State v. Aiken , 73 N.C. App. 487 ( 1985 )

326 S.E.2d 919 (1985)

STATE of North Carolina
v.
Brian Eric AIKEN.

No. 8419SC586.

Court of Appeals of North Carolina.

March 19, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. John R. Corne and Associate Atty. Gen. Gayl M. Manthei, Raleigh, for the State.

Badger, Johnson, Chapman & Michael, by Ronald L. Chapman and Mark A. Michael, Charlotte, for defendant-appellant.

EAGLES, Judge.

I

Defendant first assigns as error that his trial counsel's representation was prejudicially ineffective. We find no error.

Defendant first argues that trial counsel was ineffective in entering into a stipulation admitting into evidence the results of vaginal examination of the victim. We do not agree.

Defendant's defense at trial was based on consent, i.e., that while he did have sexual intercourse with the victim, it was with her permission. In that context test results indicating that the victim did have sexual intercourse could not be prejudicial to defendant. We will not second guess counsel on questions of trial strategy. State v. James, 60 N.C.App. 529, 299 S.E.2d 451 (1983). Defendant's argument that his counsel was ineffective in failing to move for blood type testing of sperm found during vaginal examination of the victim must fail for the same reasons, Id.

Defendant next argues that his trial counsel was ineffective because he failed to move to suppress defendant's pretrial statement to police. We do not agree.

Defendant now asserts that, as a practical matter, the suppression of his statement was his sole defense and that failure to pursue a defendant's sole defense is ineffective assistance of counsel. See Bell v. Georgia, 554 F.2d 1360 (5th Cir.1977); U.S. v. Easter, 539 F.2d 663 (8th Cir.1976), cert. denied 434 U.S. 844, 98 S. Ct. 145, 54 L. Ed. 2d 109 (1977). While we agree that failure to pursue a defendant's sole defense may be ineffective assistance of counsel, here the sole defense presented by defendant at trial was consent. To move to suppress a voluntary statement that appears to be consistent with the trial strategy chosen by defendant and his counsel would be frivolous. Defense counsel is not required to bring frivolous motions or objections. State v. Milano, 297 N.C. 485, 256 S.E.2d 154 (1979), overruled on other grounds, 307 N.C. 628, 300 S.E.2d 351 (1983). We note in passing that there does not appear in the record any basis upon which defendant's statement could have been suppressed even if the motion to suppress had been made. The admission into evidence of defendant's statement to police is therefore not prejudicial and counsel's failure to move for suppression of the statement is not ineffective assistance of counsel.

Defendant next argues that trial counsel was ineffective by failing to object to impermissible and prejudicial questions asked by the prosecutor. We do not agree.

During the direct examination of State's witness Christopher Houk, the following exchange occurred:

Q: Was Ed Gettis there?

A: Yes, sir.

Q: Did he say anything that you recall?

A: To [defendant]?

Q: Yes.

A: I can't remember actual words. I remember he was really mad, saying something like "he told him before" or something.

This comment to defendant by Ed Gettis, a friend of the victim and a State's witness, was made at the time of the second alleged sexual encounter between defendant and the victim. Defendant argues that this evidence tends to show that Ed Gettis gave some warning or information to defendant which would inform defendant of the victim's unconscious condition, an element of the crime of second degree rape which the State must prove beyond a reasonable doubt. Defendant asserts that the testimony by Houk concerning the statement of Gettis to defendant is hearsay and not admissible.

"Evidence, oral or written is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it." State v. Edwards, 305 N.C. 378, 381, 289 S.E.2d 360, 362 (1982). Hearsay has also been defined by our appellate courts as "the assertion of any person, other than that of the witness himself in his present testimony, offered to prove the truth of the matter asserted." State v. Hampton, 294 N.C. 242, 246, 239 S.E.2d 835, 838 (1978). Under either definition, the result is the same. Here, the prosecutor asked Houk the substance of what Gettis said to defendant. This evidence depended upon the competency and credibility of the speaker, Gettis, and it appears to be offered for nothing other than to convey to the jury the substance or truth of the statement. It was error to admit Houk's testimony regarding Gettis' statement to defendant. However, erroneous admissions of hearsay evidence are not always prejudicial. State v. Sparks, 297 N.C. 314, 255 S.E.2d 373 (1970).

