Opinion
No. COA10-442
Filed 1 February 2011 This case not for publication
Appeal by Defendant from judgment entered 4 September 2009 by Judge A. Robinson Hassell in Chatham County Superior Court. Heard in the Court of Appeals 11 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State. Richard E. Jester for Defendant.
Chatham County Nos. 08 CRS 50722, 08 CRS 3787.
I. Procedural History
On 23 June 2008, Defendant Stephen Eric Snipes was indicted for second-degree rape. An indictment alleging Defendant to be a violent habitual felon was also returned on that date. A superseding indictment was returned on 4 August 2008 as to Defendant's status of violent habitual felon. On 16 July 2009, the State filed an amended notice of intent to seek classification of Defendant as a sexually violent predator.
Defendant was also indicted for second-degree sexual offense but was acquitted of that offense.
The case was called for trial on 1 September 2009. The jury returned a verdict of guilty of second-degree rape. The trial court requested that Defendant stipulate to the status of violent habitual felon, and defense counsel so stipulated. The court thereupon entered a single judgment imposing a sentence of life imprisonment without parole. Defendant gave notice of appeal in open court.
II. Evidence
The evidence presented by the State at trial tended to show the following: In late 2007, "Marsha" met Defendant through her cousin. After their initial meeting, Marsha spent time with Defendant and others at various gatherings. On 8 April 2008, Marsha met Defendant at a cemetery where the two smoked marijuana and talked.
"Marsha" is a pseudonym to protect the victim's privacy.
At that time, Defendant ran a small carpet cleaning company and Marsha was unemployed. Defendant arranged to have Marsha accompany him the next evening as he cleaned the carpets of a restaurant in Pittsboro. The plan was that Marsha would learn how to clean carpets so that she could eventually work with Defendant's company. On 9 April 2008, Defendant picked Marsha up in his truck at the Rite Stop convenience store in Siler City around 7:30 p.m. A few miles before reaching the restaurant, Defendant turned south on Hadley Mill Road. He then stopped and backed into a field. Defendant exited the truck and came around to the passenger side door and opened it. Marsha began to turn toward him when he grabbed her legs behind her knees and pulled her down on the seat of the truck. He pulled down her pants and underwear and attempted to perform oral sex on her. Marsha resisted Defendant and kept trying to push his head away, but he pinned her arm to the seat and continued. He "shushed" her as she repeatedly told him "No" and "Please don't do this." He then pinned both arms under her body and had sexual intercourse with her while she continued to beg him to stop.
After the assault, Defendant drove Marsha to the restaurant in Pittsboro. Upon their arrival, Marsha secretly tried to reach somebody on her cell phone but was unsuccessful. She then told Defendant that she had to use the bathroom. Marsha was able to escape from the bathroom and go inside a nearby Food Lion. From inside the Food Lion, she contacted her mother and asked her to come get her immediately. When her mother arrived, Marsha quickly got into the car. Sensing that something was wrong, Marsha's mother asked her if Defendant had done something to her. When Marsha didn't answer the question and, instead, asked to be taken to her brother's house, her mother took her straight to the sheriff's office.
At the sheriff's office, Marsha told the first officer she encountered that she had been raped. She then gave a detailed statement to Detective Williams of the Sheriff's Family Violence Unit. Following that interview, Marsha went to the Emergency Room at UNC Hospitals in Chapel Hill where a rape kit was performed.
When Defendant was leaving the restaurant, Pittsboro Police patrol officer Troy Roberson received information that Defendant may have been drinking and was possibly on his way back to Siler City in his truck. Officer Roberson also learned that Defendant reportedly had just been involved in a sexual assault. Officer Roberson saw Defendant pull out of the parking lot and turn west toward Siler City. Defendant's truck soon veered so far over to the left side of the road that it almost struck the curb. Officer Roberson turned his blue lights on and pulled Defendant over.
