An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 18 July 2006
STATE OF NORTH CAROLINA
No. 04 CRS 1849
ERVIN DWIGHT HALL, JR.
Appeal by defendant from judgment entered 3 March 2005 by
Judge William C. Gore, Jr. in Columbus County Superior Court.
Heard in the Court of Appeals 8 March 2006.
Attorney General Roy Cooper, by Solicitor General Christopher
G. Browning, Jr., for the State.
Sue Genrich Berry for the defendant-appellant.
Ervin Dwight Hall (defendant) was indicted on one count of
second degree rape. The State's evidence at trial tended to show
the following: Camellia Goodwin (Camellia) provided in-home nursing
services for Mr. Wendell Murphy beginning on 17 February 2004.
Camellia bathed and fed Mr. Murphy, washed his clothes and bed
linens, and cleaned his living area. Mr. Murphy lived with three
of his relatives: Zelphia Hall, Mr. Murphy's sister, Zelphia's
husband Ervin Dwight Hall, Sr., and defendant, their 48-year-old
On 23 February 2004 Camellia was finishing up her work at the
house when she heard defendant tell her to come here a minute.
Camellia testified that she checked on Mr. Murphy to see if he wasin distress and then asked defendant, What is it? Defendant
grabbed her arm and pulled her into a bedroom. He then pinned her
on the bed and pulled down her pants. Defendant then forced her to
have intercourse with him. She yelled Stop repeatedly and hit
defendant in an effort to escape. Camellia testified that she was
in shock as she left the house. While driving away in her car,
Camellia called her supervisor Juanita Goodwin (Juanita) at Liberty
Nursing Services. Juanita advised Camellia to pull her car over a
safe distance away from the house and wait for the police to
Juanita testified that she received a call from Camellia on 23
February 2004 and that Camellia stated she had been raped. Juanita
called the police and also sent an employee of Liberty Nursing
Services to check on Camellia. Janice Evans, a co-worker of
Camellia, testified that she was directed by Juanita to drive to
where Camellia was parked. When Ms. Evans reached Camellia, she
found her in tears.
Officer Glenda George of the Whiteville Police Department
(WPD) testified that she interviewed Camellia on 23 February 2004
at Columbus County Hospital. Camellia gave a statement to Officer
George in which she said that defendant had raped her. Officer
George testified that Camellia was timid and withdrawn during the
WPD Officer Jeff Nealy testified that he responded to a report
of a sexual assault on 23 February 2004. Officer Nealy arrived in
a marked police vehicle. He stated that after the police knockedon the door of the house for 35 to 45 minutes, defendant finally
answered the door. Defendant was transported to the WPD. After
being given a Miranda warning, defendant gave a statement to
Officer Andre Jackson. Defendant asserted that he and Camellia
were playing and touching each other before they had sex.
Defendant also provided two written statements to officers. The
first statement was written by Officer Jackson and signed by
defendant. A second statement was written by defendant in his own
handwriting. Defendant wrote that I was sitting on bed and she
stood over me and we started talking and next we started having
sex. No force whatsoever.
Defendant conceded at trial that he had sexual intercourse
with Camellia on the morning of 23 February 2004. The trial court
instructed the jury that it could consider this admission in its
deliberations. Defendant presented no evidence. The jury returned
a guilty verdict on the charge of second degree rape. Defendant
was sentenced to a minimum term of 90 months and maximum term of
117 months imprisonment. From the judgment entered on his
conviction for second degree rape, defendant appeals.
By his first assignment of error, defendant asserts that the
trial court abused its discretion in allowing the victim to testify
that she was unable to sleep and could not continue to work as a
home nursing aide following the rape. On cross-examination of
Camellia, defense counsel inquired into whether she had been
treated by a mental health professional: Q. Have you gone to the Doctor since the day -
- about these incidents since the day you went
to the emergency room?
Q. Have you been to a psychologist?
A. I have been to see a counsellor, yes.
Q. Okay. Where was that counsellor?
A. Families First.
Q. Okay. So, that counsellor is here in the
A. Yes, she is.
Q. Okay. But other than at Families First,
have you been to see a licensed psychologist,
or a licensed psychiatrist?
