{ "id": 11438945, "name": "STATE OF NORTH CAROLINA v. TERRENCE EUGENE GALLOWAY and EDWARD ANTOINE RHEDDICK", "name_abbreviation": "State v. Galloway", "decision_date": "2001-08-21", "docket_number": "No. COA00-807", "first_page": "555", "last_page": "570", "citations": [ { "type": "official", "cite": "145 N.C. App. 555" } ], "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": "351 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155934 ], "opinion_index": -1, "case_paths": [ "/nc/351/0448-01" ] }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "opinion_index": -1, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "opinion_index": -1, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "350 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "83 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358902 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/83/0487-01" ] }, { "cite": "356 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "331" } ], "opinion_index": 0 }, { "cite": "319 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4743418 ], "year": 1987, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0577-01" ] }, { "cite": "21 U.S.C.S. \u00a7 848", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 }, { "cite": "526 U.S. 813", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133882 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/0813-01" ] }, { "cite": "483 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53878 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0647-01" ] }, { "cite": "347 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739612 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0141-01" ] }, { "cite": "412 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "312", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "330 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508946 ], "year": 1991, "pin_cites": [ { "page": "302-03", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0298-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "346 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774041 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0545-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-27.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "342 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524130 ], "year": 1986, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0425-01" ] }, { "cite": "347 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "801" }, { "page": "812" } ], "opinion_index": 0 }, { "cite": "318 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739408 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "7" }, { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0001-01" ] }, { "cite": "415 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "106 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313911 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/106/0045-01" ] }, { "cite": "251 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "412" } ], "opinion_index": 0 }, { "cite": "296 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567620 ], "year": 1979, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0454-01" ] }, { "cite": "412 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "364", "parenthetical": "quoting 3 Federal Evidence \u00a7 305, at 236" } ], "opinion_index": 0 }, { "cite": "330 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510293 ], "year": 1992, "pin_cites": [ { "page": "719", "parenthetical": "quoting 3 Federal Evidence \u00a7 305, at 236" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0711-01" ] }, { "cite": "143 L. Ed. 2d 559", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 1075", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11166176, 11165953, 11165698, 11166082, 11166242, 11165829, 11166406, 11165764, 11166472, 11166118, 11166028, 11165904, 11166549, 11166367 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/1075-09", "/us/526/1075-05", "/us/526/1075-01", "/us/526/1075-07", "/us/526/1075-10", "/us/526/1075-03", "/us/526/1075-12", "/us/526/1075-02", "/us/526/1075-13", "/us/526/1075-08", "/us/526/1075-06", "/us/526/1075-04", "/us/526/1075-14", "/us/526/1075-11" ] }, { "cite": "505 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "299" } ], "opinion_index": 0 }, { "cite": "349 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571689 ], "year": 1998, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0118-01" ] }, { "cite": "370 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "370" }, { "page": "370" } ], "opinion_index": 0 }, { "cite": "322 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518633 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "743" }, { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0733-01" ] }, { "cite": "465 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "121 