Defendant asked the officer, "What is this about?" and said, "Man I didn't rape that girl." Defendant said that his wife had just called and accused him of raping someone. Defendant failed the field sobriety tests administered to him by Officer Roberson. However, two alcosensor tests given to Defendant registered Defendant's blood alcohol level as 0.00, and Defendant was allowed to drive home.
In the days following the incident, Defendant was interviewed by officers from the Chatham County Sheriff's Department and the State Bureau of Investigation. Defendant maintained that the sexual encounter with Marsha had been consensual, that he had left home that night planning to have sex with her, that she had let him fondle her as they drove down the road, and that they actually had sex in two different locations on Hadley Mill Road. Defendant denied that Marsha had resisted and claimed that she had thanked him when the sexual activity was over.
Defendant did not testify at trial. He called his wife to the stand, who testified that on the evening of the incident, she followed Defendant and Marsha from the Rite Stop in Siler City to a point just after they turned down Hadley Mill Road near Pittsboro. She said she stopped following them after she saw Marsha take her shirt off.
Defendant was convicted of second-degree rape but acquitted of second-degree sexual offense.
III. Discussion A. Opening the Door
Defendant first argues that the trial court erred in ruling that Defendant could not cross-examine Marsha about her sexual orientation. Specifically, Defendant contends the State "opened the door" to such questioning during jury voir dire. We disagree. N.C. Gen. Stat. § 8C-1, Rule 412, known as the rape shield law, prohibits the introduction of evidence concerning the sexual activity of a complainant in a sexual offense case unless one of four exceptions apply:
(b) Notwithstanding any other provision of law, the sexual behavior of the complainant is irrelevant to any issue in the prosecution unless such behavior:
(1) Was between the complainant and the defendant; or
(2) Is evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or
(3) Is evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(4) Is evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
N.C. Gen. Stat. § 8C-1, Rule 412 (2009).
Defendant does not dispute that evidence of Marsha's sexual orientation was irrelevant under Rule 412 and, thus, inadmissible. Defendant instead contends that the State "opened the door" to the admission of such evidence "by asking jurors at length during voir dire if they could be fair to a homosexual or gay person who lived an[] `alternative lifestyle.'"
The phrase "opening the door" refers to the principle that "[w]here one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially." State v. Garner, 330 N.C. 273, 290, 410 S.E.2d 861, 870 (1991) (citations and quotation marks omitted). Courts in this State have not addressed the issue of whether statements made during jury voir dire, which are not evidence, may result in "opening the door." Our Supreme Court has concluded, however, that when a party "opens the door" during its opening statement, which is also not evidence, the opposing party may offer evidence to rebut the statements made in the opening statement. See State v. Murillo, 349 N.C. 573, 600, 509 S.E.2d 752, 768 (1998) (character evidence concerning the victim's performance as a school teacher was relevant to rebut the defendant's contentions in his opening statement that the victim was a violent alcoholic), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999); State v. Peterson, 179 N.C. App. 437, 634 S.E.2d 594 (2006) (defense counsel's opening statement informed the jurors that the defendant was in a happy marital relationship, opening the door for the State to introduce evidence of the defendant's bi sexual nature and relationships), aff'd on other grounds, 361 N.C. 587, 652 S.E.2d 216 (2007), cert. denied, 552 U.S. 1271, 170 L. Ed. 2d 377 (2008). We need not decide whether a party may "open the door" during jury voir dire as, even assuming arguendo that it may, we conclude that the State's statements in this case did not open the door to evidence regarding the victim's sexual orientation.
In Peterson, defense counsel's opening statement included a lengthy discussion of the loving marriage between the defendant and his wife, the victim of murder in that case. Peterson, 179 N.C. App. at 461-62, 634 S.E.2d at 613. Additionally, defense counsel read portions of an essay written by the victim's daughter in which she discussed the "`true love'" between her mother and the defendant, her stepfather. Id. Family photographs were displayed as the opening statement was being given. Id. at 462, 634 S.E.2d at 613.
