Opinion
No. COA02-708
Filed 17 June 2003 This case not for publication
Appeal by defendant from judgments entered 17 September 2001 by Judge Gregory A. Weeks in Bladen County Superior Court. Heard in the Court of Appeals 12 March 2003.
Attorney General Roy Cooper, by Special Deputy Attorney General James P. Longest, Jr., for the State. Parish Cooke, by James R. Parish, for defendant-appellant.
Bladen County Nos. 99 CRS 5218, 99 CRS 5219.
Defendant Henry Emory Stanton was tried before a jury at the 4 September 2001 Session of Bladen County Superior Court after being charged with one count of first-degree rape and one count of first-degree kidnapping. The State's evidence at trial showed that the victim, Ms. Emileigh Barker, was a salesperson for Bardusch Corporation, a uniform supply company in Lumberton, North Carolina. On 28 July 1999, a caller named Mr. Smalls indicated he wanted to place an order for uniforms and was directed to call back the next day to speak to Ms. Barker. The next day, the caller, who identified himself as Dwayne Smalls, informed Ms. Barker that he wanted to purchase twelve uniforms for workers at his company, Pullium Construction. Ms. Barker testified that Mr. Smalls did not give her a phone number or address, but did give her directions to his office. Mr. Smalls said his office had no sign, but that she would see a trailer 1/2 mile past the county line. Ms. Barker called information, but was unable to get a phone number for Mr. Smalls or Pullium Construction Company.
A short time later, Ms. Barker left to meet Mr. Smalls. She drove her Jeep and took sample uniforms and other materials for sales calls. On the way, she deposited her paycheck and withdrew some cash. As she approached the area Mr. Smalls described, she saw a man, later identified as defendant, flagging her down. She pulled over, and the man asked, "Are you Emileigh?" Ms. Barker asked if he was Mr. Smalls, to which defendant replied "yes." He told Ms. Barker to pull in front of the trailer, and she complied. She retrieved her samples and apologized to defendant for interrupting his lunch.
Defendant told Ms. Barker that he had to run some errands, and that his wife was in the trailer waiting to pick out the uniforms. Ms. Barker entered the trailer and looked for defendant's wife. When she got to the end of the hall, she discovered no one was there. Ms. Barker turned around to face defendant, who tackled her and threw her to the floor. According to Ms. Barker, defendant tied her arms and wrists together using electrical cord, tied her ankles together, then forced her to lay face down while he tied her hands to her ankles. Defendant then stuffed a cloth ball in Ms. Barker's mouth, and wrapped a bungee cord around the back of her head and attached the hook into the cloth in her mouth. Defendant then wrapped her head in tape, which covered the gag and partially covered her nose. Ms. Barker testified she was scared for her life and had great difficulty breathing.
Defendant left the room for several minutes, then came back and started asking, "Where's Mike? Where's Mike? Where — Mike should — Mike should be here by now. Where is he?" Defendant paced back and forth, then left momentarily and returned with a large kitchen knife. Ms. Barker told defendant she could not breathe and defendant used the kitchen knife to cut off the tape, then removed the gag and the cord. She asked for a cigarette and told defendant that her hands were numb. Defendant cut the cord that held her ankles and hands tied together and moved her from room to room before retying her hands in front of her body and retying her ankles together. Defendant also tied a scarf around Ms. Barker's eyes. As he did so, defendant began talking about drug cartels, money owed by a man named Mike, and his belief that the drug cartels were after him. Defendant untied Ms. Barker's ankles, walked her down the hall, and made her sit on the edge of a bed. When Ms. Barker asked defendant to remove the blindfold, he refused and said, "No, I can't take it off because there's things in this room that you can't see." Ms. Barker indicated that she would rather be tied up in the other room without the blindfold, so defendant took her back to the end of the trailer and retied her ankles.
Defendant left the room and Ms. Barker heard him pacing up and down the hallway and saw his reflection as he raised the blinds and looked out the windows. He returned a few minutes later with a blanket. He spread the blanket on the floor, then untied Ms. Barker's ankles, removed her underwear and bra, lifted up her dress, and raped her. Defendant untied Ms. Barker's hands and ankles and allowed her to use the bathroom, but kept the door open to prevent her escape. While Ms. Barker pleaded for her release, defendant left the room, returned with her purse, and took her money and credit cards.
Defendant continued to talk about drug cartels and his belief that people were after him. Eventually, he decided to leave the trailer with Ms. Barker and warned her not to run away. Once outdoors, Ms. Barker ran to the road and tried to flag down a passing truck, but it did not stop. She then made her way to her Jeep, which had been moved further away from the trailer. Ms. Barker started the Jeep and attempted to drive away, but the Jeep was stuck in sand and would not move. Defendant pushed it out and forced Ms. Barker to get into the passenger seat while he drove to a location where he had to "make a score." Defendant pulled into a trailer park and warned Ms. Barker that the men he was meeting were armed and dangerous. Defendant gave a man some money and returned to the Jeep with small packets in his hand, which he told her was crack cocaine. As defendant began driving, Ms. Barker told him she wanted some beer so that he would take her to a public area. Defendant agreed and drove to a convenience store. Ms. Barker mouthed the words "help me" to a person parked next to her, but did not attempt to flee because she was afraid of defendant. She and defendant went into the store, where defendant purchased beer and cigarettes. When they left the store, the person whom Ms. Barker asked for help was gone.
