*1 591 v. Summitt aspect supra. that the testimonial involved We therefore hold to rise to producing tax returns would be sufficient protection. of fifth amendment the level privilege might question be of whether the We do not reach the sought purely private papers. documents been asserted had the Appeals in of the Court of No. 67 is reversed The decision that court for further remand to the is remanded to the cause J., Division, Seay, having juris- properly Superior retained Court (1979 Supp.), proceedings pursuant Cum. to G.S. 1-501 diction opinion. in accordance with this J., Division, Seay, Superior Court
No. is remanded having properly jurisdiction pursuant (1979 retained to G.S. 1-501 opinion. Supp.), proceedings for further consistent with this Cum. - No. 67 Reversed. - part; part.
No. Affirmed vacated participate in or deci- Justice BROCK did not the consideration sion of case. v. MARK SUMMITT NORTH CAROLINA
STATE OF No. 41 January 1981) (Filed 6 included offense on lesser Law 115—instructions § 1. Criminal on a lesser included submit and instruct The trial must when, when, from which the can find that a there is evidence offense defendant dence indictment should offense;conversely, included when all the evi- the lesser committed the crime in the bill of that defendant committed tends to show offense, evidence of the lesser included the court and there is no charge on the lesser included offense. refuse to — degree rape degree Rape case submission of second 2. 5—first § carry be sufficient to a case to the ona ofsecond Evidence would twelve-year-old pursuant degree rape child former G.S. 14-21when the of a degree oneofthe elements offirst enumerated fails to wit, years (1) 14-21(l)(a), witness is less than twelve in G.S. age, (2) years age, (3) than sixteen the virtuous character the defendant is more prosecuting witness. IN THE SUPREME COURT State Summitt sufficiency Criminal Law 106— of evidence to overrule nonsuit § *2 jury charge should be to the The standard to determine whether submitted is the “more than a scintilla of evidence”test. — degree rape degree rape Rape submission of second 4. 6.1— first case § — evidence harmless error —insufficient degree eleven-year-old girl, prosecution rape In a for first of an medical engaged in which indicated that the victim had sexual intercourse year question testimony by prior in to an examination a after the incident rape any bleeding permit prosecutrix that the did not cause was insufficient to alleged rape the time of the as to to find that the victim was not virtuous at so degree rape. offense of second the court’s submission of the lesser However, degree rape preju- the court’serroneous submission of second was not jury’s finding guilty since the verdict defendant of second dicial degree implicitly rejected sole defense that he did not commit based, pointed which was all the other evidence to a crime the act of first degree rape, of the lesser included offensewas and the submission thus favorable to defendant. — — year sufficiency Rape degree 5— first eleven old victim § prosecution sufficient for the in a for first The State’s evidence was degree rape prosecuting witness testified that defendant had inter- where the 1978, Friday before Easter in that she was born on coursewith her onor about the time, age was under the of twelve at that 18 November 1966and therefore anyone prior with that she had never had sexual intercourse incident in years age question, was over sixteen of was and where the fact that defendant not contested. — 17.2; Rape 6— instructions failure to limit § 6. Indictment and Warrant § — in indictment no denial of fair to date prosecution rape upon for an indictment which In a crime denied a fair trial occurred on 24 March not because of the the jury’s specific charged date failure to limit the consideration court’s reading where a contextual ofthe record makes it clear that the indictment of the crime was restricted to defendant’s actions on or about 24 consideration March indicating nothing surprised that defendant was the record reveals by any charged hampered attempt of the State to alter the date the bill of indictment, squarely concerning met the State’s evidence and defendant his 24 March 1979. actions on or about participate not in the consideration or decision of this case. Justice BROCKdid dissenting. Justice Exum joins dissenting opinion.
