{ "id": 11916469, "name": "STATE OF NORTH CAROLINA v. CALVIN WAYNE BARBER", "name_abbreviation": "State v. Barber", "decision_date": "1995-11-07", "docket_number": "No. COA94-872", "first_page": "505", "last_page": "513", "citations": [ { "type": "official", "cite": "120 N.C. App. 505" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "63 ALR3d 311", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "130 L. Ed. 2d. 429", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "115 S.Ct. 525", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1994, "opinion_index": 0 }, { "cite": "444 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "336 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537586 ], "year": 1994, "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0321-01" ] }, { "cite": "446 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "3" }, { "page": "4" } ], "opinion_index": 0 }, { "cite": "336 N.C. 748", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535590 ], "year": 1994, "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0748-01" ] }, { "cite": "402 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540129, 2545026, 2541124, 2543314, 2539254 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0335-03", "/nc/328/0335-01", "/nc/328/0335-04", "/nc/328/0335-02", "/nc/328/0335-05" ] }, { "cite": "398 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527385 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/101/0144-01" ] }, { "cite": "365 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 18, "year": 1988, "pin_cites": [ { "page": "601" }, { "page": "636" }, { "page": "601" }, { "page": "648" }, { "page": "608" }, { "page": "636" }, { "page": "601-02" }, { "page": "636" }, { "page": "602" }, { "page": "608" }, { "page": "649" }, { "page": "608" }, { "page": "649" }, { "page": "609" }, { "page": "646" }, { "page": "607" }, { "page": "608" } ], "opinion_index": 0 }, { "cite": "321 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569966 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "635" }, { "page": "648" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0633-01" ] } ], "analysis": { "cardinality": 939, "char_count": 19915, "ocr_confidence": 0.754, "pagerank": { "raw": 2.1266542374778147e-07, "percentile": 0.7652405603569938 }, "sha256": "6244d3d42921b5c78e9b14a828bfb1b455a901f8158691bd009e1ee175e1f894", "simhash": "1:5814e922462e95f4", "word_count": 3410 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CALVIN WAYNE BARBER" ], "opinions": [ { "text": "McGEE, Judge.\nDefendant, Calvin Wayne Barber, was indicted on 19 April 1993 on four counts of first degree sexual offense, one count of first degree rape, and one count of first degree kidnapping. The cases were joined for trial and were heard before a jury at the 7 March 1994 Criminal Session of Cumberland County Superior Court with Judge B. Craig Ellis presiding. Defendant was convicted of one count of first degree rape, four counts of first degree sexual offense and one count of first degree kidnapping. Judge Ellis vacated the conviction for first degree kidnapping and entered conviction for second degree kidnapping. Defendant was sentenced to three consecutive terms of life in prison. From these judgments, defendant appeals.\nThe State\u2019s evidence tended to show the following. The victim was an eighteen-year-old high school senior. On the evening of 4 March 1993 at approximately 10:30 p.m., she had finished work at a Cumberland County bingo parlor and was waiting at a nearby restaurant for her mother to pick her up. Initially, the victim stood in front of the bingo parlor, but a security guard instructed her to wait in front of a nearby restaurant because he felt it would be safer.\nAs the victim waited for her mother, defendant approached her and engaged her in conversation. The victim described defendant as a very dirty, heavy-set man in need of a shave who had long, greasy, curly hair. Defendant grabbed her hair, jerked her head back, stuck a knife to her neck, and pinned her arms up against the wall. He led her to a dumpster at the side of the building where she thought he was going to take her pocketbook. Defendant said that was not what he wanted and led her into a wooded area and made her sit down. Defendant kept trying to touch her and asked if she had ever been raped by her father.\nDefendant told the victim to take off her glove and he laid his knife in her hand. Defendant said something about wanting her to trust him. On his knees in front of her, defendant searched her purse and asked her questions. The victim did not put her glove back on after defendant took back his knife. Defendant threatened to slice her throat and leave her in the woods where no one would find her. The victim told defendant she did not want to die.