Defendant drove to a dirt road, took out a pipe, and began smoking the crack cocaine. Ms. Barker drank one of the beers, and defendant told her to smoke with him. Despite her protests, defendant forced Ms. Barker to smoke the pipe. She pretended to cough, and defendant told her to drink another beer. When the can was empty, he used it to fashion another smoking implement because his pipe was clogged. Soon thereafter, Ms. Barker's beeper went off and she persuaded defendant to take her to a rest stop with pay phones so she could call in. She went to a pay phone and defendant followed her. She then pretended to dial some numbers, handed defendant the phone, and asked, "Can you make any sense of this?" While defendant was distracted, Ms. Barker ran screaming toward several police officers. She told them she had been kidnapped and raped by defendant.
Later that evening, Ms. Barker rode with law enforcement officers to show them defendant's trailer. She was then taken to the emergency room by her fiancé at the request of Bladen County Sheriff's Sergeant Rodney Warwick, who met Ms. Barker at defendant's trailer.
At the conclusion of Ms. Barker's testimony, the State called Ms. Tracie Crookham, who stated that she had been abducted, bound, and serially raped by defendant in July of 1991. The State offered Ms. Crookham's testimony as evidence of modus operandi. Sergeant Warwick testified regarding his interaction with Ms. Barker on 29 July and her trip to the emergency room. He also testified that he and several other officers conducted a search of defendant's residence based on defendant's wife's consent. Sergeant Warwick discovered a phone book open on a bed with a piece of paper lying on the page. The paper had the victim's name on it, as well as the name "Dwayne Smalls." The phone book also had a notation near the entry for Bardusch under the uniforms section of the yellow pages. Sergeant Warwick also discovered a roll of duct tape, several uniforms, a woman's scarf, a towel, a gag, a bedspread, electrical cords, and duct tape with what appeared to be human hair on it. Sergeant Warwick also photographed Ms. Barker from several different angles to document her injuries, which included bruises on her arms, scabbing wounds on her wrists and elbows, and a mark on her neck.
State Bureau of Investigation (SBI) Agent Brenda Bissette performed a DNA testing on evidence samples taken from Ms. Barker's rape kit and testified that the semen found in Ms. Barker's body was a genetic match for defendant. After calling seven witnesses, the State rested.
Defendant presented the testimony of four witnesses, including himself. Defendant testified he met Ms. Barker a week before 29 July 2001 at a shopping center in Fayetteville. According to defendant, Ms. Barker asked him to walk to Food Lion with her to get beer, and he did so. He stated they drank the beer in her SUV and drove around looking for drugs. After defendant stopped by a motel to pay someone a debt, he agreed to follow Ms. Barker to another motel. After a few minutes, defendant stated Ms. Barker ran into some people she knew and told him they had to leave. Defendant stated he and Ms. Barker drove around the Spring Lake area, bought crack cocaine, smoked it, and went to a motel room. Ms. Barker left and returned with another man, who repeatedly asked defendant for money. Defendant testified he eventually called security, who escorted Ms. Barker and the man off the premises.
Defendant stated he did not see Ms. Barker again until 29 July, when she arrived at his trailer looking for a man named Dwayne Smalls; he told her his name was T.J. and that he was handling things for Mr. Smalls. Defendant testified he thought Ms. Barker was reaching for a gun, so he knocked her to the floor. Defendant stated he was collecting money for a man named Mike, who was coming to his trailer to get it. He also testified that Ms. Barker knew Mike and suggested they could get the money from her boyfriend by calling him and demanding money for her release, or delay the collection by pretending to take her hostage if anyone came to the trailer. When they heard a car, defendant tied her up until they believed the car had passed. Afterwards, the two had consensual sex.
Defendant further testified he and Ms. Barker left in her Jeep and drank beers and smoked crack cocaine. He indicated that he had her money and credit cards because he was reluctantly helping her with some money problems she was experiencing. Defendant maintained that Ms. Barker begged him to drive south with her on Interstate 95 to get away, but he told her no because he loved his wife. At that point, Ms. Barker allegedly looked at him "like, you know, she was crazy or something and just took off running" toward police officers at the rest stop.
On cross-examination, defendant admitted that he pleaded guilty to the 1991 crimes involving Ms. Crookham; however, defendant denied any wrongdoing and stated he pleaded guilty to protect other people, whose names he could not remember. Defendant also recited his telephone number and admitted that his number was listed in official phone records as the one used to call Bardusch Uniforms on 28 and 29 July. However, he stated he did not personally make the call and that the drug dealers in his trailer could have made the call.
