State v. Pennington

• Court: United States State Supreme Court of North Carolina
• Citation: 393 S.E.2d 847,327 N.C. 89
• Decision Date: 26 July 1990
• Docket Number: No. 477PA89,477PA89
• Parties: STATE of North Carolina v. Ronald Craig PENNINGTON.

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393 S.E.2d 847 327 N.C. 89 STATE of North Carolina
v.
Ronald Craig PENNINGTON. No. 477PA89. Supreme Court of North Carolina. July 26, 1990.

Lacy H. Thornburg, Atty. Gen. by Doris J. Holton, Asst. Atty. Gen., Raleigh, for the State.

David F. Tamer, Winston-Salem, for defendant-appellant.

WHICHARD, Justice.

Defendant argues two assignments of error relating to his convictions for first-degree rape, first-degree sexual offense, first-degree arson, assault with a deadly weapon with intent to kill inflicting serious injury, and felonious breaking and entering. For the reasons stated below, we conclude that defendant received a fair trial free of error.

The victim testified that defendant came to the front door of her home on the afternoon of 13 July 1988 and asked if she knew of any available jobs or homes to rent. Defendant asked to come in the house to use the telephone, but the victim refused. Defendant spoke to the victim through the closed screen door for approximately twenty minutes. She eventually wrote down his name and telephone number and agreed to call him if she heard of any jobs. Her husband came home soon after defendant left, and she told him about the incident because defendant's persistence worried her. She described defendant's appearance on 13 July 1988 as different from his appearance at trial, in that on 13 July 1988 his hair was longer and more "scraggly" and his beard was fuller. [327 N.C. 91] He wore no shirt, and she could see a tattoo on his back which said "Rock."

The next morning the victim was sitting in her living room watching television when she heard defendant's voice call out, "Hey, it's me," from the vicinity of her front door. The victim spoke briefly with defendant through her screen door before defendant burst through the door and began choking her. Defendant stated, "I've done this before and I'm not going back to jail this time." The victim offered defendant money, but he laughed and replied, "I don't want your money. I want you." Defendant proceeded to beat the victim with his fists and a hammer and pushed her into a bedroom. He tore off her clothes, threatened to kill her, and forced her to submit to vaginal intercourse four times while he kept his hands around her throat. Defendant performed cunnilingus on the victim, then attempted anal intercourse. When he was unable to insert his penis into the victim's anus, he picked up the hammer and struck the victim in the head. She lost consciousness briefly and awoke to find defendant engaged in anal intercourse with her. After he finished he dragged her by her hair down the hall to the master bedroom and threw her against the bed frame. The victim again lost consciousness and awoke to see defendant pulling up his pants and fastening them. He picked up the hammer and hit her in the head with it hard "like he was hammering a nail into a piece of wood." After losing and regaining consciousness again, the victim discovered defendant was beating and scraping her legs with the hammer. The victim began calling defendant "Tim," hoping that he would leave if he thought she could not identify him, but defendant angrily insisted that his name was Ronnie Pennington. Defendant opened his wallet and showed the victim a computer-generated document bearing the name "Ronald Pennington." He struck the victim in the head with the

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hammer several more times, then pulled the drapes off the windows and set them on fire. As the victim lay on the floor watching, defendant yelled at her not to look at him, then inflicted more blows on her head and legs with the hammer. The victim lost consciousness and did not awaken for five days.

The victim's husband testified that on 14 July 1988 he called his wife at 12:30 p.m., as he did every day. When the telephone remained busy for half an hour he became concerned and left work. Arriving home at approximately 1:20 p.m., he found his house filled [327 N.C. 92] with smoke and his wife naked, bleeding, and unconscious on the bedroom floor.

Dr. Timothy Garner, a neurosurgeon, testified that the victim suffered two depressed skull fractures and lost a large amount of blood from multiple scalp lacerations. Brain matter was visible outside her skull prior to surgery. Dr. Garner performed two craniotomies to repair the victim's skull fractures and remove dead brain tissue. Her vision was permanently affected by damage to the right parietal region of the brain. Despite what Dr. Garner called a miraculous recovery, the victim remained on medication to prevent brain seizures at the time of trial.

