STATE of North Carolina
v.
Clifford Delane DAVIS.
No. 44.
Supreme Court of North Carolina.
November 4, 1976.*291 Atty. Gen. Rufus L. Edmisten and Special Deputy Atty. Gen. Edwin M. Speas, Jr., Raleigh, for the State.
Michael S. Scofield, Public Defender and James Fitzgerald, Asst. Public Defender, Charlotte, for defendant appellant.
SHARP, Chief Justice.
In the record on appeal defendant sets out 11 assignments of error, which we will examine in the order the matters complained of occurred at the trial.
We consider first the assignment that defendant was denied his constitutional right to a speedy trial in that "the delay of time from indictment to trial was excessive. . . and that the delay was the studied choice of the State." This assignment, which is based on no exception taken at the trial, is totally without merit.
Initially, defendant was represented by his privately employed counsel, Mr. William L. Stagg. Sometime (date not disclosed) after defendant was indicted for the rape of Miss Kilmer, he severely injured himself in an unsuccessful attempt to escape from the Statesville prison unit over a 15-foot wall. Inter alia, he broke both ankles. In consequence he was removed to the State's prison in Raleigh where he underwent surgery. Thereafter defendant continuously requested Mr. Stagg to have his trial postponed. In August 1975 he was brought to Charlotte for trial. At that time he told the assistant district attorney that he wanted to have a foot operation at the prison hospital before his trial, and he represented to the prosecutor that he would plead guilty to "two reduced pleas" if the prosecutor would postpone his trial. Upon these representations defendant's case was again continued.
On 29 September 1975 defendant was again brought to Charlotte for trial. This time he requested a continuance in order to have a "post-operative examination from surgery in August" and until after his "prison system expires the 22nd." He also denied any intention of ever pleading guilty to any offense and told Judge Snepp that his "greatest fear right now is having to appear with Mr. Stagg." After listening to defendant, Judge Snepp said to him: *292 "Don't worry, Mr. Stagg is not going to appear for you . . . Mr. Davis, you apparently have used every method possible to put off the fateful day of trial. . . . All right. I'm going to give you a lawyer." Thereupon, Judge Snepp ordered that the public defender, Mr. Scofield, be appointed to represent defendant and, over defendant's protest and renewed request for a continuance, directed that defendant be arraigned the following day. The order permitting Mr. Stagg to withdraw as defendant's counsel was signed on 1 October 1975.
On 9 December 1975, without prior consultation with defendant as to the motion and "solely on the basis of the indictment being two and a half years old," Mr. Scofield filed a motion to dismiss the action. As pointed out in the preliminary statement, the case was scheduled to be tried before Judge Snepp on 17 December 1975. However, on that day, Mr. Buckhalt, the assistant district attorney, was absent on account of illness, and Mr. Scofieldalthough presentwas barely able to speak. He did, however, advise Judge Snepp, in open court and in the presence of defendant, that he was withdrawing his motion to dismiss for lack of a speedy trial because he had learned that defendant himself had requested the postponements of his trial. Judge Snepp responded, "I have seen, and from what I know about this case, what I believe to be a studied effort to avoid trial on the part of the defendant." Mr. Scofield informed the court that after being appointed counsel for defendant he required four to six weeks to prepare, but thereafter he had informed the district attorney (whom he knew had scheduling problems) that "as soon as [the district attorney] was ready to go they wanted to go." The case was tried during the week of 5 January 1976.
On the foregoing facts we find incomprehensible and unsupportable the contention that the judge, ex mero motu, should have dismissed the action. State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).
Two of defendant's assignments of error relate to the admission of evidence. The first charges that the court erred in permitting Dr. Craddock to relate the history he obtained from Miss Kilmer at the time he examined her on 26 August 1974 in that the history "did not corroborate but conflicted with the prosecuting witness's testimony." This assignment is not sustained. We find in the record no conflict between Miss Kilmer's testimony and Dr. Craddock's account of what she told him at the time of his examination. His brief summary of the history she gave him was not, of course, in the words of her testimony. However, "in essence there was harmony.. . . Discrepancy in minor details does not warrant a new trial." State v. Cox, 272 N.C. 140, 141, 157 S.E.2d 717, 718 (1967).
