Volume 336 — North Carolina Reports

1. Rape and Allied Offenses 15 (NCI4th) — first-degree rape — infliction of serious personal injury — mental or emotional harm In order to prove a serious personal injury in a rape case based upon mental or emotional harm, the State must prove that the defendant caused the harm, that it extended for some appreciable period of time beyond the incidents surrounding the crime itself, and that the harm was more than the res gestae results present in every forcible rape. Am Jur 2d, Rape 4-6. 2. Rape and Allied Offenses 15 (NCI4th) — first-degree rape — infliction of serious personal injury — mental or emotional harm In order to find a defendant guilty of first-degree rape based upon the infliction of serious personal mental injury, there is no requirement that the mental injury arise from an act of the defendant not ordinarily present in a forcible rape. What is required is that the mental injury extend for some appreciable time beyond the incidents surrounding the rape and that it is a mental injury beyond that normally experienced in every forcible rape. Am Jur 2d, Rape 4-6. 3. Rape and Allied Offenses 96 (NCI4th) — first-degree rape — infliction of serious personal injury — sufficient evidence of serious mental harm There was sufficient evidence of serious mental or emotional harm to the victim to support defendant's conviction of first-degree rape based upon the infliction of serious personal injury on the victim where the evidence tended to show that in the months after the rape, the victim suffered from depression and loss of appetite, quit her job because she could not handle dealing with the public, moved from her home, contacted a rape crisis center for counseling, had nightmares, and could not sleep; the victim experienced weight loss for ten months after the rape; before the rape the victim was a loving, caring and capable mother, but after the rape she<page_number>Page 59</page_number> was unable to carry out her role as a mother and gave up the care of her child to the child's grandmother for nine months; and at the time of the trial, twelve months after the rape, the victim was still experiencing depression, was unable to sleep, and did not feel comfortable interacting with the public. A reasonable juror could conclude from this evidence that the victim's injuries extended for some appreciable time beyond the incidents surrounding the crime itself and that the injuries suffered are not the res gestae results present in every forcible rape. Am Jur 2d, Rape 88 et seq.

Constitutional Law §§ 349, 354 (NCI4th) — cross-examination — privilege against self-incrimination partially invoked — no prejudicial error There was no prejudicial error in a first-degree murder prosecution where a State's witness who had been present at the murder was allowed to describe the murder but invoke the Fifth Amendment testimonial privilege in response to questions on cross-examination concerning his drug dealing. Drug dealing was more than a collateral matter that went only to the credibility of this witness and the trial court should have either required the witness to answer questions or have stricken<page_number>Page 464</page_number> all or part of his direct testimony after allowing him to assert the privilege. There was no prejudice, however, because defendant was able to get his contentions before the jury. Am Jur 2d, Criminal Law §§ 937, 998. <block_quote> Propriety of court's failure or refusal to strike direct testimony of government witness who refuses, on grounds of self-incrimination, to answer questions on cross-examination. 55 ALR Fed. 742.</block_quote>

1. Evidence and Witnesses § 132 (NCI4th) — sexual offenses — false accusation by victim — exclusion of evidence — harmless error Assuming that the trial court in a prosecution for rape and other sexual offenses allegedly committed by a mother and her boyfriend against the mother's daughter erred by excluding under Rule 412 testimony by the victim's brother tending to show that the victim had falsely stated that she had had oral sex with her brother, this error was harmless beyond a reasonable doubt where the brother's denial that any sexual activity had occurred with his sister was equivocal at best; the jury could not have placed much credence in the brother's testimony; and the outcome of the trial would not have been affected by this evidence in light of the strong evidence against defendants, particularly a letter written by the mother which strongly corroborated the State's case. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 412. Am Jur 2d, Rape §§ 55 et seq. 2. Evidence and Witnesses § 2973 (NCI4th) — cross-examination of one defendant about previous affair — harmless error In a prosecution of defendants for various sexual offenses involving the female defendant's daughter, the trial court erred in allowing the State to cross-examine the female defendant as to whether she had an affair with a man who the victim said had previously molested her because this evidence was not probative of the witness's truthfulness or untruthfulness and was not relevant to any element of the crimes for which she was being tried. However, this error was not prejudicial since all the evidence showed that the defendants were living<page_number>Page 560</page_number> together although they were not married, and it is unlikely that the jury would be any more prejudiced by learning of an affair in which the female defendant had engaged several years previously N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rules 404(b), 608(b). Am Jur 2d, Witnesses §§ 563 et seq. <block_quote> Construction and application of Rule 608(b) of Federal Rules of Evidence dealing with use of specific instances of conduct to attack or support credibility. 36 ALR Fed 564.</block_quote> <block_quote> Admissibility, under Rule 404(b) of Federal Rules of Evidence, of evidence of other crimes, wrongs, or acts not similar to offense charged. 