*1 116 IN THE SUPREME COURT v. Clontz
STATE OF NORTH CAROLINA RAYMOND CRANFORD CLONTZ No. 120 (Filed 1982) January 27 89.7; psychiatric § § 1— examination of witness —no Criminal Law Witnesses power compel prosecution second-degree rape, there error in denial a was no twenty-year-old pretrial prosecutrix, motion that woman of defendant’s I.Q. palsy possessed approximately with and an who was affected cerebral undergo sixty, psychiatric adopted the be ordered to examination. The Court (1978) Looney, 1 and a trial does rationale of State v. 294 N.C. held that discretionary power compel unwilling witness to submit not have examination. dissenting. Justice Exum Copeland join and in this dissent.
Justices Carlton of Appeals’ opinion certiorari to review decision of Court On Judge Wells Becton Judge concurring, and Judge Vaughn, (1981), 639, 277 App. in 51 S.E. 2d dissenting, reported J., May no in trial at the Albright, error before finding County Defendant did Superior Session of CABARRUS Court. time, and allowed his appeal right peti- his due we perfect him to appeal tion his late on permit perfect for certiorari August 1981. charged second-degree rape an indict-
Defendant alleged: ment which February, day the 2nd
that on about Cabarrus wilfully unlawfully and did County Raymond Cranford Clontz ravish, know, feloniously carnally engage vaginal and rape, will by force against with Donna Safrit and intercourse defective, mentally mentally Safrit was while said Donna Ray- and while said physically helpless incapacitated reasonably have known knew and should mond Clontz defective, mentally mentally incapacitated Safrit was Donna helpless. physically examination of motion Defendant’s pretrial Safrit, was denied. IN THE SUPREME COURT *2 State Clontz The State offered evidence which tended to show that on February 1980 David Clontz invited Donna Safrit to have dinner at his County brother’s house trailer Cabarrus on Old Charlotte Road. Ms. Safrit was a twenty-year-old woman who was palsy afflicted with cerebral which had the use impaired right body. side of her She had completed grade the ninth I.Q. and possessed sixty. school of approximately Before dinner defendant and Donna Safrit were left alone the trailer when his brother David went to the purchase store to some groceries. left, After David defendant locked the doors to the trailer and forced the witness a prosecuting into bedroom where had he sex- ual intercourse against with her her will.
In testimony corroboration her brother-in-law Joe Salcedo testified to statements made to him by the prosecuting days a few within after alleged rape. testify
Defendant did testimony by but offered Sherry Almond and David Hargett which tended to show that at the time the rape allegedly Hargett occurred was present defendant’s trailer time during entire that David was Clontz absent and during time defendant a engaged telephone conversa- tion with Hargett Almond. testified that no rape occurred during 2 February the evening a returned verdict of The trial second-degree rape. minimum, a imposed prison twenty years sentence twen-
ty years appealed. maximum. Defendant Edmisten, General, Prather, L. Attorney J. Chris Rufus General, Attorney Assistant State. Carson, Jr., Jr., Jenkins, H. James and Cecil R. for defendant- appellant. BRANCH, Chief Justice.
Defendant as assigns error the trial denial of his judge’s Safrit, pretrial prosecutrix, motion that ordered undergo psychiatric examination. IN THE SUPREME COURT v. Clomtz examination motion pretrial
Defendant’s competence prosecutrix’s determining toward was aimed as a witness.1 reliability denied, for a examination
After his motion prosecutrix’s to have the sought trial motion motion, defendant of- support suppressed. Crombes, clinical Dr. Peter Dr. testimony of Crombes. fered the 9 August at the that on pretrial hearing testified psychologist, 1979, and nine months before alleged rape six months before trial, conjunction Safrit in with her application he tested Ms. *3 of Vocational Rehabilitation. Department to the North Carolina to Ms. in Dr. tests Safrit psychological several gave Crombes employment ability provide to her recommen- order evaluate in her in ob- way to the suitable which to assist dations as most Dr. examination psychological taining employment. Crombes’ to blame onto tendency Ms. project revealed that Safrit had to who people of men them be believing others and was afraid however, you, you;” he also you rape or hurt get “come to testified that: to
Basically
understanding
sufficient
of
capable
she has
as
seen or heard with
a correct account
to what she’s
giving
capable
giving
to
issue. She is
of
cor-
respect
question
heard,
as
seen or
to
extent
rect account
to what she’s
the
on
accurately
remember
and so which is
she can
details
ability
by her
to
limited
understand and remember. She
giving a
of what
capable
would be
of
correct account
she has
understanding
She has
com-
seen or heard.