The next assignment is that the court permitted the district attorney to improperly cross-examine defendant concerning his prior criminal record. Specifically the district attorney's question was: "After you were paroled [from the 12-15-year sentence for assault with intent to commit rape] you . . . broke into Paula Crotwell's apartment and attempted to have sexual relations with her at that time without her permission?" Mr. Scofield objected to the question but, before the court could rule, defendant had answered, "I did not." The judge then overruled the objection and thereafter, upon repeated questioning, defendant admitted that he had been "convicted of a misdemeanor, breaking into Paula Crotwell's apartment . . . a forcible entry" and that he had received a sentence for it. In the challenged cross-examination we perceive no error prejudicial to defendant. See State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972); State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972). Indeed, defendant first informed the judge and jury in his own direct examination that he had previously been convicted of an assault with intent to commit rape and of forcible trespass. The State was within its rights in cross-examining him with respect to these two convictions. See 1 Stansbury's North *293 Carolina Evidence (Brandis rev. 1973) § 35 at 103.
Defendant's third assignment of error is that the district attorney made irrelevant and inflammatory remarks in his argument to the jury which were not supported by the evidence. The arguments of the public defender and the district attorney are in the record, and we have read both with care. We find nothing in the solicitor's remarks which exceeded the bounds of legitimate argument. At no time did he "travel outside of the record" or inject into his argument facts of his own knowledge or other facts not included in the evidence. His characterizations of the defendant are fully supported by defendant's own testimony. See State v. Wortham, 287 N.C. 541, 215 S.E.2d 131 (1975). Considering the character of defense counsel's argument and his attack upon the character and credibility of the prosecuting witness the district attorney's response should have come as no surprise to him. The response he received was justified. See State v. McCall, 289 N.C. 512, 223 S.E.2d 303 (1976).
Defendant has inserted in the record on appeal an exception to the district attorney's statement to the jury, "The State would argue and contend to you that his [defendant's] testimony was nothing but the testimony of a pathological liar." Defendant made no objection to this argument at the time it was made. The general rule is that if an objection to argument of counsel is not made at the time of the argument, so as to give the court an opportunity to correct the transgression, it is waived. State v. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974). The circumstances of this case suggest no reason for making an exception.
This Court held in State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967) that, while it is improper for a lawyer to assert his opinion that a witness is lying, a lawyer may argue to the jury that they should not believe a witness. In State v. Noell, supra, we held that it was not improper for the solicitor, in discussing the testimony of the defendant's witness, to say to the jury, "I submit to you, that they have lied to you." The solicitor did not call the defense witnesses liars. In this case the district attorney also submitted defendant's credibility to the jury. Defendant's third assignment of error is overruled.
Defendant's assignments of error 4, 5, 6, 7, 10, and 11 relate to the judge's charge. The fourth assignment is that the judge failed to include in the list of permissible verdicts guilty of an assault with intent to commit rape and guilty of an assault on a female. The judge instructed the jury that it could return only one of two verdicts, guilty of second degree rape or not guilty. Since this Court's decision in State v. Bryant, 280 N.C. 551, 187 S.E.2d 111 (1972), the rule has been in prosecutions for rape that when all the evidence tends to show a completed act of intercourse and the only issue is whether the act was with the prosecuting witness's consent or by force and against her will, it is not proper to submit to the jury lesser offenses included within a charge of rape. State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975); State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973); State v. Bynum and State v. Coley, 282 N.C. 552, 193 S.E.2d 725 (1973). Assignment No. 4 is overruled.
Assignment No. 5 is to the court's denial of the defendant's request that he give the jury the following special instruction:
"It is true, rape is a most detestable crime, and therefore ought severely and impartially to be punished; but it must be remembered that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, even though completely innocent." U. S. Gov't, Manual for Courts-Martial ¶ 199a (Rev. ed. 1969).
Such expressions are sometimes found in the opinions of an appellate court. See State v. Williams, 185 N.C. 685, 693, 116 S.E. 736, 740 (1923). However, it was never intended that a trial judge should use them in instructing the jurors, who would undoubtedly *294 interpret such an instruction as an expression of the judge's opinion as to the particular case. See State v. Oakes, 249 N.C. 282, 285, 106 S.E.2d 206, 208 (1958). Judge Thornburg correctly refused to give the requested instruction. To have done so would have been to violate G.S. 1-180, which prohibits the trial judge from expressing an opinion as to "whether a fact is fully or sufficiently proven." This proscription applies to the State's case as well as the defendant's.
The substance of defendant's assignment No. 6 is that the trial judge failed to use the exact language of defendant's requested special instructions on the presumption of innocence and reasonable doubt, and on the function and duties of the jurors. The well established rule with us is that if a request is made for a specific instruction "which is correct in itself and supported by evidence, the trial judge, while not required to parrot the instructions `or to become a mere judicial phonograph for recording the exact and identical words of counsel,' must charge the jury in substantial conformity to the prayer." State v. Bailey, 254 N.C. 380, 386, 119 S.E.2d 165, 170 (1961); State v. Henderson, 206 N.C. 830, 175 S.E. 201 (1934).
