STATE OF NORTH CAROLINA Scotland County
Nos. 00 CRS 22
v. 00 CRS 23
DONALD WAYNE LOCKLEAR
Appeal by defendant from judgments entered 25 March 2003 by
Judge B. Craig Ellis in Scotland County Superior Court. Heard in
the Court of Appeals 15 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Richard L. Harrison for the State.
Bruce T. Cunningham, Jr., for defendant-appellant.
CALABRIA, Judge.
Donald Wayne Locklear (“defendant”) appeals from judgments
entered upon jury verdicts finding him guilty of first-degree rape
and first-degree burglary. We find no error at trial but remand
for resentencing.
*** Converted from WordPerfect ***
On 30 December 1999, Amy Barrineau (“victim”) was at her
residence with her two minor children, ages eight months and two
years. The victim fell asleep watching television on her couch at
approximately 11:00 p.m. Soon after, she was awakened by defendant
pulling her off the couch. Defendant put his arm around her neckand placed what she thought was a knife to her throat. Defendant
told her, “Don't look at me or I'll slit your f***ing throat.”
Defendant led her into the bedroom and told her to lay down on the
bed. He then removed her underwear and told her to take off the
rest of her clothes. After removing his clothes, defendant had
sexual intercourse with the victim, during which he told the victim
that he could easily kill her, would not hurt her kids, and had
easily gotten into her house.
Defendant then asked the victim to turn on the lights and
instructed her to turn around and look at him. Next he asked her
to again lay down and began to fondle her breasts. When the
victim's eight-month-old daughter started crying, defendant told
the victim to get up and take care of her. Defendant followed the
victim while she put her daughter back to sleep. He then forced
her back into the bedroom. The victim informed defendant that she
had taken some medicine to help her sleep and that she was tired.
The victim “begged [defendant] not to [have sex again]”, but
defendant told her to “hush” and once again stated how easily he
could kill her. Defendant instructed the victim to lay down on the
bed and then had sexual intercourse with her a second and third
time.
Afterward, defendant told the victim several times that he
knew that she was going to call the law. He told her that she
“better tell them to come straight, because [his] whole family
[would] be shooting.” He reiterated how easily he had entered the
victim's house by prying her doorlock open with a knife. After thevictim swore not to call the police, defendant left the house. The
victim dressed, turned off the lights in her house, and waited for
fifteen minutes before waking her two children and going to her
neighbor's to call the police.
After Deputy McGee (“McGee”) and Deputy Pate (“Pate”) arrived,
the victim informed them defendant had broken into her house and
raped her. McGee examined the lock on the victim's back door and
discovered marks indicating someone had pried it open. McGee
escorted the victim to Scotland Memorial Hospital where Dr. Robert
Zadi, the attending physician, prepared a rape kit. Officer
Lemmond, who arrived at victim's residence subsequent to McGee and
Pate, later obtained blood samples from defendant and a comparison
of DNA by a State Bureau of Investigation expert revealed the DNA
obtained from the victim “matched” that of defendant.
At trial, over defendant's objection, the State's witness, a
Scotland County Deputy Clerk (“the Clerk”), read a portion of a
trial transcript from a previous trial in which defendant was tried
for the rape of Teresa Donnell Parker (“Parker”). After reading
these portions of the transcript into the record, the Clerk, over
defendant's objection, also read that the defendant had been
convicted of second-degree rape, and included the case number of
the conviction as well as defendant's date of birth. Subsequently,
defendant's conviction was admitted into evidence. The trial court
gave the requested instruction to the jury that the conviction was
only being received in evidence for the purpose of showing
identity, motive, intent, or purpose and not to show defendant hada propensity to commit certain offenses. Defendant did not
testify.
The jury returned verdicts of guilty of first-degree rape and
first-degree burglary. During the sentencing phase of the trial,
the State proffered defendant's following prior convictions:
attempted first-degree burglary, second-degree burglary, assault
inflicting serious injury, attempted escape from the North Carolina
Department of Correction, breaking and entering, second-degree
rape, and assault on a government officer. Based on defendant's
convictions, the judge calculated his prior record level as a level
four. The State then presented testimony from the victim that, as
a result of defendant's attack, she had trouble sleeping, had
nightmares, developed a drug and alcohol addiction, and received
mental health treatment. The State also directed the trial court's
attention to the following: (1) the young ages of the victim's
minor children, who were present in the house at the time of the
crimes; (2) the evidence of defendant's kidnapping of the victim;
and (3) the evidence of defendant raping the victim three separate
times.