sufficient
1981,
argument
oral
before this Court on December
defendant’s counsel
On
argued
was
to have his motion for a
examination
that defendant
entitled
granted
of
in
she
in
the
order
determine whether
was
fact
defective,
“mentally
mentally
physically helpless”
required
incapacitated, or
as
14-27.3(a)(2).
prosecution pursuant
point during
pretrial pro-
At no
G.S.
pros-
ceedings,
Appeals,
question
at trial
before the Court
did defendant
statutory
incapacity
requirements upon
in
ecutrix’s
terms of the
which the indict-
14-27.3(a)(2).Instead,
pursuant
sought
ment
drawn
to G.S.
to have
credibility
competence
prosecutrix
question
in
examined
order to
as a
question
did not raise the
of whether he was
witness. Since defendant
entitled to
defective,
prosecutrix
“mentally
mentally incapacitated,
determine if the
was in fact
physically
support
upon
helpless”
or
14-27.3(a)(2)
in order
an
G.S.
indictment based
Appeals
precluded
at the
level or in the
he is
from
Court
now
Dorsett,
raising that
issue in this
Court for
first time. State v.
N.C.
(1967).
In addition to the testimony of Dr. the trial judge heard affidavit executed from the prosecuting witness and considered attorney. defendant’s At the conclusion of the hearing, the trial judge found facts consistent with the evidence before him and concluded:
(a) witness, That the Donna Safrit has the capacity to understand and to relate under the obligation of an oath facts which will assist determining truth with respect to the ultimate facts which it will be called upon to and, case, decide
(b) Safrit, That is a competent witness. majority our Appeals, relying upon Court case (1978), Looney, S.E. 2d 612 found no er-
ror in the judge’s trial denial of defendant’s motion for a com- examination pulsory psychiatric of the prosecuting witness. Judge Becton, dissent, in his took the the position opinion in and was Looney distinguishable inconclusive from instant case. He the taken espoused view Justice Exum in his concur- ring in opinion Looney. Lake, Court,
In Looney speaking Justice the after exten- sive review jurisdictions, of the decisions from other in part, stated: To may hold that a trial court this require State a witness, will, subject his to against himself to a psychiatric examination, as a to his or being permitted condition to
testify, is also a to handicap serious the State the prosecu- refuses, of tion criminal offenses. If the simply there may well attorney the nothing can do to in- duce the witness to with the In comply many order. in- stances, a material witness for the State is none eager to defendant to too testify any under circumstances. To permit SUPREME IN THE COURT
120 order, him or her submit a directing obtain a court a condition to his testi- precedent examination as chill or her enthusiasm may taking well further his fying, way many In doing at least him a out of so. give the stand or cases, difficulty way no in the there would be insurmountable obtaining such an order and hard-pressed of a defendant’s of witness. escape this route to the attention bringing opinion, benefits to innocent de- possible our fendant, of from such court ordered examination flowing by the outweighed resulting invasion are in- danger public and the right privacy witness’ of- victims of crime to such report terest from discouraging their witnesses from potential disclosing fenses and other of them. knowledge trial drastic a in the criminal change
We think
so
State,
needed,
about,
brought
if
should be
of this
procedure
Massachusetts, by
carefully
considered and
as was
done
statute,
mat-
pronouncement
leaving
our
drafted
judge.
unguided
ter to the
discretion
28,
240 S.E. 2d at
N.C.
Exum,
judges
that “our trial
concurring,
Justice
concluded
carefully
of their
to be
used in
exercise
power,
have the
discretion,
appropriate
to order
circumstances
sound
receiving
witness as a condition to
examination
We are aware that
jurisdictions have adopted the view
that a
judge may
in his discretion order an unwilling pros-
ecutrix in a sex offense case to submit to psychiatric examination.
Jerousek,
420,
(1979);
See State v.
121 Ariz.
P.
590
2d 1366
(Del.
State,
1979);
Filson,
399 A.
Thompson v.
2d 194
v.
State
381,
(1980);
481,
613 P.
Idaho
2d 938
v.
226 Kan.
Gregg,
State
(Nev.
(1979);
State,
1980);
P. 2d 85
v.
608 P.
Washington
2d
Boisvert,
174,
(1979);
v.
