State v. Smith

• Decision Date: 10 December 1985
• Docket Number: No. 713A84,713A84
• Citation: 337 S.E.2d 833,315 N.C. 76
• Parties: STATE of North Carolina v. Sylvester SMITH.
• Court: North Carolina Supreme Court

Page 833

337 S.E.2d 833

315 N.C. 76

STATE of North Carolina v. Sylvester SMITH.

No. 713A84.

Supreme Court of North Carolina.

Dec. 10, 1985.

William F. Fairley, Southport, for defendant-appellant.

Norther, Little & Thibaut by J. Anderson Little, Chapel Hill, for Orange County Social Services.

Corinne G. Russell, Raleigh, for Wake County Social Services.

Russell Odom, Durham, for Durham County Social Services.

G. Keith Whited, Burlington, for Alamance County Social Services.

David Kennedy, Fayetteville, for Cumberland County Social Services.

Adam Stein, Appellate Defender by Gordon Widenhouse, Raleigh, Asst. Appellate Defender, amicus curiae.

MEYER, Justice.

The State's evidence tended to show that one night during the weekend of 2 March 1984, the defendant, Sylvester Smith, entered the bedroom of Gloria Ogundeji and Janell Smith, age four and five, respectively, and engaged in sexual relations with both girls. Gloria is the daughter of Ann Ogundeji with whom the defendant was then living. Janell is Gloria's cousin, daughter of Ann's sister, Catherine. During the time in question, Janell was staying with Ann, Sylvester, Gloria, and Sylvester, Jr., in a mobile home. The victims' grandmother is Mrs. Fannie Mae Davis.

At trial, Gloria testified that the defendant came into the bedroom where she and Janell were sleeping, slipped off her pants, and touched her in her "project" with his "worm." She denied at trial that he had touched her anywhere else. Janell testified that the defendant threatened to beat her "half to death," pushed her down on the bed, and stuck his "thing in my project." She also testified that he "stick [sic] his hand in my butt."

At trial, each victim was sequestered during the other's testimony. The girls were asked to show the jury where their "project" was, and both independently pointed to their vaginal areas. Gloria indicated the same area when asked to show where the "worm" is, and also identified both the "project" and the "worm" on anatomically correct dolls used as exhibits at trial. Janell pointed to her anal area when asked to show where her "butt" is.

The State called Minerva Glidden and Elena Peterson, both of whom were Rape Task Force volunteers in Wilmington. Ms. Glidden had worked with Gloria following the incident, and Ms. Peterson had worked with Janell. The trial judge had allowed defendant's request that these witnesses be sequestered during the children's testimony over the State's objection that their presence was crucial in order that the girls feel at ease during their testimony.

Minerva Glidden, a registered nurse and Rape Task Force volunteer, testified that she was called to the New Hanover Memorial Hospital emergency room at around 1:45 p.m. on 5 March 1984, where she first met Gloria. Over defendant's request for a limiting instruction on corroboration, Ms. Glidden was allowed to testify that Gloria told her that defendant had put his finger in Gloria's "project," then he put his finger in her "butt." Ms. Glidden said Gloria had indicated her vaginal and anal areas. She also testified that Gloria told her the defendant had gotten on top of her and put his "peeter-weeter" in her "project." Gloria had indicated that as the penis on an anatomically correct doll.

Ms. Peterson, Rape Task Force Coordinator, testified that she had first met Janell on 7 March 1984. Over a general objection by the defendant, Ms. Peterson recounted what Janell told her about the incident. "The story was that Sylvester put his 'thing' in her 'project.' And he stuck his finger in her--in her 'butt.' And that if she told anybody, that he would beat her half to death."

Mrs. Fannie Mae Davis, the girls' grandmother, testified that she went to the mobile home where Sylvester, Ann, Gloria, and Janell were living on 3 March 1984 ¹ and that Gloria had led her into the bedroom to tell her "what Sylvester done [sic] to me." Gloria told Mrs. Davis that "Sylvester had went [sic] in her and had, you know, hurt her; and in her 'butt' area, he put his hand there." "She said he pressed his 'peeter' in her 'project;' and in her 'butt,' his finger." Gloria told Mrs. Davis that Sylvester had told her to go in the bathroom and wash the blood off.

Mrs. Davis told her daughter Ann what Gloria had said and told Ann to take the child to the hospital. Ann later testified that she and Gloria hitchhiked to the hospital in the rain. Mrs. Davis and her husband met Janell at the mobile home when Janell came home from school that afternoon. Janell's mother, Catherine, then took Janell to New Hanover Memorial Hospital. Both Gloria and Janell were examined at the hospital by Dr. Alfred Woodworth on 5 March 1984.