As part of his case-in-chief, defendant also called Dr. Myra Guzman, who examined Ms. Barker at the Bladen County Hospital on 29 July 1999. She testified that there was bruising on Ms. Barker's head, but the rest of her physical examination was normal. Ms. Barker's blood was drawn and tested; it was negative for alcohol and was positive for cocaine.
On rebuttal, the State presented the testimony of four witnesses, including defendant's former wife, Mary Elizabeth Avery, and three law enforcement officers. Ms. Avery stated she was married to defendant on 29 July 1999 and came home that evening and noticed uniforms, cigarettes, and her scarf on the floor of her trailer. She also stated she believed something was wrong and hit redial on the phone and spoke to a man at a uniform service company. She then called her sister and left, but later got a call from law enforcement officers and returned home. Once there, she consented to a search of the trailer.
Deputy Timothy J. Bailer of the Cumberland County Sheriff's Department testified that he detained defendant and questioned him at the rest stop after Ms. Barker indicated that he had kidnapped and raped her. Upon searching Ms. Barker's Jeep, he found a knife between the door and the driver's seat. When he searched defendant, Deputy Bailer found a crack pipe and a fuel card issued to Bardusch Rental Uniforms. Deputy Bailer further testified that defendant told him Ms. Barker asked him to buy some crack cocaine near the Fayetteville airport, that she had been paged by a drug dealer to whom she owed money, and that they were headed to an ATM machine to get money before meeting the drug dealer at a motel to give him the money. Deputy Mark Hart, Deputy Bailer's partner, testified that he spoke to both Ms. Barker and defendant at the rest stop and got their versions of what happened. Finally, Agent Mark Oxendine testified that defendant gave a completely different version of events when they talked around 1:00 a.m. on 30 July 1999.
After deliberating, the jury found defendant guilty of first-degree rape and second-degree kidnapping. The trial court determined defendant had a prior record level of V and sentenced him to 433-529 months' imprisonment for the first-degree rape conviction, and a consecutive term of 53-73 months' imprisonment for the second-degree kidnapping conviction. Defendant gave notice of appeal in open court.
On appeal, defendant argues the trial court erred by (I) allowing the testimony of Tracie Crookham into evidence; (II) allowing the State to introduce into evidence his 1994 judgment and commitment for multiple counts of sex offense, rape, kidnapping and common law robbery; (III) allowing the State to introduce the substance of statements he made to SBI Agent Mark Oxendine; (IV) failing to arrest judgment for first-degree rape; (V) allowing Ms. Mary Elizabeth Avery to testify against him; (VI) denying his motions to strike the jury panel; (VII) instructing the jury as to serious personal or bodily injury of the victim; and (VIII) failing to declare a mistrial at his request. For the reasons stated herein, we disagree with defendant's arguments and hold he received a trial free from reversible error.
Ms. Crookham's Testimony
By his first assignment of error, defendant contends the trial court erred by allowing the introduction of his prior crimes against Tracie Crookham into evidence. During the trial, Ms. Crookham testified, over defendant's objection, that defendant kidnapped, raped, and robbed her in 1991. Defendant ultimately pled guilty and was convicted of three counts of second-degree rape, three counts of second-degree sexual offense, first-degree kidnapping, and common law robbery. The State offered the evidence to show modus operandi, and since the trial court admitted the evidence over defendant's objection, a limiting instruction was given at the time the evidence was offered. When defendant took the stand, he admitted to those convictions without any objection and answered the prosecutor's questions about the underlying facts related to those crimes. He has therefore failed to preserve this issue for our review. See N.C. Gen. Stat. § 15A-1446 (2001).
Even if we review this assignment of error on the merits, defendant cannot prevail. We review this assignment of error under the plain error standard. N.C.R. App. P. 10(c)(4) (2002); State v. Black, 308 N.C. 736, 739-41, 303 S.E.2d 804, 806-07 (1983). Under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2001),
[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
Rule 404(b) has been characterized "as a general rule of inclusion of relevant evidence of other crimes, wrongs, or acts which is subject to but one exception, evidence should be excluded if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." State v. Blackwell, 133 N.C. App. 31, 34, 514 S.E.2d 116, 119, cert. denied, 350 N.C. 595, 537 S.E.2d 483 (1999). With respect to sexual offense cases, our courts have liberally admitted evidence of similar sex offenses by a defendant under Rule 404(b), recognizing that "[s]uch evidence is relevant and admissible under Rule 404(b) if the incidents are sufficiently similar and not too remote." State v. Bagley, 321 N.C. 201, 207,362 S.E.2d 244, 247-48 (1987), cert. denied, 458 U.S. 1036, 99 L.Ed.2d 912 (1988); see also State v. Cotton, 318 N.C. 663, 666, 351 S.E.2d 277, 279 (1987).
