State v. Davis

• Decision Date: 18 December 1990
• Docket Number: No. 9026SC250,9026SC250
• Citation: 101 N.C.App. 12,398 S.E.2d 645
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Roland DAVIS.

Page 645

398 S.E.2d 645

101 N.C.App. 12

STATE of North Carolina v. Roland DAVIS.

No. 9026SC250.

Court of Appeals of North Carolina.

Dec. 18, 1990.

Lacy H. Thornburg, Atty. Gen. by Harold M. White, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Mark D. Montgomery, Asst. Appellate Defender, Raleigh, for defendant-appellant.

GREENE, Judge.

The defendant appeals from judgments signed 11 August 1989, which judgments were based upon a jury verdict convicting the defendant of one violation of N.C.G.S. § 14-27.2 (1986), first degree rape, and one violation of N.C.G.S. § 14-27.4 (1986), first degree sexual offense. The defendant was sentenced to two consecutive life sentences.

The State's evidence at trial tended to show the following: In mid-December, 1988, the victim visited some friends at their home in Charlotte, North Carolina. She stayed with them for three or four days. On one of these days, she met the defendant. On the evening of 17 December 1988, the defendant visited the victim and her friends on three separate occasions. First, he stopped by their home after he had finished working for the day. He returned a few hours later with his girlfriend. They sat around the house talking and drinking beer and wine for about an hour. The victim did not drink anything during this visit. Later, around 11:00 p.m., the defendant returned alone. He asked the victim if she would care to smoke some marijuana with him. She refused to do so in her friends' home, but she accepted the defendant's invitation to join him, his girlfriend, and his other friends at his house to smoke some marijuana.

When the defendant and the victim arrived at the defendant's house, he introduced the victim to his mother and sister. They then went down into the defendant's basement apartment where his friends were drinking beer and smoking pot and cocaine. The victim sat down on the couch and waited for the defendant and one of his friends to find some marijuana for her to smoke. They returned and the victim smoked some marijuana with them.

Later, the defendant's friends began to leave. After some time, only the defendant, his girlfriend, and the victim remained. The defendant's girlfriend decided to go to the store for more beer. When she returned, she had an argument with the defendant outside his apartment. After a few minutes, his girlfriend came back into the apartment, got her coat, and left. The victim also decided to leave, so she followed the defendant's girlfriend out the door. The defendant went after the victim to stop her from leaving. He caught her after she had walked across the defendant's yard for some distance. The defendant told the victim that she owed him money and that "you either give me my money back or you can give me my money's worth." The victim reminded the defendant that she had previously told him that she had no money, but that if he really wanted money, she could get some at her friends' home. The victim tried to leave, but the defendant grabbed her again. He choked her until she blacked out, thus falling to the ground. She blacked out only for a few seconds. The defendant picked the victim up off of the ground and carried her back to his apartment.

Once inside his basement apartment, he placed the victim on the couch. She began to scream, but stopped when the defendant pulled out a gun. He then told her to be quiet and he would not hurt her. He locked the door. The victim begged the defendant to allow her to leave, but the defendant refused. One of the defendant's friends, Ricky Parker, returned to the apartment and knocked on the door. When the defendant answered the door, the victim asked Mr. Parker for help. He refused. After Mr. Parker left, the defendant pointed the gun at the victim, told her to be quiet, and demanded that she remove her clothing. The victim complied with the defendant's demands. The defendant then raped and sodomized the victim, first by vaginal intercourse, then by anal intercourse, and once again by vaginal intercourse. Afterwards, Mr. Parker returned to the apartment. The defendant told him that he was going to walk the victim back to her friends' home. The victim asked Mr. Parker to join them, and he agreed to go along. The three of them left the apartment, stopped at a liquor store to see if the defendant could find his girlfriend, and then proceeded to the victim's friends' home. While in route, the defendant said to Mr. Parker, "Man, I believe I done [sic] fucked up this time."

