State v. Galloway

• Decision Date: 21 August 2001
• Docket Number: No. COA00-807.,COA00-807.
• Citation: 145 NC App. 555,551 S.E.2d 525
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Terrence Eugene GALLOWAY, and Edward Antoine Rheddick.

551 S.E.2d 525

145 NC App. 555

STATE of North Carolina v. Terrence Eugene GALLOWAY, and Edward Antoine Rheddick.

No. COA00-807.

Court of Appeals of North Carolina.

August 21, 2001.

Attorney General Michael F. Easley, by Assistant Attorney General Daniel P. O'Brien and Joan M. Cunningham, for the State.

Lisa Miles, Durham, for defendant-appellant Galloway.

Thomas S. Hicks, PLLC, by Thomas S. Hicks, Wilmington, for defendant-appellant Rheddick.

HUNTER, Judge.

Terrence Galloway ("defendant Galloway") and Edward Antoine Rheddick ("defendant Rheddick") appeal from judgments on jury verdicts finding them guilty of the rape, sexual offense, attempted murder, and kidnapping of Ronda Seaton ("the victim"). On appeal, defendants assign error to the trial court's: (1) denial of their motions for mistrial based on the State's alleged use of perjured testimony and the State's closing argument, (2) limitation of the cross-examination of the victim, (3) jury instructions on first-degree rape, and (4) denial of defendant Rheddick's motion to sever. After a careful review of the record and briefs, we find no error as to the trial court's rulings; however, as to defendant Rheddick, we vacate his conviction for attempted second-degree murder in light of our Supreme Court's decision in State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000).

The State's evidence tended to show that on 10 February 1998, defendant Galloway, defendant Rheddick, and Maurice Brown ("Brown") were riding around in a white Honda automobile with tinted windows, and the men had two guns in the automobile. At approximately 11:00 p.m., the three men saw the victim, and they stopped to pick her up. According to the victim's testimony, the men forced her into the car at gun point and abducted her against her will. However, Brown contradicted the victim's account, testifying instead that the victim voluntarily entered the car and agreed to exchange sex for money.

After searching for a location to stop, defendant Galloway drove the car onto a side road. When the car was parked, the victim testified that defendant Rheddick, holding a gun, ordered her out of the car and told her to undress. The victim began to comply, but before she could finish undressing, defendant Rheddick ripped off her shirt. Defendant Rheddick then pushed the victim into the car, forced her to perform oral sex on him, and thereafter engaged in vaginal intercourse. When defendant Rheddick was finished, the victim ran off into the woods. However, after some coaxing by the three men, she came back. Thereafter, defendant Rheddick threw the victim onto the hood of the car and placed a gun inside her vagina. Next, defendant Galloway ordered the victim to get inside the car. When the two were in the car, defendant Galloway forced the victim to perform oral sex on him, and thereafter engaged in vaginal intercourse.

Brown's testimony of defendants' actions when they arrived at the side road is fairly consistent with the victim's, however, Brown testified that first defendant Galloway, and then defendant Rheddick, had sex with the victim. After both defendants were finished, Brown got into the car with the victim. The victim was forced to perform oral sex and engage in vaginal intercourse with Brown, also. At this juncture, the victim got out of the car and again attempted to flee. However, the victim's attempt was thwarted as Brown pushed her down, defendant Galloway beat her with a two-by-two board with a bolt in it, and defendant Rheddick kicked her. After this attack, the victim lost consciousness; and the three men left the scene.

Defendant Galloway and defendant Rheddick were tried together in a joint trial during the 6 December 1999 Criminal Session of New Hanover County Superior Court, the Honorable W. Allen Cobb, Jr. presiding. At the conclusion of the trial, the jury found (1) defendant Galloway guilty of first-degree rape, first-degree sexual offense, attempted first-degree murder, and first-degree kidnapping, and (2) defendant Rheddick guilty of second-degree rape, second-degree sexual offense, attempted second-degree murder, and first-degree kidnapping. Judge Cobb entered judgments and sentenced both men to imprisonment. Defendants now appeal.

In their first assignment of error, defendants contend that the trial court erred when it denied their motions for mistrial. Specifically, defendants argue that the trial court abused its discretion in denying their motions for mistrial based on the State's (1) alleged use of perjured testimony, and (2) closing argument. However, we find no error.

