*1 IN THE SUPREME COURT
STATE HARRIS (2005)] N.C. 145 [360 multiple victims were found with their brains “smashed.” The blows extinguisher from the fire fractured both victims’ skulls and caused addition, bleeding immediate internal of the victims’ brains. In swings extinguisher violent blows from defendant’s of the fire forced spinal Arthurs’s brain into his column. When Grant tried to leave the apartment, pulled grabbed him and him back into the apartment autopsy savage beating. so he could continue his The multiple showed stab wounds to Grant’s face and neck. The evidence only victims, showed not did defendant stab his but he moved the bodies, causing damage. blades around inside their even more To fin- brutality, plunged ish knives into both sides of Grant’s neck, chest, upper abdomen, into Grant’s into leaving Arthurs’s total of four knives in his victims’ bodies. ‘compare
“Althoughwe
this case with the cases in which we have
penalty
proportionate
found the death
to be
.... we will not under
carry
take to discuss or cite all of those cases each time we
out that
”
duty.’
Garcia,
(quoting
State v.
NO ERROR. participate Justice PARKERdid not in the consideration or deci- sion of this case. OF v. VINCENT LAMONT HARRIS
STATE NORTH CAROLINA
No. 548A04 (Filed 2005) 16 December Rape— rape encounter on 1. statute — day same second-degree in a case
The trial court did not err with excluding evidence of the victim’s sexual encounter boyfriend alleged earlier on the same as the even IN THE SUPREME COURT STATE *2 though presented consent, a defense of and defend- second-degree rape (1) ant’s conviction for is reinstated because: proffered hearing supported no evidence at the in camera an prior activity inference that victim’s sexual was forced or the any injuries; (2) defense, caused is the where consent evidence of prior activity precisely type rape the sexual the of evidence the 8C-1, pro- shield statute under N.C.G.S. Rule 412 is intended to § scribe when in the instant case the victim described an earlier unlikely sexual encounter that was consensual and was to have produced type injuries expert testimony the and number of the suffered; (3) given purpose verified that she the statute, attempt evidence of the victim’s consensual at sexual boyfriend probative intercourse with her is not on the issue of defendant; whether she consented to sexual (4) with and assuming even probative, that the excluded evidence was it was substantially by outweighed danger prejudice to the unfair prosecuting State and the witness. Robbery— sufficiency
2. common of evidence law — Appeals
The Court of in second-degree erred and com- robbery mon law holding case that defendant’s conviction for robbery common law should be reversed on the basis that the vic- credibility prior tim’s after cross-examination as to her sexual support charges stemming encounter is essential to all from the transaction, (1) entire criminal because: the evidence of properly excluded; sexual (2) and viewed in light State, most favorable to the sup- evidence was sufficient to port the robbery. conviction for common law Sentencing— resentencing aggravated 3. Blakely — sentence — Appeals
The Court of holding second-degree rape that a and robbery common law case must be remanded to the trial court for resentencing Blakely Washington, on the basis of v. 542 U.S. (2004), 296 is affirmed.
Appeal pursuant to 7A-30(2) N.C.G.S. from the decision of a panel Appeals, App. 386, divided of the Court of (2004), reversing judgments February S.E.2d 697 entered on 27 Superior Court, Abraham County Penn Jones in Granville granting Supreme defendant a new trial. Heard Court 15 March 2005.
STATE HARRIS Elliott, Roy Cooper, Attorney General, by David L. Assistant General, State-appellant. Attorney for Sallenger defendant-appellee. R. Thomas for PARKER,Justice.
The issues Appeals before this Court are whether the Court of holding erred in (i) excluding that the trial court erred in evidence of encounter, the victim’s (ii) prejudicial that error robbery. occurred in defendant’s conviction for common law For the herein, reasons discussed we reverse the decision of the Court of Appeals on these two issues.
