State v. Johnson
| Decision Date | 12 August 1986 |
| Docket Number | No. 506A84,506A84 |
| Citation | 347 S.E.2d 7,317 N.C. 417 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina, v. Julius Cedrick JOHNSON. |
Lacy H. Thornburg, Atty. Gen. by George W. Lennon, Asst. Atty. Gen., Raleigh, for State.
Isabel Scott Day, Public Defender by Marc D. Towler, Asst. Public Defender, Charlotte, for defendant-appellant.
The questions presented in this appeal are whether the trial court erred in (1) admitting evidence of crimes other than those being tried; (2) denying defendant's motion to excuse a juror for cause; (3) its instructions on the meaning of "vaginal intercourse"; and (4) refusing to instruct on the lesser included offense of attempted first degree rape. We find reversible error only in Judge Ferrell's failing to instruct the jury on attempted first degree rape as to one of the victims. Accordingly, we grant defendant a new trial on the charge of first degree rape as to this victim. We leave undisturbed defendant's remaining convictions and judgments entered thereon.
The state produced evidence which tended to show that on the morning of 23 December 1983 Hope Untener and Sonya Hasbun were packing to move out of their apartment at 1536 Delane Avenue in Charlotte. Their friend Kelly Gallant arrived at the apartment around 6:30 a.m. to carry Hasbun to the airport. Soon after she arrived, a man wearing a stocking over his head, a blue glove with red leather on it and carrying a double-barreled shotgun entered the apartment. Gallant recognized the glove and the stocking as items she had left in her car.
The intruder pointed the shotgun at the three women, threatened to kill them if they did not stop screaming, and demanded money. The women obtained their wallets and placed them on the floor in front of them.
After asking who lived in the apartment, to whom the car belonged and whether they were moving in or out, the man announced, "We've got some business to take care of." He asked, "Do you know who I am?" In response to their answer they did not, he said,
The man ordered the women to strip. Untener told him she had friends coming over to take them to the airport but the man was not dissuaded and said,
The intruder ordered the women to perform manual and oral sex acts on each other while he watched. Stating it was his turn and up to him to finish the rest, he made the women lie side by side on the floor. He first got atop Hasbun and told her, "Put your hand around my penis and put me in." The assailant then went to Untener and Gallant in succession and instructed each likewise to "put it in," which they did. After finishing, the man announced they were going to do it again.
The man went back to each woman in the same order as the first time. After a second round of similar sexual assaults, the assailant put his pants on and ordered Gallant to pick up the money. As she did, she noticed beside her a black wallet she did not recognize. After pocketing the money, the man herded the three women into Hasbun's bathroom and left.
All three women were unable to recognize their assailant. They observed he was wearing brown shoes, beige pants, an orange windbreaker and green shirt with a beige collar. They also observed he was black, 5 feet 10 inches and about 170 pounds.
The police arrived at the scene of the attack and found a black wallet lying on the floor which contained a driver's license bearing defendant's name and photograph, as well as a Kroger card with defendant's name on it.
Defendant was arrested at 815 Villa Court, his mother's home, on 23 December 1983. He was wearing brown pants, a beige shirt and brown shoes. Two shotgun shells and $22 in change were taken from his pants pocket. Defendant's clothes were seized and pubic hair combings, head hair, pubic hair and saliva samples were also taken. A red and blue glove also was taken from the trunk of his mother's car.
Louis Portis, PhD., a criminologist, examined the clothes taken from defendant and discovered three fibers on the inside of the pants leg and one fiber each on a sock and the right shoe. He compared them to a carpet sample from 1536 Delane Avenue and fibers found on the red and blue glove seized from defendant's mother's car. He concluded all the fibers came from the same run of carpet. Dr. Portis also observed that the glove seized was a right glove while the glove remaining after the attack in Gallant's car was a left glove; both were made of 100 percent acrylic nylon. Finally, Dr. Portis compared a pubic hair sample from Gallant with a Caucasian pubic hair combed from defendant and found the two to be consistent.
