State v. Maccia

• Decision Date: 05 June 1984
• Docket Number: No. 339A83,339A83
• Citation: 316 S.E.2d 241,311 N.C. 222
• Parties: STATE of North Carolina v. John Joseph MACCIA.
• Court: North Carolina Supreme Court

Page 241

316 S.E.2d 241

311 N.C. 222

STATE of North Carolina v. John Joseph MACCIA.

No. 339A83.

Supreme Court of North Carolina.

June 5, 1984.

Rufus L. Edmisten, Atty. Gen. by William B. Ray, Asst. Atty. Gen., Raleigh, for the State.

Vernon, Vernon, Wooten, Brown & Andrews, P.A. by Wiley P. Wooten, Burlington, for the defendant appellant.

MITCHELL, Justice.

On appeal the defendant contends that the trial court erred in refusing to allow his motion to suppress certain evidence and in allowing cross-examination of the defendant about alleged prior misconduct. We conclude that no reversible error was committed at trial, but because of an error in sentencing, we vacate the assault judgment and remand for entry of judgment and resentencing on that conviction.

The State presented evidence tending to show that on July 17, 1982, a twenty-one year old woman was raped at knifepoint on Hatteras Island in the Village of Avon. She testified that she was working on Hatteras Island for the summer. She had rented an apartment from the defendant's grandfather which was close to the site at which the rape occurred. She testified that on the evening of July 16, 1982, she attended a party on the beach, and that she left the party around midnight with a girl friend and a young man named Darren Hooper. The three walked to a shopping center in Avon, where the rape victim's girl friend left the group and went in another direction. The victim and Hooper walked to Hooper's residence where they talked outside for a few minutes. While they were talking, a man passed the couple, went down the street a short way, turned and walked past them again. After Hooper and the victim finished talking, he went inside his house and she started walking toward her apartment.

The victim testified that shortly after leaving Hooper, she entered onto an unpaved portion of the road. She was startled by the sudden appearance of a male who grabbed her arm and placed a hard pointed object against her throat. The assailant took her to some bushes and told her to remove her clothes. After she did so, he had intercourse with her. She asked her assailant whether he was the boy who lived in Benny's Landing, the area in which she also lived. The assailant answered, "I'm nobody." The victim testified that her attacker was wearing sneakers, blue jeans, a belt and no shirt. She thought that he had removed his clothes at the time of the attack. She stated that shortly after she was attacked, Darren Hooper approached the area and called her name. She began to cry, and her assailant got up and ran away naked. She, too, ran off in the direction of Hooper's home.

Hooper testified that when he and the victim parted in front of his house after the beach party, he went inside and prepared for bed. He started thinking about the man who earlier had passed them twice and decided to get up to make sure that the victim had gotten home safely. He walked toward her apartment, and when he reached the place where she was found, he heard something in the bushes. He said he called the victim's name or "Is that you?". At that point a male jumped out of the bushes carrying a knife, slashed Hooper in the groin area and ran away. The woman then emerged from the bushes, crying and upset, and ran to Hooper's house.

The rape victim gave a description of her assailant to law enforcement officers, and both she and Hooper identified the defendant's photograph as that of the man who raped her and cut Hooper in the early morning hours of July 17, 1982. Detectives found various items of clothing and a pair of dirty white tennis shoes at the scene of the rape.

As a result of a nontestimonial identification order, the defendant's foot impressions were made in paint and ink and a cast was made of the imprint left inside the shoes found at the scene. Dr. Louise Robbins, an expert in the field of physical anthropology, testified that in her opinion the defendant's feet made the imprints inside the shoes found at the scene of the crime.

The defendant testified that he was visiting his grandfather at his house at Benny's Landing when the crime occurred. The defendant put on evidence which tended to show that the rape victim had met him before when the defendant helped her get into her apartment after the key given to her for the apartment failed to work. He testified that he was wearing shorts, flip-flops and a shirt on the night of the rape and that he had never been known to wear sneakers. He said he rarely wore a belt. He testified that he played cards with family members until about 10:30 on the night of the rape. After the card game, he had gone out to check on his mother's car which contained personal belongings. He testified that he noticed that a party was taking place on the beach and that he had gone to the party and stayed about ten minutes. He returned to his grandfather's house then and went to bed. The defendant testified that in the early morning hours of July 17, he heard someone trying to break into the house and that he woke up his grandfather and brother. The defendant and other witnesses testified that when the three went outside, they found that a screen had been removed from the house. They saw headlights at that time and encountered law enforcement officers investigating the rape that had occurred.

The defendant's evidence tended to show that both Hooper and the rape victim saw him on the day of the rape, and that neither indicated that the defendant was the person who had perpetrated the offenses. The shoes found at the scene were a size nine, and the defendant's evidence tended to show that he wore a size ten and a half or eleven. There was no evidence of semen present in vaginal smears taken from the victim or of a transfer of head or pubic hair from the defendant to her.

The defendant, through two assignments of error contends his constitutional rights were violated by the trial court's denial of his motion to suppress certain evidence and by its allowance of cross-examination of the defendant concerning alleged prior acts. Having examined the record, we find no error in the guilt-innocence phase of the trial below.

The defendant contends that his motion to suppress evidence obtained through nontestimonial identification procedures was improperly denied by the trial court because investigating law enforcement officers failed to comply with certain statutory requirements governing nontestimonial identification orders. The defendant claims he received inadequate notice of the procedures, resulting in violation of his constitutional right to counsel.

The General Assembly in Chapter 15A, Article 14 of The General Statutes has provided prosecutors with the opportunity to require suspects to submit to certain nontestimonial identification procedures such as fingerprinting and the measuring and testing of blood, urine, saliva, hair, handwriting and voice samples. Under Article 14, a person may be required to appear for such a procedure after a court order is served upon him. G.S. 15A-277 requires service of a copy of the order at least 72 hours in advance of the time for compliance unless the judge issuing the order determines that a delay will affect the probative value of the evidence.

An order to appear must state at what place and time the person is required to appear, grounds for suspecting the person of having committed a crime, procedures to be conducted and their approximate duration. G.S. 15A-278. The order must further state that the person is entitled to have counsel present, that the person may request modification of the order, that the person will not be subjected to any interrogation during the procedure and that failure to appear may result in being held in contempt of court. Id.

The defendant's evidence tended to show that he was served with a nontestimonial identification order on August 4, 1982 after 5:30 p.m. The procedures were to occur at 1:00 p.m. on August 6, 1982, less than 72 hours after service of the order. The evidence showed that both the defendant and his mother read the order and that the defendant's mother attempted to obtain counsel for her son on August 5 and August 6, 1982. She was unable to obtain counsel in that period of time, but the defendant appeared at the ordered location at the scheduled time. The defendant contends that had he had the required 72 hours notice, he may well have been represented by counsel at the procedures.

Upon the defendant's objection to the evidence obtained through the procedures, the trial court conducted a voir dire hearing. The trial court determined that the defendant had full understanding of his constitutional rights at the time of the procedures, including his right to counsel, and that he freely, knowingly, and...