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916824 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/121/0306-01" ] }, { "cite": "451 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "850" } ], "opinion_index": 0 }, { "cite": "339 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558011 ], "year": 1994, "pin_cites": [ { "page": "158-59" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0114-01" ] }, { "cite": "436 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "834", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1230 (1988)" } ], "opinion_index": 0 }, { "cite": "335 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527544 ], "year": 1993, "pin_cites": [ { "page": "224", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 15A-1230 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0220-01" ] }, { "cite": "319 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "311 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683093 ], "year": 1984, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0734-01" ] }, { "cite": "443 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "39-40" } ], "opinion_index": 0 }, { "cite": "336 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538239 ], "year": 1994, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0142-01" ] }, { "cite": "366 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523452 ], "year": 1988, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0529-01" ] }, { "cite": "531 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "486", "parenthetical": "citations omitted" }, { "page": "486" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079918 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "397", "parenthetical": "citations omitted" }, { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0392-01" ] }, { "cite": "254 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "169-70" } ], "opinion_index": 0 }, { "cite": "297 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566864 ], "year": 1979, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0069-01" ] }, { "cite": "333 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "252" } ], "opinion_index": 0 }, { "cite": "314 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696763 ], "year": 1985, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0232-01" ] }, { "cite": "527 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "49" } ], "opinion_index": 0 }, { "cite": "351 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155934 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/351/0448-01" ] }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 2, "pin_cites": [ { "parenthetical": "holding that the admission of a codefendant's statements against interest that also incriminated the defendant violated the defendant's Confrontation Clause rights where the declarant was unavailable for cross-examination" }, { "parenthetical": "holding that the admission of a codefendant's statements against interest that also incriminated the defendant violated the defendant's Confrontation Clause rights where the declarant was unavailable for cross-examination" } ], "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] } ], "analysis": { "cardinality": 1259, "char_count": 36658, "ocr_confidence": 0.76, "pagerank": { "raw": 2.1813549812920936e-07, "percentile": 0.7724610585404786 }, "sha256": "36da303ee07dcea553844e5f17089c404319acabcff4ce833f0872d1d6f0ac93", "simhash": "1:8fabc46a34ee8a79", "word_count": 5849 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HUDSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRENCE EUGENE GALLOWAY and EDWARD ANTOINE RHEDDICK" ], "opinions": [ { "text": "HUNTER, Judge.\nTerrence Galloway (\u201cdefendant Galloway\u201d) and Edward Antoine Rheddick (\u201cdefendant Rheddick\u201d) appeal from judgments on jury verdicts finding them guilty of the rape, sexual offense, attempted murder, and kidnapping of Ronda Seaton (\u201cthe victim\u201d). On appeal, defendants assign error to the trial court\u2019s: (1) denial of their motions for mistrial based on the State\u2019s alleged use of perjured testimony and the State\u2019s closing argument, (2) limitation of the cross-examination of the victim, (3) jury instructions on first-degree rape, and (4) denial of defendant Rheddick\u2019s motion to sever. After a careful review of the record and briefs, we find no error as to the trial court\u2019s rulings; however, as to defendant Rheddick, we vacate his conviction for attempted second-degree murder in light of our Supreme Court\u2019s decision in State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000).