A. No, I haven't.
Q. And other than today, or other than when
this case started, have you -- have you --
when is the last time you saw them, the lady
from Families First whose with you today?
A. Probably two months ago.
Q. Two months ago.
Then, on re-direct, the State elicited testimony from Camellia
regarding her psychological state following the incident:
Q. Camellia, can you tell the members of the
jury how your life has changed since February
MR. LEE: Objection.
THE COURT: Overruled.
A. First of all, I had to drop out of school.
I could not function in a class room every
day. I could not function at work. I haven't
held down a home health job since. I did try
to go back to work for Liberty Nursing
Services and was having some problems withgoing in homes with family members present.
So, past that, maybe, second attempt, couldn't
Like I said, I dropped out of nursing school.
I am in the process of trying to go back,
taking some classes and I'm looking into
getting back this fall. I just sorta had to
drop everything. Everything as been on hold
Q. I'm sorry.
A. Everything sorta been on hold since then.
Q. And why is it that you couldn't focus at
school and being in a job where there were
family members present?
MR. LEE: Objection.
Q. You can explain that, I mean.
THE COURT: Overruled. You may answer ma'am.
A. Because I didn't know if something like
this could happen again. At first part you
don't think about something like this
happening. I mean, we all work, I mean, I
could fairly say that most of us work, and you
don't go to work thinking that something like
this could happen to you. So of course, its
going to change our outlook on everybody after
that. I mean, as far as doing the same job
And as far as school, its just my nerves.
I've been on depression medicine. I have
several prescriptions that I have been on. I
have been on sleeping medicine because I
couldn't sleep right after it happened. Those
I had to gradually come off of. Its just a
lot I had to deal with. So, I couldn't
function in school.
Defendant contends that the trial judge's ruling to allow the
victim to testify to the changes in her life allowed an
inflammatory victim impact statement to be presented to the jury.
He argues that this testimony was not relevant to any element ofthe offense or any sentencing issue appropriate for jury
consideration. However, the questions of the prosecutor must be
viewed in the context of the questions posed by defense counsel on
cross-examination. On re-direct examination of a witness, a party
may question that witness as to new matters elicited on cross-
examination. See State v. Weeks, 322 N.C. 152, 169, 367 S.E.2d
895, 905 (1988) (citing 1 Brandis on North Carolina Evidence § 36
(1982)). Additionally, the State may, on re-direct examination,
rebut issues raised on cross-examination by defense counsel. See
State v. Taylor, 344 N.C. 31, 44, 473 S.E.2d 596, 603 (1996).
Here, defense counsel questioned Camellia as to whether she
had sought the services of a licensed psychiatrist following the
alleged rape. A review of the record shows that this issue of
whether the victim had sought professional mental health services
was raised for the first time on cross-examination. To rebut the
implication that the victim was not traumatized enough to require
the services of a psychologist or psychiatrist, the State asked the
victim about the interruptions in her daily life and work caused by
the incident with defendant. Thus, the State properly elicited
testimony from Camellia concerning her psychological state during
this time frame when she consulted a family counselor but not any
other mental health professional.
Defendant contends that, in addition to being irrelevant, the
testimony of Camellia on her emotional state and life changes since
the incident was unfairly prejudicial and should have been excluded
under Rule 403 of the North Carolina Rules of Evidence. See N.C.Gen. Stat. § 8C-1, Rule 403 (2005). We cannot say, however, that
the trial court abused its discretion in determining that the
probative value of this testimony was not substantially outweighed
by its prejudicial effect. See State v. Campbell, 359 N.C. 644,
672-73, 617 S.E.2d 1, 19 (2005) (determination of whether to
exclude evidence under Rule 403 is reviewed for abuse of
discretion; trial court's decision will be upheld unless manifestly
unsupported by reason). Although evidence of the victim's
emotional state later in the day of the alleged rape was admitted
through her own testimony and the testimony of her co-worker, Ms.
Evans, the defense counsel opened the door to further testimony on
her psychological state by raising the issue of psychological
counseling services. Defendant's assignment of error is overruled.
