State v. Banks

• Decision Date: 28 July 1988
• Docket Number: No. 628A87,628A87
• Citation: 322 N.C. 753,370 S.E.2d 398
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. John Jacob BANKS.

Page 398

370 S.E.2d 398

322 N.C. 753

STATE of North Carolina v. John Jacob BANKS.

No. 628A87.

Supreme Court of North Carolina.

July 28, 1988.

Lacy H. Thornburg, Atty. Gen. by Daniel F. McLawhorn, Sp. Deputy Atty. Gen., Raleigh, for the State.

John W. Halstead, Jr., Elizabeth City, for defendant-appellant.

EXUM, Chief Justice.

Defendant contends the trial court erred in: (1) admitting opinion testimony as to defendant's age; (2) refusing to exclude evidence of defendant's age obtained during the booking process; (3) refusing to permit defense counsel in closing argument to read the Fifth Amendment to the United States Constitution; (4) improperly instructing the jury as to indecent liberties; and (5) denying defendant's motion for mistrial because of the behavior of a juror during jury deliberations. We conclude the trial court erred only in refusing to permit defense counsel to read the privilege against self-incrimination clause of the Fifth Amendment. We also conclude that because of the trial court's jury instructions on defendant's election not to testify, this error does not entitle defendant to a new trial. Defendant received a fair trial free from reversible error.

I.

At trial the state's evidence tended to show the following:

On 26 April 1987 defendant's girlfriend invited her friend's four children, along with their maternal aunt, to eat supper and stay overnight at her home. Among the visitors were identical twin girls, age eight, the victims in this case.

Late in the evening, the twins were put to bed on a queen-sized mattress. While their aunt and their hostess were in another room, defendant got in bed between the twins. He kissed each of them, putting his tongue in their mouths, ears and noses. He touched and rubbed their genitals, inserting his finger several times into each twin's vaginal area. The victims asked defendant to stop but he persisted. They told him he was hurting them, asked him to leave and cried. Defendant put his hand over their mouths when they tried to cry out. He threatened to slap them and to kill their mother if they told her what had happened. In the silence that followed, the twins' aunt came into the room and sat down on the sofa. Defendant left the bed, and the aunt got into bed with the girls, one of whom immediately began to whine that she wanted to go home. As soon as defendant left the room, the other twin told her aunt that defendant had "kissed her the wrong way." Both girls were restless and had difficulty getting to sleep.

On Monday morning defendant stayed in his bedroom and the twins, anxious to leave, waited at the door for their mother. As mother and children together drove out of the driveway, the same twin who had told her aunt about being kissed "the wrong way" immediately told her mother how she had been kissed by defendant. That same afternoon, the twins told their aunt how defendant had touched their genitals. She asked them to repeat this to their mother, who immediately called the sheriff's department. Their parents checked the twins for discharge or other signs of genital injury, but finding nothing more than slight redness, they decided not to take the girls to the hospital.

On Wednesday of the same week, when both children complained of burning and itching of their genitals, their mother took them to Albermarle Hospital. At the hospital Susan Pierson, R.N., and Waynette Spaith, L.P.N., interviewed the victims. They related again how defendant had inserted his finger in their vaginal area. Nurse Pierson was with Leroy Hand, M.D., when he conducted a pelvic examination of the first victim; Nurse Spaith was present when Dr. Hand examined the second victim. The nurses and doctor observed redness and a small tear in the mucous membrane between the labia majora and minora of each victim. The tears were located in the same place on both victims, between the external folds of the vagina on the left side. No other injuries to their vaginas were observed.

Defendant presented no evidence. Defense counsel moved for a mistrial based on the failure of the state to introduce evidence of defendant's age. ^* The trial court granted the state's motion to reopen its case for the purpose of adducing further evidence as to defendant's age. Over defendant's objection, Deputy Donald Cooper testified that on 2 May 1987 he served process on defendant. He said he took defendant to the Currituck County Sheriff's Department and, in order to complete the booking process, inquired about his birthdate. Defendant told Deputy Cooper that his birthdate was 8 May 1956. Deputy Cooper was also allowed to testify that, in his opinion, defendant appeared to be between 29 and 30 years old.

