An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA05-1097


Filed: 18 July 2006


v .                         Columbus County
                            No. 04 CRS 1849

    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.

    ELMORE, Judge.

    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 son.
    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 arrive.
    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 interview.
    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?

        A. No.

        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 courtroom today?

        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 23rd, 2004?

        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 go back.

        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 since.

        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 again.

        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 prejudicial.
    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 Nealy.
    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 Nursing Services:
        Q. And after February 23rd, 2004, did he still, was he still a patient of Liberty Nursing Services?

        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:
        Q. Ms. Goodwin, you say that Cameilla has worked for Liberty Nursing Services for, I believe you said for almost as long as you've been there?

        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 permission?

        A. No.

        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. Overruled.

        . . .

        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 days, right?

        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 you?

        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 is overruled.
    We have reviewed defendant's remaining assignments of error and determined that they are without merit.
    No error.
    Judges STEELMAN and JACKSON concur.
    Report per Rule 30(e).

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