We recognize that a trial judge "must declare a mistrial upon the defendant's motion 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 (1999). Whether a motion for mistrial should be granted is a matter which rests in the sound discretion of the trial judge. State v. Blackstock, 314 N.C. 232, 243, 333 S.E.2d 245, 252 (1985). The decision to grant or deny such a motion will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion. State v. McGuire, 297 N.C. 69, 75, 254 S.E.2d 165, 169-70 (1979).

First, defendants argue that the trial court erred in denying their motion for a mistrial based upon the State's alleged use of perjured testimony. At trial, two versions of the victim's abduction were presented—the victim's and Brown's. As one of the versions was obviously false, defendants assert that the State knowingly used perjured testimony.

Ordinarily:

A prosecutor's presentation of known false evidence, allowed to go uncorrected, is a violation of a defendant's right to due process. The State has a duty to correct any false evidence which in any reasonable likelihood could affect the jury's decision. However, if the evidence is inconsistent or contradictory, rather than a knowing falsehood, such contradictions in the State's evidence are for the jury to consider and resolve.

State v. Clark, 138 N.C.App. 392, 397, 531 S.E.2d 482, 486 (2000) (citations omitted); see also State v. Edwards, 89 N.C.App. 529, 531, 366 S.E.2d 520, 522 (1988)

.

Initially, the victim testified that she was abducted at gun point. Additionally, the victim admitted, on cross-examination, that she had a 1997 conviction for prostitution— on that occasion, she approached a car, in the same neighborhood where defendants picked her up, and offered an undercover police officer sex in exchange for cash and a ride. Contrarily, Brown—who was allowed to plead to reduced charges of second-degree rape, second-degree sexual offense, and second-degree kidnapping in exchange for testifying for the State—testified that defendant Galloway said, "[l]et's get a prostitute"; the victim came to the passenger side of the car and discussed prostitution with defendant Galloway; the victim was not forced to get into the car; while performing oral sex on defendant Galloway, the victim asked about money; and defendant Galloway then put a gun to the victim's head. Otherwise, the victim's and Brown's accounts of the events are fairly consistent.

At bar, we find that defendants have failed to show that the State knew that either the victim's or Brown's testimony was false. Instead, the State offered both witnesses's testimony, and it was then for the jury to consider and resolve the inconsistencies. See State v. Clark, 138 N.C.App. 392, 397, 531 S.E.2d 482, 486

. Accordingly, we hold that the trial court did not abuse its discretion in denying defendants' motion for a mistrial based on the State's use of the victim's and Brown's testimony.

Secondly, defendants argue that the trial court erred in denying their motion for a mistrial based on the State's closing argument. Particularly, defendants make two separate contentions. First, defendants allege that the State improperly referred to portions of defendants' statements that were redacted—the references to prostitution. Second, defendants allege that the State made improper inferences based upon those redacted statements—specifically, (1) defendants' defense that the victim consented and willingly prostituted herself was fabricated for trial, and (2) defendants failed to present evidence that they were not present or did not assist in the commission of these crimes.

It is well-settled that "[t]rial counsel are allowed wide latitude in jury arguments." State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 39-40 (1994). However, trial counsel may not make arguments "calculated to mislead or prejudice the jury." State v. Riddle, 311 N.C. 734, 738, 319 S.E.2d 250, 253 (1984). "[A]n attorney may not make arguments based on matters outside the record but may, based on `his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.'" State v. Wilson, 335 N.C. 220, 224, 436 S.E.2d 831, 834 (1993) (quoting N.C. Gen.Stat. § 15A-1230 (1988)). "Ordinarily, the control of jury arguments is left to the sound discretion of the trial court and the trial court's rulings thereon will not be disturbed on appeal absent a showing of abuse of discretion." State v. Jones, 339 N.C. 114, 158-59, 451 S.E.2d 826, 850 (1994).

After being arrested, defendants both made statements to the police; each defendant's statement implicated the other defendant and minimized their own involvement. At trial, a hearing was held and portions of defendants' statements were redacted in an effort to comply with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (holding that the admission of a codefendant's statements against interest that also incriminated the defendant violated the defendant's Confrontation Clause rights where the declarant was unavailable for cross-examination). Then, during the closing argument, the State argued:

Curious thing about this whole

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