\nThe State\u2019s evidence tended to show that on 10 February 1998, defendant Galloway, defendant Rheddick, and Maurice Brown (\u201cBrown\u201d) were riding around in a white Honda automobile with tinted windows, and the men had two guns in the automobile. At approximately 11:00 p.m., the three men saw the victim, and they stopped to pick her up. According to the victim\u2019s testimony, the men forced her into the car at gun point and abducted her against her will. However, Brown contradicted the victim\u2019s account, testifying instead that the victim voluntarily entered the car and agreed to exchange sex for money.\nAfter searching for a location to stop, defendant Galloway drove the car onto a side road. When the car was parked, the victim testified that defendant Rheddick, holding a gun, ordered her out of the car and told her to undress. The victim began to comply, but before she could finish undressing, defendant Rheddick ripped off her shirt. Defendant Rheddick then pushed the victim into the car, forced her to perform oral sex on him, and thereafter engaged in vaginal intercourse. When defendant Rheddick was finished, the victim ran off into the woods. However, after some coaxing by the three men, she came back. Thereafter, defendant Rheddick threw the victim onto the hood of the car and placed a gun inside her vagina. Next, defendant Galloway ordered the victim to get inside the car. When the two were in the car, defendant Galloway forced the victim to perform oral sex on him, and thereafter engaged in vaginal intercourse.\nBrown\u2019s testimony of defendants\u2019 actions when they arrived at the side road is fairly consistent with the victim\u2019s, however, Brown testified that first defendant Galloway, and then defendant Rheddick, had sex with the victim. After both defendants were finished, Brown got into the car with the victim. The victim was forced to perform oral sex and engage in vaginal intercourse with Brown, also. At this juncture, the victim got out of the car and again attempted to flee. However, the victim\u2019s attempt was thwarted as Brown pushed her down, defendant Galloway beat her with a two-by-two board with a bolt in it, and defendant Rheddick kicked her. After this attack, the victim lost consciousness; and the three men left the scene.\nDefendant Galloway and defendant Rheddick were tried together in a joint trial during the 6 December 1999 Criminal Session of New Hanover County Superior Court, the Honorable W. Allen Cobb, Jr. presiding. At the conclusion of the trial, the jury found (1) defendant Galloway guilty of first-degree rape, first-degree sexual offense, attempted first-degree murder, and first-degree kidnapping, and (2) defendant Rheddick guilty of second-degree rape, second-degree sexual offense, attempted second-degree murder, and first-degree kidnapping. Judge Cobb entered judgments and sentenced both men to imprisonment. Defendants now appeal.\nIn their first assignment of error, defendants contend that the trial court erred when it denied their motions for mistrial. Specifically, defendants argue that the trial court abused its discretion in denying their motions for mistrial based on the State\u2019s (1) alleged use of perjured testimony, and (2) closing argument. However, we find no error.\nWe recognize that a trial judge \u201cmust declare a mistrial upon the defendant\u2019s 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\u2019s case.\u201d N.C. Gen. Stat. \u00a7 15A-1061 (1999). Whether a motion for mistrial should be granted is a matter which rests in the sound discretion of the trial judge. State v. Blackstock, 314 N.C. 232, 243, 333 S.E.2d 245, 252 (1985). The decision to grant or deny such a motion will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion. State v. McGuire, 297 N.C. 69, 75, 254 S.E.2d 165, 169-70 (1979).\nFirst, defendants argue that the trial court erred in denying their motion for a mistrial based upon the State\u2019s alleged use of perjured testimony. At trial, two versions of the victim\u2019^ abduction were presented \u2014 the victim\u2019s and Brown\u2019s. As one of the versions was obviously false, defendants assert that the State knowingly used perjured testimony.\nOrdinarily:\nA prosecutor\u2019s presentation of known false evidence, allowed to go uncorrected, is a violation of a defendant\u2019s right to due process. The State has a duty to correct any false evidence which in any reasonable likelihood could affect the jury\u2019s decision. However, if the evidence is inconsistent or contradictory, rather than a knowing falsehood, such contradictions in the State\u2019s evidence are for the jury to consider and resolve.\nState v. Clark, 138 N.C. App. 392, 397, 531 S.E.2d 482, 486 (2000) (citations omitted); see also State v. Edwards, 89 N.C. App. 529, 531, 366 S.E.2d 520, 522 (1988).