Defendant Vincent Lamont Harris was indicted on 24 June 2002 first-degree kidnapping, rape, for the offenses of second-degree and robbery. law February common Defendant was tried at Superior Court, County. 2003 criminal session of Granville The acquitted first-degree kidnapping charge, defendant of the but found guilty defendant the charges second-degree on and com- robbery. factors, mon law The trial court found aggravating two namely, especially heinous, atrocious, that the offenses were or cruel predator. and that defendant is a Defendant was sentenced to a minimum term of 188 months and a maximum term of 235 months imprisonment second-degree rape for the conviction and to a mini- mum term of a 26 months and maximum term of 32 months im-
prisonment robbery conviction, for the common law with the consecutively. sentences to run
At trial the State’s evidence tended to show that night late on the April sixteen-year-old victim, student, of 13 high school approached by from behind defendant as walking she was to a Oxford, friend’s house North Carolina. Defendant was twenty-eight years old, married, and the father of three children. Defendant walked with his arm around the victim and asked if she smoked mar- ijuana. replied negative, quit. The victim in the indicating that she had Soon grabbed afterwards defendant her the neck and threw her alleyway into an between a house and a church. Defendant then made up, pulled get house, her her behind the threw again, her down and pulled pants penis off her and underwear. Defendant forced his into vagina. scream, put the victim’s When she tried to he his hand over quiet. Next, mouth her and told her to be defendant turned the victim penis screamed, over and forced his into her rectum. The victim and mouth, telling quiet. her again covered her to be Defendant up pants pull up help stood and ordered the victim to her him phone. again look for his lost cell Then defendant threw the victim to ground, pulled pants down, penis and forced his into her vagina. The victim testified that she could not scream and that defendant told her better not look at him so wouldn’t be “[She] [she] identify police.” able to him with the According evidence, to the State’s defendant asked if the victim any money. replied she had negative, When she in the give rings forced the victim to him her six and told her that if she anybody told he would come back kill her. The victim testi- rings time, fied that she wore these all the that the one with her gift mother, birthstone was a Christmas from her and that two of the passed grandmother others were down from her to her mother to her. The victim further testified that defendant directed her to go around the church to leave and that the two left the scene different direc- spent tions. The victim continued on to her friend’s house where she night. The home, next when the victim returned she told her mother happened her; police what had and her mother took her to the sta- Shelly tion. After giving Chauvaux, her statement to Detective the vic- tim was referred Hospital, to Maria Parham where she underwent a Wendy kit evaluation Medlin, conducted nurse Director of the Program. District Nine Sexual Assault At trial nurse Medlin testified *4 as what the victim had told her concerning night the events on the April of 13 2002. Nurse Medlin also testified that her examination of the victim multiple lacerations, revealed that the victim had bruising, vagina and tears in her anus “very and that her cervix was also swollen, bruised and red.”
Defendant’s evidence at trial tended to show that he and the vic- consensual, tim had vaginal April intercourse on 13 2002. Defendant testified that he first met the night p.m. victim that around 11:00 Texaco, they plans where talked and up” made to “hook later. Defendant did victim; conversation, not know the and in this which approximately minutes, lasted seven the victim told him that her boyfriend angry got caught with her because she having sex in planned, up the woods. As around midnight again the two met they walked, talked, marijuana and smoked together. According to they then went behind the church where the victim took pants off her sweat willingly and underwear and had sex with approximately twenty defendant for minutes. Afterwards gave she marijuana, having exchange bag her for a dime rings twenty They away in approximately dollars. then walked a value of different directions. victim,
On cross-examination of the the trial court did not al- testimony boy- regarding low the victim’s sexual with her required April friend earlier on the of 13 2002.As under N.C.G.S. testimony by 8C-1, 412(d), Rule the trial court heard in camera § activity. hearing In the victim testi- concerning victim this sexual boyfriend “attempted had to” have sex. fied that she and act, Regarding attempted sexual the victim stated that she was any way they attempt anal not hurt in and that did not intercourse: Q. you attempted [your [Victim], when to have sex with you any way? boyfriend], did he hurt No, A. ma’am
Q. you attempt any you Did anal intercourse? Did have anal [your boyfriend]? intercourse with No,
A. ma’am. pressed had The court then for clarification on whether there been any penetration during this earlier sexual encounter: you boy with tried have sex ear-
The Court: whom [T]he put penis your day, vagina? lier that he his into did No, quite. A. not quite. attempt to?