Dr. Richard Weaver, an ophthalmologist, testified that the victim suffered a left-sided visual field defect as a result of her injuries. This defect results in a lack of awareness of objects on the left side of the visual field. Dr. Weaver testified, "It's like you hold your hand behind where you can see, it's not black, but you just have no awareness that your hand is there."

Recovery of physical evidence from the crime scene proved difficult because of the smoke and soot occasioned by the fire. Detective H.E. Warren of the Forsyth County Sheriff's Department testified that he found a hammer, identified by the victim as the weapon defendant used to assault her, in the woods near the victim's home. The State's fingerprint expert identified a latent print matching defendant's left little finger on a strip of metal found a few feet from the hammer. In addition, the expert testified that a latent palm print found on the front door molding of the victim's home matched that of defendant. Detective Warren testified that a photograph of defendant's back taken on 17 July 1988 accurately portrayed defendant's tattoo. The photograph showed the words "Rock" and "Ron" along with a musical symbol and a star.

Samples collected from the victim revealed the presence of spermatozoa in her vagina and rectum. A stain taken from the bedspread on the bed upon which defendant raped the victim also revealed the presence of spermatozoa. Tests conducted on the vaginal swab and the bedspread showed that the sources of the specimens were of blood type A secretor. Blood samples from the victim and defendant revealed that both are type A secretors. The expert serologist defined a secretor as an individual who secretes characteristics identifying his blood type into his body fluids.

[327 N.C. 93] The trial court conducted a lengthy voir dire hearing on the admissibility of evidence of deoxyribonucleic acid (DNA) analysis conducted by Cellmark Diagnostics, Inc. (Cellmark), a commercial clinical laboratory located in Germantown, Maryland. It concluded that the proffered evidence was reliable and based on established scientific methods generally accepted within the fields of microbiology and molecular biology, and allowed admission of evidence pertaining to the DNA analysis.

Dr. George Herrin, a staff scientist at Cellmark and an expert in the field of molecular biology specializing in the identification of DNA, testified that on 18 November 1988 the State Bureau of Investigation submitted to Cellmark a vaginal swab and a cutting from a bedspread. Cellmark also received blood samples from defendant, the victim, and the victim's husband. The samples remained within Dr. Herrin's custody until their return to the Forsyth County Sheriff's Department.

Dr. Herrin explained to the jury that DNA is the chemical which encodes all genetic information. DNA is located in the nucleus of all nucleated cells in the human

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body, remains constant throughout a person's life, and is identical in each cell--i.e., the DNA extracted from a man's blood cells is identical to the DNA extracted from his sperm cells. Each person's DNA is unique, with the exception of that of identical twins.

Dr. Herrin testified, in summary, that DNA is composed of two strands made of chains of chemical bases called nucleotides. Each nucleotide is one of four chemicals which compose a four-letter organic alphabet. The strands are very long, containing billions of nucleotides which can be arranged in any order along the strand. The order of the nucleotides determines certain characteristics which will be expressed in an individual's physical or mental traits. Each sequence of nucleotides which encodes for a specific characteristic is a gene, and can be thought of as one word using the four-letter alphabet. The two strands are joined together and twisted into a shape referred to as a double helix, which can be envisioned schematically as a twisted ladder. The order of the nucleotides on the opposing strand is complementary in that certain nucleotides always pair with one another. It is possible to separate the two strands of DNA, and they will rejoin in the original manner because of the specific ways nucleotides pair with one another.

[327 N.C. 94] The type of DNA analysis performed by Cellmark is called restriction fragment length polymorphism, or RFLP. Thompson and Ford, DNA Typing: Acceptance and Weight of the New Genetic Identification Tests, 75 Va.L.Rev. 45, 48-49 (1989) [hereinafter Thompson and Ford]. ¹ RFLP analysis is also known as DNA fingerprinting or profiling, ² and can be performed on any biological sample from which DNA can be extracted. The biological material is first separated from other cells or, if dried on a surface such as cloth, washed from the cloth. Chemicals are used to open the cells, releasing the DNA into a solution, after which it is purified. Because of the long length of DNA molecules, the molecule is cut into fragments of more workable length using restriction enzymes, which search out certain sequences in the nucleotide alphabet and cut the chains at those specified points. Because the order of the nucleotides differs from person to person, the length of these fragments will differ among individuals as well.

During the next step the DNA fragments are sorted according to length. A gel is prepared with wells or...