State v. Robertson

• Decision Date: 21 June 1994
• Docket Number: No. 9318SC743,9318SC743
• Citation: 115 N.C.App. 249,444 S.E.2d 643
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jerry Wayne ROBERTSON.

Page 643

444 S.E.2d 643

115 N.C.App. 249

STATE of North Carolina v. Jerry Wayne ROBERTSON.

No. 9318SC743.

Court of Appeals of North Carolina.

June 21, 1994.

Atty. Gen. Michael F. Easley by Sp. Deputy Atty. Gen. George W. Boylan, Raleigh, for State.

Neill A. Jennings, Jr., Greensboro, for defendant-appellant.

EAGLES, Judge.

Defendant brings forward several assignments of error. After carefully reviewing the record and briefs, we conclude that the trial court committed no error.

I.

Defendant first contends that the trial court erred in allowing the victim to testify that defendant threatened her by saying, "[I]f [she] told anybody what he [defendant] was going to do, he was going to hurt [her] like he hurt Koda." The trial court allowed this testimony despite its previous ruling allowing defendant's motion in limine to prohibit reference to defendant's prior arrest, indictment, trial and acquittal of the murder of Koda Smith.

At the time of the events alleged here, defendant was under indictment and on pre-trial release for the murder of Aileen Koda Smith. Defendant was subsequently acquitted of that charge. Prior to trial here, defendant filed a motion in limine to exclude any reference to Koda Smith or her death or defendant's arrest, indictment and trial for her murder. The trial court granted defendant's motion to prohibit mention of defendant's arrest, indictment and trial for the alleged murder of Koda Smith, but denied defendant's motion to prohibit reference to the name Koda Smith. The victim testified at trial that defendant threatened her by saying, "[I]f [she] told anybody what he [defendant] was going to do, he was going to hurt [her] like he hurt Koda." Defendant contends that the trial court should have excluded the reference to "Koda" in the victim's testimony under Rule 403 of the North Carolina Rules of Evidence. We disagree.

Rule 403 provides:

Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Whether evidence should be excluded under Rule 403 is ordinarily a decision within the trial court's discretion. State v. Meekins, 326 N.C. 689, 700, 392 S.E.2d 346, 352 (1990). Defendant relies on State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992), in which the Supreme Court held that:

[E]vidence that defendant committed a prior alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime. To admit such evidence violates, as a matter of law, Evidence Rule 403.

Id. at 42, 413 S.E.2d at 788. We find Scott distinguishable.

In Scott, supra, the defendant was indicted on charges of second degree kidnapping, crime against nature, and three counts of second degree rape. The State's evidence at trial tended to show that defendant approached the victim at a convenience store and asked her for a ride home. The victim was already acquainted with the defendant and agreed to take him home. When they left the parking lot, the defendant threatened the victim with a knife and raped her.

At issue in Scott was the testimony of Wanda Freeman, a past acquaintance of defendant, who testified that defendant had raped her two years earlier under similar circumstances. Defendant objected on the grounds that he had been tried and acquitted of Freeman's rape by a jury. In holding that Freeman's testimony violated Rule 403 as a matter of law, the Supreme Court stated:

When the probative value of evidence of this other conduct depends upon the proposition that defendant committed the prior crime, his earlier acquittal of that crime so erodes the probative value of the evidence that its potential for prejudice, which is great, must perforce outweigh its probative value under Rule 403.

Scott, 331 N.C. at 44, 413 S.E.2d at 790. The Scott court concluded that the probative value of Freeman's testimony depended upon the proposition that defendant had actually raped Freeman two years earlier. Defendant's acquittal of Freeman's rape so eroded its probative value that it was "substantially outweighed by the danger of unfair prejudice" as a matter of law.

Here, the probative value of defendant's statement does not depend on the proposition that defendant in fact hurt Koda. The victim testified that she did not scream or make any loud noises because defendant had threatened to hurt her. The probative value of defendant's statement was to show that the victim was scared of defendant as well as why she did not scream or make any noise. Accordingly, we conclude that Scott does not control here.