In the present case, the State introduced evidence of defendant's prior crimes to show modus operandi. To admit evidence of a prior sexual offense under Rule 404(b), the State must show both similarity and temporal proximity. State v. Sexton, 336 N.C. 321, 353, 444 S.E.2d 879, 897, cert. denied, 513 U.S. 1006, 130 L.Ed.2d 429 (1994). A prior act or crime is "similar" if there are "some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes." State v. Moore, 309 N.C. 102, 106, 305 S.E.2d 542, 545 (1983). See also State v. White, 331 N.C. 604, 612, 419 S.E.2d 557, 561-62 (1992). With regard to temporal proximity, our courts have stated that "[e]vidence may be admitted even though remote in time, if its `signature' value is high." State v. Wortham, 80 N.C. App. 54, 62, 341 S.E.2d 76, 81 (1986), rev'd in part on other grounds, 318 N.C. 669, 351 S.E.2d 294 (1987).
Defendant argues that the evidence of his prior crimes was offered by the State to negate consent, although the State argued at trial that the evidence was offered to establish modus operandi. Defendant contends his cross-examination of Ms. Barker focused squarely on the issue of consent and points out that, even though she maintained she denied consenting to any of defendant's actions, there was never a question of defendant's identity. Defendant also directs our attention to State v. Pace, 51 N.C. App. 79, 275 S.E.2d 254 (1981), wherein this Court granted the defendant a new trial because the trial court admitted testimony of prior crimes in violation of Rule 404(b).
In Pace, the defendant was tried for second-degree rape and second-degree sexual offense. During the trial, the State presented the testimony of another woman who, like the prosecuting witness, stated defendant wore a plaid jacket and called her "Baby Girl" when he raped her. Id. at 81-82, 275 S.E.2d at 255. Upon review, the Pace Court noted that (1) there was no issue of identity, because defendant admitted to the sexual contact with the victim, but argued it was consensual; (2) none of the permissible purposes for which the witness's testimony could have been used were relevant in the case; (3) there was an issue as to the prosecuting witness's state of mind; and (4) the evidence provided by the witness did not show modus operandi. Id. at 83-84, 275 S.E.2d at 256-57. The Pace Court concluded that the witness's testimony of prior crimes tended to show identity, which was not at issue in the case, thereby entitling the defendant to a new trial. Id. at 84, 275 S.E.2d at 256-57.
In the present case, defendant argues that he is entitled to a new trial because Ms. Crookham's testimony tended to show his bad character and his disposition to commit sexual crimes, rather than an acceptable exception to Rule 404(b). Because consent, not identity, was at issue in his case, he believes the admission of Ms. Crookham's testimony amounted to reversible error. However, we note that
[t]he list of permissible purposes for which such evidence may be introduced as set forth in the statute is not exclusive, and "the fact that evidence cannot be brought within a [listed] category does not necessarily mean that it is inadmissible. State v. DeLeonardo, 315 N.C. 762, 770, 340 S.E.2d 350, 356 (1986). "In fact, as a careful reading of Rule 404(b) clearly shows, evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused." State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986) (quoting 1 Brandis on North Carolina Evidence § 91 (2d rev. ed. 1982)) (emphasis added).
Bagley, 321 N.C. at 206, 362 S.E.2d at 247. The State argues, and we agree, that Ms. Crookham's testimony was primarily offered to show modus operandi . Defendant's crimes against Ms. Crookham and Ms. Barker were temporally proximate because, although the crimes occurred eight years apart, much of that time gap was attributable to the fact that defendant was incarcerated and could not harm anyone. Though defendant argues there are many differences between the crimes, we believe the crimes demonstrate several relevant similarities. Initially, both women were brutally assaulted by defendant, who then exerted control over the women by restraining them, tying them up, gagging them, and otherwise confining them. While in the presence of his victims, defendant engaged in irrational, nonsensical talk. As the victims made concessions toward him, defendant reciprocated by removing some of their restraints and gags. In both cases, defendant used physical restraint and psychological intimidation to frighten his victims and to exert control over them. Defendant raped both women, then forced them to take drugs with him and stay with him for an extended period of time. Both victims tried to normalize their situations by talking to defendant and placating him, and he responded by gradually releasing their physical bonds and lessening the degree of control he exerted over them. Unlike Pace, where the witness's testimony showed only two similarities and was insufficient to demonstrate modus operandi, we believe Ms. Crookham's testimony sufficiently demonstrated defendant's modus operandi (a pattern of behavior).
We also agree with the State's argument that Ms. Crookham's testimony demonstrated defendant's modus operandi for the rape and the intent element of the kidnapping charge. The trial court gave an appropriate limiting instruction prior to Ms. Crookham's testimony. Defendant admitted to sexual intercourse with Ms. Barker, but did not admit to restraining her against her will. Thus, even if Ms. Crookham's testimony was not admissible for the rape charge, it was admissible to demonstrate defendant's intent with regard to restraining his victims and kidnapping them. As the testimony was admitted for an acceptable purpose under Rule 404(b), we conclude defendant's assignment of error is without merit, and it is overruled.
