State v. Brown

• Decision Date: 06 November 1984
• Docket Number: No. 39A84,39A84
• Citation: 312 N.C. 237,321 S.E.2d 856
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Lester Lee BROWN.

Page 856

321 S.E.2d 856

312 N.C. 237

STATE of North Carolina v. Lester Lee BROWN.

No. 39A84.

Supreme Court of North Carolina.

Nov. 6, 1984.

Rufus L. Edmisten, Atty. Gen. by Thomas J. Ziko, Asst. Atty. Gen., Raleigh, for the State.

Carl F. Parrish, Winston-Salem, for defendant-appellant.

BRANCH, Chief Justice.

By his first assignment of error, defendant contends the trial court erred in restricting defense counsel's cross-examination of the prosecuting witness. Specifically, defendant complains that he was not permitted to cross-examine Elizabeth Noles extensively regarding a prior accusation of rape she made against another man approximately sixteen months before the trial of this case.

Prior to trial, defense counsel filed a motion in which he requested leave "to admit evidence of complainant's prior statements accusing others of improper sexual advances, specifically the statements surrounding the alleged incident occurring in May, 1982, as recorded in police report 28053." The court did not rule on this motion prior to trial.

During defense counsel's cross-examination of the prosecuting witness, the following transpired:

Q. Miss Noles, back in May of 1982, you filed a report at that time that you had been raped by a black man, did you not?

A. Yes, sir.

Q. And in that report, did you make the statement--

MR. LYLE: OBJECTION.

THE COURT: SUSTAINED.

Q. Were you taken to a dark dirt road on that occasion?

MR. LYLE: OBJECTION.

At that point, the jury was excused and Judge Walker conducted an in-camera hearing to consider arguments with respect to the propriety of further questions on this subject. During the conference, defense counsel requested and received the court's approval of several questions relating to the complainant's prior accusation of rape. From the record, it appears defense counsel was satisfied with the trial court's rulings for he interposed no objection to the judge's failure to allow any specific questions, nor did he object to the wording of the questions he would be permitted to ask.

When court reconvened, defense counsel continued with his cross-examination of Ms. Noles. He then asked and received answers to each of the questions previously approved at the in-camera hearing. From this line of questioning, the jury was apprised of the fact that the complainant had earlier accused another man of raping her and that a police investigation revealed no basis for the institution of criminal proceedings against the alleged offender.

Our review of the trial proceedings leads us to conclude that the trial court properly sustained the prosecutor's objection to defense counsel's initial inquiry into the witness's prior accusation of rape. Cross-examination relating to evidence of this sort during a rape trial is properly prohibited until the trial judge has conducted an in-camera hearing to determine the relevancy of the evidence. N.C.Gen.Stat. § 8-58.6(c) (1981).

Furthermore, we note that during defense counsel's subsequent cross-examination on this subject, the State objected to only one question and defense counsel abandoned it before the trial judge ruled on the objection.

We hold that defendant is not entitled to relief under this assignment of error since there is no evidence of record that the trial judge in fact prohibited defense counsel from asking any questions with respect to the complainant's prior accusations of rape. We therefore do not address defendant's contention that evidence of the prosecuting witness's prior accusations of sexual misconduct is not barred by N.C.G.S. § 8-58.6 (the North Carolina Rape Shield statute).

Defendant next argues that the trial court erred in admitting into evidence a pocketknife which Officer Shamburger found on the floor in the back of Duncan's abandoned car on the morning of 11 July 1983. Defendant takes the position that it was error to admit the knife because the State failed to present sufficient proof that it was in some way connected to the crimes charged. We do not agree.

Ricky Duncan testified that on the evening of 10 July 1983 before he and defendant encountered Ms. Noles, defendant took a knife from his pocket and showed it to Duncan. Ricky identified that knife as State's Exhibit 1. The victim testified that she resisted defendant's sexual advances until he held "a cold knife" to her throat and threatened to kill her. Finally, Officer Shamburger stated that on the morning following the sexual assault, he arrested defendant standing next to Duncan's automobile. Shamburger stated that at that time he saw "an open pocketknife lying back on the floor behind the driver's seat." This was the same knife that Duncan identified as belonging to defendant and the same knife that was subsequently introduced into evidence as State's Exhibit 1. We therefore hold that the trial judge correctly admitted the pocketknife into evidence.

