Opinion
No. 06-937.
Filed 5 June 2007.
Mecklenburg County Nos. 04 CRS 219591, 04 CRS 219593, 04 CRS 219592.
Appeal by defendant from judgments entered 10 August 2005 by Judge David S. Cayer in Mecklenburg County Superior Court. Heard in the Court of Appeals 21 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General Kevin Anderson, for the State. Richard E. Jester for defendant-appellant.
Defendant Jeremy Lamont Moore appeals from his convictions for two counts of second degree rape, three counts of second degree sexual offense, and one count each of first degree kidnapping and first degree burglary. On appeal, defendant argues that the trial court erred by (1) permitting an expert witness to vouch for the victim's credibility, (2) failing to dismiss the charge of first degree kidnapping for insufficient evidence, and (3) permitting the State's attorney to ask the victim leading questions. We are unpersuaded by defendant's arguments and, therefore, find no prejudicial error.
Facts
The State's evidence at trial tended to show the following facts. At approximately 2:00 a.m. on 2 May 2004, Gwendolyn Hasklin, who has been diagnosed as a paranoid schizophrenic, was sitting alone in her Charlotte, North Carolina apartment when she heard a noise at the back door. Ms. Hasklin looked through her blinds and saw defendant beating on her door. Ms. Hasklin testified she had never seen defendant previously.
Defendant kicked in the door, and the two began struggling throughout the kitchen and living room. Defendant claimed to have a gun and forced Ms. Hasklin to engage in oral sex and vaginal intercourse several times on the living room floor. Defendant then demanded money from Ms. Hasklin to buy crack cocaine. She responded that she had no money in the apartment. After hearing a knock at the door, defendant forced Ms. Hasklin down the hall to the bedroom, where he had sex with her four more times. At that point, defendant allowed Ms. Hasklin to go to the bathroom to clean up while he stayed in the bedroom. Instead of going to the bathroom, however, Ms. Hasklin ran naked to a neighbor's home and called the police.
Officer Gene Lim of the Charlotte-Mecklenburg Police Department was the first to respond to the neighbor's apartment. Ms. Hasklin, who was "visibly upset," informed Officer Lim that she had just been raped by a black male, approximately 20 years old, wearing a white tank top, dark pants, and a dark stocking or skull cap — a description that matched an individual the officer had just seen across the hall in the apartment complex. Officer Lim looked out of the apartment and saw the same man walking away with a "frantic look about him." When detained by Officer Lim, the man initially provided an alias, but later identified himself as defendant.
While officers held defendant in the courtyard of the apartment complex, Ms. Hasklin identified him as her attacker, and he was taken into custody. DNA analysis of a rape kit performed on Ms. Hasklin showed the statistical probability of a black male other than defendant being the source of DNA samples found on and in Ms. Hasklin's body to be approximately one in nine quintillion.
On 24 May 2004, defendant was indicted for multiple counts of rape, sexual offense, burglary, and kidnapping. At trial, defendant testified and admitted having sex with Ms. Hasklin, but claimed that it was consensual. According to defendant, he had previously sold Ms. Hasklin crack cocaine, and sometimes she had performed oral sex on him in exchange for the cocaine rather than paying cash. Defendant testified that on 2 May 2004, Ms. Hasklin invited him into her apartment and offered to have sex with him if he gave her crack cocaine. He told her that he had more cocaine than he really did. Defendant asserted that when Ms. Hasklin realized he did not have the drugs, she became angry, left the apartment naked, and falsely claimed rape in order to retaliate against him.
The jury found defendant guilty of two counts of second degree rape, three counts of second degree sexual offense, and one count each of first degree kidnapping and first degree burglary. For sentencing, the trial court consolidated the rape convictions into one judgment, the sexual offense convictions into a second judgment, and the kidnapping and burglary convictions into a third judgment. The court then imposed three consecutive presumptive range sentences of 73 to 97 months imprisonment. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court improperly permitted Ms. Hasklin's psychiatrist, Dr. Anthony DiNome, to express an expert opinion as to Ms. Hasklin's credibility. Specifically, he points to the questions and answers following the prosecutor's summarization for Dr. DiNome of Ms. Hasklin's testimony:
[PROSECUTOR:] Based on that kind of testimony, do you have an opinion as to whether [Ms. Hasklin] would have the ability to fantasize or make up that kind of a story?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
. . . .