\nInitially, the victim testified that she was abducted at gun point. Additionally, the victim admitted, on cross-examination, that she had a 1997 conviction for prostitution \u2014 on that occasion, she approached a car, in the same neighborhood where defendants picked her up, and offered an undercover police officer sex in exchange for cash and a ride. Contrarily, Brown \u2014 who was allowed to plead to reduced charges of second-degree rape, second-degree sexual offense, and second-degree kidnapping in exchange for testifying for the State\u2014 testified that defendant Galloway said, \u201c[l]et\u2019s get a prostitute\u201d; the victim came to the passenger side of the car and discussed prostitution with defendant Galloway; the victim was not forced to get into the car; while performing oral sex on defendant Galloway, the victim asked about money; and defendant Galloway then put a gun to the victim\u2019s head. Otherwise, the victim\u2019s and Brown\u2019s accounts of the events are fairly consistent.\nAt bar, we find that defendants have failed to show that the State knew that either the victim\u2019s or Brown\u2019s testimony was false. Instead, the State offered both witnesses\u2019s testimony, and it was then for the jury to consider and resolve the inconsistencies. See State v. Clark, 138 N.C. App. 392, 397, 531 S.E.2d 482, 486. Accordingly, we hold that the trial court did not abuse its discretion in denying defendants\u2019 motion for a mistrial based on the State\u2019s use of the victim\u2019s and Brown\u2019s testimony.\nSecondly, defendants argue that the trial court erred in denying their motion for a mistrial based on the State\u2019s closing argument. Particularly, defendants make two separate contentions. First, defendants allege that the State improperly referred to portions of defendants\u2019 statements that were redacted \u2014 the references to prostitution. Second, defendants allege that the State made improper inferences based upon those redacted statements \u2014 specifically, (1) defendants\u2019 defense that the victim consented and willingly prostituted herself was fabricated for trial, and (2) defendants failed to present evidence that they were not present or did not assist in the commission of these crimes.\nIt is well-settled that \u201c[t]rial counsel are allowed wide latitude in jury arguments.\u201d State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 39-40 (1994). However, trial counsel may not make arguments \u201ccalculated to mislead or prejudice the jury.\u201d State v. Riddle, 311 N.C. 734, 738, 319 S.E.2d 250, 253 (1984). \u201c[A]n attorney may not make arguments based on matters outside the record but may, based on \u2018his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.\u2019 \u201d State v. Wilson, 335 N.C. 220, 224, 436 S.E.2d 831, 834 (1993) (quoting N.C. Gen. Stat. \u00a7 15A-1230 (1988)). \u201cOrdinarily, the control of jury arguments is left to the sound discretion of the trial court and the trial court\u2019s rulings thereon will not be disturbed on appeal absent a showing of abuse of discretion.\u201d State v. Jones, 339 N.C. 114, 158-59, 451 S.E.2d 826, 850 (1994).\nAfter being arrested, defendants both made statements to the police; each defendant\u2019s statement implicated the other defendant and minimized their own involvement. At trial, a hearing was held and portions of defendants\u2019 statements were redacted in an effort to comply with Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968) (holding that the admission of a codefendant\u2019s statements against interest that also incriminated the defendant violated the defendant\u2019s Confrontation Clause rights where the declarant was unavailable for cross-examination). Then, during the closing argument, the State argued:\nCurious thing about this whole prostitution thing is, we\u2019ve got our initial statements and nobody said, I\u2019m the one that hired the prostitute. Right. If she was there hooking, who did she hook for? He denied it. He denied it. Maurice Brown denied it.\nThere is another thing you need to understand. This first statement they made was before they had lawyers, too .... [T]hey\u2019ve got lawyers who say no, no, no, denying everything is not going to do you any good. We\u2019ve got DNA evidence. You can\u2019t deny everything, so we\u2019ve got to come up with a new lie and the\nnew lie was she wanted to do it. She wanted to get in the car. She wanted you to go out in the woods with her. She wanted you to bust her up side the head with that club. That\u2019s the new lie.\nIf one of them did it and they are all acting in concert or they are all aiding and abetting, then they\u2019re all guilty, and there\u2019s nobody that said they weren\u2019t all acting together. Nobody has said one of them went over here, so and so went over here. Maurice Brown didn\u2019t say it, Galloway didn\u2019t say it, Rheddick doesn\u2019t say it. Nobody says, I went over here and they did their thing. I went there. I wasn\u2019t a part of what nobody said.