We held that
[a]s defense counsel, in his opening statement, extensively discussed defendant and [his wife's] relationship and portrayed the marriage as a happy and loving one, the trial court properly found that evidence of defendant's attempts to have sexual relations with a male escort and interest in homosexual pornography were relevant to rebut defense counsel's opening statement.
Id. at 462-63, 634 S.E.2d at 613.
In this case, Defendant cites the following statements made by the State during jury voir dire as evidence that the State "opened the door" to evidence concerning Marsha's sexual orientation:
"Now in this case, you may hear evidence that one of the witnesses lives an alternative lifestyle and that she may be a lesbian."
"And again I will ask the three of you specifically, there may be some information about a witness that lives an alternative lifestyle."
"There are folks in our society that participate in alternative lifestyles."
"And there has been some talk that there may be some folks who testify that participate in an alternative lifestyle."
"Any concerns about folks who may participate in alternative lifestyles?"
Additionally, Defendant cites questions posed to a potential juror, a church minister, about whether the minister preaches against homosexuality in his church.
Defendant asserts that through these statements, the State attempted to establish that the victim was a "happily gay female" who would not have participated in consensual sexual activity with Defendant. Defendant argues that he was thus entitled to rebut that inference through cross-examination of the victim about her sexual orientation. We disagree.
First, the prosecutor did not indicate that the "alternative lifestyle" to which she referred was homosexuality and, in fact, the prosecutor distinguished the two by stating there may be evidence that "one of the witnesses lives an alternative lifestyle and that she may be a lesbian." (Emphasis added). Moreover, the State did not indicate that Marsha was the witness who lived an "alternative lifestyle" and/or "may be a lesbian," and the State called numerous female witnesses in addition to Marsha during the course of the trial. We do not agree with Defendant that through these statements, the State attempted to establish that Marsha was a "happily gay female" who would not have participated in consensual sexual activity with Defendant. The State's mere mention during jury voir dire that one of the witnesses "may be a lesbian" and its general statements concerning an "alternative lifestyle" are wholly dissimilar from defense counsel's detailed discussion during his opening argument in Peterson of the loving marriage between the defendant and the victim in that case.
Accordingly, even assuming arguendo that a party may "open the door" during jury voir dire, the trial court here did not err in denying defense counsel the opportunity to cross-examine Marsha about her sexual orientation. Defendant's argument is overruled.
B. Peremptory Challenge
Asserting a violation of the First and Fourteenth Amendments to the United States Constitution and Article I, Section 26 of the North Carolina Constitution, Defendant next argues that the trial court erred in allowing the State to exercise a peremptory challenge to excuse a juror because of the juror's religious beliefs.
"Peremptory challenges are challenges which may be made or omitted according to the judgment, will, or caprice of the party entitled thereto, without assigning any reason therefor, or without being required to assign a reason therefor." State v. Allred, 275 N.C. 554, 563, 169 S.E.2d 833, 838 (1969) (citations and quotation marks omitted). Generally, peremptory challenges may be exercised without a stated reason and without being subject to the control of the court. State v. Jenkins, 311 N.C. 194, 204, 317 S.E.2d 345, 351 (1984).
The United States Supreme Court has, however, condemned peremptory challenges on the basis of race as violations of the right to equal protection under the Fourteenth Amendment to the United States Constitution. See Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986); see also State v. Taylor, 362 N.C. 514, 669 S.E.2d 239 (2008), cert. denied, ___ U.S. ___, 175 L. Ed. 2d 84 (2009). While the Batson doctrine has been extended beyond racial discrimination to prohibit peremptory challenges based solely on gender, neither the Supreme Court nor courts of this State have further extended the doctrine to prohibit peremptory challenges based solely on religious beliefs. We decline to do so here.
See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d 89 (1994); State v. Bates, 343 N.C. 564, 473 S.E.2d 269 (1996), cert. denied, 519 U.S. 1131, 136 L. Ed. 2d 873 (1997).
