State v. Starnes

• Decision Date: 07 July 1983
• Docket Number: No. 120A83,120A83
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jerry Byron STARNES.

Page 226

304 S.E.2d 226

308 N.C. 720

STATE of North Carolina v. Jerry Byron STARNES.

No. 120A83.

Supreme Court of North Carolina.

July 7, 1983.

Rufus L. Edmisten, Atty. Gen. by Thomas G. Meacham, Jr., and Sarah C. Young, Asst. Attys. Gen., Raleigh, for the State.

Fred M. Morelock, Raleigh, for defendant-appellant.

MEYER, Justice.

Only one issue is presented on this appeal--whether, under the particular facts presented, the trial court erred in allowing a State's witness, Dr. Wiegand, to express an opinion in response to a question by the district attorney that the tears he observed in the genital area of the rape victim were probably caused by a penis and in refusing to strike the answer. We hold that under the particular circumstances presented, the trial court did not err.

The State's evidence may be summarized as follows:

Mrs. Margie Freeman testified that she is the grandmother of the victim, six year old Dana Eramo, whose nickname was "Scooter." Mrs. Freeman's daughter, Donna, the mother of Scooter Eramo, and Scooter's teenage sister Dina, lived with her. On 23 December 1981 Scooter went out to play in the yard at approximately 1:00 p.m. She returned to the apartment about 2:00 p.m. to change shirts because she was too warm. Mrs. Freeman required her to wear a toboggan when she went back out because the weather was breezy. After changing clothes, Scooter went back outside to visit a friend. The grandmother did not see the child again until around 4:00 p.m. that afternoon at Rex Hospital.

Mrs. Freeman's neighbor, Edward B. Patchell, testified that he lived in an apartment located near Mrs. Freeman's. He knew Scooter Eramo as she was a very close friend of his stepdaughter who lived with him and who was the same age as Scooter. The two children played together frequently and Scooter often stayed in his home. On the afternoon of 23 December 1981, he returned home from work a little early due to the Christmas holidays and went upstairs to lie down and rest because he and his wife had plans for that evening. At approximately 2:15 p.m. Scooter came over and knocked on the door. Mr. Patchell went to the window, raised it and told Scooter that his granddaughter would not be home until about 5:00 p.m. He was approximately twelve or fifteen feet from Scooter at that time and noticed a man coming from the apartment complex laundromat which was located only thirty or forty feet away. The man was headed towards his apartment building and towards Scooter. He continued to stand and look out of the window at Scooter and noticed that the man had an unusual walk. The man came between a van and Mr. Patchell's automobile and approached Scooter. The man talked to Scooter and stood within a foot of her for approximately one minute when a second man, who was a close friend from the neighborhood, arrived and started talking to Scooter and the first man. Mr. Patchell testified that he was not concerned because if the three of them were talking, somebody would be there to watch Scooter. Later, on 25 December, Mr. Patchell went down to the detective offices and identified a picture of the defendant as the first man he saw talking to Scooter. At trial, Mr. Patchell described the man in detail and identified him as the defendant who was seated in the courtroom.

The child, Scooter Eramo, was examined on voir dire for the purpose of establishing her competency to testify. The court ruled that she understood the obligation of the oath which she had taken and had sufficient intelligence to give evidence. She testified that sometime before Christmas of the previous year she went to play with a neighborhood friend. A man asked her to help him find a dog which he described as as white poodle. She testified that she went into the woods with the man to look for the dog and that she "got hurt" in the woods. She testified that she remembered what the man looked like, and she described him as a white man of medium height with curly brown hair. She also described his clothing. From an array, she identified the photograph of the man (later identified as the defendant) in question. She further testified that the man whom she was with in the woods held his hand over her nose and mouth and she could not breathe. She said that the man hurt her nose.

Scooter Eramo further testified that when she left the woods, the man was not with her and she went to get somebody to help her. At the time she left the woods, she was not wearing her toboggan because "the man tore it up." She also testified that she was not wearing her underwear. Upon leaving the woods, she went to a "nice man" who helped her. The man called the police and an ambulance. The police came and she told the police what had happened. She rode in the ambulance to the hospital and saw a doctor, a nurse and her mother. She went with Detective Barbour to his office and picked out a picture of the man who hurt her. She told Detective Barbour what had happened. While on the stand and during her testimony she identified a picture of the defendant as the man who had hurt her.