The State contends that defendant's statement is admissible under State v. Agee, 326 N.C. 542, 391 S.E.2d 171 (1990), as part of the "chain of circumstances" establishing the context of the crime charged. We agree. "[A]dmission of evidence of a criminal defendant's prior bad acts, received to establish the circumstances of the crime on trial by describing its immediate context,.... is admissible if it 'forms part of the history of the event or serves to enhance the natural development of the facts.' " Id. at 547, 391 S.E.2d at 174 (citations omitted). In Agee, defendant was on trial for felonious possession of LSD. The arresting officer testified that he stopped defendant's vehicle for weaving on the road. When the officer approached the car, defendant made a threatening remark. The officer called for backup and when backup arrived, the officer searched defendant's person for weapons. During the search, the officer found a bag of marijuana in defendant's pocket. After finding the marijuana, the officer searched the vehicle and found the LSD. Defendant objected to the officer's testimony about finding the marijuana in defendant's pocket because defendant had previously been acquitted of possessing that marijuana in another trial. In holding that the officer's testimony was admissible, the Supreme Court stated:

Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.

Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990) (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.1985)).

Here, the victim testified to defendant's statement during her account of the crime. In describing how she was sexually assaulted, the victim testified that defendant put his hand over her mouth and told her that "[I]f [she] told anybody what he [defendant] was going to do, he was going to hurt [her] like he hurt Koda." We conclude that defendant's statement here formed an "integral and natural part" of the victim's account of the crime and was "necessary to complete the story of the crime for the jury." Cf. Agee, supra. Accordingly, the trial court did not err in allowing defendant's statement.

II.

Defendant next contends that the trial court erred in allowing the State's medical expert, Dr. Martha K. Sharpless, to testify to statements the victim made to her about the incident during a physical examination of the victim. Defendant contends that Dr. Sharpless' testimony was inadmissible hearsay because the victim's statements to Dr. Sharpless were not made for the purposes of medical diagnosis or treatment as required by G.S. 8C-1, Rule 803(4).

We need not address whether the victim's statements to Dr. Sharpless fall within the "Statements for Purposes of Medical Diagnosis" exception to the hearsay rule because the trial court admitted Dr. Sharpless' testimony only for the limited purpose of corroborating the in-court testimony of the victim. "Evidence which is inadmissible for substantive or illustrative purposes may nevertheless be admitted as corroborative evidence in appropriate cases when it tends to enhance the credibility of a witness." State v. Burns, 307 N.C. 224, 229, 297 S.E.2d 384, 387 (1982). Dr. Sharpless' testimony essentially corroborated the earlier testimony of the victim, including the defendant's threat to the victim. We also note that defendant objected "except for purposes of corroboration." The trial court then properly instructed the jury that Dr. Sharpless' testimony was only to be received "for the limited and narrow purpose of corroborating the in-court testimony" of the victim. Accordingly, this assignment of error is overruled.

III.

Defendant next contends that the trial court erred in permitting the State to impeach defendant by asking defendant whether he had a midnight curfew. The following exchange took place between the assistant district attorney and defendant during defendant's cross examination:

Q. At some point Chris [Creed] and Danielle [Johnson] left; is that right?

A. Yes, sir. I don't know where they were going.

Q. What time was it by then?

A. I couldn't tell you what time it was. They was getting ready to go somewhere and Chris just said stay here and talk to Donna till we get back.

Q. It was after midnight by then, wasn't it?

A. I don't know what time it was. I'm not sure.

Q. Could it have been after midnight?

MR. JENNINGS: Object. Asked and answered, Your Honor.

THE COURT: Overruled.

A. It might have been. It might not have been. I do not know.

Q. You weren't concerned at all about what time it was?

A. No, sir. I don't see what reason there was to be.

Q. Well, didn't you have a midnight curfew?

A. Huh?

MR. JENNINGS: Object.

Q. Didn't you have a midnight curfew?

THE COURT: Overruled.

A. Not that I...