Insofar as the requested instructions are correct statements of legal principles and applicable to this case, the record discloses that the court instructed the jury in substantial conformity therewith. He was not required to give them verbatim. State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968). We surmise that the learned judge declined to give the instructions as tendered because he thought defense counsel did "protest too much" and that in the repetitive statements of elementary legal principles, he perceived an overemphasis calculated to convey to the jury the impression that the court was trying to tell them to acquit defendant. He committed no error when he marked the request, "Tendered in apt time and rejected except as included in instructions given."
The trial judge correctly rejected the following requested instruction in its entirety: "The jury is instructed that in its deliberations upon the question of the defendant's guilt or innocence, it may consider his lack of motive to commit the crime charged." Motive, of course, is not an element of a crime. State v. Burno, 200 N.C. 267, 156 S.E. 781 (1931). When a man rapes a woman it is utterly immaterial whether his motive was to satisfy his passion, savor a sensation of power, or to debase and humiliate his victim. In some cases, the presence or absence of a motive may be of great probative value in determining whether the accused is guilty of the crime charged. See State v. Wilcox, 132 N.C. 1120, 44 S.E. 625 (1903); 22 C.J.S. Criminal Law § 31(1) (1961). In this case, however, there is no question as to the identity of the man who entered Miss Kilmer's home in the early morning hours of 26 August 1973. He admits he had sexual intercourse with her. The only issue was whether the act was with Miss Kilmer's consent. The requested instruction was entirely inappropriate and could have served only to confuse the jury. Assignment of error No. 6 is overruled.
Assignment No. 7 relates to the court's charge that the jury should consider the evidence with reference to the reputation of Miss Kilmer "for one purpose only"; that if they believed all or any part of this evidence and found it to bear upon Miss Kilmer's credibility, they could consider it, together with all the other facts and circumstances bearing upon her truthfulness in deciding whether to believe or disbelieve her testimony during the course of the trial.
The testimony to which the judge had reference was that of defense witness Marjorie Campbell and State's witness Carolyn DePuy. Ms. DePuy, head of the physical therapy department at Huntersville Hospital, testified: Miss Kilmer was "hired from Atlanta" in the summer of 1973 and "that was her first job." In August Ms. DePuy asked Miss Kilmer where she was spending her weekends and ascertained that she had gone home for the first three. Ms. DePuy *295 said, "Susan was a very diligent worker. She was of good character."
Ms. Campbell, who was a nurse at Huntersville Hospital, testified that she knew Miss Kilmer "on sight" but was not acquainted with her personally; that she had met defendant several times while visiting a friend at the Huntersville Prison unit; and that defendant had always conducted himself as a gentleman in her presence. Ms. Campbell further testified that she knew defendant's reputation to be good but based on her conversations with Miss Kilmer's boyfriend and two patients, she has an opinion about Miss Kilmer's reputation and "that opinion" is bad.
Defendant contends that the instruction he challenges in Assignment No. 7 withdrew Ms. Campbell's testimony with reference to Miss Kilmer's reputation from the jury's consideration on the question whether she had consented to have intercourse with defendant. He argues that since consent was the crucial issue in his trial, this instruction was prejudicial error. He cites the rule which is stated in 1 Stansbury's North Carolina Evidence § 105 (Brandis rev. 1973) and State v. Stegmann, 286 N.C. 638, 647, 213 S.E.2d 262, 270 (1975): "[T]he character of the complainant in rape may, it seems, be shown as bearing on the question of consent."
Character and reputation are, of course, two different things. As pointed out in Stansbury's North Carolina Evidence, supra, § 110, when character is offered as evidence of a person's conduct on a particular occasion, it may not be proven by the opinion of those who know him. "[T]he standard method, and usually the only permissible method, of proving character is by reputation. By this is meant community reputation, i. e., general reputation in the community in which the person in question resides. Mere rumor and gossip, or a divided opinion, or the opinion of a part of the community, or reputation among a particular group, is not admissible." Thus, whether Ms. Campbell had a good opinion or a bad opinion about Miss Kilmer's reputation, her opinion was not evidence tending to prove Miss Kilmer's character.
Further, as the attorney general points out in the State's brief, "In this case, where the credibility of the victim's testimony that she did not consent was the key to the State's case, there is no real distinction between the issue of the victim's credibility and the issue of her consent." On that issue of consent, the testimony of defendant and Miss Kilmer was in irreconcilable conflict. There was no middle ground; the jury had to believe one and disbelieve the other. The credibility of the two was the key. If the jury found Miss Kilmer to be a creditable witness and believed her testimony, they would necessarily find that she did not consent.