41 ALR Fed 497.</block_quote> <block_quote> Attacking or supporting credibility of witness by evidence in form of opinion or reputation, under Rule 608(a) of Federal Rules of Evidence. 52 ALR Fed 440.</block_quote> 3. Criminal Law § 734 (NCI4th) — instructions — reference to prosecutrix as victim — no plain error The trial court's reference to the prosecutrix as the victim throughout the charge was not an expression of opinion by the court that defendant was guilty and did not constitute plain error. Am Jur 2d, Trial §§ 657 et seq. 4. Criminal Law § 1133 (NCI4th) — crime against nature — sexual activity by substitute parent — aggravating factor — inducement of others — sufficient evidence A letter written by the female defendant to the male defendant and her minor daughter was sufficient evidence to support the trial court's finding as an aggravating factor for crime against nature and sexual activity by a substitute parent that the female defendant induced others to participate in the commission of the offenses. Am Jur 2d, Criminal Law §§ 598, 599. 5. Criminal Law § 904 (NCI4th); Rape and Allied Sexual Offenses § 132 (NCI4th) — indecent liberties — disjunctive instruction The trial court did not deny defendant the right to a unanimous verdict by instructing the jury that it could find her guilty of indecent liberties based on any "immoral, improper or indecent touching or act by the defendant upon the<page_number>Page 561</page_number> child or an inducement by the defendant of an immoral or indecent touching by the child." Even though there may have been evidence of touching or other acts by defendant which would not be considered "immoral, improper or indecent," there was plenary evidence of illegal touching by defendant to support her conviction; the trial court properly instructed the jury as to how to consider the evidence; and it will be assumed that the jury followed the court's instructions. <block_quote> Am Jur 2d, Criminal Law § 892; Rape §§ 108 et seq.; Trial §§ 1112 et seq.</block_quote>

1. Criminal Law § 762 (NCI4th) — instruction on reasonable doubt — use of moral certainty and substantial misgiving — no due process violation The trial court's instructions on reasonable doubt which included the terms "moral certainty" and "substantial misgiving" did not reduce the burden of proof for the State to less than proof beyond a reasonable doubt in violation of due process since the court's use of the terms "fully satisfied or entirely convinced" and "abiding faith" in conjunction with "moral certainty" made it clear to the jury that the State's burden was not less than the constitutional standard; the court made it clear that the jurors must consider all the evidence in determining whether they were convinced beyond a reasonable doubt; and the use of the term "substantial misgiving" alone is insufficient to render the instruction unconstitutional. Am Jur 2d, Trial § 1385.<page_number>Page 711</page_number> 2. Evidence and Witnesses § 318 (NCI4th) — murder trial — evidence of prior murder by defendant — admissibility to show identity Evidence that defendant had murdered a woman in Stokes County three months prior to the murder of a woman in Forsyth County was admissible to show the identity of defendant as the perpetrator of the Forsyth County murder where both victims were last seen alive in the same club in Winston-Salem; the defendant was in the club on each occasion; the body of each victim had similar wounds; a foreign object had been forced into the genitalia of each woman; the signature in each murder was that the murderer had inflicted far more injuries to the victim than was necessary to cause death; and testimony by a DNA expert indicated that the chance that defendant was not the donor of semen found in the Stokes County victim was approximately one in 274 million. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b). Am Jur 2d, Homicide § 312. 3. Criminal Law § 1337 (NCI4th) — capital sentencing — aggravating circumstance — stipulation of convictions of violent crimes — graphic testimony by victim of those crimes In a capital sentencing proceeding in which the State relied in part on the aggravating circumstance that defendant had previously been convicted of a felony involving violence to the person and defendant stipulated that he had been convicted of assault with a deadly weapon inflicting serious injury and attempted second-degree rape, the trial court did not err by permitting the victim of those two crimes to give detailed and graphic testimony about the manner in which those crimes were committed. N.C.G.S. § <cross_reference>15A-2000</cross_reference>(e)(3). Am Jur 2d, Criminal Law §§ 598 et seq. <block_quote> Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like — post-Gregg cases. 65 ALR4th 838.</block_quote><page_number>Page 712</page_number> 4. Evidence and Witnesses § 740 (NCI4th) — mother's identification of autopsy photograph — sympathy and accountability not sought Testimony by a murder victim's mother identifying an autopsy photograph of the victim was relevant to establish the victim's identity and did not violate the rule that the jury's decision should be based on the evidence and not on accountability to the victim's family where there was nothing in the record to support defendant's contention that the witness cried while she was testifying, and no questions were asked of the witness seeking sympathy or suggesting the need for accountability. Am Jur 2d, Appeal and Error §§ 797-801, 803. 5. Criminal Law § 104 (NCI4th) — measurement of knife blade — not test result subject to discovery Where a pathologist testified in a murder trial that he simply opened a knife that had belonged to the defendant, looked at the blade, and measured it, this was not the type of test whose results must be given to the defendant pursuant to N.C.G.S. § <cross_reference>15A-903</cross_reference>(e), and the pathologist was properly permitted to testify that the knife was consistent with the size and shape of the wounds inflicted upon the victim even though defendant was not informed of any tests on the knife. Am Jur 2d, Depositions and Discovery §§ 447-449. 