1994 Judgment and Commitment
In a related assignment of error, defendant contends the trial court committed reversible error by allowing the admission of his 1994 judgment and commitment for his crimes against Ms. Crookham. We do not agree.
As previously discussed, evidence of a defendant's prior crimes, wrongs, or acts is not admissible to show action in conformity therewith; however, such evidence may be admissible for other purposes under Rule 404(b). N.C. Gen. Stat. § 8C-1, Rule 609(a) (2001) permits admission of prior convictions in order to assess a defendant's credibility as a witness if the evidence of the convictions is "elicited from the witness or established by public record during cross-examination or thereafter."
In the present case, Ms. Crookham's testimony provided the facts and circumstances underlying the 1991 crimes for which defendant pleaded guilty and showed similarities between the prior convictions and the crimes which are the subject of this appeal. Defendant later took the stand and was cross-examined about the prior convictions. We must now address whether prejudicial error ensued.
Defendant maintains per se error occurred because the 1994 judgment and commitment came in during the State's case-in-chief as substantive evidence and also corroborated the testimony of Ms. Crookham. He contends the judgment and commitment should have come in solely for impeachment purposes after he began his case-in-chief. In support of his position, defendant notes that this was a contested case which resulted in a hung jury after the first trial and was replete with questions during the second trial. Essentially, defendant argues Ms. Crookham testified, then his 1994 judgment and commitment were admitted to buttress her testimony. He argues that this practice violated Rule 609 because the judgment and commitment were admitted as substantive evidence of modus operandi.
To resolve this issue, we must examine the recent cases of State v. Wilkerson, 356 N.C. 418, 571 S.E.2d 583 (2002) and State v. Hairston, ___ N.C. App. ___, 576 S.E.2d 121 (2003) and determine whether the admission of this evidence during the State's case-in-chief was so prejudicial as to warrant a new trial in the factual context of this case.
"In order to show prejudice necessary for a new trial, a defendant alleging error must show `there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.'" State v. Goodman, 149 N.C. App. 57, 64, 560 S.E.2d 196, 201 ( quoting N.C. Gen. Stat. § 15A-1443(a) (1999)), disc. review allowed on additional issues, 356 N.C. 170, 568 S.E.2d 852 (2002). An instructional error is not prejudicial where other evidence against the defendant is overwhelming. State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002), cert. denied, ___ U.S. ___, ___ L.Ed.2d ___ (Jan. 13, 2003) (No. 02-7283).
Hairston, ___ N.C. App. at ___, 576 S.E.2d at 123.
As previously discussed, a proper limiting instruction regarding Ms. Crookham's testimony was provided. Following her testimony, the State offered the prior judgment and commitment with no further elaborating instruction. Defendant's sole objection at this stage was "to relevance and as to too far back in time." When defendant testified at trial, he was impeached by the 1991 crimes and several others pursuant to Rule 609. The prosecutor also impeached defendant's credibility by showing his numerous inconsistent statements in both the incident involving Ms. Crookham and the incident involving Ms. Barker. Such impeachment was proper. State v. Aguallo, 322 N.C. 818, 824, 370 S.E.2d 676, 679 (1988).
Defendant's incredible testimony, the extensive corroborating physical evidence, and the damaging impeachment of defendant on grounds other than his prior conviction all constitute overwhelming evidence of his guilt. Certainly, this defendant cannot show that, had the error not been committed, a different result would have been reached. We conclude that where otherwise proper jury instructions were rendered, the error in this case was harmless beyond a reasonable doubt. Accordingly, this assignment of error is overruled.
Statements Made to Special Agent Oxendine
By his next assignment of error, defendant contends the trial court erred by denying his motion to exclude the statements he made to Special Agent Oxendine during an interview that took place at 12:58 a.m. on 30 July 1999, several hours after defendant had been arrested. Defendant objected to the introduction of his statement because it was not provided to him with the rest of the discovery and should therefore have been excluded. Special Agent Oxendine was permitted to testify as to the substance of the interview over defendant's objection, and the trial court instructed the jury that the statement was being admitted for the purpose of impeaching defendant. Defendant moved for a mistrial pursuant to N.C. Gen. Stat. § 15A-1061 for the perceived discovery violation and the trial court denied his motion. Defendant now argues that the admission of the statement resulted in "substantial and irreparable prejudice" to his case.
On 5 February 2001, the prosecutor's office filed a "discovery disclosure certificate" which certified that the State had provided defendant with a copy of its investigative file. On 31 July 2001, defendant filed a motion for production of exculpatory, favorable or impeaching evidence. Thereafter, the trial court entered an order directing the State to disclose, among other things:
Any written, oral, or recorded statement made by any person to the North Carolina State Bureau of Investigation, the Sheriff's Department, any Law Enforcement Officer, or to the Assistant District Attorney, which tends to establish the Defendant's innocence, or to impeach or contradict the testimony of any witness whom the State will call at the trial of this case.