II.

Defendant first argues the trial court erred in allowing Deputy Cooper to testify, over defendant's objection, that in his opinion defendant appeared to be between 29 and 30 years of age. There was no error in the admission of this testimony.

To convict a defendant of first degree sexual offense the state must prove, among other things, that the defendant "is at least 12 years old and is at least 4 years older than the victim...." N.C.G.S. § 14-27.4(a)(1) (1986). To convict a defendant of taking indecent liberties, the state must prove that the defendant is "16 years of age or more and at least 5 years older than the child in question...." N.C.G.S. § 14-202.1(a) (1986). At trial the state's evidence showed that both victims were 8 years old. Thus, in order to convict defendant under both statutes, the state had to prove, as to defendant's age, only that he was at least 16 years of age at the time of the crimes.

Under North Carolina Rule of Evidence 701 a lay witness may testify in the form of an opinion if the opinion is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C.G.S. § 8C-1, Rule 701 (1986). Deputy Cooper had ample opportunity to observe defendant both during the booking process and while they were together in the courtroom. Thus his opinion of defendant's age was rationally based on his perception of defendant, and it was helpful to the jury in determining the age requirements of the crimes charged. It, therefore comports with the requirements of Rule 701.

When our Rules of Evidence as codified do not specifically address an evidentiary question, "North Carolina precedents will continue to control unless changed by our courts." State v. Williams, 322 N.C. 452, ----, 368 S.E.2d 624, 626-27 (1988) (quoting N.C.G.S. § 8C-1, Commentary, Rule 102 (1986)). Our pre-Rules case, State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977), speaks clearly to the question of the admissibility of lay opinion evidence of the age of a criminal defendant when age is a necessary element of the crime. In Gray, defendant was prosecuted for first degree rape under N.C.G.S. § 14-21(a)(2). Under that statute, the state was required to prove the defendant was over sixteen years of age at the time of the alleged rape. In an effort to meet that burden, the state elicited lay opinions from several witnesses as to defendant's age. In concluding that the testimony was properly admitted we said:

Since the age of a defendant is a fact peculiarly within his own knowledge, the state must be left some latitude within which to carry its burden of proof on this issue. We, therefore, adopt the rule that lay witnesses with an adequate opportunity to observe and who have in fact observed may state their opinion regarding the age of a defendant in a criminal case when the fact that he was at the time in question over a certain age is one of the essential elements to be proved by the state. It is important to note that the exact age of the defendant is not in issue, nor need the state prove it. It must prove only that he was at the time of the offense charged over sixteen. The rule we adopt should not be interpreted to extend to any case, criminal or civil, where the exact age of someone must be proved.

Id. at 287, 233 S.E.2d at 916 (emphasis in original).

Deputy Cooper's opinion as to defendant's age was admissible under Gray. He had an opportunity to observe defendant; he in fact observed him; and it was not necessary in this case for the state to prove defendant's exact age in order to convict him of any of the crimes with which he was charged.

We conclude the lay opinion testimony was properly admitted, and accordingly overrule this assignment of error.

III.

Defendant next contends the trial court erred by allowing Deputy Cooper to testify that defendant told the deputy that his birthdate was 8 May 1956. Over defendant's objection, Deputy Cooper was permitted to testify that, during the booking procedure, he asked defendant several biographical questions, including defendant's name, age and date of birth. It was then that defendant told Deputy Cooper that his birthdate was 8 May 1956.

Defendant objected at trial to the admission of this testimony on two grounds, arguing that: (1) evidence of his age was obtained in violation of his privilege against compulsory self-incrimination; and (2) the state failed to disclose this oral statement during voluntary discovery. He brings the same arguments forward on his appeal.

A.

The Fifth Amendment requires suppression of statements elicited from an accused during custodial interrogation unless questioning was preceded by appropriate warnings and a voluntary and intelligent waiver of the right to remain silent and to have counsel present. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In the leading case in this jurisdiction on point, State v. Ladd, 308 N.C. 272, 302 S.E.2d 164 (1983), this Court held that Miranda warnings were not required as a prerequisite to the admissibility of information routinely obtained during the booking process, saying:

An overwhelming number of courts that have considered this question have held...