State v. Hedgepeth

• Decision Date: 07 February 1984
• Docket Number: No. 8310SC154,8310SC154
• Citation: 310 S.E.2d 920,66 N.C.App. 390
• Parties: STATE of North Carolina v. Joseph HEDGEPETH.
• Court: North Carolina Court of Appeals

Page 920

310 S.E.2d 920

66 N.C.App. 390

STATE of North Carolina v. Joseph HEDGEPETH.

No. 8310SC154.

Court of Appeals of North Carolina.

Feb. 7, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard H. Carlton, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender James H. Gold, Raleigh, for defendant-appellant.

BECTON, Judge.

Defendant was indicted for first degree rape. His first trial on this charge ended in a hung jury. He was convicted of second degree rape at a second trial and was sentenced to 18 years in prison.

I

The dispositive issues on appeal relate to (a) the trial court's refusal to allow defendant's attorney to question prospective jurors regarding their willingness and ability to follow the judge's instructions regarding their consideration of defendant's criminal record; (b) the trial court's refusal to allow the defendant to disclose his criminal record on direct examination; and (c) the trial court's allowing the State to impeach defendant by questioning him about a plea of nolo contendere. For the reasons that follow, we order a new trial.

II

The prosecuting witness testified that, after she and a girl friend drank beer at a few taverns in Raleigh on the evening of 10 October 1981, the two of them walked to the Fayetteville Street Mall in downtown Raleigh, where they parted. Later, as the prosecuting witness walked down the street, she was met by defendant, who began talking to her. According to her testimony, defendant suddenly grabbed her and pushed her to the ground in a grassy area. Defendant then beat, choked, and forcibly had sexual intercourse with her. After they had intercourse, defendant offered to call a cab for her at his house. She walked with him to a house where, instead of calling a cab, defendant told her to remove her clothes and to get in bed. She had sexual intercourse with defendant seven or eight times that night, submitting because defendant threatened to "put [her] in the freezer box," and because one time she saw defendant with a knife. Further, every time she tried to run, defendant hit her.

The next morning, defendant walked her to a bus stop near a coffee shop. It was daylight, and there were other people near the bus stop. When the prosecuting witness declined defendant's offer to buy her coffee, defendant left her alone for approximately ten minutes while he was in the coffee shop. When defendant returned from the coffee shop, he gave her a few dollars and some change to get a bus. She then went inside the coffee shop and telephoned her girlfriend, who agreed to meet her at the court house. When she came back out, defendant was gone.

The prosecuting witness was examined later that morning at Wake Medical Center. The examining physician testified that she had prominent contusions about the face, neck and left leg, which had been sustained within the past twelve to twenty-four hours. He performed routine sexual assault examinations and did not notice anything particularly remarkable. There was no evidence of trauma on the pelvic examination.

Ms. Boykin, the girlfriend, testified that the prosecuting witness did not have any marks or bruises on her person when she last saw her on the night in question. When they met the next morning, the prosecuting witness' hair was messed up, and she had bruises all over her neck. Three other people who had seen the prosecuting witness the night before also testified that they observed no bruises or marks on her that night.

The prosecuting witness at some point identified the house where the alleged rape occurred, although it was a different house than the one she had identified initially. However, she was unable at any time to locate for police the grassy area where she was first allegedly raped.

Defendant's testimony was altogether different. He testified that he was driving down the street when he saw the prosecuting witness standing on the corner. He pulled over and asked her what she was doing. She told him "she was out having fun." He replied that he "would like to have some fun with her." She got into his car, and he drove to his house, where he lived with his mother and two children. After they went into the house, the prosecuting witness asked for twenty dollars. After he gave her fifteen dollars, she got in bed and had intercourse with him. The next morning, he walked her to the bus stop because his car would not start. After he gave her twenty cents to make a phone call, she disappeared.

III

Defendant's first contention is that the trial court erred in refusing to allow his attorney to question prospective jurors regarding their willingness and ability to follow the judge's instructions that they were to consider defendant's prior criminal record only for purposes of determining his credibility as a witness.