\nDefendant took the victim towards a trailer park, holding her with his left hand and keeping the knife in his right hand. The victim was scared and told defendant that she wanted to go home. As they walked past the trailer park, she saw two men walk by, but defendant told her not to call out. About fifteen minutes after leaving the wooded area, they arrived at a green-colored duplex later identified as defendant\u2019s residence. Defendant locked the door behind them, reminding the victim he still had the knife and that he would use it. Defendant led her to his bedroom and told her to undress and get on the bed. The victim told defendant that she \u201cdidn\u2019t want to do nothing\u201d and \u201cwanted to go home,\u201d but defendant threatened to get the knife. Defendant took off his clothes. He put his fingers inside the victim\u2019s vagina. She was crying and defendant repeatedly told her to shut up. Defendant inserted his tongue into her vagina and then forced the victim to perform oral sex on him. Defendant raped the victim. She felt a sharp pain when it seemed defendant attempted to put his penis in her rectum. Later the victim got up and went to the bathroom. When she returned, defendant grabbed her and forced her to have oral sex again. Later the victim saw defendant\u2019s eyes were closed and believing he might have passed out, she waited in the bed for fifteen minutes. When he did not move, she dressed, left the house and went down the street to a store and called her mother.\nCross-examination revealed minor inconsistencies between the victim\u2019s testimony and her statements to various people that evening. The victim\u2019s mother testified that when she arrived to pick up her daughter after work, she did not see her and could not find her anywhere. She called the police and reported her daughter missing, then returned home to wait by the phone. About two and one-half hours later, her daughter called, screaming \u201cMama, please come and get me. Mama, he\u2019s hurt me. Please.\u201d The mother called the police and told them her daughter had called from a convenience store near where she worked, and the mother went there immediately. She found her daughter on the ground, in a fetal position, surrounded by law enforcement officials. She testified she had never seen her daughter so upset before. The victim was transported by ambulance to the Cape Fear Hospital emergency room.\nSergeant Terri Putnam of the Cumberland County Sheriff\u2019s Department Sex Crimes Unit testified she was dispatched to the store where the victim was located and was briefed at the scene. She drove around the area and then went to the hospital to interview the victim. Sergeant Putnam found the victim in an examination room crying. She explained to the victim that it was important to understand what had happened, and she then conducted a \u201csubstance of oral interview\u201d which does not involve taking a person\u2019s statement word-for-word but involves listening for key comments. Sergeant Putnam did not deem a word-for-word statement necessary because the incident was a recent one and identifying the perpetrator and obtaining fresh untainted evidence were her key concerns.\nSergeant Putnam took the victim back to the neighborhood where the crimes occurred and she identified the residence where she was raped. Sergeant Putnam returned the victim to her parents and drew up a search warrant, listing personal items the victim had been wearing that evening. During the search of the house, a water bill, power bill, and a social security card, all in defendant\u2019s name, were found. None of the victim\u2019s personal items were found. Sergeant Putnam searched the woods for the victim\u2019s glove but it was not located.\nAfter defendant was arrested, he made two separate statements to Sergeant Putnam. First, he stated that he met a girl, with the same name as the victim, on the street who agreed to perform sexual acts with him for fifty dollars. They went to his home and performed those acts. However, he refused to pay her because she was \u201clousy.\u201d In his second statement he said he made no attempt to remove or hide anything from his residence and that the knife he had was used as a tool, not as a weapon.\nDetective Nancy Cressler of the Cumberland County Sheriff\u2019s Department testified she assisted Sergeant Putnam in the search of defendant\u2019s residence and in the search for the missing glove. When she arrested defendant, she found a knife in the pocket of defendant\u2019s trousers which the victim identified as the knife defendant used on her.