\nIn denying defendants\u2019 motion for a mistrial based on the State\u2019s closing argument, the court made the following findings of fact:\n[T]hat any misstatement that the prosecutor made in his final argument to the jury could be addressed by at least two defense lawyers.\n[E]ach defense lawyer did, in fact, address the issue of consent and whether or not she had prior convictions for prostitution.\nBased on these findings, the trial court concluded \u201cthat nothing in the prosecutor\u2019s final argument resulted in substantial and irreparable prejudice to either defendants.\u201d\nHere, it is clear that the State did not expressly make mention of any statement redacted by the parties. As to defendants\u2019 allegation that the State\u2019s references to prostitution were improper, not all statements regarding prostitution were in fact redacted. For instance, the following was left in defendant Galloway\u2019s statement: \u201c[the victim stated] [y]\u2019all going to pay me right?\u201d \u201cSo, as she unzipped my pants she was like well y\u2019all are still going to pay me? I want about thirty-thirty five dollars.\u201d Furthermore, the victim\u2019s alleged consent and willful prostitution could be reasonably inferred from Brown\u2019s testimony. Therefore, the trial court did not abuse its discretion in denying defendants\u2019 motion for a mistrial based on the State\u2019s references to prostitution in the closing argument.\nAs to the State\u2019s alleged improper inferences \u2014 (1) defendants\u2019 story that the victim willingly prostituted herself was a new defense fabricated for trial, and (2) defendants failed to present evidence that they were not present or did not assist in the commission of these crimes, the inferences, although inaccurate, were nevertheless harmless and did not likely affect the jury\u2019s decision. Two defense attorneys had the opportunity to refute the State\u2019s alleged inferences, and both defense attorneys argued that the victim was a prostitute and consented to the sexual activity. Additionally, defendants\u2019 locations and actions during the commission of these crimes, again, can be reasonably inferred from Brown\u2019s testimony, as well as other evidence of record. Therefore, the State\u2019s closing argument was not so grossly improper as to require a new trial, in light of the convincing evidence indicating defendants\u2019 guilt.\nMoreover, defendants\u2019 reliance on State v. Bass, 121 N.C. App. 306, 465 S.E.2d 334 (1996) is misguided. In Bass, an indecent liberties and first-degree sexual offense case, this Court found that where evidence that the victim had been previously abused by the defendant was excluded, it was prejudicial error and misleading for the prosecutor to argue during closing arguments that there was an absence of evidence of the victim\u2019s prior sexual abuse. Id. Here, the State may have misled the jury as to when defendants\u2019 defense was devised, but unlike Bass, evidence of the victim\u2019s past conviction for prostitution, defendants\u2019 actual defense of the victim\u2019s alleged consent and voluntary prostitution, and defendants\u2019 locations and actions during the commission of the crimes were not excluded. Therefore, the State\u2019s alleged inferences sub judice were harmless, and Bass is distinguished. Accordingly, we hold that the trial court did not abuse its discretion in denying defendants\u2019 motion for a mistrial based on the State\u2019s closing argument.\nNext, defendants assign error to the trial court\u2019s limitation of the cross-examination of the victim. Particularly, defendants argue that the trial court committed prejudicial error in failing to allow them to fully attack the credibility of the victim during their cross-examination. We disagree.\n\u201cIt is a well-established principle that an accused is assured the right to cross-examine adverse witnesses.\u201d State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370 (1988). \u201cGenerally, the scope of permissible cross-examination is limited only by the discretion of the trial court and the requirement of good faith.\u201d State v. Locklear, 349 N.C. 118, 156, 505 S.E.2d 277, 299 (1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999). In other words, \u201c[t]he scope of cross-examination ... is within the sound discretion of the trial court, and its rulings thereon will not be disturbed absent a showing of abuse of discretion.\u201d Herring, 322 N.C. at 743, 370 S.E.2d at 370. Furthermore:\nWhile specific instances of drug use or mental instability are not directly probative of truthfulness, they may bear upon credibility in other ways, such as to \u201ccast doubt upon the capacity of a witness to observe, recollect, and recount, and if so they are properly the subject not only of cross-examination but of extrinsic evidence . . .