State v. Marshall

• Decision Date: 30 December 1988
• Docket Number: No. 8822SC231,8822SC231
• Citation: 374 S.E.2d 874,92 N.C.App. 398
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Raymond Cannon MARSHALL.

Page 874

374 S.E.2d 874

92 N.C.App. 398

STATE of North Carolina v. Raymond Cannon MARSHALL.

No. 8822SC231.

Court of Appeals of North Carolina.

Dec. 30, 1988.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. George W. Boylan, Raleigh, for the State.

Hall & Vogler by E. Edward Vogler, Jr., Mocksville, for defendant-appellant.

GREENE, Judge.

In this criminal action defendant was indicted for the offenses of first-degree rape, N.C.G.S. Sec. 14-27.2 (1986), first-degree sexual offense, N.C.G.S. Sec. 14-27.4 (1986), financial transaction card theft, N.C.G.S. Sec. 14-113.9(a)(1) (1986) and felonious larceny, N.C.G.S. Sec. 14-72(b)(1) (1986).

The defendant pled not guilty and was found guilty by a jury on all charges. The defendant was sentenced to two life sentences plus an additional ten-year sentence, each sentence to run at the expiration of the other. The defendant appeals.

The issues to be determined are whether the trial court erred in I) allowing the State to amend the rape indictment; II) allowing a witness to testify the defendant had previously been in prison for rape; III) allowing evidence of a saliva sample and blood sample from the victim; IV) allowing an expert to give his opinion as to how the abrasions suffered by the victim could have been caused; V) failing to declare a mistrial; VI) admitting into evidence the defendant's written and oral statements; VII) denying the defendant's motion to dismiss all charges; and VIII) denying the defendant's motion for appropriate relief.

I

The defendant first argues the trial court erred in allowing the State to amend the rape indictment by substituting the name of "Regina Lapish Foster" for the name of "Regina Lapish."

N.C.G.S. Sec. 15A-923(e) (1988) provides that "[a] bill of indictment may not be amended." An amendment has been defined "to be any change in the indictment which would substantially alter the charge set forth in the indictment." State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984). Here the defendant was indicted for four different criminal violations. Three of these indictments allege the offense was committed against the person of "Regina Lapish Foster." The indictment for rape used the name "Regina Lapish." It is clear that the rape indictment inadvertently omitted the last name of Regina Lapish Foster. At no time was defendant misled or surprised as to the nature of the charges against him. Accordingly, the addition of the alleged victim's last name to one of the four indictments was not an amendment as it did not "substantially alter the charge set forth in the indictment." Id.

II

The defendant next contends that the unresponsive answer of a witness was error and highly prejudicial. The unresponsive answer was:

... one day when I was at Gail's house, Stella was there. They were only there a few minutes after I got there, and there was a big, black boy with her that was her son. When they left--and this is hearsay or whatever--Gail told me that that was her son and that he had been in prison for rape before.

This testimony was given in response to a question to the witness as to whether she had ever "seen him at Gail Philbeck's house before." The reference in the answer to "he had been in prison for rape before" was clearly in reference to the defendant.

However, the defendant did not object or move to strike the answer. Assuming the answer of the witness to be inadmissible and prejudicial, the defendant's "[f]ailure to make an appropriate and timely motion or objection constitutes a waiver of the right to assert the alleged error upon appeal." N.C.G.S. Sec. 15A-1446(b) (1988); N.C.G.S. Sec. 8C-1, Rule 103(a)(1) (1988) (where evidence admitted, error can not be asserted upon appeal unless there is timely objection or motion to strike); State v. McDougall, 308 N.C. 1, 9, 301 S.E.2d 308, 314, cert. denied, 464 U.S. 865, 104 S.Ct. 197, 78 L.Ed.2d 173 (1983); see 1 Brandis on North Carolina Evidence Sec. 27, p. 133 (3d ed. 1988) (where only the answer is objectionable, an objection should be treated as a motion to strike). Here the defendant neither objected or moved to strike the answer and therefore has waived his right to assert any error on appeal.

The defendant nonetheless argues that a motion to strike or an objection to the answer and a subsequent request of the trial judge to instruct the jury to disregard the answer of the witness "would have only harmed the defendant's chance at a fair trial ... by inflaming [the jurors'] minds to a greater degree." Our courts have long rejected this argument and recognize that if the jury is properly instructed not to consider the answer of the witness, it is to be assumed the "jury heeded the caution." Apel v. Coach Co., 267 N.C. 25, 31, 147 S.E.2d 566, 570 (1966); State v. Franks, 300 N.C. 1, 13, 265 S.E.2d 177, 184 (1980) (no prejudicial error where jury actually heard inadmissible answer, provided the jurors were properly instructed to disregard the answer).

