Opinion
No. COA14–947.
04-21-2015
STATE of North Carolina v. Michael Thurman HALL.
Attorney General Roy Cooper, by Special Deputy Attorney General Laura E. Crumpler, for the State. Mark Montgomery, for defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Laura E. Crumpler, for the State.
Mark Montgomery, for defendant.
McCULLOUGH, Judge.
Defendant Michael Thurman Hall appeals from his convictions of three counts of first-degree sexual offense with a child under the age of thirteen. For the reasons stated herein, we find no plain error.
I. Background
On 18 January 2013, defendant was charged by superseding indictment with nine (9) counts of first-degree sexual offense with a child under the age of thirteen, in violation of N.C. Gen.Stat. § 14–27.4(a)(1).
Defendant's trial commenced at the 31 March 2014 criminal session of Cherokee County Superior Court, the Honorable Jeffrey P. Hunt, presiding. At the time of trial, Rose was thirty-six (36) years old. Rose's date of birth is 15 April 1977. When Rose was eight (8) years old, her mother and father divorced and she moved from Ohio to Murphy, North Carolina with her mother.
Pseudonyms have been used throughout the opinion to protect the identity of the victim who was a minor at the time of the commission of the offenses.
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Evidence presented at trial indicated that in 1986, Rose's mother began dating defendant. Rose, her mother, and Rose's two brothers moved in with defendant. Rose's mother worked for a local newspaper and on Wednesdays, she would work later than normal. Sometime in late 1986 through 1987, half-way through Rose's third grade year, Rose was the only child in the house. When her mother would work late, defendant usually cared for Rose at home. Rose testified that when she was approximately nine (9) years old, defendant
Would ask me to pull down my pants so he could check to see if I had started my period, and then he would touch me.
....
I would be in the living room and he would be sitting in the chair next to the picture window, and he would tell me to pull down my pants so he could check me, and then he would put his finger inside of me and check, and then he would remove it and wipe it off on his pants and then have me sit on his lap after I pulled my pants back up.
While Rose was sitting on defendant's lap, she “could feel an erection [.]” Rose testified that these incidents happened from the age of nine (9) to twelve (12) “[p]retty regularly. Just normally on Wednesdays when my mother was out of the house.” Rose did not tell her mother what was happening because she felt “ashamed and violated.” She “knew that it was wrong, but I didn't really understand it, full depth of it.”
During the time that Rose lived with her mother in North Carolina, she would return to Ohio every summer to have visitation with her father. Rose told her father that she “wanted to stay, I didn't want to go back” to North Carolina. At age twelve (12), Rose moved to Ohio to live with her father. Rose informed her aunt and her father about the incidents with defendant when she was twelve (12) and thirteen (13) years old, respectively. Rose's aunt testified that Rose told her that defendant “liked to tickle her” in order “to find out if she had started her period yet.”
Rose's mother testified that she met defendant in 1986 and married him the following year. In 1998, Rose informed her mother that defendant had “molest[ed] her on Wednesdays. He was checking to see if she was having her period.” Rose's mother was married to defendant at that time. Planning to confront defendant, Rose's mother retrieved a shotgun and sat in a chair, waiting for defendant to come home. Once defendant arrived, Rose's mother testified that defendant cried, apologized, and admitted that he “had been inappropriate with” Rose and “[t]hat he was sorry, that God had forgiven him, and I had to forgive him also.”
Russell Conner, an investigator with the District Attorney's office, testified that he interviewed Rose in January 2010. Rose had informed him that when she was around the age of nine (9), defendant would “put his fingers inside her vagina” and “check her for her period.” Conner spoke to Rose again in October 2013 and her statements regarding defendant were consistent with the statements made during the first interview.
Michael Culbertson, a Special Agent with the North Carolina State Bureau of Investigation (“SBI”), testified that in March 2010, he assisted an agent in conducting an interview of defendant. Culbertson testified that defendant volunteered a statement that he did not remember anything regarding Rose's allegations and thereafter, requested to speak with an attorney.
Defendant did not offer any evidence at trial.
On 2 April 2014, a jury found defendant guilty on three counts of first degree sexual offense. In case number 10 CRS 050376, defendant was sentenced to a term of life imprisonment. In case number 10 CRS 050377, defendant was sentenced to a term of life imprisonment, to run consecutive to the sentence in 10 CRS 050376. In case number 10 CRS 050378, defendant was sentenced to a term of life imprisonment, to run concurrent with the sentence in 10 CRS 050377. Defendant appeals.
II. Standard of Review
On appeal, defendant concedes that he made no objection to the challenged testimony, closing argument, and jury instruction at trial. Therefore, we consider only whether the trial committed plain error. N.C. R.App. P. 10(a)(4) (2014).
“A reversal for plain error is only appropriate in the most exceptional cases.” State v. Raines, 362 N.C. 1, 16, 653 S.E.2d 126, 136 (2007) (citation omitted).
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and quotation marks omitted).
III. Discussion
Defendant presents two issues on appeal. First, defendant argues that the trial court erred by allowing (A) SBI Special Agent Brent Culbertson to testify that defendant invoked his right to remain silent and his right to counsel and by allowing the prosecutor to argue that defendant's silence was an admission of guilt. In his second argument, defendant contends that the trial court erred by (B) using the term “victim” in the jury charge.