Justice COPELAND discretionary decision of the Court petition for review of ON 481,263 612, finding App. S.E. 2d no error in the Appeals, 45 N.C. J., Burroughs, May trial before at the 1979 Session of GASTON Superior Court. charged Defendant was in bill of indictment number 79CRS niece, first-degree rape eleven-year-old 5134 with the of his Lynn Knight, second-degree rape He was also person the same in bill of indictment number The 79CRS5133. charges trial, plea were consolidated and defendant entered a guilty charge. second-degree rape to each The indictment for appeal indictment number 79CRS5133 is not before us on this since charge. returned a verdict of not on that witness testified that or about March 1978, defendant came to her home and carried her to his home. going Defendant told her at that his wife *3 time that he and were buy arriving home, Upon take her to an Easter dress. at defendant’s home, shortly she discovered that his wife was at not and thereafter proceeded Sherry defendant to have intercourse with her. testified that she had never had before that intercourse date and that she did March, not her tell mother about this incident until sometime in assault, 1979. After she told her her mother of mother called the substantially police, police. and related the same facts to the police prosecut- The witness’s mother and officers corroborated the ing testimony by relating witness’s statements that she made to day. them on that March, 1979, performed
A medical examination in indicated engaged witness in at some had intercourse prior time. transported prose-
Defendant testified he had never anywhere cuting witness unless someone else was in the car and they picked Sherry up with him the date that his wife was when question. also Defendant offered corroborative and good offered evidence of his character. rebuttal,
In the State offered a who witness testified concern- ing a conversation witness which she told the witness of an attack defendant. first-degree rape of
On on or about March judge possible guilty guilty submitted the verdicts of first-degree rape, guilty guilty second-degree rape, or not of guilty guilty guilty or not of assault with intent to commit IN THE SUPREME COURT Summitt guilty judge
or not of ássault on a female. Before the trial instructed jury, objected to the submission of the lesser-included objection offenses. His was overruled. The returned a verdict second-degree rape, judge judg- and the trial entered imposing prison ment sentense of not less than ten nor more than years. appealed. fifteen Appeals Defendant The Court of in a opinion error, gave unanimous appeal. found no and defendant notice of alternative, petitioned In the this Court for dis- Attorney cretionary pursuant review to G.S. 7A-31. The General appeal April moved to dismiss defendant’s 24on 1980. We allowed petition discretionary for review on 3 June 1980 and Attorney denied the General’s motion to dismiss on the same date. Edmisten, General, Matthis, Attorney L. R. John B. Rufus General, Special Hirsch, Deputy Attorney AlanS. Assistant Attor- General, ney Maddrey, Attorney, F. John Associate the State. Cooke, by Oettinger, Frank Patton Kenneth B. for defendant appellant. BRANCH, Chief Justice. assigns
Defendant as error the action of the trial submitting jury, objection, over his the lesser-included offense second-degree rape. argues Defendant that it was error to submit second-degree lesser-included offense of because there was no evidence from which the could find that he committed that provisions offense. Defendant was under the of former G.S. *4 14-21, repealed January provided: 1 effective 1980 which
Every person carnally any who ravishes and knows age. years against female of the of 12 or more force and will, unlawfully carnally or who abuses fe- age years, guilty male child under rape, of shall be of conviction, punished shall be as follows: - (1) First-Degree Rape guilty rape person
a. of If the is more than 16 years age, rape and the victim is a of virtuous years, age punish- of 12 child under the death; or ment shall be person guilty b. more than 16 If of is re- years age, rape victim had her of and the TERM FALL procured submission or her overcome sistance by inflic- deadly weapon, the use of her, pun- bodily injury to serious tion of death. ishment shall be - Any of Second-Degree Rape offense other
(2) be a lesser-included in this section shall defined degree be and shall rape in first of offense punished prison by imprisonment in the State’s of life, years, discretion a term of or for the court. following judge gave instructions
second-degree rape: first-degree guilty of you defendant
If do not find the guilty you he is of second- rape, must decide whether Second-degree rape from first- degree rape. differs necessary degree rape for the State in that it is not years of prove was more than sixteen that the defendant Sherry Lynn Knight age virtuous. or that you beyond So, charge a rea- I that if find from the evidence 24, 1978, Mark that on or about March sonable doubt Sherry Lynn Knight intercourse with had sexual Summitt birthday, it had not reached her twelfth who at that time guilty your duty second- to return a verdict of would be However, you degree rape. if do not so find or have things, you will or both of these doubt as to one reasonable guilty second-degree rape. a verdict of not return
* * * you Now, Jury, I want to instruct as Members of my you I second-degree rape earlier because portion of it. left out a guilty first-degree you do not find
If he is of second- rape, you whether must decide first-degree Second-degree rape rape. differs from degree necessary prove the for the State to it rape in that years age or that sixteen was more than Knight Sherry Lynn was virtuous. *5 beyond you a
So, charge find from the evidence I that if 24,1978, Mark on or about March doubt that reasonable IN THE COURT SUPREME Lynn Knight Summitt had sexual intercourse birthday, it that time had not reached twelfth who at your duty a second- to return verdict of would be degree rape.