The Court: Not Did he Yes, A. sir. why sex, responded, questioned she did not have the victim
When right. it wasn’t It didn’t feel something “Because it told me didn’t— gut had instinct that it would be right. something That told—I it— happen.” wrong something and that bad would 8C-1, law, Rule to this tes- Applying N.C.G.S. timony, ruled the evidence of the victim’s the trial court following: April 2002 inadmissable and stated the on 13 *5 says just I that that she was somehow Until have a version this, having sex with that and promiscuously wandering around there time, I have that there. And even the other all the don’t necessarily that she consented in this case. doesn’t mean Rape protect designed I think the Shield law is to women shotgun Jack, from the if defense that she would do it with she’d only really per- do it with Jim.... And I think the it time becomes tinent, prior sexual behavior if defendant that she testifies raped up well, until that there is some —some- time — very thing physical activity significant prior about the of some thing. event that could have caused the same here, I think sex, tearing really even if there’s the ais way really red—in some herring. red It’s not it is tear- —whether ing during sex, really consensual or nonconsensual it’s not directly dispositive of whether there is a consent between her Harris, way Mr. one or the other. appeal On panel Appeals defendant’s a divided of the Court of reversed the trial Harris, court and remanded for a new trial. State v. App. 386, Appeals major- 166 N.C. 602 S.E.2d (2004). The Court of ity application found error in the trial rape court’s of the law and determined that “the evidence of the sexual encounter on alleged rape 393, should be admitted.” Id. at 602 S.E.2d majority at 701. The reasoned:
In this probative case the evidence is relevant and as to whether or not the victim consented to having sex with defendant. Had consented, she physical then it is within reason that no evidence injury vaginal by of on Thus, the victim was caused defendant. if vagina found the lacerations on (which evidence was prove used the State rape) to have been caused attempted day, they sexual encounter earlier that could still har- bor reasonable doubt as to whether or not the victim consented having sex with defendant. Id. Regarding the conviction for robbery, common law the Court of Appeals majority credibility concluded that the victim’s on the charges issue was essential to “all stemming from the entire criminal Therefore, robbery transaction.” the common law conviction was also reversed and remanded. Id.
Judge part Levinson dissented in part, finding and concurred in no error in defendant’s convictions for second-degree and com- robbery, majority’s mon law but agreeing with the decision to remand resentencing light Blakely the case for Washington, 542 U.S. L. (2004). Harris, App. 159 Ed. 2d 403 gave appeal at 703. The State notice of to this Court based on the dis- *6 151 v. HARRIS (2005)] N.C. 145
[360 senting opinion, which prior deemed the evidence of sexual properly excluded under 8C-1, N.C.G.S. 412. § Rule [1] In its appeal Court, State contends that the Court of Appeals erred in reversing defendant’s specifically, convictions. More the State argues that prior evidence of the victim’s sexual was properly excluded under Rule 412 of the Rules of agree. We Evidence. pertinent part,
In 8C-1, provides: N.C.G.S. Rule 412 §
(b) any Notwithstanding provision other law, of the sexual complainant behavior of the any pros- irrelevant to issue in the ecution unless such behavior:
(2) specific Is evidence of instances of sexual .behavior offered purpose for the of showing that the act or acts charged were not committed the defendant.... 8C-1,
N.C.G.S. 412(b)(2) Rule (2003). This Court has stated Rape that provides Shield Statute “[t]he that ‘the complainant sexual behavior of the any is irrelevant to issue prosecution’ except very in four narrow situations.” State v. Herring, 733, 322 743, N.C. 363, (1988). applica- 370 The tion of exceptions one of these is the basis for defendant’s argument jury that a should be allowed to hear evidence prior of the victim’s activity. Although presenting a consent, defense of argues also that a could infer injuries that the victim’s were a result of the April earlier encounter on 2002, thereby 13 accounting “physical for the evidence of alleged force” which was used to rape. convict him of
In construing the
codification of
statute,
8-58.6,
N.C.G.S. §
this Court discussed the evolution of the admissi-
bility
sexual conduct evidence and concluded that the statute
was a
jurisdiction’s
“codification of this
rule of relevance as that rule
specifically applies
past
to the
sexual behavior of
victims.” State
Fortney,
31, 37,
301
N.C.
(1980).
S.E.2d
In dicta the
Court acknowledged
predecessor
statutory
that the
exception
to the
“clearly
at issue
intended,
here is
alia,
inter
to allow evidence show-
ing the
sperm, injuries
source of
pregnancy
or
to be someone or
something other than the
defendant.” Id.
STATE sought of semen stains the evidence Holding that defense. inadmissible, this Court stated: to have admitted *7 acts to the the victim’s consent probative of is not Such evidence raises is only evidence inference such Indeed, the complained of. than the individuals other with two had had sex that the victim a rape. Without night the of the prior to at some time of evidence the statute precisely the kind more, this is showing of and tends to it is irrelevant keep out because designed to was by discouraging harm jury, causing while social the prejudice crime. prosecuting the reporting and rape victims from activity by a victim prior sexual inferences of Naked of more, to the defense are irrelevant persons, without with third rape trial. in a consent omitted). (footnote at 117 43-44,269 S.E.2d
Id. at
instant case
Fortney from the
Appeals distinguished
of
The Court
the
admitted before
sought to be
“the sexual
on the basis that
day
the victim on
jury
encounter
relates to
393,
at 701.
