Opinion
NO. COA12-913
01-15-2013
STATE OF NORTH CAROLINA v. JIMMY RAY LEMONS
Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State. Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Duplin County
Nos. 11 CRS 51495, 51893
Appeal by Defendant from judgments entered 25 April 2012 by Judge Phyllis M. Gorham in Duplin County Superior Court. Heard in the Court of Appeals 12 December 2012.
Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
This appeal arises from Defendant Jimmy Ray Lemons's convictions for assault on a female, sexual battery, attempted second-degree rape, and first-degree kidnapping. The trial court sentenced Defendant to active terms of 75 days on the assault on a female and sexual battery convictions, and 104 to 134 months on the first-degree kidnapping conviction. The court arrested judgment on the attempted second-degree rape conviction. Defendant appeals.
During jury selection, Defendant raised a Batson challenge, noting that the State had exercised four peremptory challenges, striking three out of five African-American males and one of two African-American females from the venire. Following a hearing, the trial court held that Defendant had failed to make a prima facie showing of racial discrimination in the jury selection process and overruled Defendant's objection to the State's peremptory challenges.
At trial, the evidence pertinent to this appeal tended to show the following: On the night of 24 June 2011, Defendant, forty-five years old at the time, had been drinking at the home of an acquaintance when he decided to walk home. Eighty-seven-year-old "Betty" testified that Defendant knocked on her door late that night and said he had come by "to read the Bible" with her. Betty responded that she did not read the Bible at night, and Defendant then grabbed Betty's "private" and entered Betty's kitchen. Betty asked Defendant what he was doing, and Defendant responded, "I don't drink; don't drink." Defendant then turned off the kitchen lights and pushed Betty down. Defendant continued to talk about needing a Bible and then asked to use the bathroom. After using the bathroom, Defendant returned and grabbed a telephone away from Betty, throwing it to the floor. He then took Betty to her bedroom, pulled Betty's pants down and crawled on top of her, trying to "take" her. Defendant never completed any sexual acts before leaving Betty's home.
Pseudonyms are used to protect the identity of the victim.
During her trial testimony and particularly on cross-examination, Betty often seemed to misunderstand questions or to be confused. Following the testimony of Betty and two other witnesses for the State, Defendant moved to strike Betty's testimony on the basis that her "inability to speak intelligibly and her inability to respond to direct questions" deprived Defendant of his right to confront a witness against him under the Sixth Amendment to the United States Constitution. When asked by the trial court if he would like additional cross-examination of Betty, Defendant said that he would. However, after hearing arguments from the State, the trial court denied Defendant's motion and Betty was never recalled to the stand.
Betty's grandson testified that Defendant told him someone must have put something in his drink and that he did not know what had happened with Betty. A police officer testified that Defendant had given a statement in which he again claimed that someone had put something in his drink and that he could recall nothing about the night when the crimes occurred.
Defendant testified on his own behalf. He explained that he and his wife had gone to a friend's house at about 8:30 p.m. At some point, Defendant's wife went home, but Defendant remained, "drinking and stuff," until about 11:40 p.m. when his head began hurting. Defendant stated that, as he began walking home, his head was still hurting and Defendant suspected it was caused by his diabetes. Defendant explained, "And when I got half[-]way through like the gas station, I kind of blinked, blinked, blinked like blinked out a little bit because my sugar was high." Defendant further testified that he had continued walking home and felt nauseated when he arrived. He also insisted that he had never been to Betty's house. Defendant could not recall having reported something being put into his drink.
Discussion
On appeal, Defendant brings forward three arguments: that the trial court (1) erred in holding that he failed to make a prima facie showing in support of his Batson challenge, (2) committed plain error in failing to give an instruction on voluntary intoxication, and (3) erred in denying his motion to strike the complaining witness's testimony. As discussed herein, we find no error.
I. Batson Challenge
Defendant first argues that the trial court erred in holding that he failed to make a prima facie showing in support of his challenge pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). We disagree.