Evidence at trial tended to show that Gettis had once told defendant to "get out" of the tent after Gettis had discovered defendant on top of the victim. Further evidence tended to show that Gettis told defendant what he had allegedly done was "not right." When told defendant was in the tent with the victim a second time, Gettis stated to bystanders "not again." Houk's testimony indicating Gettis told defendant, "I told you before" does not tend to show that defendant was told by Gettis of the victim's intoxicated and unconscious condition. Rather, the testimony tends to show that defendant had been told to "get out" of the tent or that what defendant was doing was "not right." Further, there was extensive evidence, including defendant's own statement, that defendant was aware of the victim's condition. G.S. 15A-1443(a) provides:

A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant.

We are convinced that, given the facts, circumstances and theory of defense in this case, the result would have been the same if counsel had made timely objection to the testimony in question and the trial court had properly excluded it. Defendant on appeal shows no prejudice. Under these circumstances the failure of trial counsel to object does not rise to the level of ineffective assistance of counsel.

Defendant next argues that trial counsel was ineffective in allowing the prosecutor to elicit testimony from a State's witness solely to raise the issue of race. The basis for this argument is the following testimony of Gettis:

Q: Did [defendant] say anything about the fact that he was black and that's why you—

A: Yeah, yeah. He mentioned that up at the fire after I got the beer. He said, "If I was white you wouldn't have done that; you're only reacting because I'm black."

Defendant is black. The victim is white. While the issue of race is entirely irrelevant here and the eliciting of the testimony by the prosecutor was clearly improper, we cannot say that defendant was prejudiced by the testimony. Both defendant and victim were present in the courtroom and testified before the jury. The jury had ample opportunity to observe the race of both defendant and the victim. See, State v. Hall, 60 N.C.App. 450, 299 S.E.2d 680 (1983). We also note that under the defense theory of consent, the failure to object to this testimony reasonably could have been a trial tactic advantageous to defendant. Accordingly counsel's failure to object does not rise to the level of ineffective assistance of counsel.

Defendant next argues that his trial counsel's direct examination of defendant was not reasonably within the range of competency demanded of attorneys in criminal cases. We do not agree.

The basis of defendant's argument is that the direct examination of defendant covered only eight pages of the transcript of trial while the cross examination of defendant by the prosecutor covered fortyfive pages of the transcript of trial. The redirect examination of defendant covered two pages. Defendant apparently contends that defense counsel was ineffective as a matter of law because the direct and redirect examinations were brief.

We reject defendant's contention summarily noting that defendant cites no authority for the proposition that a brief examination of the defendant as a witness demonstrates, as a matter of law, that counsel was ineffective. "This failure to provide authority for such an assertion is probably due to the fact there is none." State v. Weaver, 306 N.C. 629, 641, 295 S.E.2d 375, 382 (1982). We have carefully examined the record before us and note that trial counsel's examinations of defendant adequately present the defense theory of consent. Here, too, defendant has shown no prejudice.

Defendant finally assigns as ineffective assistance of counsel the failure of counsel to object to the trial court's charge to the jury regarding the intoxication of the victim. For reasons that are discussed infra, we find no error in counsel's failure to object to the trial court's charge to the jury regarding the intoxication of the victim.

The decisions on what witnesses to call, whether and how to conduct [examinations], what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the attorney after consultation with his client. Trial counsel are necessarily given wide latitude in these matters. Ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness.

State v. Milano, 297 N.C. at 495, 256 S.E.2d at 160.