On the evidence the charge which defendant challenges in assignment No. 7 was neither erroneous nor prejudicial as applied to defendant. This assignment is overruled.
In assignment No. 10 defendant asserts that the judge misstated defendant's testimony as he recapitulated it for the jury. The judge told the jury that defendant had offered evidence tending to show that shortly after he awoke in Miss Kilmer's bedroom on the morning of 26 August 1973 "the police came in, and that Susan Elaine Kilmer told them that he had raped her." This statement by the judge was an inadvertence. It was not the defendant who testified that when the officers entered Miss Kilmer told them defendant had raped her. It was Officer C. H. Parker who testified that as he approached the landing and announced the presence of police officers, the first thing Miss Kilmer said, after telling them to come up, was that she had been raped.
Defendant concedes that he did not object to the misstatement before the verdict. He now contends, however, that it was "a statement of a material fact not shown in evidence" and so prejudicial as to entitle him to a new trial. We do not so hold. We have repeatedly held that an inadvertence in recapitulating the evidence must be called to the attention of the court in time *296 for correction and that an objection after verdict comes too late. State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976); State v. McClain, 282 N.C. 396, 193 S.E.2d 113 (1972); State v. Cornelius, 265 N.C. 452, 144 S.E.2d 203 (1965); State v. Lambe, 232 N.C. 570, 61 S.E.2d 608 (1950). Further, the judge specifically instructed the jury "to take your own recollection as to what a witness has said or as to what any of the evidence in the case was. At this point I will give you my recollection of what a part of the evidence offered by the parties tends to show . . ."
Under the circumstances of this case we are convinced beyond a reasonable doubt that the judge's inadvertent misstatement did not influence the verdict. Assignment No. 10 is overruled.
In assignment No. 11 defendant asserts that "the court erred when it failed to instruct that an indictment is not evidence" and this "failure to so instruct allowed the jury to give undue weight to the grand jury's finding of an indictment." Defendant made no request for such an instruction; and, in the absence of a request, the judge was under no obligation to give it. The presumption is that the jurors were intelligent people, that they understood the charge on the presumption of innocence and that they were not under the misapprehension that the bill of indictment was evidence tending to show that defendant was guilty of the crime it charged. Defendant has cited no authority for the proposition for which he contends. This assignment is without merit and is overruled.
Finally, defendant contends "that the court erred in accepting the verdict of second degree rape because appellant had not been indicted for second degree rape." We treat this assignment of error as a motion in arrest of judgment and overrule it.
Defendant argues that the rape for which he was indicted on 5 November 1973 allegedly occurred on 26 August 1973; that Ch. 1201, N.C.Sess.Laws (1973), codified as G.S. 14-21 (Cum.Supp.1975), which divided rape into first and second degree offenses did not become effective until 8 April 1974; and that therefore the crime for which he stands convicted did not exist on 26 August 1973.
The indictment upon which defendant was tried charged common law rape, and its language is clearly sufficient to embrace second degree rape as defined by G.S. 14-21. This statute did not redefine or reconstitute the crime of rape. It remains carnal knowledge of a woman forcibly and against her will. The General Assembly's only purpose in dividing rape into degrees was to reduce the mandatory sentence of death theretofore imposed upon all defendants convicted of rape to a term of years or life imprisonment in those cases in which the rape was not accompanied by serious injury or accomplished by the use or threatened use of a deadly weapon and the victim was 12 years of age or over. In State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975), this Court held that for all rapes committed prior to 18 April 1974 the punishment remained death. However, on 24 June 1975 the General Assembly ratified Chapter 749 of the Session Laws of 1975, Section 1 of which provides:
"The provisions of G.S. 14-21, as rewritten by Section 2 of Chapter 1201 of the Session Laws of 1973, shall apply in all trials hereafter conducted for rapes committed after January 18, 1973, and prior to April 8, 1974, the effective date of Chapter 1201, Session Laws of 1973."
Obviously the enactment of Chapter 749 of the Session Laws of 1975 prior to the time of defendant's trial inured to his benefit. The United States Supreme Court long ago declared the power of State legislatures to reduce the penalties imposed for previously defined crimes. Rooney v. North Dakota, 196 U.S. 319, 25 S.Ct. 264, 49 L.Ed. 494 (1905). See Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798).
We have examined the entire record in this case with care commensurate with the gravity of the sentence from which defendant *297 appeals. It shows that defendant has had a fair trial before a patient and painstaking judge.
No Error.