We review a trial court's ruling on a Batson challenge for clear error. State v. Wright, 189 N.C. App. 346, 351, 658 S.E.2d 60, 63, disc. review denied, 362 N.C. 480, 667 S.E.2d 280 (2008). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Furthermore, this standard allows for reversal only when a reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." State v. Cofield, 129 N.C. App. 268, 276, 498 S.E.2d 823, 829 (1998) (citations, quotation marks, and brackets omitted).
In Batson, the United States Supreme Court held that "[p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." 476 U.S. at 86, 90 L. Ed. 2d at 80. Our Supreme Court has summarized the three-step process used to address Batson claims in the trial court:
First, [the] defendant must establish a prima facie case that the peremptory challenge was exercised on the basis of race. Second, if such a showing is made, the burden shifts to the prosecutor to offer a racially neutral explanation to rebut [the] defendant's prima facie case. Third, the trial court must determine whether the defendant has proven purposeful discrimination.State v. Cummings, 346 N.C. 291, 307-08, 488 S.E.2d 550, 560 (1997) (citations omitted), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873 (1998).
To establish a prima facie case,
the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, thatBatson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88 (citations and quotation marks omitted). Facts and circumstances to consider in determining whether a defendant has made a prima facie showing include
peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.
the defendant's race, the victim's race, the race of the key witnesses, questions and statements of the prosecutor which tend to support or refute an inference of discrimination, repeated use of peremptory challenges against blacks such that it tends to establish a pattern of strikes against blacks in the venire, the prosecution's use of a disproportionate number of peremptory challenges to strike black jurors in a single case, and the State's acceptance rate of potential black jurors.State v. Hoffman, 348 N.C. 548, 550, 500 S.E.2d 718, 720 (1998) (citation and quotation marks omitted).
"A showing that more jurors of one race were peremptorily challenged than jurors of another race does not, standing alone, establish a prima facie case of racial discrimination." Cofield, 129 N.C. at 276, 498 S.E.2d at 829. However, although "a numerical analysis of [rates of peremptorily challenged jurors by race] is not necessarily dispositive. . . ., such an analysis can be useful in helping [the appellate court] and the trial court determine whether a prima facie case of discrimination has been established." State v. Barden, 356 N.C. 316, 344, 572 S.E.2d 108, 127 (2002) (citation and quotation marks omitted), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). As acknowledged by Defendant and noted in Barden, our courts "have held that a defendant failed to establish a prima facie case of discrimination where the minority acceptance rate" ranged from 66% down to 37.5%, while concluding that an acceptance rate of only 28.6% did establish a prima facie case. Id. at 344, 572 S.E.2d at 128 (citations omitted). Finally, "the ultimate racial makeup of the jury is relevant" in assessing a Batson challenge. State v. Smith, 328 N.C. 99, 124, 400 S.E.2d 712, 726 (1991) (citation omitted).
Here, Defendant has met the initial threshold showing under Batson, as he, the victim, and several other testifying witnesses are black, and the State used four peremptory challenges to remove black prospective jurors from the venire. As for the factors set forth in Hoffman, Defendant concedes that nothing in the record reveals "questions and statements of the prosecutor which tend to support or refute an inference of discrimination[.]" Hoffman, 348 N.C. at 550, 500 S.E.2d at 720. The only other facts that Defendant asserts support a prima facie case are that the State used peremptory challenges to remove four out of seven black prospective jurors, but did not use peremptory challenges to strike any white prospective jurors. Defendant concedes that acceptance rates for minority jurors as low as 37.5% have survived Batson challenges, see Barden, 356 N.C. at 344, 572 S.E.2d at 128 (collecting cases), and that the acceptance rate here was 42.8%. However, Defendant urges that, in light of the 100% acceptance rate of white prospective jurors, against whom the State used no peremptory challenges, we should hold that Defendant clearly established his prima facie case of racial discrimination and grant Defendant a new trial.
After careful review, we are not "left with the definite and firm conviction" that the trial court erred in finding that Defendant failed to make a prima facie case of purposeful racial discrimination in jury selection. Cofield, 129 N.C. App. at 276, 498 S.E.2d at 829. As noted above, the acceptance rate of black prospective jurors here was well above the rates regularly held insufficient standing alone to establish a prima facie case under Batson. No remarks or questions by the State suggest racial animus in jury selection. Finally, we observe that Defendant's jury was diverse, including seven whites, one Hispanic, three blacks, and one black alternate juror. Thus, the ultimate makeup of Defendant's jury does not support an inference of racial discrimination by the State. Smith, 328 N.C. at 124, 400 S.E.2d at 726. Accordingly, Defendant's Batson argument is overruled.