Our examination of the record in this case reveals that there is no reasonable probability of a different result had trial counsel performed differently, nor is there a showing of a reasonable possibility of a different result with "effective" assistance. Defendant has failed to show that his "counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, ___ U.S. ___, ___, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 693 (1984). The record before us indicates that defense counsel at trial cross examined vigorously, made numerous objections which resulted in some favorable rulings, and presented a strong defense of consent. We hold that trial counsel gave defendant "the representation of a skilled, capable, intelligent lawyer who handled his case in the highest traditions of the legal profession." People v. Eckstrom, 43 Cal. App. 3d 996, 1003, 118 Cal. Rptr. 391, 395 (1974). That he did not prevail in this case before a jury does not impugn his skill as an advocate or the quality of his representation.

II

Defendant next assigns as error the trial court's allowing leading questions to be asked of a State's witness. We find no error.

Defendant argues that two questions asked by the prosecutor of State's witnesses were impermissible and leading. Without restating the questions and answers, we note that in both instances, the allegedly leading question was in response to a witness's answer that he had stated all he remembered. Both were proper cases for refreshing a witness's memory and allowance of the testimony was in the discretion of the trial court. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976).

III

Defendant next assigns as error the trial court's admission into evidence of lay opinion as to the victim's state of unconsciousness. We find no error.

The basis of defendant's argument is that a State's witness was allowed to testify that the victim was, in her opinion, unconscious. Defendant argues that the "legal question, the one on which this whole case turned was whether the prosecuting witness was unconscious at the time of the sexual acts alleged." Defendant's argument is misplaced. Allowing a State's witness to testify as to whether defendant was conscious, unconscious or under the influence of alcohol is permissible opinion testimony from a lay witness. See Brandis, North Carolina Evidence, Section 129 (1982 and Cum.Supp.). We note that in State v. Smith, 310 N.C. 108, 310 S.E.2d 320 (1984), our Supreme Court held that a witness could not testify as to whether or not a defendant had the capacity to proceed to trial. The witness could, however, describe defendant's condition. Similarly, the State's witness may not testify that the victim was incapable of giving consent or that she was physically helpless, but he could properly testify as to his opinion of the victim's condition.

IV

Defendant next assigns as error the trial court's instruction to the jury that it could find defendant guilty if it found, among other facts, that the victim was "drunk and, as a result, was so physically unable to resist an act of vaginal intercourse as to be physically helpless." We find no error.

The thrust of defendant's argument is that the jury, under the instructions given, was not asked to consider whether defendant used force against the victim. Defendant cites State v. Johnston, 76 N.C. 209 (1877) where Justice Read noted "[r]ape is the carnal knowledge of a female forcibly and against her will." Id. at 210.

Defendant here, however, was convicted of the statutory offense of second degree rape, G.S. 14-27.3, which provides:

(a) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(1) By force and against the will of the other person; or

(2) Who is mentally defective, mentally incapacitated, or physically helpless and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless. [Emphasis aded.]

G.S. 14-27.3 contemplates that the crime of second degree rape can occur if there is vaginal intercourse by the use of force or with one who is, among other things, physically helpless. "Physically helpless means (i) a victim who is unconscious; or (ii) a victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act." G.S. 14-27.1(3). G.S. 14-27.3 also does not require that defendant be the one who made the victim mentally incapacitated or physically helpless. Intercourse under these circumstances would have been rape even at common law since the rule was that an unconscious or insensibly drunk victim could not consent to intercourse.

One of the leading American cases on the law of rape involved unlawful sexual intercourse with a woman "so drunk as to be utterly senseless" ... [The court held] that unlawful intercourse "with a woman, without her consent, while she was, as [defendant] knew, wholly insensible so as to be incapable of consenting, and with such force as was necessary to accomplish the purpose was rape." It is to be emphasized that this was not a case in which defendant had made the woman drunk but merely one in which he had taken advantage of her helpless condition. Commonwealth v. Burke, 105 Mass. 376, 380-1 (1870).

Perkins, Criminal Law, p. 163 (2d Ed. 1969).

