State v. Johnson, 502A86

• Decision Date: 07 October 1987
• Docket Number: No. 502A86,502A86
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Flint Fitzgerald JOHNSON.

Page 676

360 S.E.2d 676

320 N.C. 746

STATE of North Carolina v. Flint Fitzgerald JOHNSON.

No. 502A86.

Supreme Court of North Carolina.

Oct. 7, 1987.

Lacy H. Thornburg, Atty. Gen. by David Roy Blackwell, Asst. Atty. Gen., Raleigh, for state.

Malcolm Ray Hunter, Jr., Appellate Defender by Daniel R. Pollitt, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WHICHARD, Justice.

Defendant was convicted of two counts of first degree rape, first degree kidnapping, assault with a deadly weapon with intent to kill inflicting serious bodily injury, and assault with a deadly weapon. He was sentenced to two consecutive life terms for the rapes, thirty years (consecutive) for the kidnapping, and eight years (consecutive) for the assaults. We find no error in the guilt phase but remand for resentencing.

The State's evidence, in pertinent summary, showed the following:

At approximately 1:00 a.m. on 2 November 1985 defendant approached the victim in a parking lot on the campus of North Carolina Central University in Durham. The victim returned to her car while talking with defendant. Defendant entered the car and procured a broken bottle, held the bottle to the victim's neck, and ordered her to drive down a dirt road and stop. Defendant then instructed her to get into the back seat.

The victim obtained a pair of scissors from the window visor, but defendant took them from her. He then forced her to remove her clothes and had involuntary sexual intercourse with her. Five minutes later he again had involuntary intercourse with her. He then forced her to return to the front seat and begin driving.

The victim, still unclothed, noticed a house with lights on. She slowed the car, jumped out, and ran toward the house. Defendant pulled her down from behind and began stabbing her with the scissors. An occupant of the house heard the screams, rushed from his house, and observed a black male fleeing from the scene. He helped the victim into his home, and his wife contacted law enforcement authorities.

The victim suffered numerous stab wounds and a collapsed lung.

Defendant presented several alibi witnesses who testified that he was in the District of Columbia when the alleged incidents occurred. He also presented evidence tending to refute the victim's description of him.

GUILT PHASE

Defendant contends the court erred in admitting evidence which tended to show that he made a local phone call in Durham on 2 November 1985, when his alibi witnesses claimed that he was in the District of Columbia. The following exchange occurred on direct examination of a State's witness:

Q. Okay. Now, on that Saturday afternoon were you able to tell by the phone connection whether it sounded like a local call or a long distance call?

[Defense Counsel]: Objection, Your Honor.

That would be so speculative it would be unreal.

COURT; Overruled, if she knows.

Q. ... Well, were you able to form any opinion?

A. In my opinion, they were local phone calls.

Q. Now, why do you say that?

A. Because with a long distance phone call you have--there's like an air sound or an echo in the phone--in the phone, and I did not hear that.

Assuming, without deciding, that the admission of this evidence was error, we hold the error harmless. The purpose of the evidence was to discredit defendant's alibi defense. The State presented considerable other evidence to the same effect. The victim positively identified defendant as her assailant. One State's witness testified that she drove defendant to the Durham bus station on the night of 2 November 1985. Another witness testified that on 1 November 1985 defendant asked friends of the witness to drive him to the scene of the abduction. Still another testified that defendant came to his home on a Saturday morning in November and claimed to have raped a white woman; 2 November 1985 was a Saturday.

In light of the foregoing, the witness' opinion as to the local origin of her phone call from defendant was cumulative and insignificant. Defendant has failed to establish that "there is a reasonable possibility that, had the [alleged] error in question not been committed, a different result would have been reached at the trial...." N.C.G.S. § 15A-1443(a) (1983). This assignment of error is thus overruled.