Dr. Woodworth testified that his examination of Gloria revealed "a well-circumscribed area of bruising around the vaginal opening" on the interior of the labia. He stated that it was his opinion that a "male penis" caused the trauma he observed. Dr. Woodworth also discovered the presence of protozoa trichomonas, an organism transmitted primarily through sexual contact. ²

Dr. Woodworth testified that his examination of Janell revealed "marked redness and irritation, with areas of contusions, ... around the vaginal opening." He stated that a finger or penis could have caused Janell's injuries. His examinations revealed no presence of sperm, and he noted that Gloria's hymenal ring was intact.

The defendant, Sylvester Smith, took the stand and denied any knowledge of the incidents.

Defendant first assigns as error the trial court's failure to instruct the jury that the testimony of Minerva Glidden, Elena Peterson, and Fannie Mae Davis was to be considered for the limited purpose of corroborating the victims' testimony. At trial, defendant requested an instruction limiting to corroboration the jury's consideration of Ms. Glidden's testimony as to what Gloria told her. The trial judge stated that he would instruct the jury at the appropriate time and that the defendant could hand up whatever instructions he wished. (Defendant subsequently tendered limiting instructions for the jury charge, and they were refused.) Prior to Ms. Peterson's and Mrs. Davis's testimony regarding what Janell and Gloria told them about the incidents, defendant made general objections, both of which were overruled.

The law of this State is that an instruction limiting admissibility of testimony to corroboration is not required unless counsel specifically requests such an instruction. A general objection will not suffice. State v. Spain, 3 N.C.App. 266, 164 S.E.2d 486 (1968). See also State v. Sauls, 291 N.C. 253, 230 S.E.2d 390 (1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977); State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972). Although defendant properly requested a limiting instruction as to Ms. Glidden's testimony at the time it was offered, he did not do so as to the testimony of Mrs. Davis and Ms. Peterson. The record does show, however, that defendant made a written request for a jury instruction on corroboration. The trial judge, in his charge to the jury, did not give defendant's requested instruction and noted defendant's exception to the omission. Defendant's assignment of error as to the jury charge omitting his requested instruction is, therefore, properly before us.

Corroboration, the opposite of impeachment, is "the process of persuading the trier of the facts that a witness is credible." 1 Brandis on North Carolina Evidence § 49 (2d rev. ed. 1982). "Corroborate" means "to strengthen; to add weight or credibility to a thing by additional conforming facts or evidence." State v. Higginbottom, 312 N.C. 760, 769, 324 S.E.2d 834, 840 (1985). Evidence may also be used for corroboration purposes when the corroborating evidence is not admitted solely for its bearing on credibility. "It is only when the evidence is inadmissible for substantive ... purposes, and its sole claim to competence is to enhance credibility, that resort must be had to the special rules and policies" relative to corroboration. 1 Brandis on North Carolina Evidence § 49 (2d rev.ed. 1982) (emphasis added). The corollary to this rule, then, is that if evidence is admissible for substantive purposes, none of the "corroboration" limitations apply, and a party is not entitled to an instruction limiting its admissibility to that purpose, whether he requests one or not. In the instant case, therefore, a determination of defendant's second issue as to whether this testimony was admissible as substantive evidence, is a prerequisite to a determination of the first.

Defendant's second issue, in effect, requires us to decide whether the trial court erred in allowing, as substantive evidence, the testimony of Ms. Glidden, Ms. Peterson, and Mrs. Davis as to what Gloria and Janell related to them following the assaults. The defendant contends this evidence was inadmissible hearsay.

The North Carolina Evidence Code, Chapter 8C of the North Carolina General Statutes, became effective 1 July 1984. It therefore governed the admissibility of evidence at this trial which commenced 13 August 1984. N.C.G.S. § 8C-1, Rule 801(c) (Cum.Supp.1983), defines "hearsay" as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." A hearsay statement is "not admissible except as provided by statute or by these rules." N.C.G.S. § 8C-1, Rule 802. There is no question that the testimony in dispute here was "hearsay." However, statements which otherwise would be deemed hearsay are not excluded by the rule if they are found to fall within one of the exceptions provided in Rule 803 (Availability of declarant immaterial) or in Rule 804 (Declarant unavailable).

I.

The disputed testimony of the two Rape Task Force volunteers, as well as that of Mrs. Davis, was assumed in the briefs of this case to have been admitted by the trial judge as substantive evidence...