Here, there was sufficient evidence from which a jury could find that defendant unlawfully had vaginal intercourse with the victim who was physically helpless due to intoxication and that he knew or reasonably should have known the victim's condition. Accordingly, the trial court's instruction as to physical incapacity of the victim due to her intoxication was proper. The physical act of vaginal intercourse with the victim while she is physically helpless is sufficient "force" for the purpose of second degree rape under G.S. 14-27.3.

Defendant also assigns error to the failure of trial counsel to object to the trial court's instruction to the jury concerning intoxication and physical helplessness. We find no error and failure to object is not ineffective assistance of counsel. State v. Milano, supra; State v. Jones, supra.

V

Defendant next assigns as error allegedly conflicting instructions to the jury regarding defendant's knowledge of the victim's condition at the time the alleged acts of vaginal intercourse took place. We find no error.

During direct examination of State's witness Jeffrey Bauer, the following exchange occurred:

Q: Was [defendant] aware of [victim's] condition?

DEFENSE COUNSEL: OBJECTION, your Honor.

A: I think he was, yeah.

DEFENSE COUNSEL: OBJECTION. No basis.

THE COURT: SUSTAINED. Members of the jury, don't consider what [defendant] was aware of.

Later, in instructing the jury, the trial court gave the following instruction: "Third, the State must prove that the defendant knew or had reason to believe or should have known that [the victim] was physically helpless.

Defendant argues that the evidentiary ruling made by the trial court earlier in the trial was in conflict with the jury charge. We do not agree.

The jury charge was clear and precise, correctly stating the elements of second degree rape. The evidentiary ruling complained of considered the witness's basis to testify about defendant's state of awareness and was correct. Contrary to defendant's argument, the trial court was not ruling that the jury was forbidden to consider defendant's awareness of the victim's condition. Rather, the trial court ruled and instructed the jury not to consider what this witness had testified to concerning what defendant was aware of. The assignment of error is overruled.

VI

Lastly, defendant assigns error to the trial court's denial of his motion for appropriate relief and motion to vacate and reconsider the order of summary dismissal of his motion for appropriate relief. We find no error.

On 7 November 1983, defendant filed a motion for appropriate relief alleging ineffective assistance of counsel based on his failure to move to suppress defendant's statement to police and to contact and call certain defense witnesses, and alleging unconstitutional make up of the jury pool, that there was insufficent evidence to support defendant's convictions and that the verdict was contrary to the weight of the evidence.

Defendant filed no supporting affidavit and offered no evidence beyond the bare allegations in the motion for appropriate relief. G.S. 15A-1420(c)(6) requires that "[a] defendant who seeks relief by motion for appropriate relief must show the existence of the asserted ground for relief. Relief must be denied unless prejudice appears." Since defendant did not comply with G.S. 15A-1420(c)(6), the trial court's summary denial of the motion for appropriate relief was not error.

On 30 December 1983, defendant filed a "motion to vacate and reconsider the order of summary dismissal of motion for appropriate relief." The order summarily denying the motion for appropriate relief was filed 22 December 1983 so the trial court properly retained jurisdiction to rule upon the 30 December 1983 "motion to vacate and reconsider the order of summary dismissal of motion for appropriate relief," G.S. 15A-1448(a)(3). However, the trial court took no action upon the motion. G.S. 15A-1448(a)(4) provides: "If there has been no ruling by the trial judge on a motion for appropriate relief within 10 days after motion for such relief has been made, the motion shall be deemed denied." We need not review the trial court's denial of defendant's "motion to vacate and reconsider the order of summary dismissal of motion for appropriate relief" because any error could not possibly prejudice defendant since he is entitled to assert those same errors on this appeal. G.S. 15A-1422(e); State v. Brooks, 49 N.C.App. 14, 270 S.E.2d 592 (1980), rev. denied 301 N.C. 723, 276 S.E.2d 285 (1981).

Defendant's remaining assignments of error are without merit.

For the reasons herein stated, we find,

No error.

ARNOLD and PARKER, JJ., concur.