Article I, Section 26 of the North Carolina Constitution states: "No person shall be excluded from jury service on account of sex, race, color, religion, or national origin." Defendant claims that in exercising a peremptory challenge to excuse a minister from the jury, the State violated the prohibition on religious discrimination. In accord with the following precedent, we disagree.
In State v. Eason, 336 N.C. 730, 445 S.E.2d 917 (1994), cert. denied, 513 U.S. 1096, 130 L. Ed. 2d 661 (1995), the defendant challenged the prosecutor's use of a peremptory challenge to excuse a juror who was a Jehovah's Witness. The prosecutor justified the challenge on two grounds: First, the prosecutor understood that Jehovah's Witnesses do not believe in the death penalty, and the prosecutor feared that the juror's religious beliefs would interfere with her ability to deliberate on the issue of punishment. Second, the prosecutor noted that during the voir dire examination, the juror had expressed mixed feelings about the death penalty. Id. at 738, 445 S.E.2d at 922. The North Carolina Supreme Court concluded that the exclusion of the juror was not based solely on the juror's religious affiliation. Rather, the Court noted that the prosecutor had made a specific inquiry to discover how the juror's religious beliefs might affect her ability to follow the law and that the juror was excused because of her expressed reservations about the death penalty, not because of her religion. Id. at 738-39, 445 S.E.2d at 922-23.
In this case, potential juror number one stated that he was a "certified inspector" of homes for real estate sales as well as a minister at Burnette's United Church of Christ. The juror did not think it would be difficult for him, as a minister, to "stand in judgment of" those on trial and felt comfortable with the "burden" of doing so. The following exchange took place during the State's voir dire of the juror:
[THE STATE]: Is there anyone that you are close to or you yourself who has unfortunately experienced an event similar to what we are talking about today?
. . . .
PROSPECTIVE JUROR NUMBER ONE: When you say "someone close to me," are you talking about my immediate family or are you talking about —
[THE STATE]: Well, someone you are close to, a friend or family member that may have experienced unfortunately an event such as the one we are talking about?
PROSPECTIVE JUROR NUMBER ONE: No. But the reason why I — why I ask that is because by me being a minister —
[THE STATE]: Sure.
PROSPECTIVE JUROR NUMBER ONE: — of course I — I deal with — with different situations of that nature.
[THE STATE]: That's true.
[THE STATE]: So obviously I would guess from that statement, you've had to minister —
. . . .
PROSPECTIVE JUROR NUMBER ONE: I have talked to people of course. I have ministered to people under those circumstances.
[THE STATE]: And those are men and women, both or. . . .
PROSPECTIVE JUROR NUMBER ONE: Yes.
[THE STATE]: Who have been victims of sexual assault?
PROSPECTIVE JUROR NUMBER ONE: Yes.
[THE STATE]: And do you have any specialized training in that area of ministering, in working with people who are victims?
PROSPECTIVE JUROR NUMBER ONE: Pastoral counseling.
[THE STATE]: And over your career as a minister, how often would you say you've — you've participated in that kind of pastoral counseling and dealing — in helping someone to work through a sexual trauma?
PROSPECTIVE JUROR NUMBER ONE: It's not — it's not frequently. I mean, it's — over the years, of course, I've had to, you know, to talk to people about it, of course, and counsel people about it. Well, I would say probably five, five cases.
[THE STATE]: And of those five cases, did you work with that victim as she worked through the legal system? Or was law enforcement even
PROSPECTIVE JUROR NUMBER ONE: Some — some instances, yes. Some people.
. . . .
[THE STATE]: Did you ever attend court with them or sit with them when they went to the hospital or talked to law enforcement?
PROSPECTIVE JUROR NUMBER ONE: Ummm, I did not attend court with them. I — of course, you know, I went to the hospital with them sometimes, occasionally, most of the time, yes.
The prospective juror stated that despite these experiences, he believed he could be fair in this case.