\nState v. Williams, 330 N.C. 711, 719, 412 S.E.2d 359, 364 (1992) (quoting 3 Federal Evidence \u00a7 305, at 236).\nAt bar, defendants argue that the trial court prevented them from offering evidence that would cast doubt on the victim\u2019s credibility, such as her history of drug addiction, an alleged suicide attempt, and her psychiatric history. However, during cross-examination, the victim admitted that she was addicted to crack cocaine, and she had smoked crack the very day of these crimes. Additionally, the victim was asked about an alleged suicide attempt, when she allegedly attempted to cut her wrists, and she denied it. Moreover, as to the victim\u2019s psychiatric history, the victim admitted to visiting psychiatrists. She further admitted that she was involuntarily committed into a \u201cdetox\u201d center, which she left against medical recommendation.\nAlso, evidence was presented that the victim, who used several aliases, had been convicted of writing bad checks, driving while her license was revoked, and prostitution. Moreover, during this point in her life, the victim admitted that she was going through a difficult time \u2014 financial problems, depression, and her husband\u2019s recent imprisonment. Therefore, we find that defendants were afforded an adequate opportunity to attack the victim\u2019s credibility.\nNevertheless, defendants argue that they should have been allowed to more fully probe the victim\u2019s psychiatric history and alleged suicide attempt. Particularly, defendants contend that they should have been given the opportunity to present medical evidence of the victim\u2019s history, i.e., the medical opinions and records prepared by Dr. Thomas Clancy, Dr. Kevin Reece, and Dr. Thomas Mathews.\nFirst, defendants argue that certain portions of the victim\u2019s discharge summary prepared by Dr. Clancy should not have been excluded. In preparing the discharge summary, Dr. Clancy, who examined the victim the morning after her attack, noted that the victim had a \u201c[p]sychiatric history including anti-social behavior, substance abuse, substance addiction, [and] uncooperativeness\u201d and was \u201c[w] ell-known to The Oaks [a psychiatric facility] for previous psychiatric history.\u201d At trial, the court. excluded these two statements, but allowed Dr. Clancy to testify as to the victim\u2019s \u201cuncooperativeness. \u201d\nDefendants first attempt to admit the statements as Dr. Clancy\u2019s medical opinion under N.C. Gen. Stat. \u00a7 8C-1, Rule 703 (1999). Under Rule 703:\nThe facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.\n\u201cA physician, as an expert witness, may give his opinion, including a diagnosis, based either on personal knowledge or observation or on information supplied him by others, including the patient, if such information is inherently reliable even though it is not independently admissible into evidence.\u201d State v. Wade, 296 N.C. 454, 462, 251 S.E.2d 407, 412 (1979). While this rule gives a party the right to vigorously cross-examine an expert regarding the underlying facts upon which he bases his opinion, it is the duty of the trial judge to exercise sound discretion in controlling the nature and scope of the cross-examination in the interest of justice and in confining the testimony within the rules of competency, relevancy, and materiality. See McClain v. Otis Elevator Co., 106 N.C. App. 45, 415 S.E.2d 78 (1992).\nAt bar, Dr. Clancy was qualified as an expert in surgery, with a special association in emergency care and critical care \u2014 not psychiatry. During voir dire, Dr. Clancy admitted that he was not a behaviorist and he had no personal knowledge or expertise on the challenged matters in the victim\u2019s discharge summary. Therefore, we hold that the statements were not inherently reliable or the type reasonably relied upon by experts in Dr. Clancy\u2019s particular field\u2014 surgery. Hence, the trial court properly excluded these statements under Rule 703.\nDefendants next attempt to admit Dr. Clancy\u2019s discharge summary statements as a business record under N.C. Gen. Stat. \u00a7 8C-1, Rule 803(6) (1999). Under Rule 803(6), business records, including medical records, are admissible, \u201cunless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.\u201d Moreover, \u201c[t]he simple fact that a record qualifies as a business record does not necessarily make everything contained in the record sufficiently reliable to justify its use as evidence at trial.\u201d Donavant v. Hudspeth, 318 N.C. 1, 7, 347 S.E.2d 797, 801 (1986). \u201cTrustworthiness is the foundation of the business records exception.\u201d State v. Miller, 80 N.C. App. 425, 429, 342 S.E.2d 553, 556 (1986).