48 N.C. App. 470 | N.C. Ct. App. | 1980
Defendants make several assignments of error common to each defendant. We find no error in the trial as to defendant Cox; however, we are compelled to award a new trial to defendants Covington and Godfrey on the kidnapping charges for the reasons that follow.
Witness Dorothy Newby testified:
“In my capacity as resident director I have had an occasion to become acquainted with the young lady by the name of Angela Pettiford. I did have an occasion from time to time to see Ms. Pettiford at or about the campus during the last school year in 1978-1979.
Q. And I ask you whether or not you had an opportunity and occasion to form some opinion about the character and reputation of Angela Pettiford?
Objection.
Overruled.
Q. You can answer the question. Did you form some opinion?
A. Yes.
Q. And was that opinion based upon the information there on the campus community, or your contact with her on campus?
A. My contact with her on campus.
Q. And what is your opinion as to the character and reputation of Angela Pettiford?
A. My opinion is that she is a very nice young lady, and has a very good character.”
On cross-examination, she testified:
*476 “Q. Who have you heard discuss her reputation?
A. I haven’t heard anyone discuss her reputation.
Mr. Rosser: Move to strike her testimony.
Court: I didn’t hear your question.
Mr. Rosser: I asked her who had she heard discuss the reputation of Angela Pettiford, and she said she had heard no one discuss it. And I move to strike the testimony as to her character, and reputation.
Court: I am Denying your Motion.”
Witness Shirley Barnes testified:
“I have particular concern with Bias Hall, the freshman dormitory at Elizabeth City State. I have been employed at Elizabeth City State for five years. At Bias Hall for two years. I have had an opportunity to become personally acquainted with Angela Pettiford during the school year 1978-1979. To my knowledge she was a resident of Bias Hall. I would see her everyday or two possibly, depending on how my schedule was. From my personal observations in and about the campus community I did form an opinion satisfactory to myself as to the character and reputation of Angela Pettiford. As to what my opinion as to her character and reputation is, she is a very nice young lady.”
On cross-examination, she testified:
“Q. Have you heard anyone discuss her character and reputation prior to today?
A. No.
Mr. Rosser: Move to strike.
Court: Denied.
Exception No. 2”
Each witness stated that she had formed an opinion as to the character and reputation of the prosecutrix; thereafter, each stated her opinion. This procedure was the correct one. State v. Stegmann, 286 N.C. 638, 213 S.E. 2d 262 (1975), modified, 428 U.S. 902, 49 L.Ed. 2d 1205, 96 S.Ct. 3203 (1976); see Johnson v. Massengill, 280 N.C. 376, 186 S.E. 2d 168 (1972). The evidence was admitted without objection. The character or reputation of the prosecutrix was not a real issue in the case. The answers given by the witnesses on cross-examination explained the foundation upon which the witnesses’ testimony was based. This aided the jury in determining what weight, if any, should be given to the evidence in question. We do not find prejudicial error in the court’s denying defendants’ motion to strike the evidence given on direct examination. Defendants must show that the error was material, prejudicial, and amounted to a denial of some substantial right. State v. Jones, 278 N.C. 259, 179 S.E. 2d 433 (1971); State v. Turner, 268 N.C. 225, 150 S.E. 2d 406 (1966); 4 Strong’s N.C. Index 3d, Criminal Law, § 169.1, p. 866. Defendants have not shown prejudice, and this assignment of error is overruled.
Defendants contend that the trial court erred in allowing a corroborating witness to invade the province of the jury and draw his own conclusion as to whether the in-court testimony of the prosecutrix varied from the statement he had taken from her. Detective O.L. Wise was asked by Mr. Watts:
“Q. And at any point of time in her statement to you did she say anything different from what she testified to here?
Objection.
Overruled.
Exception No. 3
A. No, sir.”
Defendants contend that the trial judge erred in denying their motions to dismiss at the close of all the evidence. This assignment of error is wholly without merit. The evidence presented by the State and taken in the light most favorable to it was sufficient to submit to the jury each offense charged and to support a verdict thereon. The evidence clearly shows that the defendants acted in concert from the very beginning. Defendant Cox gave instructions to defendants Covington and Godfrey, who followed them, and Cox drove his car transporting the prosecutrix against her will. All defendants were present at the scene and appeared to act in a common plan or purpose to commit the crime of kidnapping. See State v. Joyner, 297 N.C. 349, 255 S.E. 2d 390 (1979). The prosecutrix testified without reservation that each defendant raped her. Such evidence was sufficient to overrule defendants’ motion and submit the case to the jury on the charges of rape against each defendant.
In defendants’ fourth assignment of error, they contend that the trial court erred in not instructing the jury that the guilt or innocence of each defendant should be considered separately from the guilt or innocence of the others as to each of the offenses. We do not agree.
Our Supreme Court has held in several cases that when two or more defendants are jointly tried for the same offense, a charge which is susceptible to the construction that the jury
The trial court was careful to list each element of each offense, including the lesser included offense, for each of the three defendants and instructed the jury as to each defendant separate from the other defendants. We do not see the charge as being susceptible to a construction that the jury should convict all the defendants if it finds one guilty. To us, the charge fairly and correctly presented the law in the cases. See State v. Valley, 187 N.C. 571, 122 S.E. 373 (1924). We overrule this assignment of error.
By their fifth and sixth assignments of error, defendants contend that the trial court, by its charge, permitted the jury to convict defendants on both offenses “for what happened outside the County of Pasquotank, even in another state.” We fail to find any error.
G.S. 15A-952 provides the procedure for a defendant in a criminal case to raise the questions of venue and jurisdiction. Here, defendants failed to raise either question. Failure to raise the question of venue before or during the trial constitutes a waiver. G.S. 15A-952(e). Had the question of venue or jurisdiction been raised at trial, the evidence would have clearly shown that prosecutrix was in Pasquotank County when the event relating to the offense of kidnapping occurred. The State’s evidence constituted a prima facie showing that this offense occurred in Pasquotank County and was sufficient to support a conclusion that the offense occurred in Pasquotank County and to fix venue in that county.
The record does not reveal that the first rape by each defendant did not occur outside of Pasquotank County. The evidence tended to show that each defendant raped the prosecutrix in Holiday Inn No. 2 in Rocky Mount, North Carolina. The Superior Court, our trial court of general jurisdiction, would have jurisdiction of the offense of rape anywhere in the State. The
Assignment of Error No. 7 reads: “The trial judge erred in failing to apply the law regarding acting in concert with respect to the kidnapping charges levied against each of the joint defendants.” We find merit in this assignment of error as it relates to defendants Covington and Godfrey. The trial court instructed the jury adequately with reference to acting in concert on the offenses of rape. A study of the complete charge leads us to conclude that the trial court should have instructed the jury on the issue of acting in concert with respect to the kidnapping charge against defendants Covington and Godfrey. The failure to so charge entitled defendants Covington and Godfrey to a new trial on the offense of kidnapping. We find no error in the trial of defendant Cox. The evidence tends to show that he initiated and directed the shockingly wicked acts against his first cousin.
Defendant Covington is awarded a new trial in Case No. 79CRS1552, wherein he is charged with the offense of kidnapping. Defendant Godfrey is awarded a new trial in Case No. 79CRS1554, wherein he is charged with the offense of kidnapping.
We find no error in Case No. 79CRS798 (second degree rape) and Case No. 79CRS794 (kidnapping) against defendant Cox. We find no error in Case No. 79CRS1553 (second degree rape) against defendant Covington and no error in Case No. 79CRS1555 (second degree rape) against defendant Godfrey.