Douglas E. Joyner, who had lived in Raleigh for fifteen years and was a student at Wake Technical College, testified that on 23 December 1981 he was doing some construction work on a friend's garage and was sitting on the balcony of the two-story garage taking a break. At that time he saw Scooter Eramo and described her as bruised "real bad" under both eyes and across her nose. A little bit of blood was coming from her nose. He noticed that her clothes were in disarray. He called an ambulance and the police.

Donna F. Eramo, the mother of Scooter Eramo, testified that she worked at her place of employment on 23 December 1981 until midafternoon at which time she went Christmas shopping. She saw her daughter Scooter at Rex Hospital around 4:00 p.m. and described her physical appearance as being "bloody, black and blue, both eyes were filled with blood. She had small blood dots all over her face. Her nose was packed with blood and swollen. She had hand prints on her neck." She stayed with Scooter at the hospital until she took her home. At the hospital and afterwards at home all Scooter would say was that she went to look for a dog and that she hoped they would find the man.

Police officer J.E. DeCatsye of the Raleigh Police Department, the officer who reached the scene where Scooter was found, testified that at the time he saw Scooter she was "very much in disarray as far as her clothing, her shoes were on and they were untied, her shirt was hanging out of her pants, she had soil marks on the back of her shirt and her pants and a portion of her underwear ... were hanging out the back of the pants and they had signs of defecation on them." He noticed certain physical injuries to her body which consisted of red marks on the left-hand side of her neck, a bruise beneath one eye which extended across the eye and the nose and ended over the other eye. There was some blood around her mouth. When he arrived, the emergency medical service unit was already on the scene and two attendants were treating the little girl. The child told officer DeCatsye that a man had hurt her and upon his inquiry as to what she meant by that she made a statement to him:

She told me that she had been over at her apartment and had left the apartment where she lives and had gone to a friend's house to play with a friend. When she got there she found out that the friend was not at home so she left that apartment and started walking through the apartment complex. At that point a man approached her and asked her if she would help him look for his lost dog which he described to her as being a white poodle. She agreed to do this with him. After they had looked around for a little bit for the lost dog they walked into some woods for a distance and at this point the man started playing some games with her, tried to play some games with her that she didn't understand. And from what she told me she started screaming and crying at that point.

Raleigh Detective L.K. Barbour also investigated the incident and testified that he walked over the wooded area in question and found evidence of a scuffle and what "appeared to be torn clothing, panties, in that area." He interviewed the defendant at approximately 9:30 p.m. on 24 December 1981 at the Raleigh Criminal Investigative Division Offices. He had a picture taken of the defendant and arranged a photographic lineup of eight photographs for the purpose of exhibiting them to Scooter and Mr. Ed Patchell. Upon exhibiting the array to the child, she immediately identified the photograph of the defendant as the man who assaulted her. When asked if she were absolutely certain about the identification, she said that she was. Mr. Patchell was also asked to view the photographic array and he identified the photograph of the defendant as the subject he saw coming from the laundromat and approaching Scooter.

At approximately 11:57 p.m. on the evening of 24 December 1981 the defendant Jerry Starnes gave a statement to Detective Barbour in question and answer form as follows:

And my question was: Jerry Starnes, did you assault the little girl. And his answer was: Yes. Question: Jerry, where did the assault take place at. The answer: Behind the ball field. The little girl and I were looking for the dog. We went down in the woods about a hundred feet. She had to pee and I just went crazy. Question: Did you hit her with your fist, Jerry. Answer: Yes. Question: How many times. Answer: It's all flaky. I realized what I had done. I got scared and ran. Question: Jerry Starnes, have you given this confession of your own free will and that no threats or promises have been made to you. The answer was: Yes.

Defendant was then taken to the Wake County Jail and formally charged with rape.

Detective Barbour questioned the defendant again on 28 December 1981 and the defendant gave him another statement which is, in pertinent...