\nDuring voir dire, Dr. Clancy was questioned regarding the source of the two statements, and he replied:\nI don\u2019t recall, now. Her mother indicated that she had had some problems in the past, and we had a record indicating that she had been in The Oaks prior to this admission, and that information was probably . . . was probably culled from those records and that previous admission from her mother.\nSubsequently, the trial court found that the source of Dr. Clancy\u2019s statements was unreliable. Therefore, when, as here,\nthe trial judge determines on voir dire that the source of the physician\u2019s statement is in fact unreliable, he may exclude the statement as evidence for any purpose. If the opinion of the physician testifying as an expert is based solely on the unreliable statement, the physician should not be allowed to state the opinion. . ..\nDonavant, 318 N.C. 1, 26, 347 S.E.2d 797, 812. Based on the unreliability and the lack of trustworthiness of the source of Dr. Clancy\u2019s statements, the trial court did not abuse its discretion in denying their admission.\nFurthermore, any error that might have resulted from the omission of Dr. Clancy\u2019s statements was cured by the testimony of Dr. Monique Minor, the victim\u2019s emergency room physician on the night of her attack. During cross-examination, Dr. Minor was questioned regarding a discharge summary she assisted in preparing. Unlike Dr. Clancy, Dr. Minor clearly identified the source of her information as the victim\u2019s mother. Then, in her testimony, Dr. Minor confirmed that the victim was suicidal about three weeks prior to the attack, and the victim had been admitted to \u201cThe Oaks.\u201d\nNext, defendants argue that the trial court improperly excluded medical records prepared by Dr. Kevin Reece. However, upon an examination of the records, several inconsistencies, such as names, dates of birth, medical record numbers, and symptoms, were found. As a result, the trial court ruled that the records were inadmissible based on the inconsistencies and the fact that Dr. Reece was not present to clarify them. We note that defendants subpoenaed Dr. Reece, but he was never called to testify. Therefore, the source, method, and circumstances of preparation surrounding the information in Dr. Reece\u2019s documents indicated a lack of trustworthiness. Thus, the trial court again did not abuse its discretion in excluding these records under Rule 803.\nFinally, defendants\u2019 challenge as to the medical records prepared by Dr. Thomas Mathews is meritless. Upon a review of the record, we find that the trial court allowed the defense to use the record prepared by Dr. Mathews to cross-examine the victim, and the defense did in fact make use of Dr. Mathews\u2019 record. Accordingly, we hold that defendants were afforded an adequate opportunity to cross-examine and attack the credibility of the victim. Thus, defendants\u2019 assignment of error is overruled.\nIn their third assignment of error, defendants challenge the trial court\u2019s instructions on first-degree rape. Specifically, defendants argue that the first-degree rape jury instruction that the trial court used improperly permitted defendants\u2019 convictions by less than a unanimous verdict. However, we disagree.\nDuring the charge to the jury, the trial court used the North Carolina Pattern Jury Instruction for first-degree rape (207.10). The elements of first-degree rape specified in the pattern jury instructions are identical to those elements set out in the statute. See N.C. Gen. Stat. \u00a7 14-27.2 (1999). At trial, the court charged,\nfor you to find each of the defendants guilty of first degree rape, the State must prove four things beyond a reasonable doubt. First, that the defendant engaged in vaginal intercourse with the victim. . . .\nSecond, that the defendant used or threatened to use force sufficient to overcome any resistance the victim might make. . . .\nThird, that the victim did not consent and it was against her will.... And fourth, that the defendant employed or displayed a dangerous or deadly weapon, or that the defendant inflicted serious personal injury upon the victim or that the defendant was aided and abetted by one or more persons. . . .\n(Emphasis added.)\nDefendants argue that the trial court\u2019s disjunctive phrasing as to the fourth element constituting first-degree rape rendered the verdict potentially nonunanimous. As a result, defendants assert that the jury could have split in its decision regarding which act constituted the offense, thus making it impossible to determine whether the jury was unanimous in its verdict.\nIn North Carolina, \u201c[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.\u201d N.C. Const. art. I, \u00a7 24. In our state, two lines of cases have developed regarding jury unanimity and disjunctive instructions: (1) State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986), and (2) State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990). The Diaz line,\nestablishes that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.