Defendant argues his statement to Special Agent Oxendine was exculpatory because he admitted a prior sexual relationship with Ms. Barker, maintained they had consensual sex, and offered his version of the events of 29 July 1999. Defendant maintains he was entitled to the statement prior to trial, see Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215 (1963), and that the State's failure to disclose the statement to him prior to trial constituted error.
Upon defendant's motion, the trial court must order the State
[t]o permit the defendant to inspect and copy or photograph any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the State the existence of which is known or by the exercise of due diligence may become known to the prosecutor[.]
N.C. Gen. Stat. § 15A-903(a)(1) (2001). The prosecutor's office maintained an open file policy allowing defendant open access to its files. The prosecutor filed a discovery certificate that it had produced its entire file to defendant by mailing a copy to defendant's attorney. The only contradiction to these facts is defendant's attorney's representation in the record.
Neither the North Carolina discovery statute, N.C.G.S. §§ 15A-902 to -910, nor the case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), requires the trial court to impose any sanctions for failure to comply with discovery. The determination as to whether the state substantially failed to comply with discovery is within the trial judge's discretion. This Court has held that discretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent a showing of bad faith by the State in its noncompliance with the discovery requirements.
State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 48-49 (1986) (citations omitted).
Defendant has made no showing of bad faith on the part of the State. Even assuming defendant's statement to Special Agent Oxendine was not included with the rest of the discovery, the State's actions amount to a discovery violation rather than a constitutional one. Defendant never alleged a constitutional violation at trial and any objections on constitutional grounds have been waived. See State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982). Moreover, even if the admission of the statement was erroneous, it was harmless beyond a reasonable doubt, given the overwhelming evidence of defendant's guilt and the significantly varied stories offered by defendant at various points in the investigation. Defendant's third assignment of error is overruled.
Short Form Rape Indictment
By his fourth assignment of error, defendant contends the short form rape indictment, N.C. Gen. Stat. § 15-144.1 (2001), is invalid because he lacked proper notice of the charge against him. To rule in defendant's favor, we would be required to hold that the short form indictment statute is unconstitutional. Defendant did not raise this issue at trial and constitutional issues not raised below will ordinarily not be considered on appeal. Hunter, 305 N.C. at 112, 286 S.E.2d at 539.
Despite defendant's failure to object to the validity of the indictment below, we note that our Supreme Court has found the statutory short form rape indictment legally sufficient, even though the indictment does not specifically allege each and every element of the offense. State v. Lowe, 295 N.C. 596, 604, 247 S.E.2d 878, 883-84 (1978). Even in light of recent Supreme Court cases, Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435 (2000) and Jones v. United States, 526 U.S. 227, 143 L.Ed.2d 311 (1999), we believe the reasoning of Lowe remains viable. See State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43, cert. denied, 531 U.S. 1018, 148 L.Ed.2d 498 (2000); and State v. Love, 152 N.C. App. 608, 618-19, 568 S.E.2d 320, 327 (2002), disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (2003). Defendant's fourth assignment of error is overruled.
Testimony of Ms. Avery
By his next assignment of error, defendant contends the trial court committed plain error by allowing his wife to testify because he did not waive confidential privilege. We do not agree.
In North Carolina, a spouse may testify against the other spouse as a competent witness if he or she wishes to do so. State v. Josey, 328 N.C. 697, 705, 403 S.E.2d 479, 483 (1991). N.C. Gen. Stat. § 8-57 (2001) states:
(b) The spouse of the defendant shall be competent but not compellable to testify for the State against the defendant in any criminal action or grand jury proceedings, except that the spouse of the defendant shall be both competent and compellable to so testify:
[Naming five circumstances, none of which are applicable here.]
(c) No husband or wife shall be compellable in any event to disclose any confidential communication made by one to the other during their marriage.
The privilege belongs to the spouse, not to the defendant. State v. Britt, 320 N.C. 705, 709, n. 1, 360 S.E.2d 660, 662, n. 1 (1987). In the present case, defendant never raised the issue of spousal privilege, nor did he preserve in the record the evidence needed to determine whether the privilege may have applied. Though he objected during Ms. Avery's testimony, the objection was to leading and relevance, rather than the assertion of privilege. The only evidence before us is that defendant called Ms. Avery from jail and told her not to speak with law enforcement officers regarding the case. Furthermore, in determining whether a spouse's testimony includes a confidential communication, "the question is whether the communication, whatever it contains, was induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship." State v. Freeman, 302 N.C. 591, 598, 276 S.E.2d 450, 454 (1981). The communications between defendant and Ms. Avery did not concern the disclosure of confidential communications arising out of intimate trust and confidence. See State v. Holmes, 330 N.C. 826, 835, 412 S.E.2d 660, 665 (1992). We also note that the record lacks any evidence of a confidential communication, and there is no evidence that the State compelled Ms. Avery to testify. Accordingly, defendant's argument fails and this assignment of error is overruled.