The State further inquired of the prospective juror whether he preached against homosexuality and if homosexuality is "something that is a strongly held belief by yourself that is an inappropriate lifestyle and casts concern about a person's judgment?" The juror responded, "If I may, when we consider what is preached against or for, we preach about love. We consider everybody as somebody in the sight of God. And of course the rule that we use is the Word of God. And so we preach the Word of God." The juror stated that he would feel comfortable hearing testimony from somebody who lives an alternative lifestyle and felt that he could be fair.
As in Eason, the State inquired into the prospective juror's experiences and beliefs and his ability to apply the law fairly. Also as in Eason, the prospective juror responded that he would be able to apply the law fairly. There is nothing in the voir dire of prospective juror number one which suggests that the State excused the juror based solely on his religion or religious views. Furthermore, as the State was entitled to exercise its peremptory challenges without assigning any reason therefor, or without being required to assign a reason therefor, Allred, 275 N.C. at 563, 169 S.E.2d at 838, the trial court did not abuse its discretion in allowing the State to dismiss prospective juror number one. Defendant's argument is overruled.
C. Limiting Instruction
Defendant next contends that the trial court erred in failing to give Defendant's requested jury instruction regarding Marsha's willingness to engage in sexual activity with a man. We disagree.
A trial court must instruct the jury on the law arising on the evidence. State v. James, 184 N.C. App. 149, 151, 646 S.E.2d 376, 377 (2007); see N.C. Gen. Stat. §§ 15A-1231 and -1232 (2009). "The chief purpose of a [jury] charge is to give a clear instruction which applies the law to the evidence in such manner as to assist the jury in understanding the case and in reaching a correct verdict." State v. Williams, 280 N.C. 132, 136, 184 S.E.2d 875, 877 (1971). "Whether a jury instruction correctly explains the law is a question of law, reviewable by this Court de novo." State v. Barron, ___ N.C. App. ___, ___, 690 S.E.2d 22, 29, cert. denied, 364 N.C. 327, 700 S.E.2d 926 (2010).
"On appeal, a defendant is required not only to show that a challenged jury instruction was erroneous, but also that such error prejudiced the defendant." Id. "A defendant is prejudiced . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443(a) (2009). "The burden of showing such prejudice . . . is upon the defendant." Id.
In this case, Defendant was charged with second-degree rape and second-degree sexual offense. The trial court correctly instructed the jury on the elements of the offenses and the State's burden of proof. The trial court further correctly instructed the jury that it could "find the truth as to the facts of the case" from both "direct and circumstantial" evidence, and that it was the jury's duty to enter a verdict of not guilty if it found from the evidence that the State had not met its burden to prove each element of the charged offense.
Defendant requested the following instruction "in order to combat the persuasive inference caused by knowing that [Marsha] is lesbian[:]"
Members of the jury, you have heard [Marsha] testify that at the time of the alleged sexual assault, that she had a girlfriend. You have also heard the State ask questions of you during voir dire regarding a witness who lived an alternative lifestyle and was gay and a lesbian.
You shall not infer from [Marsha's] testimony or from the State's voir dire, that [Marsha] would or would not have consensual sexual activity with a man.
We first note that, as explained supra, jury voir dire is not evidence. Thus, Defendant's request for an instruction to apply the law to questions asked during voir dire is misplaced. Moreover, the requested instruction — that the jury not infer from Marsha's testimony "that she had a girlfriend" that Marsha "would or would not have consensual sexual activity with a man" — does not assist the jury in understanding the case or reaching a correct verdict, nor is it an accurate application of the law to the evidence, and Defendant cites no authority otherwise. We thus find no error in the trial court's refusal to give the requested instruction. Defendant's argument is overruled.
D. Admission of Officer's Response Regarding Victim's Initial Statement
Defendant next argues that the trial court erred in allowing Detective Williams to testify that Marsha's statement to him after the assault "was consistent with a victim of sexual assault." We do not agree.
