State v. Mebane

• Decision Date: 07 July 1992
• Docket Number: No. 9115SC288,9115SC288
• Citation: 106 N.C.App. 516,418 S.E.2d 245
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gregory Donnell MEBANE, Defendant-Appellant. STATE of North Carolina v. Fred WRIGHT, Defendant-Appellant.

Page 245

418 S.E.2d 245

106 N.C.App. 516

STATE of North Carolina v. Gregory Donnell MEBANE, Defendant-Appellant.

STATE of North Carolina v. Fred WRIGHT, Defendant-Appellant.

No. 9115SC288.

Court of Appeals of North Carolina.

July 7, 1992.

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

Loflin & Loflin by Thomas F. Loflin, III, Durham, for defendants-appellants.

COZORT, Judge.

Defendants Gregory Donnell Mebane and Frederick Wright were convicted of first-degree rape and first-degree kidnapping. Defendants jointly assert the trial court committed reversible error in its rulings relating to jury selection and to evidentiary issues raised at trial. Additionally, defendant Wright raises separately two issues for determination regarding his motion for a jury view of the rape scene and his challenge of testimony by a State's witness which tended to show his father had attempted to bribe the witness prior to trial. We conclude both defendants received a fair trial free from prejudicial error.

The State's evidence at trial tended to show the charges arose out of events which occurred on the evening of 28 July 1989 between the defendants; a third codefendant, Timothy Dion Yellock; and the victim. (Although the three defendants were tried jointly, defendant Yellock's appeal, No. 9115SC273, was not consolidated with the appeal of Mebane and Wright. Yellock's appeal is the subject of a separate opinion filed this same date.) The State's case rested primarily on testimony elicited from the victim. She testified that on 28 July 1989, Mebane and Yellock telephoned her and invited her to ride with them to Greensboro where they would pick up another girl. The victim, who was a casual acquaintance of both men, agreed. At approximately 6:00 p.m., Mebane and Yellock, along with defendant Wright, arrived at the victim's home. The victim told her mother she would return in an hour or so. When the four began heading toward Burlington rather than Greensboro, Mebane told the victim they needed to stop briefly at his home so he could change clothes. They stopped at an Amoco filling station near Interstate 85 where they purchased gas and beer. Upon arrival at Mebane's home, Mebane and Yellock retreated to the back of the house to refrigerate the beer. The victim and Wright sat down to watch television. Wright put a videocassette into the VCR; the movie was a pornographic film. Wright asked the victim, "You like that, don't you ...?" The victim responded by shrugging her shoulders and saying nothing.

After a few minutes, defendant Mebane yelled from the back of the house for the victim to "Come here. I want to talk to you about something." The victim walked into the bedroom where Mebane locked the door, and began making sexual advances toward her. When the victim told Mebane to stop kissing and touching her, he called to Yellock and unlocked the door. Yellock entered the room. Mebane then told Yellock, "She won't cooperate." The victim pleaded, "Just leave me alone. Don't touch me." She began backing up until she was against a window. Mebane and Yellock moved toward her. Wright, wearing only a shirt and his underwear, appeared from the hall and blocked the doorway. Yellock grabbed the victim, but she pushed him back. Yellock became angry, and Mebane told the victim, "If we wanted to rape you, we could. If we wanted to, we could overpower you." (The record shows the victim was 6'2 1/2"' tall and weighed approximately 186 pounds at the time of the incident). Although the victim begged the defendants to leave her alone, they took her by the arms and legs and dragged her into the living room. She broke away from them briefly, at which time Mebane locked the front door and Wright came into the room holding a butcher knife and said, "I'll bet she'll cooperate." Yellock and Mebane told the victim they would not let Wright harm her if she cooperated.

The victim told her assailants she was having her menstrual period, which Yellock confirmed by ripping the victim's blue jeans apart and checking her underwear. Wright said, "It don't matter; we have had sex with plenty of females with their period on." The men then threw the victim to the floor. Each defendant attempted to have vaginal intercourse with the victim three times. While one defendant was on top of the victim, the other two held the victim's arms and legs. Only Mebane could complete each act; the other two defendants achieved only partial penetration due to their failure to reach a full erection. Defendants attempted anal sex with the victim but were unsuccessful. At one point, Yellock inserted his penis into the victim's mouth. The three men left the victim lying on the floor when they went to the bathroom to shower. Later, the defendants made the victim promise she would not tell anyone what had happened or they would kill her. Defendants and the victim got back into the car and drove to Wright's house where he asked his father for some money. The defendants then took the victim to a nearby friend's house and left her.