\nDr. Darryl Simpkins was the emergency room physician on duty at the hospital on 5 March 1993 when the victim arrived. Because she was brought in with a complaint of sexual assault, Dr. Simpkins performed an examination, and he observed a tearing of the skin near the victim\u2019s rectum. Dr. Simpkins testified it takes tremendous force to tear the skin similar to the tear he observed on the victim\u2019s body. He stated the tear could have been caused by an attempted penile insertion. Defendant presented no evidence.\nI.\nDefendant argues he is entitled to a new trial because before defendant decided to testify, the trial court impermissibly chilled his right to testify on his own behalf when it declined to rule on his motion in limine to suppress 404(b) evidence of the underlying facts of prior convictions. In support of his position, defendant cites State v. Lamb, 321 N.C. 633, 365 S.E.2d 600 (1988). We find Lamb distinguishable.\nIn Lamb, the defendant was indicted for the first-degree murder of her husband but due to the lack of evidence against her, the charges were dismissed \u201c[w]ith [l]eave [p] ending the completion of the investigation.\u201d Lamb, 321 N.C. at 635, 365 S.E.2d at 601. A year later, several of defendant\u2019s relatives came forward with information implicating defendant in her husband\u2019s murder and she was reindicted.\nThe case against the defendant was based largely on the testimony of defendant\u2019s relatives who initially denied knowing anything about the murder. Later, they all stated the defendant had admitted to the crime and had also admitted to being involved in other murders. Defendant had never been indicted for these other killings and she filed a pre-trial motion in limine to have any evidence of these alleged killings excluded. Id. at 636, 365 S.E.2d at 601. Even though it was clear that defendant\u2019s decision to testify depended upon the court\u2019s ruling on the motion, Id. at 648, 365 S.E.2d at 608, the court delayed its decision until just before \u201cthe close of defendant\u2019s evidence, but before she had rested or taken the stand\u201d when it denied the motion. Id. at 636, 365 S.E.2d at 601-02. Based on this denial, defendant declined to take the stand and she was convicted of second-degree murder.\nThe Court of Appeals in Lamb ruled that the denial of the motion was prejudicial error because the evidence in question was inadmissible under any of the evidentiary rules and the trial court\u2019s failure to exclude the evidence by granting the motion prevented defendant from testifying, thereby prejudicing her. Id. at 636, 365 S.E.2d at 602. In affirming the Court of Appeals, the Supreme Court noted that \u201c[n]ot every denial of a defendant\u2019s motion in limine results in a chilling of defendant\u2019s right to testify. Whether this result occurs depends on the peculiar facts of each case.\u201d Lamb, 321 N.C. at 648, 365 S.E.2d at 608.\nFrom the record before us, we find the trial court did not abuse its discretion in deferring a ruling on the motion in limine. While it may have been preferable for the court to have ruled on this motion earlier, the court\u2019s handling of the matter and its basis for deferred ruling were reasonable and did not constitute an abuse of discretion. Unlike Lamb, this judge did not erroneously issue a \u201cbald denial\u201d of defendant\u2019s motion; rather, he deferred his decision on the matter until such time as the facts and context would allow him to make a well-reasoned decision.\nIt is not clear that defendant\u2019s decision to testify rested solely on the trial court\u2019s decision on the motion in limine. Defendant\u2019s attorney stated the ruling would be a factor, but did not say the decision to have defendant testify hinged on the ruling.\nIn Lamb, the State\u2019s case \u201crested so completely\u201d on the testimony of defendant\u2019s relatives (the subject of the motion in limine) that the court prejudiced defendant when it denied the motion, thereby discouraging defendant from exercising her right to take the stand to refute her relatives\u2019 testimony. Id. at 649, 365 S.E.2d at 608. Here there was strong evidence to support defendant\u2019s conviction without the use of the evidence of prior convictions which defendant sought to exclude in the motion in limine (there was no question of identity and the case was essentially reduced to the issue of consent).