State v. McMillan, 8112SC278

• Decision Date: 01 December 1981
• Docket Number: No. 8112SC278,8112SC278
• Citation: 284 S.E.2d 526,55 N.C.App. 25
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Daniel Levon McMILLAN.

Page 526

284 S.E.2d 526

55 N.C.App. 25

STATE of North Carolina v. Daniel Levon McMILLAN.

No. 8112SC278.

Court of Appeals of North Carolina.

Dec. 1, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Appellate Defender Project for North Carolina by Adam Stein, Appellate Defender, and Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant-appellant.

BECTON, Judge.

The defendant appeals from his conviction of second degree rape contending that the trial court (1) erroneously permitted Mrs. Buie, an incompetent witness, to testify; (2) allowed into evidence, for corroborative purposes, a prior statement of Mrs. Buie which included prejudicial material not testified to by Mrs. Buie; (3) failed to instruct the jury properly on the limited use of the "corroborating" statement; and (4) erred in its jury charge on second degree rape.

I

First, the defendant argues that his Sixth Amendment right to confrontation was denied when the trial court determined that Mrs. Buie possessed the requisite mental capacity and permitted her to testify. We disagree. The trial court's determination that a witness is competent to testify is binding on this Court unless it is shown that the trial court abused its discretion. State v. Squires, 265 N.C. 388, 144 S.E.2d 49 (1965). In State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970), our Supreme Court said:

"Unsoundness of mind does not per se render a witness incompetent, the general rule being that a lunatic or weak-minded person is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath and is capable of giving a correct account of the matters which he has seen or heard with respect to the questions at issue. The decision as to the competency of such a person to testify rests largely within the discretion of the trial court."

Id. at 650, 174 S.E.2d at 799, quoting 97 C.J.S. Witnesses § 57(b) (1957). Further, "mental eccentricities or aberrations which fall short of complete mental incapacity do not render a witness incompetent...." State v. Wetmore, 287 N.C. 344, 352, 215 S.E.2d 51, 56 (1975), quoting 3 Jones on Evidence § 20.13, pp. 614-15 (6th ed. 1972), judgment vacated on other grounds 428 U.S. 905, 96 S.Ct. 3213, 49 L.Ed.2d 1212 (1976), new trial 298 N.C. 743, 259 S.E.2d 870 (1979).

In the case before us, there is evidence to support the trial court's findings of fact and conclusions of law that Mrs. Buie possessed the requisite mental capacity to testify. In response to questions from the State, Mrs. Buie testified that she knew the meaning of taking the oath, that she understood her duty to tell the truth, and that she recalled and could testify about the events which occurred in her home on the day of the alleged rape. There is no evidence of abuse of discretion; consequently, the trial court's decision will not be disturbed.

II

The defendant next argues that the trial court erred in admitting into evidence, as State's Exhibit 1, the prior type-written statement of Mrs. Buie as corroborative evidence since the prior statement contained additional material prejudicial to the defendant which was not contained in Mrs. Buie's in-court testimony. We disagree.

"Unlike the law in many other states, prior consistent statements of a witness in North Carolina are admissible as corroborative evidence even when that witness has not been impeached." State v. Perry, 298 N.C. 502, 505, 259 S.E.2d 496, 498 (1979) (citations omitted). However, "the state may not, under the guise of 'corroboration,' introduce 'new' evidence--i. e., evidence which substantially and materially goes beyond that which it is intended to corroborate." State v. Rogers, 299 N.C. 597, 606, 264 S.E.2d 89, 95 (1980) (Exum, J., concurring). See also State v. Brooks, 260 N.C. 186, 132 S.E.2d 354 (1963). When, on the other hand, there are only slight variances between the prior statement and the witness' in-court testimony, the variances do not render the prior statement inadmissible but only go to its credibility and weight. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied sub nom White v. North Carolina, 410 U.S. 958, 93 S.Ct. 1432, 35 L.Ed.2d 691 (1973) and cert. denied sub nom Holloman v. North Carolina, 410 U.S. 987, 93 S.Ct. 1516, 36 L.Ed.2d 184 (1973); State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965). Whether the statement does, in fact, corroborate the witness' testimony is a question for the jury. State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960), cert. denied, 365 U.S. 830, 81 S.Ct. 717, 5 L.Ed.2d 707 (1961).