A. Testimony and the State's Closing Argument
Defendant argues that the trial court committed plain error by allowing Special Agent Michael Culbertson to comment on defendant's exercise of his right to remain silent and right to counsel and allowing the prosecutor to argue that defendant's exercise of his right to remain silent “was an admission of guilt.”
It is well established that “a defendant's exercise of his constitutionally protected rights to remain silent and to request counsel during interrogation may not be used against him at trial.”State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994) (citation omitted). “Except in certain limited circumstances, any comment upon the exercise of [the right to remain silent], nothing else appearing, [is] impermissible. An improper adverse inference of guilt from a defendant's exercise of his right to remain silent cannot be made, regardless of who comments on it.” State v. Moore, 366 N.C. 100, 105, 726 S.E.2d 168, 172 (2012) (citations and quotation marks omitted).
At trial, SBI Special Agent Michael Culbertson testified that prior to conducting an interview of defendant on 10 March 2010, he advised defendant of his rights by using a form composed by the SBI. After defendant waived his rights, their conversation began. The portion of Special Agent Culbertson's testimony that defendant challenges is as follows:
[The State:] Okay. And at some point did the interview or did you all ask [defendant] point blank what had happened?
[Culbertson:] I don't recall if we asked him personally what took place, but he volunteered a statement to us.
[The State:] Okay. What did he say?
[Culbertson:] He responded, “I know that you want me to tell you the truth, but I”, and he stammered at that point.
[The State:] When you say, “stammered”, what do you mean?
[Culbertson:] He said, “I know you want me to tell you the truth, but I, I, I just can't remember.”
[The State:] Is that all the information that he gave to you as a statement as to regarding the allegations of [Rose?]
[Culbertson:] After that point he requested to speak with an attorney.
Defendant also challenges the following portion of the prosecutor's closing argument:
And the only statement he's ever made about this allegation to law enforcement is, “I know you want me to tell you the truth”, and sits there and thinks about it and says, “but I can't remember”. That's it. Doesn't say he doesn't do it. Doesn't adamantly deny it, doesn't do anything. I just can't remember.
Assuming arguendothat the challenged portions of Special Agent Culbertson's testimony and the prosecutor's closing argument constituted an improper comment on defendant's exercise of his right to remain silent and right to counsel, the issue before us is whether the trial court's failure to intervene ex mero motuamounted to plain error. Defendant argues that the challenged testimony and closing argument “had the probable effect of making him appear guilty for not talking to the authorities.” We disagree.
A thorough review of the record reveals that substantial evidence of defendant's guilt was presented by the State. See Moore, 366 N.C. at 108, 726 S.E.2d at 174 (citation omitted) (stating that “[s]ubstantial evidence of a defendant's guilt is a factor to be considered in determining whether the error was a fundamental error rising to plain error”). Rose testified that from the age of nine (9) to twelve (12) defendant, on numerous occasions, would insert his finger into her vagina. Rose's aunt, Rose's mother, and investigator Russell Conner corroborated Rose's testimony of her encounters with defendant. Conner testified that Rose's accounts in two separate interviews were consistent. Rose's mother also testified that defendant admitted to her that he “had been inappropriate” with Rose. Based on the foregoing evidence, we conclude that any error that may have occurred at the time Special Agent Culbertson and the prosecutor made references to defendant's right to remain silent and right to counsel did not amount to plain error, as it did not have a probable impact on the jury's finding of defendant's guilt.
B. Use of the Term “Victim”
Next, defendant argues that the trial court committed plain error by describing the complaining witness as the “victim” in its use of the pattern jury instructions on first-degree sexual offense with a child under the age of thirteen. Defendant contends that use of the term “victim” amounts to a judicial opinion on the evidence.
The trial court instructed the jury that in order to find defendant guilty of first-degree sexual offense with a child under the age of thirteen, the State must prove three things beyond a reasonable doubt: (1) “that the defendant engaged in a sexual act with the victim[;]” (2) “that at the time of the acts alleged, that the victim was a child under the age of 13[;]” and (3) “that at the time of the alleged offense, the defendant was at least 12 years old and was at least four years older than the victim.”
We find a recent case decided by the North Carolina Supreme Court to be controlling. In State v. Walston,––– N.C. ––––, 766 S.E.2d 312 (2014), the defendant challenged the trial court's use of the pattern jury instruction for first-degree sexual offense with a child under the age of thirteen that includes the term “victim.” Id.at ––––, 766 S.E.2d at 317. The WalstonCourt noted that “we have often approved of jury instructions that are consistent with the pattern instructions” and that “[t]he term ‘victim’ appears frequently in our state's pattern jury instructions .” Id.at ––––, 766 S.E.2d at 319. Citing to precedent in State v. Hill, 331 N.C. 387, 417 S.E.2d 765 (1992) and State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997), the WalstonCourt held that the trial court did not err in using the term “victim” in the pattern jury instructions to describe the complaining witness. Accordingly, we hold the same as the WalstonCourt and reject defendant's arguments.
IV. Conclusion
We hold that the defendant received a trial free from plain error.
NO PLAIN ERROR.
Chief Judge MCGEE and Judge CALABRIA.
Report per Rule 30(e).
Opinion
Cherokee County, No. 10 CRS 50376–78.
Appeal by defendant from judgments entered 2 April 2014 by Judge Jeffrey P. Hunt in Cherokee County Superior Court. Heard in the Court of Appeals 5 January 2015.