Pursuant to N.C.Gen.Stat. § 15A-1214(c) (1978), a defendant's counsel is allowed to question prospective jurors individually regarding their competence and fitness to serve as jurors to determine whether there is a basis to challenge for cause or to exercise a peremptory challenge. "Each defendant is entitled to full opportunity to face the prospective jurors, make diligent inquiry into their fitness to serve, and to exercise his right to challenge those who are objectionable to him." State v. Thomas, 294 N.C. 105, 115, 240 S.E.2d 426, 434 (1978). Indeed, our jury selection system "permit[s] parties to protect themselves against prejudice by allowing them to exclude unacceptable jurors." State v. Woods, 286 N.C. 612, 619, 213 S.E.2d 214, 220 (1975), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3207, 49 L.Ed.2d 1208 (1976).

It is true that G.S. § 15A-1214(c) does not permit counsel to ask jurors the "kind of verdict they would return under certain named circumstances" or to "fish for answers to legal questions before the judge has instructed the juror on applicable legal principles by which the juror should be guided;" however, counsel is permitted to ask jurors if they would follow the trial judge's instructions. State v. Phillips, 300 N.C. 678, 682, 268 S.E.2d 452, 455 (1980). In Phillips, the defense counsel asked a prospective juror if the defendant would have to prove anything to her before defendant would be entitled to a verdict of not guilty. At that point, the trial court intervened, but permitted counsel to ask all twelve jurors if they would follow the judge's instructions that the burden is on the State to prove the defendant guilty beyond a reasonable doubt.

In the present case, defendant's counsel was not "fishing" or "staking the jurors out," by questioning them as to the kind of verdict they would render or how they would be inclined to vote under a particular set of facts. State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3204, 49 L.Ed.2d 1206 (1976). Defendant's counsel merely wanted to ask the jurors the same type of question the trial court allowed and which the Supreme Court approved in Phillips, that is, whether the juror would be able to follow the judge's instructions, in this case, regarding their consideration of defendant's prior convictions.

The request was squarely put to the trial judge. The following occurred just prior to jury voir dire:

MR. CRUMPLER: Will I be prohibited from asking the juror whether--well, first of all, will I be prohibited from informing the jury that my client is going to testify and it will come out in evidence that he has a criminal record and if the Court instructs the jurors that may be considered only for the purpose of determining his credibility would it--would they follow the Court's instructions. [Emphasis added.]

May I ask such a question?

THE COURT: Flatly you are prohibited from doing so.

Further, the trial court was fully aware of defendant's contentions as they had already been asserted in pre-trial motions and an affidavit from defense counsel. By way of example, defense counsel stated the following, among other things, in his affidavit:

2. I have discussed the case at length with my client and have read a partial transcript of the last trial. My client's criminal record was put in issue at that trial, obviously for the purposes of impeachment although the district attorney, Mike Payne, asked about other offenses that my client denied being convicted for. Apparently my client has no record of convictions except in Wake County, North Carolina. In looking through the records in the Office of the Clerk of Superior Court of Wake County and in talking with my client, it appears that his criminal record of convictions is confined to the following:

a. 1962--assault with intent to commit rape and assault on a female, and a subsequent escape;

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c. 1971--assault and battery;

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e. 1978--assault with intent to commit rape (upon a plea of no contest);

f. 1981--assault on a female (his sister).

3. My client believes that the only attorneys he has ever had representing him were me (for the 1978 plea of no contest to assault with intent to commit rape and presently) and Howard Manning, Jr. in this case. Particularly, he does not recall having an attorney in 1962.... To the best of his recollection he does not believe that he ever signed a waiver of his right to appointed counsel, and he does not believe that he was in a position to employ an attorney in those other instances.

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6. I am very much concerned, based upon my experience as a trial attorney, that numerous questions concerning Mr. Hedgepeth's record could be inflammatory and create bias in the jury against him. Moreover, I did review the court files for the two assault offenses in 1962. There is no reference in the files indicating that Mr. Hedgepeth had an attorney. Further, from the files it appears that he was 15 years old at the time of those offenses; he was processed through the domestic relations court and bound over to Superior Court. Considering the nature of ...