119 N.H.
400 A.
State
2d 48
Romero,
22,
(1980);
Demos,
94 N.M.
3A Evidence 924a rev. See § (2d McCormick, Handbook of the Law of Evidence 45 at 95-96 § 1972). However, this view reject Ed. We without discussion. we Dean that a rule agree Wigmore’s recognition requiring undergo witness in a sex offense case to complaining credibility would re- competency examination to determine mandate. 3A Evidence 924B at quire legislative Wigmore, § 1970). (Chadbourn 747-48 rev. This view is accord with the Lewis, also 25 Ill. 2d holding Looney. People See *6 IN 122 THE SUPREME COURT
State v. Clontz (1962); State, N.E. N.E. 2d v. 237 Ind. 143 254 Wedmore 2d (Mass. (1957); Gibbons, N.E. v. 393 2d 400 Commonwealth (1966). 1979); 412 P. Walgraeve, Or. 2d 23 We no in North The legislative have such mandate Carolina. Court if such Looney change per- noted that there be a drastic as would examination, mit it done a court-ordered should be carefully drafted legislation. legislature considered and has prior not seen fit to follow that course. to Looney Just the commonly 8-58.6 known as “the legislature Rape enacted G.S. Vic- tim Law.”2 of Shield Enactment this law amounted to a declara- January Looney, supra, 2. G.S. 8-58.6became effective 1978. State fil- January states: ed G.S. 8-58.6 (a) section, the used term “sexual behavior” means sexual As ac- tivity complainant than the act which in the of the other sexual is at issue in- on trial. dictment (b) any complainant of the is to issue in The sexual behavior irrelevant prosecution the unless such behavior:
(1) defendant; complaint the or Was between the and [sic] (2) pur- specific of instances behavior for the Is evidence of sexual offered charged showing act or pose of that the acts were committed defendant; the or (3) pattern evidence of a of sexual behavior so distinctive and so Is ly close- resembling alleged the the defendant’s version of encounter with complainant prove complainant to tend to such the to the act as that consented charged or or in such a to lead acts behaved manner as the consented; reasonably complainant to believe the or (4) expert behavior offered as the basis of Is evidence of sexual opinion complainant psychological or that the fantasized or charged. or acts invented act (c) any during of behavior time No evidence sexual shall be introduced at any charge rape or offense thereof or a sex of a lesser included of- trial thereof, any any any offense nor shall to fense lesser included reference or jury, presence unless until the be made in the court such behavior has any (b). behavior is relevant under subsection such Before determined questions any pro- pertaining to such are asked evidence apply ponent first to the court a determination of of such evidence shall whiqh proponent it relates. The sexual behavior relevance may prior pursuant application either to trial such make G.S. .evidence 15A-952, during proponent at the time when the desired in- [sic] made, application When the court shall conduct an such evidence. troduce in-camera fer of plainant, transcribed, hearing, proponent’s shall be to consider the of- which counsel, including proof arguments com- counsel such behavior is relevant. to determine the extent which proponent of admissibili- hearing, the of the evidence shall establish basis IN THE SUPREME COURT *7 legislature tion the that it is the of this State to policy prevent unnecessary intrusion into the of victims of sex privacy crimes prosecution which are irrelevant to the of an individual charged with such crimes. Should we recede from our holding Looney contrary we would be to this announced acting public policy. To order the victim of a sex crime to unwillingly submit to a examination would result in a invasion profound of which, her in our would deter innocent victims of privacy opinion, making complaints. such crimes from ever This conclusion is not Indeed, without foundation. as Justice out pointed Carlton (1980): 31, 269 S.E. Fortney, 2d Rape underreported is one of the most of crimes. Estimates V2, are that from 3 President’s Commission on Law Enforce- Justice, ment and Administration The Challenges of of (1967) 20, Crimes in a Free 21-22 Society Berger, at supra actually times the number of rapes reported Only occur. 60% those arrested are and conviction rates for charged crimes, those charged compared are low to other Berger, (35% at 6 for as for supra crimes). rape compared other 70% Enforcement, also National Law See Institute of U.S. Justice, Forcible Department Analysis An Rape: Legal (3% (1978) Issues of 635 in the rape complaints sample crime). resulted in convictions of or some rape lesser Part of the reluctance victims to and report prosecute stems rape their feeling legal system harasses from humiliates them. added.) (Emphasis Id. S.E. 2d at 116. stated,
For reasons here we the rationale of adopt Looney that a trial judge discretionary and hold does not have power relevant, ty of such evidence. If court finds that evidence is it shall may stating enter an order the evidence admitted the nature of n questions permitted. which will be (d) hearing relating The record of the in-camera and all evidence thereto open only by inspection parties, complainant, shall be their at- torneys only necessary agents, its and the court and and shall be use as appellate probable hearing, review. At cause shall take evidence, admissible, cognizance hearing if at the end in-camera questions being repeated being without or the evidence resubmitted open court. IN THE SUPREME COURT Clontz to submit compel unwilling to a ex- amination. Appeals
The decision of the Court of Affirmed.
