comments at the bench. The jurors all responded in the negative.
The trial court must declare a mistrial if there occurs during
the trial an error or legal defect in the proceedings, or conduct
inside or outside the courtroom, resulting in substantial and
irreparable prejudice to the defendant's case. N.C. Gen. Stat.
§ 15A-1061 (2001). The trial court enjoys broad discretion in
determining whether to grant a motion for mistrial, and a mistrial
is appropriate only when there are such serious improprieties as
would make it impossible to attain a fair and impartial verdict
under the law. State v. Calloway
, 305 N.C. 747, 754, 291 S.E.2d
622, 627 (1982). The scope of appellate review, then, is limited
to whether in denying the motions for a mistrial, there has been an
abuse of judicial discretion. State v. Boyd
, 321 N.C. 574, 579,
364 S.E.2d 118, 120 (1988). In other words, unless the trial
court's ruling is so clearly erroneous that it amounted to a
manifest abuse of discretion, it will not be disturbed on appeal.
State v. Newton
, 82 N.C. App. 555, 559, 347 S.E.2d 81, 84 (1986), disc. review denied
, 318 N.C. 699, 351 S.E.2d 756 (1987).
Based on a careful review of the transcript, we do not discern
a reason for the declaration of a mistrial.
We believe the trial
court dealt appropriately with the jury in light of Mr. McDowell's
statement regarding what he heard. We also believe the trial court
conducted a proper inquiry into whether the jury heard the exchange
involving the knife. Defendant also moved for a mistrial when Agent
Oxendine testified about his statement because the statement was
allegedly not provided during discovery. As previously discussed,
we do not believe this warranted a mistrial. The trial court was
in the best position to determine whether irregularities occurred
and protected defendant's interests by issuing limiting instructions
and by sustaining defendant's objections on grounds he
did not raise. We conclude the trial court dealt appropriately with
each of defendant's motions for a mistrial and did not abuse its
discretion. Accordingly, defendant's final assignment of error is
After careful examination of the record, transcripts, and
arguments of the parties, we conclude defendant received a fair
trial free of reversible error.
Judges TYSON and CALABRIA concur.
Report per Rule 30(e).
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