Next, defendant asserts that he was denied effective
assistance of counsel as a result of defense counsel's opening
statement at trial. The record reveals that defense counsel
referenced the challenged opening statement during a voir dire
discussion at trial. Defense counsel remarked, I made a statement
to the jury that the Defendant would testify to certain things . .
. in [the] opening statement[.] However, as opening statements
were not recorded, there is no record of the substance of defense
counsel's remarks during the opening statement. Defendant asserts
that defense counsel should have known, after the trial court
granted his pre-trial motion to suppress a statement made to a WPD
officer, that this statement would be admissible for the purpose ofimpeachment if defendant took the stand to testify. Therefore,
defendant asserts, the remark during opening statements that
defendant would testify at trial constituted a deficient
performance that prejudiced defendant before the jury. See State
v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985); Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984).
Before this Court considers an ineffective assistance of
counsel claim raised on direct appeal, we must be satisfied that
the record is sufficient such that the claim may be resolved
without resort to additional procedures. [Ineffective assistance
claims] brought on direct review will be decided on the merits when
the cold record reveals that no further investigation is required,
i.e., claims that may be developed and argued without such
ancillary procedures as the appointment of investigators or an
evidentiary hearing. State v. Fair, 354 N.C. 131, 166, 557 S.E.2d
500, 524 (2001). Here, there is no transcript of the opening
statement made by defense counsel. We cannot ascertain, absent an
evidentiary hearing or further investigation beyond the record,
what the defense counsel's strategy was in making the statements
challenged on appeal. Therefore, we dismiss defendant's claim of
ineffective assistance of counsel without prejudice to defendant's
right to raise this claim in a motion for appropriate relief. See
id. at 167, 557 S.E.2d at 525; see also State v. al-Bayyinah, 359
N.C. 741, 752-53, 616 S.E.2d 500, 509-10 (2005).
By his next assignment of error, defendant challenges the
testimony of Officer Jeff Nealy regarding the circumstances of
defendant's arrest. Officer Nealy testified that at the time he
responded to the Hall residence, he knocked on the door and heard
movement in the house but did not get an answer. Defendant cites
no case law in his argument to this Court, but he contends that
this testimony should have been excluded because it was unfairly
Foremost, we note that the testimony concerning the
circumstances of defendant's arrest in close time proximity to the
alleged crime was relevant to the jury's consideration of
defendant's state of mind. See State v. Mason, 337 N.C. 165, 172,
446 S.E.2d 58, 62 (1994) (Details concerning a defendant's arrest
may be relevant to prove a number of facts, including defendant's
knowledge of his own guilt.). We review the trial court's ruling
to admit this testimony under Rule 403 for an abuse of discretion.
Campbell, 359 N.C. at 672-73, 617 S.E.2d at 19. Officer Nealy
testified that he arrived in a marked police vehicle. He knocked
on the door of the residence and could hear footsteps inside. This
testimony tended to show that defendant was hesitant to submit to
questioning by the police and relevant to the jury's consideration
of his guilt. See Mason, 337 N.C. at 172, 446 S.E.2d at 62 (the
defendant's hesitation to submit to arrest was relevant to the
jury's determination of his guilt). We hold that the trial court
did not abuse its discretion in admitting this testimony by Officer
Next, defendant assigns error to the trial court's ruling to
admit the testimony of Juanita Goodwin concerning the reason why
Mr. Murphy, defendant's uncle, was no longer a patient of Liberty
Q. And after February 23rd, 2004, did he
still, was he still a patient of Liberty
A. No, ma'am.
Q. And why was that?
MR. LEE: Objection.
THE COURT: Overruled.
A. We felt that because of the incident that
we were, could not put another staff member
back in that home situation.
MR. LEE: Move to strike.
THE COURT: Denied.
Defendant asserts that this testimony by Juanita Goodwin improperly
vouched for the veracity of the victim, citing State v. Robinson,
355 N.C. 320, 561 S.E.2d 245 (2002). In Robinson, one witness was
allowed to testify as to the credibility of another witness.