included
[1]
The trial
offense
when,
must submit
when,
and instruct the
there is evidence from
jury on a lesser-
which
the lesser-included
find that a defendant committed
can
Conversely,
defend
tends to show that
when all the evidence
offense.
indictment and there
the crime
in the bill of
ant committed
offense, the court should refuse
of the lesser-included
is no evidence
Redfern,
v.
291 N.C.
charge
offense. State
on the lesser-included
to
support
(1976).
presence
evidence to
The
Johnson, [3] classic mitted to a The standard statement- N.C. is the “more than a 429, 431, 154 of the test to determine comes from S.E. whether a 730, 731 scintilla of Stacy, (1930),where he states: evidence” test. C.J., should be in State sub distinguish between difficult to It is sometimes *6 597 State v. Summitt carry jury, scintilla, sufficient to a case to the and mere suspicion which raises a possibility or of the fact in general that, issue. The rule is if [Citations omitted.] tending issue, prove there be evidence to the fact in or reasonably fairly which logical conduces to its conclusion as a legitimate deduction, merely and not such as suspicion conjecture it, regard raises a or in to the case jury. should be submitted to the
[4] The medical evidence relied upon by the State cannot be con support position. prosecut of its sidered The examination of the ing place year and, witness took about a after the incident while prior activity relevant to issue of sexual as some evidence of guilt, question evidence is irrelevant as to alleged rape. Nothing victim’s condition at the time of the testimony gives doctor’s reasonably a time frame from which it could
conclude that the witness was not virtuous March, on or before witness’s that she did not bleed
when she had her encounter with defendant does have some ten- dency support to the inference that she was not virtuous at the time However, of the incident. say without we more cannot that this meets the permit go jury. standard which would the case It knowledge hymen is common person’s may rup- that a female be by many Thus, tured means other than sexual intercourse. in our opinion, upon by the evidence support relied the State to an infer- that the prosecuting ence witness was not virtuous does not rise may a scintilla. suspicion conjec- above The evidence raise “a ture,” fairly logical legitimate but it does not “a deduc- Therefore, tion.” it was error for the trial to submit to the second-degree rape. and instruct on the lesser-included offense of question We turn to the the erroneous submission whether prejudicial defendant as to of the lesser-included offenses was so new warrant a trial. many years, jurisdiction
For
it has been
the rule
supported
the erroneous submission of a lesser-included offense not
error,
Vestal,
prejudicial
but not
error. State v.
297 (1973); State v.
249, 195
380,
Stephens,
S.E.
244 N.C.
N.C.
2d
Quick,
(1956);
The harmless error other than in constitutional requires finding prejudice to a defendant when there is a possibility reasonable had error not been committed a *7 different Ray, result would have been reached at the trial. State v. supra; G.S. 15A-1443. Ray first-degree
In the defendant was murder evidence, and at the close of the the court submitted to the murder, second-degree manslaughter, alternative verdicts of invol- untary manslaughter, guilty by and not not reason of self- All defense and defense of another. the evidence disclosed that the intentionally only shot the victim and the defense was self-defense and defense of another. Defendant was convicted of involuntary manslaughter, appeal presented ques- and his the sole prejudicial submitting tion of whether the court committed error in possible involuntary manslaughter. alternative verdict of writing majority opinion, In (Justice Cope- Justice Exum dissenting, joining land dissent) and Chief Justice Branch involuntary distinguishing reasoned that the manslaughter erred in manslaughter second-degree from murder focusing presence on intent to kill rather than the of an intentional act, thereby “short-circuiting” consideration of defend- majority ant’s claims of self-defense and defense of another. The that, required squarely further reasoned if the had been face right another, the real issue of or the self-defense to defend there possibility guilty might was a reasonable that a verdict of not have reversing Appeals’ finding resulted. In prejudi- the Court of of no error, Exum, alia, cial Justice inter wrote: emphasize
We that the result reached here should not casting any validity be read as doubt on the of earlier Appeals. decisions of this Court or of the Court of Our today recognize decision does no more than that a verdict based the erroneous submission of a lesser included supported invariably offense the evidence does not constitute error favorable to a defendant as a matter of depends law. upon such an error is Whether harmless instead peculiar the facts and circumstances to each case. simply We hold peculiar the facts and circumstances that, to the instant case warrant a conclusion absent the involuntary erroneous manslaughter, sumission on there possibility is a reasonable would have re- acquittal. turned a verdict of complained The error prejudicial was therefore to the defendant. G.S. ISA- 1442 ....