A I have not known her to make up those kinds of stories nor to have delusions that would result in those kinds of scenarios. I have no reason to think that she would make up an elaborate, detailed story, based on my prior knowledge and her diagnosis.
Q There was some testimony that in some ways she was fearful while she was in the apartment. One of the ways that she indicated she was fearful was getting in trouble and losing her housing. Even though this was an allegation that someone actually broke in or burglarized her house.
Is that kind of a statement consistent with her disease?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
THE WITNESS: My first thought about that statement is that this was not a surprising statement to hear from someone who had been homeless. Might be in an apartment kind of on a thread. The apartment represents one step between them and the streets again.
So it was not surprising from that context. I didn't go beyond that in my concern. There are all kinds of people. People who are anxious and worried and frightened . . . about being blamed for things.
I don't think it's uncommon or inconsistent to feel like she might be blamed. I don't think that would be consistent of [sic] the events. No.
It is well established that expert testimony on the credibility of a witness is not admissible under Rules 405(a) and 608 of the Rules of Evidence. State v. Heath, 316 N.C. 337, 340-41, 341 S.E.2d 565, 567-68 (1986). In Heath, the prosecutor asked the State's expert witness whether the victim was suffering from any type of mental condition "which could or might have caused her to make up a story about the sexual assault." Id. at 340, 341 S.E.2d at 567. The expert responded: "There is nothing in the record or current behavior that indicates that she has a record of lying." Id. The Supreme Court held that both the question and answer were "fatally flawed." Id. at 341, 341 S.E.2d at 568. The Court explained that the question was "designed to elicit an opinion of the witness as to whether [the victim] had invented a story, or lied, about defendant's alleged attack on her." Id. The Court noted further:
It is one thing to ask an expert in psychology or psychiatry whether a victim fantasizes, but it is another thing altogether to ask whether a witness has made up a story, or lied. One who fantasizes can honestly and subjectively believe in the reality of the fantasized-about occurrence, but "making up a story," or lying, denotes an affirmative or conscious intent to deceive, invent, or not tell the truth.
Id. at 342, 341 S.E.2d at 568. With respect to the expert's answer, the Court explained that it "was not admissible since it related to the likelihood of whether [the victim] was telling the truth about the alleged sexual assault and thereby to the likelihood that defendant committed the rape and sexual offenses of which he was accused." Id.
On the other hand, this Court distinguished Heath in State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, appeal dismissed and disc. review denied, 320 N.C. 175, 358 S.E.2d 67 (1987). The Teeter prosecutor, in questioning the expert witness regarding his assessment of the victim, asked: "[D]id you find any evidence of any emotional disorder or psychoses which would impair her ability to distinguish reality from fantasy?" Id. at 628-29, 355 S.E.2d at 807. The expert witness responded: "No, sir. She showed no evidence of an emotional disorder which would impair her ability to do so." Id. at 629, 355 S.E.2d at 807.
This Court ruled that both the question and answer were proper because: the question was limited to whether or not [the victim] had any mental condition which would generally affect "her ability to distinguish reality from fantasy." It did not call for an opinion as to her propensity for telling the truth. The answer was within the scope of [the expert's] expertise and did not amount to an impermissible opinion with respect to defendant's guilt or innocence. Id.
As this Court has previously acknowledged, the "line between proper and improper questioning can be quite narrow, especially in the context of sexual assault and rape cases." State v. Marine, 135 N.C. App. 279, 283, 520 S.E.2d 65, 68 (1999). The question posed by the prosecutor in this case would — by focusing on Ms. Hasklin's actual testimony and asking not only about fantasy, but also whether she would have the ability "to make up" such a story — fall more on the Heath side of the line. The answer, however, addresses more the general effect of Ms. Hasklin's mental condition and more closely resembles Teeter.
The second question and answer addressed whether Ms. Hasklin's fear that she would get in trouble regarding her apartment if she reported the incident was consistent with her mental condition. The question does not necessarily call for and the answer does not provide an opinion on Ms. Hasklin's credibility.
