State v. Autry

Decision Date03 February 1988
Docket NumberNo. 468A86,468A86
Citation321 N.C. 392,364 S.E.2d 341
PartiesSTATE of North Carolina v. Timothy Carness AUTRY.
CourtNorth Carolina Supreme Court

Lacy H. Thornburg, Atty. Gen. by Sylvia Thibaut, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Geoffrey C. Mangum, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

On his appeal to our Court, defendant brings forward three assignments of error relative to the guilt-innocence phase of his trial. Having considered the entire record and each of defendant's assignments in turn, we find no prejudicial error in defendant's trial. Accordingly, we leave undisturbed defendant's multiple convictions and accompanying sentences.

Each of defendant's multiple convictions arose from a single criminal episode which occurred on 13 and 14 November 1985. Because resolution of the issues presented in this case turns so substantially on the nature and the volume of the evidence against this defendant, a lengthy recitation of the facts is called for. Accordingly, the evidence presented at trial tended to show the following series of events. On 13 November 1985, the victim, a nineteen-year-old female, was working at the checkout counter in an Eckerd's drug store in Sampson County, North Carolina. Between 6:00 p.m. and 8:00 p.m. on that evening, defendant, whom the victim did not know, entered the store on three separate occasions. On two of these occasions, defendant spoke to the victim briefly, and on one of these occasions, defendant asked the victim if any photographs had been developed for a customer named "Autry." The victim later positively identified defendant as the man who was in the Eckerd's drug store on the evening of 13 November 1985.

At 9:00 p.m. on that same evening, the victim got off work, got into her car, and departed for home. Minutes later, as she turned onto the road leading to her home, she noticed a car following very closely behind her. When the driver of the car behind her subsequently turned on a blue flashing light and emergency flashing lights, believing it to be a police car, the victim pulled her car over to the side of the road. A man whom the victim recognized as the man she had seen in Eckerd's got out of the car and came up to the driver's side of her car. Defendant told the victim that he was an undercover police officer and that she had been driving too fast. After looking at her license, however, defendant told the victim that he would let her go this time, and both defendant and the victim departed.

A short time later, defendant, who was still following the victim, once again turned on his flashing lights. The victim pulled over once more. On this occasion, defendant told the victim that there was a problem with her insurance which would necessitate her following him "so they could go straighten everything out." Told that she would not be allowed to call her parents first, the victim followed defendant to an abandoned store. Once there, defendant told the victim that she would have to leave her car there and accompany him to meet other police officers. Believing defendant to be a police officer, she did as she was told. She later described defendant's vehicle as a white car with a burgundy interior.

As the victim and defendant drove along, the victim repeatedly asked for and was denied the opportunity to call her parents. At one point, assuring her that it was just "procedure," defendant pulled off the road, handcuffed the victim behind her back, and fastened her seat belt. Eventually, saying that he knew some game wardens who would be down there, defendant turned onto a dirt path and proceeded deep into a wooded area. At that point, defendant got a gun out of the trunk of the car and showed it to the victim. Subsequently, when some hunters came upon defendant's car and shone a twelve-volt spotlight on and into it, defendant restarted his vehicle and drove the victim down another dirt path in the woods. Two of these hunters later clearly identified defendant as the driver of the vehicle they had seen that night.

Stopping once again, defendant tightened the victim's handcuffs and began touching her. He then removed all of her clothes. Defendant asked the victim if she was a virgin and she told him yes. Defendant then told her that he was going to "bust that cherry." Over a period of three to four hours, defendant forced the victim to perform oral sex on him, forced her to have vaginal and anal intercourse with him, and forcibly performed oral sex on her. After falling asleep on top of the victim for a period of time, defendant awoke and forced the victim to have vaginal intercourse with him once again.

Defendant then drove the victim to a nearby abandoned house. Defendant carried the victim inside the house and placed her on the floor in an upstairs room. There, defendant forced the victim to have anal, vaginal, and oral intercourse with defendant once more. Leaving the room momentarily, defendant returned with a needle and a syringe and proceeded to give her a shot in the hip. The victim fell asleep shortly thereafter, not to awake until around 8:30 a.m. or 9:00 a.m. on the morning of 14 November.