Defendant concedes that he did not object to the jury instructions at trial. He nevertheless contends that we should find "plain error" in two aspects of the instructions:

First, he argues that the court erred in instructing that the jury could convict him of the rapes if it found, inter alia, that There was insufficient evidence that he inflicted serious personal injury upon the victim "before, during, or soon after either rape." The only evidence of serious injury was that regarding the stab wounds inflicted by the use of scissors. Since these wounds were inflicted some time after both rapes, they cannot "relate back" to the rapes so as to constitute an element of the offenses. This is especially so, defendant argues, as to the first of the two alleged rape offenses. Since the jury returned a general verdict of guilty, it is impossible to determine whether the verdict is based upon a finding that defendant employed or displayed a dangerous or deadly weapon, which is supported by the evidence, or upon a finding that he inflicted serious injury upon the victim, which is not. "[A] conviction cannot stand merely because it could have been supported by one theory submitted to the jury if another, invalid theory was also submitted and the jury's general verdict of guilty does not specify the theory upon which the jury based its verdict." State v. Belton, 318 N.C. 141, 164, 347 S.E.2d 755, 769 (1986).

he employed or displayed a dangerous or deadly weapon or weapons (i.e., a broken bottle and a pair of scissors), or that he inflicted serious injury upon the victim (i.e., numerous stab wounds or cuts). The basis of his argument is the following:

"A prerequisite to our engaging in a 'plain error' analysis is the determination that the instruction complained of constitutes 'error' at all." State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986). We conclude that the challenged instruction was not error, and therefore a "plain error" analysis is not required. Id.

We stated in State v. Blackstock, 314 N.C. 232, 242, 333 S.E.2d 245, 252 (1985):

[O]ur legislature intended and we therefore hold that the element of infliction of serious personal injury upon the victim ... in the crimes of first degree sexual offense and first degree rape is sufficiently connected in time to the sexual acts when there is a series of incidents forming one continuous transaction between the rape or sexual offense and the infliction of the serious personal injury. Such incidents include injury inflicted on the victim to overcome resistance or to obtain submission, ... in an attempt to commit the crimes or in furtherance of the crimes ... or ... for the purpose of concealing the crimes or to aid in the assailant's escape.

Here both rapes and the assault that inflicted serious injury occurred within a one-half hour period. Defendant inflicted the injury in an attempt to prevent the victim's escape from his unlawful custody. He probably inflicted the injury to obtain the victim's submission for the purpose of further sexual assaults, in an attempt to conceal the crimes, and in an attempt to aid in his escape. In any event, he clearly inflicted the injury "in furtherance of the crimes." Id. We thus hold that the injury was one in a series of incidents in the same criminal episode, forming one continuous transaction between the rapes and its infliction. Id. See also State v. Locklear, 320 N.C. 754, 360 S.E.2d 682 (1987). The instructions in question thus were not error.

Second, defendant argues that the court erred in instructing on the kidnapping charge that "[t]he multiple stabbing and cutting of a person with scissors, leaving a tip of said scissors embedded in the person's head, would be a serious injury." He contends that the instruction constituted "an unconstitutional preemptory [sic] instruction or directed verdict on the 'serious injury' element of the four offenses where 'serious injury' was an element."

We recently addressed a similar contention in State v. Torain, 316 N.C. 111, 340 S.E.2d 465. There, the trial court instructed that a utility knife constituted a dangerous or deadly weapon for purposes of first-degree rape. We upheld the instruction, explaining:

In this case, therefore, the nature of the weapon used or displayed by defendant in the commission of his sexual assault upon the victim was not an "element"-question of fact-of the offense for which he was tried and convicted. The fourth element of first-degree rape is that the defendant "employ[ed] or display[ed] a State v. Torain, 316 N.C. at 122, 340 S.E.2d at 471-72. See also State v. Davis, 33 N.C.App. 262, 234 S.E.2d 762 (1977) (court may instruct that if jury believes uncontradicted evidence showing injuries that could not conceivably be regarded as anything but serious, it may find that there was serious injury).

dangerous or deadly weapon." N.C.G.S. § 14-27.2(a)(2)(a) (1981); N.C.P.I.-Crim. 207.10, at 2 (1983). The question of fact within this element is whether defendant employed or displayed the weapon found to be dangerous or deadly, here, as a matter of law. The trial judge properly instructed the jury that its duty would be to return a verdict of guilty of first-degree rape if the jury found, inter alia, that the State had proved, beyond a reasonable doubt, that "N.L. Torain used or displayed the utility knife."

Here, similarly, the multiple stabbing and cutting with scissors, leaving a tip of the scissors embedded in the victim's head, could not conceivably be considered anything but serious injury. The question of fact for the jury was whether defendant caused the injury which we here hold to be serious as a matter of law. The court thus properly...