We need not conclusively decide, however, whether the trial court improperly overruled defendant's objection since a review of the record reveals that any error was harmless. Very shortly after Dr. DiNome gave the challenged testimony on direct examination, defense counsel began his cross-examination as follows:
Q. . . . I just want to be clear. Are you giving a medical opinion as to the veracity of Ms. Hasklin's testimony in this trial?
A No. I am just stating this as to what she told me. Her reporting on what she told me and my concerns about her mental health.
Q So as to whether she was telling the truth here the other day, you are not stating an opinion as to whether she was telling the truth at all?
A No. I am not.
Q I just wanted to be clear.
Defense counsel then elicited from Dr. DiNome his belief that a report by Ms. Hasklin on another occasion that she had been robbed of $400.00 had sounded "fishy" to him and that he had been wondering whether she was involved with drugs.
Defense counsel then had Dr. DiNome read and reaffirm his note that "[t]here is always something funny going on with [Ms. Hasklin]. She never totally gives you the whole story." On redirect, the State tried to address this statement by suggesting that it did not mean that "what she tells you is false," but rather "[y]ou just don't get the whole story." Dr. DiNome, however, responded: "I wouldn't know. I can't always tell. If the hair goes up, you wonder. Then you try to sort it out some other way." Defense counsel proceeded to capitalize on the cross-examination testimony in his closing argument:
I asked [Dr. DiNome], "Are you vouching for Ms. Hasklin's credibility? Are you saying that what she is saying is the truth?"
"No." . . .
. . . .
You know what? Not even her psychiatrist believes Gwendolyn Hasklin.
. . . .
. . . In her psychiatrist's own words, "There is always something funny going on with Gwen, in that she never, never gives you the whole story."
So why in the world would you folks think that on the witness stand she has now deviated from something — that someone who has known her for six years, has talked to her monthly during a lot of that time. You heard his opinion. He didn't just put it in his report. He said it to you on the stand several times.
Why when this person, [her] psychiatrist, say [sic] "There is always something funny going on with Gwen. She never gives you the whole story."
. . . .
I can't say it any better than her own psychiatrist said it. "There is always something funny going on with Gwen. She never gives you the whole story."
You have absolutely no reason from the evidence to consider that she gave you the whole story.
In short, rather than expressing an expert opinion that Ms. Hasklin was credible, Dr. DiNome's testimony was, in essence, used as an expert opinion that she was not credible.
Defendant bears the burden of showing that there is "a reasonable possibility" that had the challenged questions and answers not been admitted "a different result would have been reached" by the jury. N.C. Gen. Stat. § 15A-1443(a) (2005). In light of Dr. DiNome's entire testimony, we do not believe that defendant has met this burden. Accordingly, this assignment of error is overruled.
II
Defendant next argues that his motion to dismiss the charge of first degree kidnapping should have been granted because the State failed to present evidence tending to show that Ms. Hasklin was confined, restrained, or removed in any way beyond what was required to accomplish the rapes and sexual offenses. Our Supreme Court has held that the legislature did not intend "to make a restraint, which is an inherent, inevitable feature of [felonies such as forcible rape and armed robbery], also kidnapping so as to permit the conviction and punishment of the defendant for both crimes." State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). As a result, the restraint, confinement, and removal of a rape victim may constitute kidnapping only "if it is a separate, complete act, independent of and apart from the rape." State v. Mebane, 106 N.C. App. 516, 532, 418 S.E.2d 245, 255, appeal dismissed and disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992).
This Court has previously concluded that evidence tending to show the rape victim was forced from one room to another is sufficient a sportation separate and independent of the elements of rape to support a conviction for kidnapping. State v. Blizzard, 169 N.C. App. 285, 290-91, 610 S.E.2d 245, 250 (2005). In this case, Ms. Hasklin testified that after defendant had forced her to have intercourse several times in the living room, there was a knock on the door. After that, defendant moved her to the bedroom where he engaged in sexual intercourse again.