6. Evidence and Witnesses § 2210 (NCI4th) — expert testimony — "indications" of blood An SBI agent was properly permitted to testify that phenolphthalein testing revealed "indications" of the presence of blood on defendant's boots and clothing but that the quantities were insufficient to determine definitively whether in fact blood was present, and to testify about the transfer of "indications" to clothing through secondary transfer or spattering. This testimony, though not strong, was relevant to show that blood had spattered on the defendant. Am Jur 2d, Expert and Opinion Evidence § 300. 7. Evidence and Witnesses § 1685 (NCI4th) — slides illustrating testimony — no excessive use Two sets of slides used by an expert witness to illustrate his testimony concerning the similarities of wounds suffered<page_number>Page 713</page_number> by the victim in this murder trial and another woman murdered by defendant were not unnecessarily repetitive, graphic and misleading where slides of each victim were shown side-by-side; no slide was kept on the screen for an excessive period or unnecessarily repeated; the presentation was made to the jury only on one occasion; and the trial court gave the jury limiting instructions at all appropriate times. Am Jur 2d, Evidence § 763. 8. Criminal Law § 1344 (NCI4th) — capital sentencing — heinous, atrocious, or cruel aggravating circumstance — sufficiency of evidence for submission The trial court in a capital sentencing proceeding properly submitted to the jury the aggravating circumstance that the murder was especially heinous, atrocious, or cruel where the evidence tended to show that the victim was sexually assaulted with a blunt object and was beaten about the head, face, neck, chest, and abdomen; the victim was stabbed twelve times and was tortured by means of two long incisions on her chest and two more across her neck; and the victim was manually strangled. This evidence was sufficient to show that the murder was characterized by excessive brutality, physical pain, psychological suffering and dehumanizing aspects not normally found in a first-degree murder case. Am Jur 2d, Criminal Law §§ 598 et seq. <block_quote> Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like — post-Gregg cases. 63 ALR4th 478.</block_quote> 9. Homicide § 552 (NCI4th) — first-degree murder — submission of second-degree murder not required The trial court in a first-degree murder prosecution did not err by failing to submit second-degree murder to the jury where the evidence was sufficient to fully satisfy the State's burden of proving each and every element of first-degree murder, and defendant only offered evidence of alibi and other evidence that he did not commit the offense. Am Jur 2d, Homicide §§ 525 et seq.<page_number>Page 714</page_number> 10. Jury § 111 (NCI4th) — capital trial — newspaper article — denial of individual voir dire and sequestration of jurors — no abuse of discretion The trial court did not abuse its discretion in the denial of defendant's motion for individual voir dire and sequestration of prospective jurors in a capital trial where the question of individual voir dire arose on the second day of jury selection from juror responses regarding whether they had read a certain newspaper article; the court indicated that it paid careful attention to jurors' responses concerning the article and was satisfied with their unequivocal responses as to their ability to give defendant a fair and impartial trial; and the court informed defendant that it would monitor the situation and, if necessary, would again consider whether individual voir dire of any prospective juror would be appropriate. Am Jur 2d, Jury § 197. 11. Criminal Law § 78 (NCI4th) — capital trial — newspaper article — denial of change of venue The trial court did not err by the denial of defendant's motion for a change of venue of his first-degree murder trial based on a newspaper article detailing the history of the case and quoting a statement by the district attorney that the State would rely on circumstantial evidence and that tied this case to a murder in another county where defendant admitted in open court that he had no evidence that he had been prejudiced by the article but asked the court to reserve ruling on the motion to see if prospective jurors had been tainted by the article, and defendant failed to show anything from the questioning of prospective jurors indicating that any of them were prejudiced by the article. Am Jur 2d, Criminal Law § 378. 12. Criminal Law § 1373 (NCI4th) — first-degree murder — death sentence not disproportionate A sentence of death imposed upon defendant for first-degree murder was not excessive or disproportionate to the penalty imposed in similar cases considering the crime and the defendant where the jury found as aggravating circumstances that (1) defendant had previously been convicted of a felony involving violence to the person, (2) the murder was committed while defendant was engaged in the commission<page_number>Page 715</page_number> of first-degree rape or first-degree sexual offense, and (3) the murder was especially heinous, atrocious, or cruel; the evidence showed that defendant offered a ride home to a small, trusting woman but instead took her to a secluded location where he sexually assaulted, tortured, beat, strangled, and stabbed her until she was dead; defendant inflicted far more injuries to the victim than were necessary to cause death; and the murder was thus characterized by brutality and "overkill." Am Jur 2d, Criminal Law § 628. <block_quote> Validity of death penalty, under Federal Constitution, as affected by consideration of aggravating or mitigating circumstances — Supreme Court cases. <cross_reference>111 L.Ed.2d 947</cross_reference>.</block_quote>