* * *
principle applied
far, then,
nothing
in our cases so
is
application
recognized
more than an
of the well
doctrine
error,
of harmless
now
codified G.S. 15A-1442 and G.S.
simply,
provides thatonly
15A-1443. Stated
thatdoctrine
prejudice
those errors which
a defendant will entitle him
appeal.
to relief on
G.S. 15A-1442. And a defendant
“prejudiced” by errors other than constitutional ones
that,
when “there is
possibility
a reasonable
had the
question
committed,
error in
not been
a different result
[favorable
would have been reached at the
defendant]
Thus,
trial —” G.S. 15A-1443.
*8
where there is no reason-
possibility
able
that a verdict more favorable to defend-
ant would have occurred absent an erroneous instruction
on a
supported by
evidence,
lesser offense not
the
the
by
error occasioned
such instruction is harmless. Con-
versely, where there
possibility
does exist a reasonable
that defendant
acquitted
would have been
had not the
erroneously submitted,
lesser offense been
the error is
prejudicial and
appellate
defendant is entitled to
relief.
163-64,
Id. at 167 and
In the defendant second-degree mur- der voluntary and manslaughter. convicted of appeal On he con- tended there support charge was no evidence to of the lesser- Although included offense. the Court found there was evidence support charge, the lesser the Court in a dictum statement wrote: Suppose erroneously court submitted to the IN THE SUPREME COURT evidence, whereby supported by of the case not
view they fit, permitted, if saw to convict of man- were murder, right slaughter has the instead of what defend- State, complain? prejudicial It is an error to the ant to fully plea of not to him. His self-defense had been and rejected by fairly presented to the them as What, then, duty jury, was the of the if there was untrue. Clearly, law, manslaughter? under the no evidence of they have convicted the defendant of murder should degree. the second 823-24, S.E. at 170.
Id. at case, sole defense was that he In instant did not upon greater act which the and lesser offenses were commit the anything that there was There is no contention based. Thus, jury which clouded that defense. verdict
to the finding clearly, second-degree rape implicitly, but him upon which the rejected his defense that he did not commit the act charges When the discarded defendant’s sole were based. defense, greater first-degree pointed all the evidence crime of Therefore, rape. submission of the lesser-included offense was contrary was in his favor. prejudicial to defendant but to the [5] Defendant next assigns as error the failure of judgment grant his motion for as of nonsuit. He contends that the support was so inconsistent it could not State’s guilty. verdict of position,
In
of his
relies
the case of
Williams,
(1923), which stands
State v.
185 N.C.
Applying the above-stated rules of we hold that was there plenary carry jury. evidence to the case to the by permitting
Defendant contends that the trial erred witness, Harris, testify the Linda concerning she conversation had with the witness the fall Defendant position takes the the witness’s had the effect of altering the date fixed the bill of indictment. Our careful exami- witness, Harris, nation of this record discloses that the Linda made no statement as to date of the incident.