II. Instruction on Voluntary Intoxication and Ineffective Assistance of Counsel
Defendant next argues that the trial court committed plain error by failing to instruct the jury on voluntary intoxication, or, in the alternative, that his trial counsel's failure to request such an instruction constitutes ineffective assistance. We disagree.
Because Defendant made no objection to the jury instruction at trial, Defendant has not properly preserved this issue for appellate review. N.C.R. App. P. 10(a)(4); State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). Accordingly, Defendant "is entitled to relief only if the instructions [as given] amounted to plain error, which is error so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." Parker, 350 N.C. at 427, 516 S.E.2d at 118 (citation and quotation marks omitted).
Voluntary intoxication may be raised as a defense to charges of attempted rape and first-degree kidnapping. State v. Kyle, 333 N.C. 687, 699, 430 S.E.2d 412, 418 (1993); State v. Lancaster, 137 N.C. App. 37, 44-45, 527 S.E.2d 61, 66-67 (2000). Voluntary intoxication is a viable defense "if the degree of intoxication is such that a defendant could not form the specific intent required for the underlying offense." State v. Golden, 143 N.C. App. 426, 430, 546 S.E.2d 163, 166 (2001).
Evidence of mere intoxication is not enough to meet [the] defendant's burden of production. Before the trial court will be required to instruct on voluntary intoxication, [the] defendant must produce substantial evidence which would support a conclusion by the trial court that at the time of the crime for which he is being tried [the] defendant's mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming [the requisite specific intent].Id. at 430, 546 S.E.2d at 166-67 (citation and quotation marks omitted).
There was evidence at trial that Defendant may have been intoxicated at the time of the crimes charged: Defendant admitted drinking before the crimes. Further, a law enforcement officer testified that, during his investigation of the incident, Defendant told him that someone put "something" in his drink that night and that he couldn't recall anything. Defendant gave a written statement to the same effect.
However, Defendant, in his testimony at trial, did not contend that he had been intoxicated while committing the crimes charged. Instead, Defendant consistently claimed he did not go to the victim's house and attributed his feeling unwell that night to his diabetes, not to intoxication:
Q. So what you're telling the jury today is that you think what happened that night was entirely related to blood sugar?Defendant insisted that he could remember all of the events of the night in question, and that although he felt unwell, he was certain he had not gone to Betty's house.
A. Blood sugar. Yes. My sugar.
In addition, copious evidence suggested that Defendant acted with a clear purpose and intent in carrying out the kidnapping and attempted rape of Betty. Defendant (1) turned off lights in the kitchen and bedroom, (2) pushed Betty into the bedroom and slammed the door, (3) pulled Betty's phone out of the wall and threw it on the ground, (4) said he wanted oral sex, and (5) pulled Betty's pants down, tore off her underwear, threw her on her bed, crawled on top of her, and grabbed her crotch. Defendant also admitted that when he returned home that night, he immediately took a shower. These actions suggest that Defendant had the presence of mind to avoid being seen and prevent Betty from escaping or calling for help during the crimes and to destroy any possible evidence on his body after the crimes. It also suggests that Defendant restrained Betty against her will and intended to have sex with her.
In light of this evidence and Defendant's failure to advance a theory of the case that involved voluntary intoxication, we see no error in the trial court's failure to give an instruction thereon sua sponte. Moreover, we certainly cannot conclude that the jury probably would have found that Defendant's "mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming" the requisite specific intent and, as a result, would have acquitted Defendant had it been instructed on voluntary intoxication. Id. Accordingly, Defendant has failed to show error by the trial court, let alone plain error, and we overrule this argument.
In the alternative, Defendant argues that he received ineffective assistance because his trial counsel failed to request a jury instruction on voluntary intoxication. To establish ineffective assistance of counsel, a defendant must satisfy a two-part test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.State v. Boozer, ___ N.C. App. ___, ___, 707 S.E.2d 756, 765 (2011) (emphasis in original) (citations and quotation marks omitted), disc. review denied, ___ N.C. ___, 720 S.E.2d 667 (2012).