The friend, Sophie Allen, testified that on the evening of 28 July 1989, the victim knocked on her door. The victim was crying and hysterical. She told Ms. Allen the defendants had raped her. Ms. Allen stated the victim smelled like beer and "sex." Ms. Allen and a friend named Antonio Hargrove drove the victim to the hospital. Mr. Hargrove corroborated Ms. Allen's testimony. Dean Ward, an investigator with the Alamance County Sheriff's Department, interviewed the victim at Ms. Allen's trailer prior to going to the hospital. He testified the victim had scratches and welts on her face. She told the officer the defendants had raped her. When Officer Ward arrested defendant Mebane the following morning, he observed scratches on Mebane's chest and noticed a butcher knife on a bedroom dresser.

Lee Ann Ball, a registered nurse at Alamance Memorial Hospital, performed procedures for sexual assault upon the victim on the evening of 28 July 1989. According to Ms. Ball, the victim had abrasions on her face and left arm. The victim sobbed quietly during the procedure. Dr. John F. Jones, the emergency room physician, conducted a pelvic examination on the victim. The victim's vagina appeared irritated and contained sperm. Tests showed the victim was infected with gonorrhea and chlamydia which could have been contracted earlier than 28 July 1989.

Evidence for the defendants included testimony from defendant Greg Mebane and from several witnesses who testified as to the victim's reputation for sexual promiscuity in the community. Defendant Mebane testified that prior to 28 July 1989, the victim had performed oral sex on him in his mother's car at the North Park Community Center while two others, Connell Williams and Nicky Harris were present. He stated the day before the incident the three men telephoned the victim and discussed having sexual intercourse with her. On 28 July, the defendants again called the victim and talked to her about having sex with them. She told the defendants to come and get her. The defendants picked up the victim at her home and drove to Mebane's house where they watched a pornographic video tape. Defendant Mebane told the court the victim kept requesting that they rewind the tape to watch certain scenes again. After awhile, Mebane asked the victim to come back to the bedroom with him. She complied. Mebane said the victim performed oral sex on him at that time. Mebane stated he and the victim then went into the living room where the victim began disrobing. After the parties removed their clothing, each of the three defendants had consensual vaginal intercourse twice with the victim. Everyone showered except the victim; the four left soon afterward. Mebane recalled they stopped at Fred Wright's house so he could get money from his father. The victim remained in the car. They drove the victim to Sophie Allen's trailer and left.

Eight witnesses, including two first cousins of the victim, testified for the defense concerning the victim's reputation in the community for habitual sexual activity. In summary, the testimony reflected that the victim liked to engage in group sexual intercourse with two or more men, had done so on a number of occasions, and had engaged in sex with at least one man in the presence of others on several occasions. This evidence was offered to show the victim consented to the sexual intercourse which occurred on the night of 28 July 1989. On cross-examination and rebuttal, the victim denied the witnesses' allegations. The victim did admit she had been expelled from Chowan College for having a male visitor in her dormitory room after visiting hours. She also stated she had had consensual sexual intercourse with a man named Thomas Leath during the summer of 1987.

Neither defendant Wright nor defendant Yellock testified. All defendants were convicted of first-degree rape and first-degree kidnapping and acquitted on the charge of first-degree sex offense.

Both defendant Mebane and defendant Wright present three issues relating to jury selection. First, defendants argue the trial court committed reversible error by continuing the jury selection process to fill one remaining jury seat when the sheriff was able to serve only four jury subpoenas of the 50 additional names randomly drawn. During jury selection on the morning of 31 July 1990, it became apparent that there might not be enough potential jurors in the original jury pool to complete selection of the jury. The judge ordered the clerk to draw 50 additional names from the list of prospective jurors and directed the sheriff to serve as many jury summonses as possible by 4:00 p.m. When 4:00 p.m. arrived, both the State and the defendants had passed 11 jurors, and the jury pool was depleted. At that time, only four of the 50 supplemental jurors had been served and reported for jury duty. All were white males. ...