[6] Finally, defendant contends that he was denied a fair trial because of the court’s instructions as to the of the date offense. He that, judge expressly contends because instructed as to July charge date of did so instruct on the 24 March charge, impression was left with the that the date of exchange that crime was of no concern. The record reveals an July prosecutor concerning between counsel defense and the given. which necessitated the instruction A there contextual reading record makes it clear that the consideration of the crime of which defendant stands convicted was to his restricted or nothing actions on about 24 March 1978. The record reveals indicating surprised hampered by that defendant was attempt of the alter State to the date in the bill of indict clearly opportunity ment. Defendant had full meet the State’s squarely concerning evidence and did meet his the State’s evidence or about 24 March actions on 1978. The chose believe evidence offered the State. discrepancies
We are constrained to note that because of long delay and contradictions in the evidence and the before the accusation, very question made an witness close presented guilt toas defendant’s or innocence. Neverthe- less, warranting our careful review this record discloses error no Any must, therefore, a new trial. relief for come from Branch. Executive *10 IN
602 THE SUPREME COURT
State v. Summitt Appeals The of the Court decision Affirmed. participate did in the or deci-
Justice BROCK consideration sion of this case. dissenting.
Justice EXUM case, majority, suggests The about result in this disturbed might get from Be- that defendant relief the Executive Branch. defendant, legal trial, prejudicial cause of a in the serious error to really majority opinion, I to but not dealt with in the no need see recognize defer matter to the Governor. This Court should and new it. error order a trial on basis of was in two indictments with two different
Defendant niece, rapes Sherry Knight. alleged The first indictment his on 24 1978. second occurred March The indictment July that a second occurred on witness, The fell on March 26. in 1978 Easter unequivocally incident Sherry Knight, March testified year.” Friday Thus testified Easter last she place before took “the was the March incident that the date of with the indictment accord defendant, to time that also tied the incident to the March 24. She Mark,” get up go picked her as whom she referred “Uncle to his he took her back said that on occasion Easter dress. She alone, they engaged where, being in sexual intercourse. home Sherry wife, to whom or ten minutes later” About “five Linda,” in and the three of them “went “Aunt came referred as got July Sherry my less of the E was clear as date aster dress.” essence, testified, happened dur- that it sometime incident. She During ing cross-examination when defendant the summer of 1978. Sherry July trying of the incident elicit from date fact, jury that, picked attorney he had district stated before July and inserted it indictment. out the date of witness, herself, attorney, according at the district did not arrive report these until March 1979. that date. did not incidents lying, problem it she to have a about but She admitted that “used anything happened. I who I lied this ever don’t know was before to, like I lie ... I used to .” or what I lied about. remember in his own corroborat- Defendant testified behalf offered ing being He denied witness witnesses. FALL TERM 1980 *11 regard uly 26, dates in the indictments. With to the dates ofJ he, 27 and 28 defendant’s gospel tended to show that singer, engaged out recording was of the state sessions in South regard Carolina. With to the March incident defendant’s evidence Tuesday, 14, tended to show as follows: On March defendant and his picked Sherry up they wife bought at her home and took her to Sears where they
her an year Easter dress as had done the before. After they purchase Sherry Friday, returned to her home. On March 17, again picked Sherry defendant and up his wife at her home and took her back to spent defendant’s home where she the weekend. Sherry slept in another bedroom with a friend of the Summitts on Friday Saturday nights. Defendant was never alone with during in his home this weekend. judge
On this jury state of the evidence the trial instructed the regarding July 27, July incident that the state “must be held to 28, July July 29,1978 gave limiting —” He no such instructions regard incident, with saying the March that the would rape have to find that the March occurred “on or about March 24.” acquitted July Defendant was case but convicted March case. Appeals
The Court of found no error in this instruction on the ground July that defendant had offered an alibi defense for 28 but judge, not for March Appeals, 24. The trial reasoned the Court of required was not to limit the consideration to the date of March 24. attempt