\nFinally, we note the defendant in Lamb was never given the assurance that if she decided to testify, the court would protect her from impermissible evidence being used to impeach her. Id. at 649, 365 S.E.2d at 609. When the motion was renewed near the close of defendant\u2019s evidence, the judge stated \u201cI\u2019m not going to put the muzzle on on [sic] cross-examination, if that is what the question is.\u201d Id. at 646, 365 S.E.2d at 607. In this case, the trial court used a fair and balanced approach to the issue. At the beginning of the trial the court stated:\nIt\u2019s difficult for me to rule on what the evidence is going to be until I\u2019ve heard what the evidence is. I don\u2019t know what the evidence in this case is . . . [s]o at this point I don\u2019t think I\u2019m in any position to rule whether or not it\u2019s admissible .... So we\u2019ll defer it until a later session. We can bring it up, either side may bring it up at a later time out of the presence of the jury. And we\u2019ll discuss it further when we get further along in the case.\nAt the conclusion of the State\u2019s evidence, the motion in limine was renewed and the court further explained:\nWell, sir, the rules permit 404(b) type information be received if it meet [sic] certain criteria. But until it is asked, I don\u2019t see how I can rule one way or the other. If it\u2019s admissible then I would admit it. And if it is not admissible, then I will not allow it to be admitted.\nThe State at this point has not tried to introduce it in its case in chief. So the issue as anticipated at the beginning of the trial, or the motions in limine, have not arisen. But at this point I don\u2019t feel that I can give you a definitive ruling as to whether or not questions about those cases would be permitted. But we would certainly hear it out of the presence of the jury first if it should be elicited.\n\u201cThe Rules of Evidence are not to be applied in a vacuum; they are to be applied in a factual context. A trial court makes its decisions as that factual context unfolds and as the circumstances warrant.\u201d Lamb, 321 N.C. at 648, 365 S.E.2d at 608. We find Lamb distinguishable and overrule defendant\u2019s assignment of error.\nEven if the trial court had committed error in its ruling on the motion in limine, the error would not be fatal in this case under the holding of State v. Norris, 101 N.C. App. 144, 398 S.E.2d 652 (1990), disc. review denied, 328 N.C. 335, 402 S.E.2d 843 (1991). In Norris, the Court cited Lamb but held that \u201cwhile it does appear from the record that the defendant chose not to testify at least in part because he feared being impeached with his 1975 conviction, there was such overwhelming evidence of his guilt that his failure to take the stand did not rise to the level of prejudicial error.\u201d Id. at 148, 398 S.E.2d at 655.\nUnder the facts of this case, there was no question of identity of the perpetrator because defendant admitted having engaged in intercourse with a woman with the same name as the victim whom he met that night on the street. Therefore, the jury was left with the question of whether to believe defendant\u2019s story that the victim, an eighteen-year-old high school student, was in fact a prostitute who was extracting revenge from defendant because he had refused to pay her $50 fee, or the victim\u2019s story that she was abducted and raped by defendant.\nII.\nDefendant\u2019s second argument is that the trial court committed reversible error when it allowed Sergeant Putnam to testify that the victim\u2019s inconsistent statements were only memory problems common to victims of sex crimes, on the ground that this evidence was inadmissible expert opinion testimony of a witness\u2019 credibility. We disagree.\nThe testimony at issue included the following exchange:\nQ. Sergeant Putnam, in your one and a half years in the Sex Crimes Unit and through all the schools that you\u2019ve gone to and the training that you\u2019ve gone to in the Sex Crimes Unit, was it significant that Ms. Chandler left out some details regarding what had happened?\nA. No, ma\u2019am.\nMr. Broun: Objection, your Honor. That\u2019s opinion evidence.\nThe Court: Overruled.\nMs. Cox: Thank you.\nA. That is something that I have learned through training which is quite common in these type cases. Through training I have been instructed that a lot of times in this type of a situation a victim wants to forget what has happened. And therefore, immediate recall is not always what we might think it ought to be.\nQ. Sergeant Putnam, was it your intention to go back and do a more detailed report?\nA. Yes, ma\u2019am, it was.\nQ. But you didn\u2019t do it?