Regarding the first-degree rape conviction, the trial court
found as aggravating factors that defendant (1) inflicted serious,
permanent, and debilitating injury on the victim and (2) raped the
victim three separate times during the attack. Regarding the
first-degree burglary conviction, the trial court found as an
aggravating factor that defendant committed the crime while the
victim's two young children were in the house. As mitigatingfactors applicable to both convictions, the trial court found that
defendant supported his family and had a community support system.
The trial court determined that the aggravating factors outweighed
the mitigating factors and sentenced defendant in the aggravated
range for both convictions. The trial court sentenced defendant
consecutively to (1) a minimum of 480 to a maximum of 585 months in
the custody of the North Carolina Department of Correction for the
first-degree rape conviction and (2) a minimum of 146 months to a
maximum of 185 months in the custody of the North Carolina
Department of Correction for the first-degree burglary conviction.
Defendant appeals.
In his first assignment of error, defendant asserts that the
trial court committed reversible error under State v. Wilkerson,
356 N.C. 418, 571 S.E.2d 583 (2002) by permitting the Clerk to
impeach defendant's credibility with a prior conviction when the
defendant did not take the stand and testify. “In order to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the
context.” N.C. R. App. P. 10(b)(1) (2005). “Failure to object at
trial is normally held to constitute a waiver of the error.” State
v. Jordan, 49 N.C. App. 561, 568, 272 S.E.2d 405, 410 (1980).
Where a defendant waives the error by failing to object, he may
nonetheless assert the alleged error as “the basis of an assignment
of error where the judicial action questioned is specifically anddistinctly contended to amount to plain error.” N.C. R. App. P.
10(c)(4) (2005). However, where defendant fails to assert plain
error in his assignments of error, he in not entitled to plain
error review. State v. Wilson, 158 N.C. App. 235, 240, 580 S.E.2d
386, 389 (2003).
During the trial, the Clerk read into evidence a portion of a
trial transcript from a previous trial in which defendant was tried
for the rape of Parker. Defendant objected “unless there's a
limiting instruction so the jury's aware that it is to - as to this
matter - [sic] for the purpose of this matter being entered.” The
Court proceeded to give a limiting instruction addressing the
purpose for which the evidence could be considered. After reading
the transcript into evidence, the Clerk was asked: “Would you tell
the jury for what this defendant was convicted” in the previous
trial. The Clerk responded “...second degree rape.” Defendant's
attorney objected “for the same reasons stated earlier.” The trial
court overruled defendant's objection and at the request of
defendant, repeated the same limiting instruction to the jury
regarding defendant's prior conviction, by explaining to the jury
that the Clerk's testimony was being introduced, not to show
defendant had a propensity to commit certain offenses, but for the
limited purpose of showing identity, motive, intent or existence in
the mind of defendant of a common plan or scheme.
Defendant presented no other objections to the trial court.
In short, defendant asked for and received limiting instructions;
no further action by the trial court was sought. The trial courtfulfilled defendant's requests and cautioned the jury by
specifically repeating the same limiting instruction twice.
Defendant thus did not properly preserve this issue for appellate
review under N.C. R. App. P. 10(b)(1). Further, defendant is not
entitled to plain error review because he failed to include a
specific allegation in both his assignments of error and his brief
to this Court that the trial court committed plain error.
The defendant next assigns as error that the trial court
sentenced him in the aggravated range without the finding of the
existence of aggravating factors by a jury in violation of Blakely
v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). We agree.
In State v. Allen, our Supreme Court considered the applicability
of Blakely to North Carolina's Structured Sentencing Act, and held
that “those portions of N.C.G.S. § 15A-1340.16(a), (b), and (c)
which require trial judges to consider evidence of aggravating
factors not found by a jury or admitted by the defendant and which
permit imposition of an aggravated sentence upon judicial findings
of such aggravating factors by a preponderance of the evidence
violate the Sixth Amendment to the United States Constitution.”
Allen, 359 N.C. 425, 438-39, 615 S.E.2d 256, 265 (2005).
Furthermore, the Court held that “the harmless-error rule does not
apply to sentencing errors which violate a defendant's Sixth
Amendment right to jury trial pursuant to Blakely. Such errors are
structural and, therefore, reversible per se.” Id. at 449, 615
S.E.2d at 272. Because the trial court sentenced defendant in theaggravated range after finding factors in aggravation based on a
preponderance of the evidence, we remand for resentencing.
No error at trial. Remanded for resentencing.
Judges ELMORE and GEER concur.
Report per Rule 30(e).