Upon awaking, the victim, still naked and handcuffed, discovered that defendant had tied her legs with a rope and put a handkerchief around her mouth. Nevertheless, she managed to get out of part of the rope and to escape out the back of the house. She made her way to a neighboring house where she received clothing and other assistance, apparently from a Mrs. Starling. Mrs. Starling called two of her sons, Donald Starling and M.F. Starling, who came immediately to the house to help their mother render aid to the victim.

Joanne Starling, wife of M.F. Starling, testified that she accompanied her husband when he went to his mother's house in response to her call. She stated that the victim told her that defendant had been driving a white car. She stated further that, in response to the victim's description, she returned to the dirt road leading to the abandoned house. While there, she saw a white car pull off the side of the road by the abandoned house.

Mr. Somboon Kachaenchai, defendant's employer, testified at trial that he managed Vira Farms, a Sampson County hog farm. He saw defendant on the morning of 14 November and mentioned that defendant came in late to work that day. Also on that day, defendant asked if he could leave work for "some important business" and Mr. Kachaenchai agreed. Defendant later returned and left a black gym bag in the business office at Vira Farms. Mr. Kachaenchai, in the presence of Mr. Larry Melvin, another employee of Vira Farms, opened the gym bag and saw a bottle or two of pig tranquilizer, syringes, needles, a survival knife, and some nylon string. After opening and looking at the contents of the bag, Mr. Kachaenchai and Mr. Melvin reclosed the bag.

At trial, pursuant to evidence showing these and other highly incriminating facts, defendant was convicted by a jury of the aforementioned crimes. In his appeal to our Court, defendant assigns three specific errors concerning his multiple convictions: first, that the trial court committed reversible error in denying defendant's request to cross-examine the victim about her testimony that she was a virgin; second, that the trial court committed reversible error in denying defendant's motion to suppress evidence seized without a warrant from his gym bag; and third, that the trial court committed reversible error in instructing defendant on the legal consequences of his decisions as to whether to testify or offer other evidence in his own behalf. We deal with each assignment of error in turn.

I.

In his first assignment of error, defendant asserts that the trial court committed reversible error in denying defendant's request to cross-examine the victim about her testimony that she was a virgin. At trial, during the direct examination of the victim by the prosecutor, the following exchange occurred:

Q. [Name of the victim], did he ever make any statement or any inquiry as to whether you had ever engaged in sex previously?

MR. BACON: Objection, motion to strike.

COURT: Overruled, in my discretion I will permit Counsel to lead the witness.

A. Yes sir.

Q. What did he say to you or what did he say to you, [name of the victim]?

A. He asked me if I was a virgin and I said yes.

COURT: What was the answer?

WITNESS: I said yes.

MR. BACON: Objection, motion to strike.

COURT: Motion to strike denied.

Q. What did you say after he asked you if you were a virgin and you told him yes?

A. He said that he was going to bust that cherry.

Later, when defendant moved to be allowed to cross-examine the victim concerning her statement that she was a virgin, the trial court, citing the rape shield provisions of Rule 412 of the North Carolina Rules of Evidence, denied the motion. Defendant contends that the trial court's application of the rape shield provisions in the case at bar prevented correction of false testimony by the victim and was therefore fundamentally unfair and violative of his constitutional right to confront his accuser. We do not agree.

The trial court acted properly in denying defendant's motion. First, a close review of the testimony in question reveals that the State did not ask, and the victim did not in fact testify, as to whether she was a virgin. On the contrary, the victim testified only to what defendant asked her and to what she told defendant in response to his question on the night of the crime. The State clearly elicited this testimony, not to establish before the jury whether the victim was a virgin, but to lay a proper foundation for the additional evidence of defendant's statement of his announced intent, i.e., that defendant next told the victim that "he was going to bust that cherry."

Second, and perhaps more important, the trial court properly ruled that defendant's requested...

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