It is true that defendant did not to establish where he testified, effect, was on March 24. He that he was not with the prosecuting witness on that date and had never been with her at being time alone. Nevertheless because defendant admitted with prosecuting witness on several dates in March close to March upon date to me looms as crucial in the case based the March inci- July upon dent as does the date of in28 the case based that incident. unequivocally prosecuting witness testified 24. tied the incident to the time defend- occurred on March She also get purpose going picked up for the her Easter dress. ant being witness when he Defendant admitted Tuesday, bought March her Easter dress but said that this was on being 14. admitted with the witness on March He also through spent At the weekend she in defendant’s home. all IN THE COURT SUPREME Summitt times, testimony, according to defendant’s someone other these always present. prosecuting witness and defendant was than the prosecuting witness were never alone. Under Defendant and the instructions, however, permitted judge’s to con- rape was committed on dates other than March sider whether the possible roam in the month of March for dates Left to occurred, might rape might well have have which the being upon the on which defendant admitted with the seized dates likely prosecut- particularly prosecuting witness. This is since the ing when witness tied the incident to the date By permitting bought these her her new dress. consider in, evidence was the trial undermined dates after defendant’s *12 alleged legitimate reliance on the date in the bill of defendant’s by witness, prosecuting the and thus indictment and testified words, in In had the ensnared defendant his own defense. other date, uncertainty as to the exact defend- state’s evidence indicated relying on ant would have been on notice that the state was not relying that it was on some date at or about that time. March but all, might testify at to do Defendant well have chosen not to because truthfully he would have to admit that he was with the victim so rape although her at or the state contended he did not about the time rape alleged When the indictment and the state’s the occurred. proved the March date of the offense to have been thereon, defendant, testify he in reliance chose to as he did: that only days raped with one never her and was her on other than the By by by alleged alleged then the state and testified to victim. days, jury permitting the to consider these other the trial court effect, theory jury upon permitted, in to convict the defendant alleged supported in which was not the bill of indictment and not evidence, supported part which was in at least the state’s but testimony. own defendant’s
Thus, defendant, defense, considering in this case in what if offer, any, rely he could was entitled to on the March date. His testimony meetings as to several March with the wit- damaging would not have been to his defense but for the later ness judge. trial Given his instruction of the that the defendant based only upon rape defense not the fact that he did not witness, but also the fact that he was not even with her on the required jury alleged, date the trial should have to find all, alleged, committed the act if on March 24. that defendant at he done so the would have been free to utilize all the Had him; testimony against but the would then have had to decide whether defendant committed the act By alleged. date allowing effect to select other dates crime, as of the the date the trial court allowed defendant’s evidence, helpful given prop- evidence which would have been instruction, er to be utilized to convict him. may argued
It be that the state offered some evidence that the Sherry Knight’s occurred earlier than March 24 the form of testimony day happened buy that it on the defendant took her to evidence, however, day All Easter dress. the state’s is that this Friday March before Easter. It is the defendant’s testimony combined Knight with which could argument only a date for the other than March serves heighten the fact that regarding the court’s instructions March entrap incident served to his own with defense. suggest
I do not mean to
that a defendant is denied a fair trial
own
implicates
whenever his
so
him in the offense that it
likely
Every
his
leads to
conviction.
takes
risk when
testify
My
he chooses to
own
point
his
behalf.
is that a defendant
testify
defense,
should be able to decide whether to
at all and what
if
any, he should offer in
reliance on what the state has
date,
prove
regard
tried to
time
nature
rely
offense. When a defendant does so
and offers his defense
accordingly,
judge ought
then
instruct the
so as to
permit a conviction which is both at variance with the state’s case
*13
only by
supported
so, my
and
defendant’s own
To
in
defense.
do
view,
process.
denies defendant the
rudiments
due
principle
by
Whittemore,
I
supported
think this
is
v.
255
583,
(1961),
involving
N.C.
Just in Whittemore bill; indeed as to the time named its evidence confusion unequivocally supports in the date and no other. Also as Whittemore, instructions, state, through judge’s jury trial rely permitted after has on other dates defendant’s evidence come in. expressly jury’s trial
Had the limited the considera- July particular regard his tion to three dates incident incident, alone, may charge regarding standing March have words, may then been free from error. His “on or about March 24” meaning have immediately preceding taken as that date or the dates been July following. he did Since in the case limit consideration to the date in the indictment immediately preceding following not so and the dates but did incident, regard undoubtedly felt limit it with to the March they could consider other dates March. This error the instructions denied fair Whittemore, supra. keeping process. with the dictates of due State v. *14 I, therefore, vote for a new trial. joins
Justice COPELAND in this dissent.