Specifically, the defense counsel asked a witness, But, if he [the
detective] testified that you told him that, he would be telling
the truth, wouldn't he, Ms. Baker? Id. at 334, 561 S.E.2d at 254.
The defense counsel asked a different witness, And, if Jesse Hill
testified that he saw you at 6:00 on Monday afternoon, he would be
mistaken then? Id. The trial court sustained the State's
objections to both of these questions. The Supreme Court held thatsuch testimony is not rationally based on the perception of the
witness or helpful to the trier of fact under North Carolina Rule
of Evidence 701. Id. at 334, 561 S.E.2d at 255.
The holding of Robinson is simply inapplicable to the facts of
the instant case. Here, the prosecutor's question to Juanita
Goodwin did not direct her to comment on the credibility of another
witness. Rather, the question directed the witness to explain why
the relationship between Liberty Nursing Services and defendant's
family had terminated. Defendant's challenge to the testimony of
Juanita Goodwin under the Robinson decision is without merit.
Next, defendant argues that Juanita Goodwin's testimony that
Camellia's time sheets were signed by Zelphia Hall and showed that
Camellia was on time the morning of 23 February 2004 was improperly
admitted hearsay. We do not reach the merits of defendant's
argument, as he has not properly preserved this issue for appellate
review. Defendant made only a general objection to the testimony
before the trial court; he failed to state an objection on the
basis of hearsay. The trial court overruled the objection. As
such, his hearsay argument on appeal has not been preserved. See
N.C.R. App. P. 10(b)(1) (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.); State v. Buff, 170
N.C. App. 374, 378, 612 S.E.2d 366, 370 (2005) (where the defendantmade general objection overruled by the trial court, his argument
regarding hearsay testimony was not preserved for review).
Finally, defendant contends that the testimony of Juanita
Goodwin concerning Camellia's job performance was improper
character evidence. The following questions by the prosecutor were
properly objected to and preserved for appellate review:
Ms. Goodwin, you say that Cameilla has
worked for Liberty Nursing Services for, I
believe you said for almost as long as you've
A. Uh, huh.
Q. And that's been?
A. It's been four years.
Q. Four years. Have you ever known her to
leave her duty station if you will, without
MR. LEE: Objection.
THE COURT: Overruled.
MR. LEE: Judge, I'm citing Rule 608.
THE COURT: Overruled. You can cross examine
her about the basis of her knowledge.
. . .
Q. In the four years that you've known
Cameilla and she's worked for Liberty Nursing
Services, have you ever heard any complaints
made about her?
MR. LEE: Objection.
THE COURT: Overruled.
A. No, I haven't.
Again, the questions by the prosecutor must be viewed in the
context of the questions elicited on cross-examination by defense
counsel. This is because [a] defendant's cross-examination of a
State's witness can open the door for the State to introduce
evidence in rebuttal. State v. McKinnon
, 328 N.C. 668, 673-74,
403 S.E.2d 474, 477 (1991) (citations omitted). During cross-
examination of Camellia, defense counsel suggested to the jury that
Camellia fabricated the rape in order to cover for her tardiness
that day and keep out of trouble with her supervisor:
Q. Ms. Hall had not expressed some
dissatisfaction with your promptness?
A. Not to me, no, she didn't. Nor to my
supervisor, because had she, my supervisor
would have brought it to my attention.
Q. Okay. But you had only been there six
A. Yeah, that was the sixth day.
Q. You were worried about Ms. Hall telling
your supervisor something, weren't you?
A. I wasn't.
Q. You were hopeful that [defendant] could do
something to keep you out of trouble, weren't
A. No, I wasn't.
Juanita Goodwin's testimony that she had not received any
complaints about Camellia's work performance from patients or their
families and that Camellia was not known to have ever left work
while on duty was proper rebuttal of defendant's questioning of
Camellia. Even though this testimony on Camellia's favorable workperformance may not have been admissible if offered initially by
the State, it was proper as rebuttal of defendant's cross-
examination of Camellia. See id.
; State v. Albert
, 303 N.C. 173,
177, 277 S.E.2d 439, 441 (1981). Defendant's assignment of error
We have reviewed defendant's remaining assignments of error
and determined that they are without merit.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
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