After defendant's rights were explained to him and he agreed to talk, the police asked why the crimes happened. Defendant responded that he had a problem and knew something was wrong with him; but if he told why, he would be admitting it. He stated as long as he did not admit it, his mother might believe he was innocent. Defendant interjected, "Besides, you don't even have the shotgun, do you?" According to the interrogating officer, defendant had not been told a shotgun was involved. Defendant also offered to confess to the 23 December 1983 crimes if the police would not charge him with others. The officer denied having told defendant he was a suspect in any other crimes. Asked how many crimes there were, defendant looked into the air and started counting, stopping at eight. Defendant also stated he knew who the "Wendover rapist" was but had to think of what his family would think.
In addition to this evidence relating to the offenses committed on 23 December, the state also introduced evidence regarding four other rapes and robberies committed earlier in the year. Defendant filed motions in limine to exclude the evidence, but the trial court denied the motions.
Defendant offered no evidence.
Defendant assigns error to the trial court's admission of evidence relating to four other rape and robbery offenses in addition to those charged in this case for the purpose of proving defendant's identity as the perpetrator of the offenses charged. We find no error.
The other crimes evidence was as follows:
Beth Thrift testified that on 17 June 1983 around 2:30 a.m. a young black male between 18 and 24 years old, about 5 feet 9 inches tall and weighing 160 pounds, jumped on top of her as she lay sleeping in her condominium on 920 Hollywood Drive. The man placed a knife to her throat and threatened to kill her and her son if she said a word. Thrift testified her son was not sleeping in the condominium that evening and nothing visible in the child's room would have distinguished the sex of the child as a boy. After again threatening to kill Thrift and her son, the man unzipped his jeans, lowered them slightly and lay on top of her. He took her left hand, clasped it around his penis, and ordered, "Put it in." After she complied, the man began intercourse and made several comments to her. He asked, "When is your man going to be home?" and instructed her to kiss him. When she refused, he said, "What's the matter; don't your man do it this way?" and After he ejaculated, the man got off Thrift and asked further questions about when her man was coming home and where her telephone was. He threatened once more to kill her and her son if she said a word, then went downstairs. Thrift heard him jingle some keys or money in the kitchen before he left. She waited awhile and then ran next door to her neighbor, Melinda Sikes Fare, whose roommate notified the police. Ms. Thrift was unable to identify her assailant. The police took the sheet from a bed. Dr. Portis found two Negroid pubic hairs which he compared with hairs taken from defendant. In his opinion they were consistent. The police dusted for fingerprints on two windows Thrift had left open before going to bed but found none.
Linda Norden testified that on 4 July 1983 her roommate was at the beach and she was sleeping alone in her duplex at 809 Bertonly Avenue. Sometime after she retired around 1:30 a.m., she was awakened by the glass in her back door shattering. A slim black male about 5 feet 10 inches tall in his early 20's appeared in her bedroom. After questioning Norden about where her roommate and dog were and going into the kitchen and her roommate's bedroom, the man climbed up on her bed armed with a knife. Norden began struggling and screaming and the man struck her several times, splitting her eye and lip and bruising her. She ceased struggling and told the man she had venereal disease. Undeterred, the man began to rape her. During the act, the man asked when was the last time she had been with her man and how he made love. He asked her to participate. When the man finished, he got off the bed and asked for money. The intruder brought Norden her pocketbook and took out her wallet using a handkerchief. When he discovered she had only a dollar, he threatened to kill her if he saw a police car and left.
Deborah Imbriano, aged 26, testified that as she was preparing to leave her apartment at 924-A North Wendover Road to go jogging about 6:30 a.m. on 13 August 1983, she noticed a black man looking in her window for three or four seconds. He ducked and went around the corner of the building. Imbriano went out the door and saw the same man standing against the building. He said, "Oh, excuse me, I thought you were Susan." The man, with whom she was face-to-face for several seconds, was wearing blue jeans and a blue shirt with a blue collar.
Imbriano went jogging and returned to her apartment about twenty minutes later. When she entered her apartment she noticed her clothes strewn on the floor and a black man standing in her bedroom. The intruder pulled her to the floor before she could...
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