Defendant argues that moving Ms. Hasklin from the living room to the bedroom was not an act separate from that needed for rape because defendant was moving to a location "far more comfortable? for sexual activities." We disagree. Viewed in the light most favorable to the State, a reasonable juror could have concluded that although defendant could have continued to rape Ms. Hasklin in her living room — as he had already done — he nevertheless ordered her into her bedroom so that whoever had knocked on Ms. Hasklin's door would be less likely to witness or hinder defendant's continued sexual activities. See State v. Rogers, 153 N.C. App. 203, 213, 569 S.E.2d 657, 664 (2002) (sufficient evidence of removal existed when defendant attempted to rape victim in front entryway but, upon becoming startled, got up and moved victim from room to room), disc. review denied, 357 N.C. 168, 581 S.E.2d 442 (2003). Because the evidence was sufficient to meet the requirements of Fulcher, the trial court properly denied the motion to dismiss.
Defendant alternatively argues that his conviction for first degree kidnapping subjected him to double jeopardy because the State both (1) charged defendant with a sexual assault and (2) used that very same sexual assault to elevate the kidnapping charge from second to first degree. See State v. Freeland, 316 N.C. 13, 21, 340 S.E.2d 35, 39 (1986) (concluding defendant, who was convicted of both first degree kidnapping and sexual assault, was subjected to double jeopardy because jury must have relied upon the sexual assault in convicting defendant of first degree kidnapping). As the State correctly notes, however, defendant neither raised this issue before the trial court nor addressed double jeopardy in his assignments of error. We may not, therefore, consider these arguments on appeal. See N.C.R. App. P. 10(a) (noting that "the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal"); State v. Fuller, 166 N.C. App. 548, 555, 603 S.E.2d 569, 575 (2004) (declining to consider double jeopardy argument when defendant did not raise issue at trial).
III
Finally, defendant argues that the trial court erred by allowing the prosecutor to ask Ms. Hasklin several leading questions. A leading question is, quite simply, one that suggests the answer. State v. Smith, 135 N.C. App. 649, 655, 522 S.E.2d 321, 326 (1999), disc. review denied, 351 N.C. 367, 543 S.E.2d 143 (2000). "Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony." N.C.R. Evid. 611(c). Nevertheless, "[r]ulings by the trial judge on the use of leading questions are discretionary and reversible only for an abuse of discretion." State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986). Moreover, on appeal, a defendant bears the burden of establishing prejudice resulting from the improper use of leading questions. State v. Brice, 320 N.C. 119, 123, 357 S.E.2d 353, 354 (1987). Here, defendant specifically disputes only two inquiries by the State:
We note that defendant also contends in his brief that "leading was present throughout [Ms. Hasklin's] testimony." We decline to consider defendant's argument beyond the two specific instances argued in defendant's brief. See N.C.R. App. P. 28(a) ("Review is limited to questions . . . presented in the several briefs.").
Q [State's Attorney] During the course of the time [defendant] was in your house, what, if anything, did he say to you about asking for money?
. . . .
THE WITNESS [Ms. Hasklin]: After he got through raping me the first, second, third, and fourth time, he asked me, "Where is the money?"
I said, "My money is in the bank. I don't carry money."
. . . .
Q. . . . During the time that [defendant] was in your apartment, what, if anything, did he say to you about whether he had consumed any drugs or alcohol?
A I wasn't consuming —
Q I wasn't asking about you yet. Please listen to my question. What did [defendant] say, if anything, to you about when he had consumed any drugs or alcohol before he came to your place?
. . . .
A He said he was drunk and on crack.
Defendant's objections after each question were overruled.
Whether these are leading questions is debatable. In any event, even assuming arguendo that they were leading, we see no reason to conclude the trial court abused its discretion by permitting the State to question Ms. Hasklin in this way. Ms. Hasklin had testified that over the "three to four hours" defendant was in her apartment, he spoke to her about sex, drugs, alcohol, Ms. Hasklin's bills, wanting to be her boyfriend, and a variety of other topics. In such a situation, "[a]lowing the prosecutor to direct the witness's attention to a certain topic through the use of leading questions [I]s not an abuse of discretion." Smith, 135 N.C. App. at 655, 522 S.E.2d at 326. Moreover, defendant makes no serious effort to establish prejudice, and we can discern none.
No error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).