As discussed above, there was not substantial evidence at trial that Defendant's alleged intoxication was so extreme that he was incapable of forming the requisite specific intent to commit the crimes charged. Thus, even had trial counsel requested a voluntary intoxication instruction, the trial court would likely (and properly) have declined to give it. Failing to request a jury instruction that is not warranted by the evidence is not error, much less error rising to the level required to sustain a claim of ineffective assistance. Accordingly, this argument is overruled.
III. Motion to Strike
Defendant's final argument is that the trial court erred in denying his motion to strike Betty's testimony, thereby violating his constitutional right to confront witnesses against him. We disagree.
On appeal, we review constitutional issues de novo. Piedmont Triad Airport Auth. v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332 (2001), cert. denied, 535 U.S. 971, 152 L. Ed. 2d 381 (2002). Further, a violation of a criminal defendant's constitutional rights is presumed prejudicial unless the State carries its burden to show the error was harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b) (2011).
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right "to be confronted with the witnesses against him[.]" U.S. Const. amend. VI; see also N.C. Const. Art. I, § 23 ("In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony[.]"). A defendant carries the burden of showing a "clear denial of this right." State v. Williams, 51 N.C. App. 613, 616, 277 S.E.2d 546, 548 (1981). A "bald assertion" of a confrontation violation, without a more specific showing, is insufficient. Id.
At trial, Betty sometimes seemed confused or flustered while testifying. Defense counsel asked the court to strike her testimony, asserting that her responses precluded meaningful confrontation, and the court initially offered the alternative remedy of another opportunity to cross-examine Betty. Defense counsel agreed. During the ensuing colloquy, defense counsel identified only one question to which Betty allegedly did not respond: "Were your clothes ripped off or were they physically torn?"
The State objected to Defendant's motion to strike, noting that Defendant had not objected during Betty's testimony, but rather had waited until Betty and two additional witnesses had testified. In addition, the State contended that Betty had answered the question cited by defense counsel. Ultimately, the court denied Defendant's motion and never allowed defense counsel to re-cross-examine Betty. The court noted that Betty
did not always directly answer questions as asked, but did answer the questions in the way in which this Court noted that she believed was the way she should answer the questions. It may not have been directly a "yes" or a "no" but was an explanation. I believe she answered every question that was asked her.
After carefully reviewing the transcript, we agree with the trial court's assessment of Betty's testimony. Specifically, as to the question on cross-examination defense counsel referred to, the transcript reveals the following exchange:
Q. Were your clothes actually torn or just pulled off?While Betty's answer to the repeated question was emotional and perhaps less direct than would be ideal, she clearly communicated that Defendant had "ripped" her clothes off. In any event, given Betty's clear testimony that all of Defendant's actions that night were against her will, whether Defendant tore off or merely took off Betty's clothes would appear entirely irrelevant to the jury's consideration of the charges against Defendant.
A. I had on a slip and a pair of panties and some, you know, pants on and he pulled on it, ripping doing right crazy, pulling it off over my head. All he was doing was trying to throw me across that bed and he was bent over like that.
Q. Were the clothes torn or just taken off? A. Oh, Lord, Lord, Lord.
Got no pants in the whole thing, right on slip thing was — ripped them off of me. The way he was pulling and pressing against me, the way with that — anyway he did, but turn all of the stuff and kidnapped me and all of that stuff. That's all I can tell you all.
I don't want to see him. I don't want to look at him.
Moreover, on appeal Defendant has not identified any specific instance where Betty's answers were insufficient so as to deny him his constitutional rights. Instead, Defendant makes only a general argument regarding Betty's testimony, and thus, has failed to demonstrate a clear denial of his constitutional rights. Accordingly, we overrule this argument.
Defendant argues only that, in declining to strike Betty's testimony or allow further cross-examination, "the court deprived [Defendant] of his constitutional right to meaningful confrontation of his accuser."
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NO ERROR.
Judges STEELMAN and MCCULLOUGH concur.
Report per Rule 30(e).