State v. Harrington, 441PA92
| Decision Date | 05 November 1993 |
| Docket Number | No. 441PA92,441PA92 |
| Citation | 335 N.C. 105,436 S.E.2d 235 |
| Parties | STATE of North Carolina v. Johnnie HARRINGTON. |
| Court | North Carolina Supreme Court |
Michael F. Easley, Atty. Gen. by Ellen B. Scouten, Asst. Atty. Gen., Raleigh, for the State.
Cunningham, Dedmond, Petersen & Smith by Bruce T. Cunningham, Jr. and F. Marsh Smith, Southern Pines, for defendant-appellant.
Defendant, Johnnie Harrington, was indicted on one count each of sexual offense, rape, and kidnapping. He was found guilty of first-degree kidnapping and first-degree sexual offense and not guilty of rape. The trial court sentenced him to life imprisonment for the sexual offense and a concurrent twelve years imprisonment for the kidnapping. On 15 February 1993 this Court, recognizing that defendant had not had a direct appeal from the judgments entered upon his convictions, allowed defendant's petition for certiorari, --- N.C. ----, 426 S.E.2d 711. We now conclude that defendant received a fair trial, free of prejudicial error.
The evidence presented at trial tended to show the following:
The victim is defendant's first cousin. She moved from New York City to Cameron, North Carolina in July 1984 to live with her aunt, Lucy Johnson. On 17 August 1985 defendant's wife, Jennie Harrington, invited the victim to visit their home in Sanford. Defendant was thirty-five years old at the time; the victim was sixteen. On 18 August around 2:00 p.m., Jennie met the victim at her Aunt Lucy's home, left Jennie's daughter Tomika in Lucy's care for the day, and drove the victim to Sanford. They arrived at defendant's home around 3:00 p.m.
Soon thereafter, defendant arrived. Jennie was in the kitchen preparing a meal, and the victim was sitting in the den. After a period of conversation, defendant and Jennie went to their bedroom in the rear of the house. Defendant soon returned to the den. He told the victim that Jennie had something to tell her in the bedroom and to "be good and be nice." In the bedroom, the victim found Jennie looking upset. Jennie said it was not the victim's fault. The victim could tell something was wrong. Jennie asked the victim, "Did he tell you yet?" Defendant then came into the room briefly and suggested that the victim put on some fingernail polish. He left the room. Jennie asked the victim to put on a negligee. After initially declining, the victim obliged. She testified that she did so only to show Jennie briefly how it looked. While the victim was in the adjacent bathroom putting on nail polish and wearing the negligee, defendant again entered the bedroom. He had changed into a robe and bikini underwear.
The victim tried to cover herself with her shirt. Defendant struggled with her to remove the shirt. She then went to sit on the bed because she felt sick. Defendant tried to get on top of her, but she pushed him off. Defendant then slapped her several times and tried to force her into the spare bedroom. He threatened to kill her. Back in the bedroom again, she noticed defendant had a gun. Defendant asked, "Oh, you scared of this?" He fired the gun twice toward the floor, once near the bathroom door and once as he walked out of the bedroom. Jennie told the victim just to do everything she did.
Defendant returned to the bedroom holding the gun and a smoking pipe containing marijuana. After the three of them smoked from the pipe, defendant told the victim and Jennie to get on their knees. He removed his underwear and told the victim to perform oral sex on him. When she refused, he directed Jennie to demonstrate the act. Defendant then placed the gun at the victim's head and forced her to perform oral sex on him. After defendant had consensual sexual intercourse with Jennie, he had sexual intercourse with the victim. Defendant continued to hold the gun in his hand. He again had sexual intercourse with each woman. The victim testified she did not consent to any of these sexual acts.
During the course of these events, the victim twice left the bedroom, saying she needed a cigarette. She testified she did not try to escape because (1) she was scared, (2) she had no money, (3) she was wearing only a negligee and underclothes, (4) she did not know how to get back to Cameron, and (5) defendant had threatened to kill her.
The victim, Jennie, and defendant returned to the den where defendant showed a pornographic movie on the television. The victim only "glanced" at it, and she began to offer excuses as to why she needed to return home.