The admission of lay opinion testimony is governed by Rule 701 of the North Carolina Rules of Evidence, which states:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (2009). We review a trial court's ruling on the admissibility of lay opinion testimony for abuse of discretion. State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). "A trial court abuses its discretion when its decision lacks any basis in reason." City of Charlotte v. Ertel, 170 N.C. App. 346, 348, 612 S.E.2d 438, 441 (2005) (citation and quotation marks omitted). Moreover, a defendant is not entitled to a new trial based on the erroneous admission of evidence "unless such errors were material and prejudicial." State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). "The defendant has the burden of showing that he was prejudiced by the admission of the evidence." Id. To meet this burden, a defendant must show that, "had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443 (2009).
At trial, Detective Williams described Marsha's statement to him regarding the incident as "very brief" and "[not] very descript." Detective Williams further opined, over objection, "I would say that [the statement] would be typical of a victim . . . that was distraught at the time and not able to give — give detail to recall and to be able to actually physically write it down."
Contrary to Defendant's contention, Detective Williams did not testify that Marsha's statement "was consistent with a victim of sexual assault" but, rather, that the brief, nondescript statement was typical of statements from a distraught victim. Additionally, as Defendant concedes, Detective Williams was "entitle[d] to describe [Marsha's] demeanor and emotional state" based on his rational perception of her.
Moreover, even assuming arguendo that the trial court improperly admitted Detective Williams' testimony, Defendant has failed to show that "had the error in question not been committed, a different result would have been reached at the trial[.]" Id. Given the substantial evidence presented at trial of Defendant's guilt, we discern no prejudicial error in the admission of the challenged testimony. Defendant's argument is overruled.
E. Violent Habitual Felon Status
Finally, Defendant contends that the trial court erred by not properly inquiring into Defendant's stipulation to his status as a violent habitual felon. We agree.
Although Defendant did not object to being sentenced as an habitual felon at trial, an error which is asserted to have occurred in the entry of a plea "may be the subject of appellate review even though no objection, exception or motion has been made in the trial division." N.C. Gen. Stat. § 15A-1446(d) (2009).
The proceedings for determining whether a defendant is an habitual felon "shall be as if the issue of habitual felon were a principal charge." N.C. Gen. Stat. § 14-7.5 (2009). Thus, the issue of whether a defendant is an habitual felon may be submitted to the jury for determination. Id. However, in the alternative, a defendant may enter a guilty plea to the charge of being an habitual felon. State v. Gilmore, 142 N.C. App. 465, 471, 542 S.E.2d 694, 699 (2001).
A superior court judge may not accept a defendant's plea of guilty to having attained habitual felon status without first addressing him personally and
(1) Informing him that he has a right to remain silent and that any statement he makes may be used against him;
(2) Determining that he understands the nature of the charge;
(3) Informing him that he has a right to plead not guilty;
(4) Informing him that by his plea he waives his right to trial by jury and his right to be confronted by the witnesses against him;
(5) Determining that the defendant, if represented by counsel, is satisfied with his representation;
(6) Informing him of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences, and of the mandatory minimum sentence, if any, on the charge; and
(7) Informing him that if he is not a citizen of the United States of America, a plea of guilty or no contest may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.
N.C. Gen. Stat. § 15A-1022(a) (2009).
In this case, the record shows that Defendant stipulated to being a violent habitual felon. The trial court then stated, "With that stipulation and admission at this time, members of the jury, you are . . . thanked and discharged for your service." The State then presented to the court certified copies of the three prior convictions alleged by the State to support the charge of violent habitual felon. See N.C. Gen. Stat. § 14-7.4 (1999) ("A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction."). However, as the State concedes, no inquiry was made of Defendant pursuant to N.C. Gen. Stat. § 15A-1022. Accordingly, Defendant is entitled to a new trial on the violent habitual felon charge.
NO ERROR in part; NEW TRIAL in part.
Chief Judges MARTIN and STROUD concur.
Report per Rule 30(e).