Victim's Mental State as Serious Personal Injury
Defendant next contends the trial court improperly instructed the jury that Ms. Barker's mental anguish could serve as serious personal or bodily injury. Specifically, defendant argues that the trial court's instruction did not leave for the jury the determination of whether Ms. Barker's injuries to her mind and nervous system constituted "serious personal injury" and whether those injuries had in fact extended for some appreciable period of time after the crime. Again, we disagree.
During the course of the trial, the State came forward with evidence of "serious personal injury," which elevated the crime of second-degree rape to first-degree rape. Upon objection by defendant, the trial court resolved the wording of the instruction and instructed the jury on first-degree rape as follows:
Now I charge for you to find the Defendant guilty of first degree rape, the State must prove four things beyond a reasonable doubt.
First, that the Defendant engaged in vaginal intercourse with the victim. . . .
Second, that the Defendant used or threatened to use force sufficient to overcome any resistance the victim might make. . . .
Third, that the victim did not consent and it was against her will. . . .
Fourth, the State must prove beyond a reasonable doubt either or both that (a) the Defendant employed or displayed a dangerous or deadly weapon or an object the victim reasonably believed was a dangerous or deadly weapon. . . .
Or (b) the State must prove beyond a reasonable doubt that the Defendant inflicted serious personal injury upon the victim.
I instruct you that under the law proof of the element of infliction of "serious personal injury" may be met by the showing of mental injury. However, I further instruct you that the law intends that the mental injury inflicted must be more than that ordinarily present in every forcible rape.
Before you may find serious personal injury because of injury to the mind or nervous system, the State must prove beyond a reasonable doubt that such injury was not only caused by the Defendant, but that the injury extended for some appreciable period of time beyond the incident surrounding the crime itself.
Now the law recognizes that it would defy reason and common sense to say that there could be a forcible rape which did not humiliate, terrorize or inflict some degree of mental injury upon the victim. Therefore, the mental injury inflicted must be more than that which is coincident with or immediately results from every forcible rape.
I instruct you that if you find from the evidence beyond a reasonable doubt that the defendant caused Emileigh Barker to suffer mental injury to the mind or nervous system which extended for some appreciable period of time beyond the incident itself that would be a serious personal injury within the meaning of the law.
It is well settled that
[r]egardless of requests by the parties, a judge has an obligation to fully instruct the jury on all substantial and essential features of the case embraced within the issue and arising on the evidence. The trial judge may in his discretion also instruct on the subordinate and nonessential features of a case without requests by counsel. The purpose of a charge is to give a clear instruction which applies the law to the evidence in such a manner as to assist the jury in understanding the case and in reaching a correct verdict. The trial judge has wide discretion in presenting the issues to the jury. This responsibility cannot be delegated to or usurped by counsel.
State v. Harris, 306 N.C. 724, 727-28, 295 S.E.2d 391, 393 (1982). The trial court must, however, give the substance of a requested instruction if it is a correct statement of the law and is supported by the evidence. State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976).
With regard to mental injury and its qualification as "serious personal injury," our Supreme Court has stated:
It is impossible to enunciate a "bright line" rule as to when the acts of an accused cause mental upset which could support a finding of "serious personal injury." It would defy reason and common sense to say that there could be a forcible rape or forcible sexual offense which did not humiliate, terrorize and inflict some degree of mental injury upon the victim. Yet, the legislature has seen fit to create two degrees of rape and provide that one of the elements which may raise the degree of the crime from second degree to first-degree rape is the infliction of "serious personal injury." . . . . We therefore believe that the legislature intended that ordinarily the mental injury inflicted must be more than the res gestae results present in every forcible rape and sexual offense. In order to support a jury finding of serious personal injury because of injury to the mind or nervous system, the State must ordinarily offer proof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself. Obviously, the question of whether there was such mental injury as to result in "serious personal injury" must be decided upon the facts of each case.
State v. Boone, 307 N.C. 198, 205, 297 S.E.2d 585, 589-90 (1982), overruled on other grounds by State v. Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998). See also State v. Ackerman, 144 N.C. App. 452, 460-61, 551 S.E.2d 139, 144-45, cert. denied, 354 N.C. 221, 554 S.E.2d 344 (2001). Thus, "if a mental injury extends for some appreciable time, it is therefore a mental injury beyond that normally experienced in every forcible rape." State v. Easterling, 119 N.C. App. 22, 40, 457 S.E.2d 913, 924, disc. review denied, 341 N.C. 422, 461 S.E.2d 762 (1995).