App. at
602 S.E.2d
Harris, 166 N.C.
rape.”
alleged
day is
on the same
of intercourse
Acknowledging that “evidence
Rhinehart, 68
admissible[,]”
(citing State v.
clearly
always
id.
not
Appeals nonethe-
(1984)), the Court of
App. 615,
we are not able that the would had a not have rea- they sonable about guilt doubt the defendant’s if had known only physical that the corroborating evidence the victim’s testi- mony possibly of attributable to the of a man acts other than the defendant. We find that exclusion of that evidence was prejudicial presenting defendant in his defense to the charge rape.
Id. at 782 (citation omitted). Ollis, however, is distinguishable present from signif- case in ways; namely, icant (i) Ollis: evidence of the other sexual admitted, that this Court ruled should be as victim, described *8 completed intercourse; involved sexual (ii) activity the other sexual immediately occurred alleged rape by defendant; after the (iii) the activity the consensual; and, sexual with other man was not finally, (iv) any activity the defendant denied sexual alleged with the victim and, therefore, rely not did on as a consent defense. present case,
In the
arguments
defendant’s
for admission of the
must
excluded evidence
fail.
he
Defendant admitted that
had sexual
intercourse with the victim but asserted that the victim consented.
Hence,
question,
the critical
as
trial
noted,
the
court
was not who
injuries;
rather,
inflicted the
but
the
having
did
victim consent to
majority
sexual intercourse with
The
Appeals
defendant?
Court of
jury
the
possibility
reasoned that had
known that a
existed that the
boyfriend
injuries,
jury
victim’s
inflicted the
then the
could have had
a reasonable
as to
doubt
whether the victim consented to sexual rela-
with
Harris,
App.
tions
defendant.
166 N.C.
at
In this
where consent
rape shield statute is
activity precisely
type evidence the
is
sexual
an earlier sexual
victim described
proscribe. The
intended to
unlikely
produced
and was
to have
consensual
encounter that was
testimony verified that she
injuries
expert
type
number of
statute,
rape shield
record,
purpose
given
suffered. On
attempt at sexual
consensual
evidence of the victim’s
we hold that
issue of
boyfriend
probative
not
on the
with her
intercourse
defendant, and the trial
with
consented to sexual
whether she
pursuant
8C-1,Rule 412. See
it
to N.C.G.S.
properly excluded
court
Moreover,
assuming
117.
even
Fortney,
269 S.E.2d at
pro-
that the
probative,
we conclude
evidence
that the excluded
substantially
outweighed
value,
any,
if
defendant was
bative
prosecuting witness.
prejudice
the State and the
danger of unfair
Therefore,
the issue of second-
8C-1,
(2003).
Rule 403
on
N.C.G.S. §
Appeals.
rape, we reverse the Court
degree
[2]
The State also
argues that the Court of
Appeals
majority
erred
robbery
law
should
conviction for common
holding that defendant’s
credibility
“the victim’s
after cross-
on the basis that
be reversed
support
encounter is essential to
as to her
examination
Harris,
transaction.”
stemming from the entire criminal
charges
all
*9
Having determined that the
App.
393,
The decision of the Appeals Court of as to defendant’s convic- tions for second-degree robbery and common law reversed, and the decision of that court as to the remand for resentencing is affirmed.
AFFIRMED PART; IN REVERSEDIN PART. NEWBY,
Justice concurring. agree I with this Court’s resolution pre- of the shield issue sented judice. the case Furthermore, sub I acknowledge that State Allen, 359 N.C. (2005) S.E.2d 256 (holding Blakely errors are structural errors and not beyond harmless a reasonable doubt), required majority to affirm the Appeals decision of the Court of joined remand for resentencing. opinion I concurring part in and part dissenting in Allen, from and I continue to reasoning believe the concurring dissenting opinion 452-73, correct. Id. at 615 S.E.2d at (Martin, J., Lake, 274-88 C.J., Newby, J., concurring in part and dissenting part) (arguing Blakely subject errors are harmless error analysis). However, the doctrine of decisis, stare compels which precedent courts to honor binding absent extraordi- nary circumstances, accept demands that I now Allen as authoritative majority concur the decision of the in the instant case. State v. Camacho, 224, 235, 8,14 (1994) (Mitchell, (later J. C.J.), concurring). *10 join
Chief Justice LAKEand Justice MARTIN concurring opinion.