In the case before us, Mrs. Buie's prior type-written statement contained an explicit allegation that the defendant had sexual intercourse with her, and it explicitly described penetration. In the statement she said: "[h]e forced me to lay on the bed and he pushed my knees up to my shoulders and said, I am going to do that to you. He opened his pants and took his privates out and he raped me.... [He] inserted his privates in my privates and raped me." Her in-court testimony, however, was conclusory on the issue of rape. Even though she did not articulate her allegations as coherently at trial as she expressed them in her statement, the import of her testimony was clear. She testified:

A. The [defendant], he offered [William Martin] to use me and [William Martin] didn't but the [defendant] did, forced me on the bed and used me.

Q. When you say "He used me" what do you mean by that?

A. Well, I mean complete forcible raping me and he did and I am not telling no lie, either. He did force me on the bed and he raped me ... the [defendant] did force me and rape me and definitely he did.

The prior statement, while more explicit than the in-court testimony, is a consistent statement and was properly admitted to corroborate the witness' testimony. The variations did not go beyond the in-court testimony or amount to "new" evidence. See State v. Brooks. Mrs. Buie's prior statement and her in-court testimony is similar to the prior statement (defendant "raped" her) and in-court testimony ("I felt his penis in my vagina.") of the prosecuting witness in State v. Mayhand, 298 N.C. 418, 420, 425-26, 259 S.E.2d 231, 234, 237 (1979). The Mayhand Court held that the variations were slight and that the statement was properly admitted. Consequently, we hold that the variations in the statement and in the in-court testimony in this case were slight and did not render the statement incompetent.

Even if the statement contained material variations, the defendant's assignment of error would be rejected because defendant did not object to any part of the statement. "Where the defendant contends part of the testimony does not tend to corroborate the prior witness's [sic] testimony, he has a duty to point out to the court the objectionable part." State v. Harris, 46 N.C.App. 284, 286, 264 S.E.2d 790, 792 (1980) (citations omitted). In State v. Spain, 3 N.C.App. 266, 164 S.E.2d 486 (1968), the defendant was charged with raping his stepdaughter. Statements made by her to a police officer after the incident occurred were introduced to corroborate her testimony. The prior statement went beyond the testimony of the witness and the defendant entered a general objection. This Court held that even though a part of the statement was incompetent because it went beyond the testimony of the witness, the trial court did not err in overruling defendant's general objection since the statement was admissible for corroborative purposes. 3 N.C.App. at 269, 164 S.E.2d at 489.

III

The defendant further argues that the trial court erred in "failing to instruct the jury that the corroborating statement [of Mrs. Buie] could be considered in support of the credibility of only the witness who had made the prior statement and not in support of the credibility of any other witness." We agree, but we find the error harmless.

The court's limiting instruction before and after the introduction of Mrs. Buie's statement is set out below:

Ladies and gentlemen of the jury, the following evidence which is about to be received is being admitted for the limited purpose of corroboration, that is, to the extent that you find it does corroborate the testimony of a witness previously given under oath at this trial and you will consider this evidence which is about to be received for the limited purpose of corroboration and corroboration only. It is not substantive evidence of anything. [Emphasis added.]

After her statement, the Court instructed:

Ladies and gentlemen of the jury, the foregoing evidence was admitted for the limited purpose of corroboration, that is, to the extent that you find that it does corroborate the previous testimony made by a previous witness under oath at this trial, you will consider it for purposes of corroboration and corroboration only. It is not substantive evidence of anything. [Emphasis added.]

These instructions are erroneous. A corroborative statement is admissible only to corroborate the testimony of the witness who made the statement. State v. Miller, 288 N.C. 582, 596, 220 S.E.2d 326, 336 (1975); see State v. McAdoo, 35 N.C.App. 364, 241 S.E.2d 336, disc. rev. denied, 295 N.C. 93, 244 S.E.2d 262 (1978). However, once a trial court instructs a jury that a prior statement is admissible only to corroborate the testimony of the witness who made the prior statement, it is not necessary for the trial court further to instruct the jury that it is not to consider the prior statement "in support of the credibility of any other witness" as is suggested by defendant. The limiting instruction given in this case did not clearly charge the jury that it was to consider Mrs. Buie's statement only as corroboration of her testimony. It is quite possible that the jury considered Mrs. Buie's statement as...