Defendant also objects to certain portions of Regina Reel's testimony wherein she described the telephone conversations she had with the victim and Ricky Duncan on the night of the rape. Ms. Reel testified that based on those conversations she thought Duncan and Noles were scared. She further stated that Ms. Noles pretended to be calm and tried to signal Ms. Reel that something was wrong. It is defendant's contention that Regina Reel was not competent to testify as to these facts which were "beyond her personal knowledge."

This contention is without merit. The testimony to which defendant objects was properly admitted as shorthand statements of fact based upon the sense impressions or perceptions of the witness. See 1 Brandis on North Carolina Evidence § 129 (2d rev.ed.1982) and cases cited therein. "The emotion displayed by a person on a given occasion is a proper subject for opinion testimony by a non-expert witness." State v. Looney, 294 N.C. 1, 14, 240 S.E.2d 612, 619 (1978).

Furthermore, assuming arguendo that the statements were improperly admitted, defendant was not prejudiced because this evidence was merely corroborative of the victim's own clearly admissible testimony concerning how she felt when speaking on the telephone with Ms. Reel.

We next address defendant's contention that the trial court erred in refusing to give his requested instruction on the definition of "reasonable doubt."

During the instructions conference, defendant requested the judge to define reasonable doubt in accordance with the definition approved by this Court in State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954). In Hammonds, we held that the jury may be instructed that they "must be satisfied to a moral certainty" of the truth of the charge. In this case, the trial court refused to include such language in its definition of reasonable doubt and instead instructed as follows:

What is a reasonable doubt? It's a doubt which is based on reason and common sense arising out of some or all of the evidence, as the case may be, or lack or insufficiency of the evidence, as the case may be. It means that you must be fully satisfied or entirely convinced of the guilt of the defendant as to the matter you're considering. The term beyond a reasonable doubt does not mean beyond all doubt or beyond all possible doubt. It means beyond a reasonable doubt.

(Emphasis added).

We agree with defendant that when a special instruction is requested the court is required to give it, at least in substance, if it is a correct statement of the law supported by the evidence. State v. Corn, 307 N.C. 79, 296 S.E.2d 261 (1982). The court is not required, however, to recite the defendant's requested instruction verbatim. It is sufficient if the jury is instructed "in substantial conformity to the prayer." State v. Davis, 291 N.C. 1, 14, 229 S.E.2d 285, 294 (1976), quoting State v. Bailey, 254 N.C. 380, 386, 119 S.E.2d 165, 170 (1961).

We have held that a proper definition of reasonable doubt need not include language that the jury must be satisfied of the defendant's guilt "to a moral certainty." State v. Watson, 294 N.C. 159, 167, 240 S.E.2d 440, 446 (1978). Furthermore, our review of the charge convinces us that the trial court's definition of reasonable doubt properly informed the jury of the State's burden of proof and was, in fact, in "substantial conformity" with the instruction requested by defendant. This assignment of error is overruled.

Defendant next contends the trial court erred in failing to submit to the jury the charges of attempted first-degree rape and attempted second-degree rape.

In support of his argument that the trial court erred in refusing to instruct on the lesser included offenses, defendant cites the victim's testimony that after defendant placed a knife to her throat and removed her panties, "he tried to put a flaccid penis inside of me." (Emphasis added.) From this, defendant argues the evidence of penetration was equivocal and therefore instructions on attempted rape were warranted.

"Instructions on the lesser included offenses of first-degree rape are warranted only when there is some doubt or conflict concerning the crucial element of penetration." State v. Wright, 304 N.C. 349, 353, 283 S.E.2d 502, 505 (1981). In a prosecution for rape, evidence of the slightest penetration of the female sex organ by the male sex organ is sufficient for vaginal intercourse and the emission of semen need not be shown to prove the offense. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968); State v. Monds, 130 N.C. 697, 41 S.E. 789 (1902).

Our examination of the victim's entire testimony plainly shows that defendant was successful in achieving penetration despite his failure to obtain an erection. The prosecutrix testified on direct examination as follows:

Then he tried to put a flaccid penis inside of me over and over and over and over and over and over.

Q. Was he successful?

* * *

Q. (By Mr. Lyle, Continuing) Mrs. Noles, I don't want to go back any. Do you remember where you were in your testimony? You...