Ms. Barker testified that she stayed out of work for a week following her ordeal and could not continue to work for Bardusch because she was afraid to go out on sales calls. She stated she experienced nightmares, flashbacks, anxiety, depression and panic attacks since 29 July 1999, continuing through the time of trial in September 2001. She stated that she often cried, stayed away from her family, had an eating disorder, was hyperactive, was antisocial, and continued to feel uneasy in her surroundings. In 1999, Ms. Barker described her symptoms to a psychiatrist, who gave her a prescription medication, Welbutrin, for her mental problems. She continued to take the medication up to the time of trial. Ms. Barker also stated that her experience with defendant has strained her relationships with others, including her fiancé and her son. Under the facts of this case, we believe the State successfully showed it was entitled to an instruction on "serious personal injury" within the first-degree rape instruction.
Although defendant argues the trial court's instruction impermissibly removed the burden of proof from the State on the issue of serious personal injury, we are not persuaded by his argument. Both at the beginning and at the end of the instruction, the trial court indicated that the burden of proof was on the State. The trial court simply added that serious physical injury could be proven by showing mental injury. It was left to the jury to determine whether Ms. Barker's injuries rose to the level of "serious personal injury" and whether they extended for an appreciable time after the crime occurred. Finally, we note that the jury found that defendant used or displayed a weapon during the commission of the rape. This finding alone supports defendant's conviction of first-degree rape, even if no serious personal injury was established. Defendant's assignment of error is therefore overruled.
Motion for Mistrial
By his final assignment of error, defendant contends the trial court abused its discretion by denying his motion for a mistrial. Specifically, defendant argues the trial court should have granted his motions to strike the jury panel for juror irregularities, and further maintains the trial court made improper comments and references to his previous trial, which ended in a mistrial. We now turn to each of defendant's contentions.
Prospective juror Lorenzo McDowell informed the trial court that some people in the hallway were discussing the case among themselves and were forming opinions. When questioned by the trial court, Mr. McDowell could not recall the specifics of what was said, nor could he identify the people whose conversations he had overheard. The trial court denied defendant's motion for a mistrial and also denied his motion to strike the jury panel. Instead, the trial court individually examined each juror who had been seated in the jury box for an extended period of time. Both the State and defendant were permitted to ask each juror questions to ascertain whether the juror had heard the comments described by Mr. McDowell or whether the juror had personally made comments. Each juror indicated they had neither heard nor made comments related to the case.
Defendant also directs our attention to an instance during which he was being cross-examined and was approached by the prosecutor with a knife that had been marked for identification. Defendant's attorney objected to the display of the knife as no foundation had been laid and it had not been introduced into evidence. Both parties were asked to approach the bench. As they approached, the prosecutor stated that the knife was provided in discovery "at the last trial," referencing the first trial on this matter. The jury then left the courtroom. The prosecutor returned to his table and asked a detective seated there if he heard the comments, to which the detective stated he did not hear the prosecutor's comment, but did hear the trial court state, "Jesus help me." Upon defendant's motion for a mistrial based on the prosecutor's reference to "the last trial," as well as the trial court's exclamation, the trial court heard arguments from both parties and took the matter under advisement. The trial court then brought the jury back in and asked if any of them heard any of the comments at the bench. The jurors all responded in the negative.
The trial court must declare a mistrial "if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." N.C. Gen. Stat. § 15A-1061 (2001). The trial court enjoys broad discretion in determining whether to grant a motion for mistrial, "and a mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law." State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982). "The scope of appellate review, then, is limited to whether in denying the motions for a mistrial, there has been an abuse of judicial discretion." State v. Boyd, 321 N.C. 574, 579, 364 S.E.2d 118, 120 (1988). In other words, unless the trial court's ruling is so clearly erroneous that it amounted to a manifest abuse of discretion, it will not be disturbed on appeal. State v. Newton, 82 N.C. App. 555, 559, 347 S.E.2d 81, 84 (1986), disc. review denied, 318 N.C. 699, 351 S.E.2d 756 (1987).
Based on a careful review of the transcript, we do not discern a reason for the declaration of a mistrial. We believe the trial court dealt appropriately with the jury in light of Mr. McDowell's statement regarding what he heard. We also believe the trial court conducted a proper inquiry into whether the jury heard the exchange involving the knife. Defendant also moved for a mistrial when Agent Oxendine testified about his statement because the statement was allegedly not provided during discovery. As previously discussed, we do not believe this warranted a mistrial. The trial court was in the best position to determine whether irregularities occurred and protected defendant's interests by issuing limiting instructions sua sponte and by sustaining defendant's objections on grounds he did not raise. We conclude the trial court dealt appropriately with each of defendant's motions for a mistrial and did not abuse its discretion. Accordingly, defendant's final assignment of error is overruled.
After careful examination of the record, transcripts, and arguments of the parties, we conclude defendant received a fair trial free of reversible error.
No error.
Judges TYSON and CALABRIA concur.
Report per Rule 30(e).