State v. Dennis

500 S.E.2d 765, 129 N.C. App. 686, 1998 N.C. App. LEXIS 760
CourtCourt of Appeals of North Carolina
DecidedJune 16, 1998
DocketNo. COA97-1078
StatusPublished
Cited by1 cases

This text of 500 S.E.2d 765 (State v. Dennis) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dennis, 500 S.E.2d 765, 129 N.C. App. 686, 1998 N.C. App. LEXIS 760 (N.C. Ct. App. 1998).

Opinion

HORTON, Judge.

The State’s evidence tended to show that during the early morning hours of 17 February 1996, the victim, who was 12 years old at the time, whs babysitting at Dawn Gill’s apartment in Raleigh. Gill, who was the victim’s godmother and defendant’s sister, was working the late shift at a grocery store. After putting Gill’s children to bed, the victim went to sleep in Gill’s bedroom. A short time later, the victim heard a knock at the door. Defendant then entered the apartment with another man and a woman. Defendant asked the victim to stay in the children’s bedroom while he and his friends were there. After defendant and his friends left the apartment, the victim went back into Gill’s bedroom to sleep.

Approximately 15 minutes later, defendant returned to the apartment. Defendant went into the kitchen for a few minutes, and then went into Gill’s bedroom where the victim had been sleeping. He watched television for a few minutes and then pulled the victim close to him, “feeling on [her] and stuff[.]” Defendant pulled the victim on top of him and asked, “[H]ow does it feel . . . does it feel good[?]” Defendant felt the victim’s chest, and then pinned her down and started to remove her boxer shorts. He put his fingers in her vagina, and then put his mouth on her vagina and began licking her body. The [688]*688victim did not scream for help because she was afraid defendant would hurt her. She asked defendant to leave, and he thereafter zipped up his pants, fastened his belt and left the bedroom. He offered the victim money and told her to keep the incident between the two of them. When defendant left the apartment, the victim called her mother, who came to the apartment and called the police.

The victim was later taken to a hospital, where she was examined by Paula Bost, a registered nurse, and Dr. Karen Albriton, who gathered evidence for a sexual assault kit. Dr. Albriton testified that after conducting a complete physical examination of the victim, she observed the victim had superficial abrasions above the vaginal opening and skin tears, one of which was bleeding slightly. Susan Barker, a forensic serologist, testified that her analysis of the vaginal swabs from the sexual assault kit indicated the presence of saliva.

Defendant was charged with one count of first degree burglary, one count of taking indecent liberties with a minor, and two counts of first degree sexual offense. The jury found defendant guilty of one count of taking indecent liberties with a minor and two counts of first degree sexual offense. The jury was unable to reach a verdict on the first degree burglary charge, and the court declared a mistrial as to that charge. The State then filed a voluntary dismissal of that charge. The trial court, after consolidating the convictions for judgment, sentenced defendant to a minimum of 269 months’ and a maximum of 333 months’ imprisonment.

On appeal, defendant first contends the trial court abused its discretion by denying his motion for a mistrial on the ground that members of the jury observed him in handcuffs and in the custody of the Sheriff. Specifically, defendant claims the jurors saw him in handcuffs while he was being transported from the jail to the courtroom by the Sheriff’s deputies on the morning of the second day of trial.

In the instant case, after defendant moved for a mistrial, the trial court questioned, out of the jury’s presence, defendant’s sister and Sergeant Wayne Williams of the Wake County Sheriff’s Department. Sergeant Williams testified that, when he brought defendant from the jail to the courtroom on the day in question, defendant

was handcuffed in front. He had a shirt, some type of garment, over his cuffs, over his wrists. He also, I think he had a notebook or something in his hand, and I preceded him and walked through [689]*689the lobby. We weren’t in the lobby I would say no more than about 10 seconds at the most. He didn’t have any leg irons or anything on. We just walked through.

In response to the trial court’s inquiry of whether defendant’s wrists were exposed so that anyone could see that he was handcuffed, Williams responded, “Not to my knowledge because that was one of the things that I noticed before we even started, that he had a garment over his wrists where he was cuffed in front, and to my knowledge the cuffs were not exposed.”

After calling the jurors back into the courtroom, the trial court addressed the jurors as follows:

I need to know from all of you individually whether there is anything that’s occurred since this trial began, either you’ve seen, heard or that’s been done, that would cause you to be prejudiced against the defendant, if there’s anything at all. If there’s anything at all that you can think of, please raise your hand. All right. Thank you.
Let the record reflect that no one raised — no juror raced [sic] their hand in response to the Court’s question.

The trial court then made the following findings:

The Court finds that the incident that occurred, although unfortunate, was — did not constitute substantial prejudice to the defendant, substantial and actual prejudice to the defendant, and therefore based on two things, one that defendant’s hands were apparently covered so that it would have been difficult for a person to see that he was secured or cuffed; secondly, and most importantly, upon inquiry of the jury as to whether they had seen anything, without giving them an idea of what the Court was looking for, no juror responded positively that they had seen or heard, or observed or seen anything done that would prejudice them against the defendant, those answers consistent with the answers that they have given during the voir dire process.

Defendant argues to this Court that he did not receive a fair trial because his wearing the handcuffs in front of the jurors predisposed them to believe he was guilty of the offenses with which he was charged and because the trial court’s inquiry of the jurors failed to correct any prejudicial'impression the jurors may have received by viewing defendant in the handcuffs and in custody.

[690]*690N.C. Gen. Stat. § 15A-1061 (1997) states that a trial court “must declare a mistrial upon the defendant’s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant’s case.” “ ‘A mistrial should be granted only when there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant’s case and make it impossible for the defendant to receive a fair and impartial verdict.’ ” State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991) (quoting State v. Warren, 327 N.C. 364, 376, 395 S.E.2d 116, 123 (1990)). The decision to grant or deny a mistrial rests within the discretion of the trial court and will not be disturbed on appeal absent a clear showing that the trial court abused its discretion. Id. at 73, 405 S.E.2d at 152.

It is well-settled that the trial court’s findings are conclusive on appeal if supported by competent evidence. State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).

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Bluebook (online)
500 S.E.2d 765, 129 N.C. App. 686, 1998 N.C. App. LEXIS 760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dennis-ncctapp-1998.