The State introduced into evidence, over strenuous objection, the testimony of three witnesses concerning two incidents of forcible sexual assault by the defendant against two females at the defendant's basement apartment on 27 May 1978. The testimony showed that the defendant, at age 14, was standing outside his apartment at approximately 8:00 p.m. when Patricia Harris, a fifteen-year-old girl and acquaintance of the defendant, walked past him on her way home from a friend's house. The defendant tried to talk to Ms. Harris, and when she refused to talk with him, he grabbed her by the arm and pulled her towards the basement. Ms. Harris struggled with the defendant, but he continued to pull and drag her towards the basement. When they arrived at the basement, the defendant's aunt called out to him. He loosened his grip, and Ms. Harris escaped. Later in the evening, the defendant, while playing in the street, began talking to an eleven-year-old girl, also an acquaintance of the defendant. The defendant grabbed her hand and told her to talk with him or he would hit her. He then made her walk with him down a bike trail, twisting her arm all the while. He then forced her to go with him to the basement. Upon their arrival, the defendant told her to take her clothes off. Once she did, the defendant raped her. As he raped her, two other males entered the basement. They held her down, and the defendant continued to rape her. Before the defendant had finished, a police officer arrived at the apartment and rescued the young girl from the assault. The officer took the defendant to a juvenile detention facility where he admitted his deeds to an investigator with the Charlotte Police Department. Though the defendant was never convicted of raping the eleven-year-old girl, he was imprisoned from 19 June 1978 until 7 August 1988 for conduct associated with these assaults. Ms. Harris, the police officer, and the investigator testified to the above at trial. The State successfully argued that this testimony was admissible under Rule 404(b) of the Rules of Evidence. The State argued at trial that the defendant's conduct in 1978 combined with his conduct in question showed the defendant's intent, plan, and scheme to force female acquaintances into his basement and rape them.

At trial, over the defense counsel's objections, the trial court allowed the defendant to call a witness, Ricky Parker, to testify on his behalf. The trial court did not reach its decision lightly. To allow the defendant the opportunity to make an informed decision, the trial court held a voir dire hearing of Mr. Parker out of the jury's presence during which the defendant's counsel examined Mr. Parker. Before the hearing, the defendant had been informed of his right to the last argument should he not put on any evidence. After the hearing, the trial court informed the defendant of the other consequences of calling Mr. Parker to testify before the jury, including the possibility that the jury would not believe his witness, his witness would be subject to cross-examination, and that on cross-examination the State could inquire as to his witness's criminal convictions, if he had any. The trial court asked the defendant if his decision to call Mr. Parker had been made of his own free will, without coercion, and voluntarily to which question the defendant responded, "Yes, sir." The trial court suggested that the defendant follow his counsel's advice and not call Mr. Parker, but the defendant refused saying,

Like all the times I been to trial, like all the time, you know, since I been grown and tried. I done took all the advice, you know, she been telling me a lot of things and she say no and I say yes but, you know, I always agree with her. She ain't never agreed with me, she should go with me, you know, at least one time.

The trial court, having concluded its inquiry, allowed the defendant to call Mr. Parker and instructed the defendant's counsel to examine Mr. Parker, which she did. The defendant offered no further evidence.

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The issues are: (I) whether the trial court properly admitted evidence concerning the defendant's prior sex offenses for the purpose of showing the defendant's plan, scheme, system, or design; (II) whether the trial court committed prejudicial error by allowing the defendant to call a witness on his behalf over defense counsel's objection; (III) whether the State presented sufficient evidence of the victim's serious personal injury to sustain a conviction of first degree rape and sexual offense on that basis; and (IV) whether mandatory life sentences for first degree rape and first degree sexual offense convictions constitute cruel and unusual punishment.

I

Though N.C.G.S. § 8C-1, Rule 404(b) has long been considered to be a "general rule of exclusion" subject to many exceptions, recent appellate cases have unequivocally stated that Rule 404(b) is a "general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis in original); State v. Faircloth, 99 N.C.App. 685, 689, 394 S.E.2d 198, 200-01 (1990). Under Rule 404(b), " 'evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused.' " Coffey, 326 N.C. at 278, 389 S.E.2d at 54 (emphases in original) (citations omitted). Thus, such relevant...