State v. Freeman

378 S.E.2d 545, 93 N.C. App. 380, 1989 N.C. App. LEXIS 211
CourtCourt of Appeals of North Carolina
DecidedApril 18, 1989
Docket8817SC592
StatusPublished
Cited by9 cases

This text of 378 S.E.2d 545 (State v. Freeman) 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. Freeman, 378 S.E.2d 545, 93 N.C. App. 380, 1989 N.C. App. LEXIS 211 (N.C. Ct. App. 1989).

Opinion

GREENE, Judge.

Defendant was indicted for the offense of statutory rape, N.C.G.S. Sec. 14-27.2 (1986), and the offense of first-degree sexual offense, N.C.G.S. Sec. 14-27.4 (1986). The defendant pled not guilty and was found guilty by a jury on both charges. The defendant was sentenced to two consecutive life sentences. Defendant appeals.

At trial the State’s evidence tended to show the following: On 14 April 1987 the alleged victim was approximately twenty-three months old. The mother of the alleged victim, Tammy Sizemore, was a girl friend of the defendant. On 14 April 1987 at approximately 5:30 p.m., the defendant came to the apartment in Mount Airy, North Carolina where Tammy Sizemore, her minor daughter, her brother Billy and Billy’s girl friend lived. The defendant entered *383 the apartment after having used alcohol, marijuana, and other substances. The defendant then had a short conversation with Tammy Sizemore and when she went into the bathroom and began taking a bath, the defendant went into the bedroom where the minor child was sleeping and had vaginal and anal intercourse with her. After the mother of the child heard the child crying, she came from the bathroom and found the child bleeding and prepared to take the child to the doctor. The defendant was in the living room area of the apartment and remained there after the child was taken to the hospital and was there when Detective Larry Reeves of the Mount Airy Police Department arrived, placed him under arrest, and took him to the Mount Airy Police Department. At the police department, the defendant was questioned by Detective Reeves and voluntarily surrendered his underwear.

At trial the State introduced as evidence the sheet on which the minor child was found by its mother, a sweater which contained bloodstains, a diaper and various items of clothing worn by the minor child on the date of the alleged acts. Lucy Milks, a forensic serologist at the State Bureau of Investigation, testified that the blood samples on the underwear taken from the defendant were the same as the blood type of the minor child. Dr. Tom Vaughn of Mount Airy testified he was the physician who examined the minor child on 14 April 1987 and that entry had been made into her vagina and anus by foreign objects and in his opinion the foreign object was a penis.

The defendant’s evidence tended to show the following: On 14 April 1987 the defendant did in fact go to the apartment of Tammy Sizemore about 5:30 p.m. and that when the defendant entered the apartment he found Tammy Sizemore very upset. She was crying and on more than one occasion told the defendant “You had better leave.” The defendant sat down in the living room area, had a conversation with Tammy Sizemore, and noticed that her minor child was crying in the bedroom. When Tammy Sizemore walked into the kitchen area the defendant went into the bedroom and found the minor child bleeding. Defendant had taken off his pants in the living room area before sitting down and when he walked into the bedroom he immediately picked up the small child and got blood on his underwear at that time. The defendant then handed the child to her mother and told Tammy Sizemore to take the child to the hospital. Tammy Sizemore was getting the child ready to leave to seek medical treatment when Kim Browder, the *384 girl friend of Tammy Sizemore’s brother, came into the apartment. Kim Browder and Tammy Sizemore then left the apartment and took the minor child to the hospital. The defendant remained at the apartment until he was subsequently arrested. On the way to the police station, he was taken to Northern Hospital of Surry County where the minor child was being treated. He was allowed to go into the hospital to see how the minor child was doing. Afterwards he was taken into custody and was questioned by Detective Larry Reeves.

The eight questions presented for review are whether the trial court: I) erred in denying defendant’s pre-trial motion for appointment of expert psychiatric assistance; II) erred in denying defendant’s motion in limine to prohibit the State from referring to statements defendant may have made before the crime date about his preference for sex with virgins; III) erred in failing to respond to the objection of the defendant when the State’s attorney called the defendant an “animalistic human being” during closing arguments; IV) erred in admitting the testimony of a witness regarding out of court statements to corroborate the witness’s own testimony; V) erred in restricting counsel from arguing during opening statements; VI) erred in allowing the State to ask allegedly leading questions; VII) erred in allowing the State to cross-examine the defendant about events which occurred the day before the crimes were committed; VIII) erred in sentencing the defendant to two consecutive life sentences on the ground that such sentencing constitutes cruel and unusual punishment in violation of the North Carolina and United States Constitutions.

I

Defendant contends the trial court committed prejudicial error in denying his motion for appointment of a psychiatrist. Specifically, the defendant, determined by the court to be indigent, requested the appointment of a “qualified psychiatrist” authorized to

examine the medical condition of the Defendant and to conduct the clinical, standard psychological, and other tests necessary, including but not limited to a penial plethismograph [sic], for the purpose of examining the Defendant and assisting the Defendant in evaluating, preparing, and presenting his defense; and that the costs of such testing be paid by the State of North Carolina because of Defendant’s indigency.

*385 Under N.C.G.S. Sec. 7A-450(b) (1986), the State must provide an indigent defendant “with counsel and other necessary expenses of representation.” Our Supreme Court has interpreted this provision to require the appointment of expert assistance only upon a showing by the defendant that: “(1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it would materially assist him in the preparation of his case.” State v. Wilson, 322 N.C. 117, 125, 367 S.E. 2d 589, 594 (1988); see also State v. Lloyd, 321 N.C. 301, 318, 364 S.E. 2d 316, 327 (1988) (for expert assistance at sentencing phase, these requirements have been interpreted as requiring defendant to make showing that a mitigating circumstance relating to his mental condition will be a significant factor at sentencing). The showing by the defendant must be “particularized” and “undeveloped assertions that the requested assistance would be beneficial” are insufficient. State v. Artis, 316 N.C. 507, 512-13, 342 S.E. 2d 847, 851 (1986). In determining whether the trial court erred in denying the defendant’s motion, focus “must be upon what was before the trial court at the time of the motions.” Wilson, 322 N.C. at 126, 367 S.E. 2d at 594.

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Cite This Page — Counsel Stack

Bluebook (online)
378 S.E.2d 545, 93 N.C. App. 380, 1989 N.C. App. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-freeman-ncctapp-1989.