\nA. No, ma\u2019am, I did not.\nThis testimony was not expert opinion testimony, but even if it were, it was admissible under these facts. As the State points out, the questionable testimony came during redirect by the State after defense counsel had asked Sergeant Putnam numerous questions implying that Sergeant Putnam had prepared an inadequate investigative report of her oral interview with the victim. The defense \u201copened the door\u201d by suggesting poor investigative work, and Sergeant Putnam was simply attempting to reestablish her credibility by explaining why some details were left out of her report.\nIn State v. Baymon, the Supreme Court stated that although an expert witness may not testify that a particular prosecution witness is believable or is not lying, otherwise inadmissible evidence is admissible if the door has been opened by defendant\u2019s cross-examination of the expert. See State v. Baymon, 336 N.C. 748, 752, 446 S.E.2d 1, 3 (1994). \u201cOpening the door refers to the principle that where one party introduces evidence of a particular fact, the opposing party is entitled to introduce evidence in explanation or rebuttal thereof, even though the rebuttal evidence would be incompetent or irrelevant had it been offered initially.\u201d State v. Sexton, 336 N.C. 321, 360, 444 S.E.2d 879, 901, cert. denied, 115 S.Ct. 525, 130 L. Ed. 2d. 429 (1994).\nIn this case, the defense\u2019s cross-examination of Sergeant Putnam attempted to undermine her credibility by calling into question the thoroughness of her investigative report. It opened the door for the State on redirect to reestablish Putnam\u2019s reliability. \u201cThe purpose of redirect examination is to clarify any questions raised on cross-examination concerning the subject matter of direct examination and to confront any new matters which arose during cross-examination.\u201d Baymon, 336 N.C. at 754, 446 S.E.2d at 4. Defendant\u2019s cross-examination of Putnam rendered the challenged testimony admissible on redirect examination.\nThe defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges JOHNSON and COZORT concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Ronald M. Marquette, for the State.", "Office of Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender J. Michael Smith, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CALVIN WAYNE BARBER\nNo. COA94-872\n(Filed 7 November 1995)\n1. Evidence and Witnesses \u00a7 649 (NCI4th)\u2014 motion to suppress evidence of underlying facts of prior convictions\u2014 failure to rule on motion \u2014 right to testify on own behalf not affected\nThe trial court did not impermissibly chill defendant\u2019s right to testify on his own behalf when it declined to rule on his motion in limine to suppress Rule 404(b) evidence of the underlying facts of prior convictions, since the trial court did not issue a bold denial of defendant\u2019s motion but instead deferred his decision on the matter until such time as the facts and context would allow him to make a well reasoned decision; it did not appear that defendant\u2019s decision to testify hinged on the court\u2019s ruling; and even if the court did err, such error would not be fatal, as there was other competent evidence of his guilt.\nAm Jur 2d, Motions, Rules and Orders \u00a7 26.\nModern status of rules as to use of motion in limine or similar preliminary motion to secure exclusion of prejudicial evidence or reference to prejudicial matters. 63 ALR3d 311.\n2. Evidence and Witnesses \u00a7 765 (NCI4th)\u2014 rape victim\u2019s memory problems \u2014 defense opened door to evidence\u2014 admissibility to reestablish officer\u2019s credibility\nThe trial court in a rape case did not err when it allowed the investigating officer to testify on redirect that the victim\u2019s inconsistent statements were only memory problems common to victims of sex crimes, since this evidence was not inadmissible expert opinion testimony of the victim\u2019s credibility but was instead admissible to reestablish the officer\u2019s credibility after the defense opened the door by calling into question the thoroughness of her investigative report.\nAm Jur 2d, Appellate Review \u00a7 753.\nAppeal by defendant from judgments entered 10 March 1994 by Judge B. Craig Ellis in Cumberland County Superior Court. Heard in the Court of Appeals 4 April 1995.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Ronald M. Marquette, for the State.\nOffice of Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender J. Michael Smith, for defendant appellant." }, "file_name": "0505-01", "first_page_order": 539, "last_page_order": 547 }