III

The defendant contends the trial court erred in allowing into evidence saliva and blood samples from the victim Regina Foster. The defendant contends the State failed to establish a chain of custody showing that the blood and saliva were in fact obtained from Regina Foster. However, as these items were later introduced into evidence without objection, the defendant looses the benefit of his earlier objection. State v. Corbett, 307 N.C. 169, 179, 297 S.E.2d 553, 560 (1982).

IV

Defendant next argues that the testimony of Dr. Randall Storm was "highly speculative and prejudicial to the defendant." Dr. Storm was asked to tell the members of the jury about the "abrasion over the urethra" of the victim Regina Foster. The doctor answered as follows:

It was a sore area, a reddened area, one which is conceivably from vigorour [sic] intercourse, though not necessarily traumatic intercourse. It would be conceivable that it would happen in intercourse that was performed at knife-point or under duress.

The defendant timely objected to the answer of the doctor, which objection was overruled by the trial court.

Expert testimony is admissible if it will " 'assist the jury to draw inferences from the facts because the expert is better qualified' than the jury to form an opinion on the particular subject." State v. Fletcher, 92 N.C.App. 50, ----, 373 S.E.2d 681, 685 (1988) (quoting State v. Bullard, 312 N.C. 129, 139, 322 S.E.2d 370, 376 (1984)); see N.C.G.S. Sec. 8C-1, Rule 702 (1986) (expert testimony admissible if it will "assist the trier of fact to understand the evidence or to determine a fact in issue"). Furthermore, experts are permitted to give their opinion even though it embraces an ultimate issue to be decided by the trier of fact. N.C.G.S. Sec. 8C-1, Rule 704 (1986). Experts, however, are precluded from stating that a legal standard has been met. State v. Ledford, 315 N.C. 599, 617, 340 S.E.2d 309, 320-21 (1986) (expert precluded from testifying that injuries were proximate cause of death).

Here the expert was not any better qualified than the jury to have an opinion on the subject whether intercourse "was performed at knife-point or under duress." Cf. State v. Galloway, 304 N.C. 485, 489, 284 S.E.2d 509, 512 (1981) (expert allowed to testify that an "examination revealed evidence of traumatic and forceable penetration consistent with an alleged rape"); State v. Allen, 50 N.C.App. 173, 175-76, 272 S.E.2d 785, 787 (1980), appeal dismissed, 302 N.C. 399, 279 S.E.2d 353 (1981) (doctor allowed to express an opinion that "woman could be raped without there being evidence of trauma about the vulva or vaginal areas" as the doctor had "a more than adequate understanding of the medical results of incidents such as rape"). Although the expert was qualified to testify about the physical characteristics of the urethra and surrounding areas, he was "not competent to testify as to a causal relation which rests upon mere speculation." 6 Strong's N.C. Index 3d, Evidence Sec. 50.2, p. 146 (1977); see Lockwood v. McCaskill, 262 N.C. 663, 669, 138 S.E.2d 541, 546 (1964) (admission of expert testimony which supports a particular causal relationship will be held erroneous where it is merely speculative). " 'The admission of incompetent testimony will not be held prejudicial when its import is abundantly established by other competent testimony, or the testimony is merely cumulative or corroborative.' " In re Peirce, 53 N.C.App. 373, 387, 281 S.E.2d 198, 207 (1981) (quoting Board of Education v. Lamm, 276 N.C. 487, 493, 173 S.E.2d 281, 285 (1970)). Here, as the State presented a considerable amount of other evidence regarding the alleged rape being performed at knife-point, we conclude the admission of this testimony was not prejudicial.

V

The defendant argues the trial court erred in failing to declare a mistrial on the grounds the jury was tainted by testimony overheard by a juror during a voir dire hearing. The trial court, after determining that the door to the jury room had been open during a portion of the voir dire, questioned each juror individually. The record reflects that only one juror heard anything said at the voir dire hearing and that juror only heard "someone asked, I guess the witness, if the Defendant would have been arrested at that time." As there was evidence presented to the jury during the course of the trial, and without objection, that defendant had been placed under arrest, there was no "substantial and irreparable prejudice to the defendant's case." N.C.G.S. Sec. 15A-1061 (1988) (judge may declare a mistrial if there is error, legal defect or conduct "resulting in substantial and irreparable prejudice to the defendant's case"). We agree therefore with the trial judge who in denying the defendant's motion for a mistrial determined that the fairness and impartiality of the jury had not been compromised when only one juror heard a question asked as to whether the defendant had been arrested. The...