Jennie drove the victim home around 11:00 p.m., stopping at McDonald's to get her dinner. They did not discuss what had happened. After arriving at home, the victim did not speak to anyone and went outside to eat her meal. Lucy Johnson testified that the victim was not in her usual "jolly and happy" mood. She looked sad, and her face was "puffy." She looked like something was wrong, and her eyes "looked like she had been crying." When Lucy asked the victim if everything was all right, Jennie answered for her, assuring Lucy the victim was "fine." The victim walked with Jennie and her daughter Tomika to Jennie's car. Jennie told the victim,
The victim did not tell anyone about the incident until very late the evening of 19 August when she told her cousin, Michele Johnson, "Johnnie raped me." She then recounted the events of the evening in question to Michele. Michele's testimony corroborated the victim's, with minor additions. She stated that defendant had told the victim soon after he arrived home that afternoon that the spare bedroom could be hers if she would "just do what [he said] and listen to [him]." Michele also testified that after defendant fired the second gun shot, Jennie told the victim, Michele also stated that when defendant was forcing the victim to perform oral sex on him, he held the gun over her head and told her she had "better do it right or else." Michele and the victim then woke up their aunt, Lucy Johnson, and told her what had happened. Lucy called the police.
Detective Kevin Gray testified that he took the victim's statement the next morning, 20 August. He re-read the statement to her several times for her verification. She swore to its accuracy before a magistrate. Her statement was consistent with her court testimony with slight variation. She stated defendant had pointed the gun at her twice. She also stated that defendant told her before she left the house that if she "got pregnant to call Jennie to arrange an abortion."
Gray also testified that he and a colleague went to defendant's home on 20 August. He identified three bullet holes in defendant's bedroom floor. Two of the holes were very similar. Gray suggested they were made by a gun about the size of a .38 caliber. One of the holes was near the bathroom door, and the other was near the bedroom entrance.
Detective Ray Garner testified that he accompanied Gray to defendant's home. He identified State's Exhibit 1 as the .38 caliber pistol he found in the home.
Defendant's testimony varied greatly from the evidence presented by the State. He first testified that one night in 1984 he drove the victim back to Cameron from Pinehurst, where they had checked their grandmother into the Moore County Hospital. He stopped at a convenience store to buy beer which he and the victim drank. The victim then approached defendant and performed unsolicited oral sex on him while he drove. On her cross-examination earlier in the trial, the victim had denied that this happened, saying defendant was lying if he said it did.
Defendant testified that when he returned to his home on 18 August 1985, having been out drinking, he was surprised to see the victim there. Because he and Jennie had argued about his drinking problem that morning, he went to see Jennie in the bedroom to try to make amends. She would not talk to him. He and the victim drank in the den and smoked marijuana on the patio. He asked the victim for a "repeat performance" of that night in 1984, but the victim said she was worried about what Jennie would do if she did that. Defendant and the victim then agreed to watch a pornographic movie. Jennie testified she was watching television in the bedroom during this time.
Defendant then went to the bedroom and told Jennie he wanted her and the victim to "get pretty" and just do what he said. He returned to the den and told the victim to go to the bedroom because Jennie had "something she want[ed] to tell [her]." When he later entered the bedroom in his robe and underwear, he saw the victim sitting on a footstool at the foot of the bed dressed in a "nightie" and Jennie sitting in the bathroom in her "nightie."
When Jennie refused to come out of the bathroom, defendant testified he took Jennie's .38 special out of her dresser drawer. He identified State's Exhibit 1 as that gun. He fired the gun at the floor while standing outside the bathroom. At this point the victim still sat on the stool behind him. He testified that he did not look at her, point the gun at her, or direct any conversation at her. He yelled at Jennie and left the room, firing another shot at the floor.
After he returned with the gun and the three of them had smoked marijuana, defendant told Jennie, "[the victim] and I have got something to show you." He asked the victim to come over and show Jennie a "repeat performance." He had the gun in his hand. The victim came over to him, removed his underwear, and performed oral sex on him. Defendant then laid back on the bed and had Jennie call his supervisor to say he was too sick to work.
Jennie and the victim left. Defendant denied ever threatening the victim, hitting her, or forcing her to do anything the entire evening, with or without a weapon.
On cross-examination, defendant testified that he had several beers and numerous gin...
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