EXUM, Justice, dissenting. against degree rape indictment second (1) vaginal rests on two alternative theories: Defendant had inter- will, against Safrit force and G.S. course *8 14-27.5(a)(l). (2) vaginal Defendant had intercourse defective, “mentally was mentally Safrit who at the time either 14-27.5(a)(2).The incapacitated, physically helpless.” or G.S. state (corroborated entirely testimony by relied on the of Donna Safrit witness) statements to another pre-trial evidence question. on in There is lit- happened establish what the occasion theory testimony forcibly in her that support tle in with her. The primari- intercourse state seems engaged vaginal ly theory “mentally to have relied on the that Donna Safrit was “mentally incapacitated” alleged or at time of the defective” Dr. testimony It Peter offense.1 offered Crombes to establish element offense. a mental
Defendant’s motion for examination Don- pre-trial summarily by Judge na Safrit denied who inter- Albright (1978), 240 S.E. 2d Looney, N.C. mean preted authority have no to order such examinations. judges majority’s Judge properly confirms that in- Albright decision in carefully law this area was canvassed in Looney. The terpreted I majority for the continue to opinion Looney. Justice Lake’s my concurring I expressed opinion Looney, hold to the view 29, 240 at S.E. 2d 628: on “As have most of the well-considered decisions refers, I conclude that subject, majority which the would carefully have the to be used judges power, our trial record, jury argu- in the oral Judge Albright’s instructions are not but on case was submitted to the on both defendant’s counsel stated ment theories. IN THE SUPREME COURT discretion, exercise of their sound to order in appropriate cir- cumstances the psychiatric examination of witness as a condition to receiving of that witness. In this case the denial of defendant’s motion for such an examination was well within the discretion of the trial judge and should not be held for error.
As the majority wisely recognizes the witness’ rights must be given due consideration. Defendant should be re- quired to make a strong showing that the witness’ mental make is such up that a psychiatric examination would prob- ably reveal either that the witness is incompetent that the witness’ credibility may subject to serious question. Situa- would, tions calling entry seems, for the of such an order it for, be rare indeed. But if called our judges should have the power to enter the order.”
This view is only by bolstered not the authorities cited in the ma- jority opinion here and in but Looney, the well-considered dissenting opinion of Judge Becton the Court of Appeals.
My view is also bolstered the compelling facts of this case. For here the state relies largely on its contention that the pros- ecuting “mentally defective” or “mentally in- capacitated” in order to convict defendant of the crime charged. circumstances, Particularly under these the trial judge should be *9 in his permitted discretion to order a mental examination of the prosecuting witness to determine whether the witness is so men- tally defective or as to be incapacitated incompetent as a witness.
Indeed where the witness’ lack of mental capaci- ty is one of the elements of the crime which the state must prove, I believe the defendant has right to a mental examination of the witness his own or an expert expert appointed the court in order properly explore possible to defense based on the absence of this element. majority
The does not reach on the that question ground defendant’s motion for a mental examination of the prosecuting in only was made order to determine whether she was competent as a witness and not whether she was in fact “mentally “mentally defective” or incapacitated.” majority correctly The characterizes the basis for defendant’s motion pre-trial THE IN SUPREME COURT
State v. Oxendine
to
refusing
under our cases
on sound ground
to be
and seems
on appeal.
question
consider this
Judge Duniway
on the statement of
reliance
majority’s
The
(9th
1973),
Barnard,
express-
in United States expert psychological possible effect ing concern The rule for which misplaced. to testimony jury, on the seems be testimony jury. It go before I such argue permit would to assist him deter- only offered before would be testify. This exhaust would competence the witness’ mining be put. such could uses to which therefore, stated, I give vote defendant For the reasons would to exercise permitted at which the trial court new trial whether to allow defendant’s motion determining its discretion witness. examination of the prosecuting for mental Copeland join this dissent. and CARLTON Justices STATE NORTH CAROLINA RONNIE RAY OXENDINE OF No. 92 (Filed 1982) January § 1. 1— of arson Arson elements arson, itself, dwelling portion some of the rather order to constitute contents, burned; however, burning its must be the least than mere small, sufficient, necessary part building, no matter how and it is not materially damaged by building or the fire. that the be consumed charring burning building sufficiency § 4.1— of evidence Arson — in an case was sufficient for the to find that evidence arson actually dwelling burned or charred structure an inhabited coming where the testified that she saw fire and smoke from a bedroom owner arrived; “burning, slowly” house was still when the fire truck and nearby highway fire that the was visible from a evidence tended show responsible loosening wiring building; was for the electrical an of- wall, patches dark or over the ficer testified there were burned burned, kerosene, heavy wallpaper was a there odor of and “the main *10 house was or had been on fire.” wallpaper § —charring 3. Arson 4.1— evidence that burned element of arson wallpaper dwelling has Where evidence discloses that been burned, completely charring it substantiates the element of arson.