\nState v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991) (emphasis in original). Contrarily, the Hartness line, \u201cestablishes that if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.\u201d Id. at 303, 412 S.E.2d at 312 (emphasis in original).\nHere, as to the fourth element of first-degree rape, the instructions were in the disjunctive \u2014 namely, defendants could be found guilty of first-degree rape if they \u201cemployed or displayed a dangerous or deadly weapon, or... [they] inflicted serious personal injury upon the victim or .. . [they were] aided and abetted by one or more persons.\u201d These acts establish an element of the offense, and do not, by themselves, constitute a separate offense. Furthermore, our Supreme Court has found that a trial court\u2019s instruction that defendants could be found guilty of rape and sexual offense if they employed a deadly weapon or were aided and abetted was proper. See State v. Belton, 318 N.C. 141, 347 S.E.2d 755 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997). Thus, we hold that the case sub judice is controlled by Hartness.\nIn the present case, defendants\u2019 reliance on Richardson v. United States, 526 U.S. 813, 143 L. Ed. 2d 985 (1999), is not well founded. First, Richardson deals expressly with crimes under a federal statute, 21 U.S.C.S. \u00a7 848. Second, while Richardson holds that a jury must unanimously find that the government proved each element of a federal crime to convict, the United States Supreme Court, in arriving at its decision, focused primarily on \u00a7 848 and how (1) a jury must unanimously agree not only that a defendant committed some \u201ccontinuing series of violation,\u201d but also about which specific violations make up that \u201ccontinuing series,\u201d and (2) \u201cviolations\u201d in a continuing criminal enterprise refer to elements rather than means. See id. Here, the jury instructions clearly did not deprive defendants of their right to be convicted by a unanimous jury. Therefore, we reject this assignment of error.\nIn the next assignment of error, defendant Rheddick assigns as error the trial court\u2019s denial of his motion to sever based on the admission of the redacted statements. Again, we find no error.\nUnder N.C. Gen. Stat. \u00a7 15A-927(c)(2)b (1999), the trial court must grant a severance upon a defendant\u2019s motion if \u201cit is found necessary to achieve a fair determination of the guilt or innocence of that defendant.\u201d \u201cWhether defendants should be tried jointly or separately ... is a matter addressed to the sound discretion of the trial judge.\u201d State v. Rasor, 319 N.C. 577, 581, 356 S.E.2d 328, 331 (1987). \u201cAbsent a showing that defendant has been deprived of a fair trial by joinder, the trial judge\u2019s discretionary ruling on the question will not be disturbed on appeal.\u201d Id. At bar, defendants did not initially object to their trials being joined. Then, at the close of the State\u2019s evidence, well into the trial, defendants made their motion to sever based on the introduction of their redacted statements. Subsequently, the trial court denied the motion.\nIn the past, this Court has found that where deletions from a defendant\u2019s statement of references to a co-defendant do not materially change the nature of a defendant\u2019s statement, a defendant is not prejudiced by admission of the sanitized statement. See State v. Giles, 83 N.C. App. 487, 350 S.E.2d 868 (1986). Here, the trial court with the assistance of the State and both defendants\u2019 attorneys complied with Bruton and sanitized the statements. Further, the deletions do not materially change the nature of either defendant\u2019s statement\u2014 both statements acknowledge that the victim was in the car, a sexual assault took place, and the victim was beaten. Thus, defendants were not prejudiced by the admission of the redacted statements. As such, we hold that the trial court did not abuse its discretion in denying defendant Rheddick\u2019s motion to sever.\nFinally, we examine defendant Rheddick\u2019s conviction and sentence for attempted second-degree murder. In light of our Supreme Court\u2019s recent holding in State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000), \u201ca crime denominated as \u2018attempted second-degree murder\u2019 does not exist under North Carolina law.\u201d Id. at 453, 527 S.E.2d at 49. Accordingly, we vacate defendant Rheddick\u2019s conviction for attempted second-degree murder.\nIn the record, defendants preserved approximately one hundred additional assignments of error. As defendants fail to argue them in their briefs, we deem those not argued abandoned. N.C.R. App. P. 28(b)(5).\nIn light of all the foregoing, we hold that defendants received a fair trial, free from prejudicial error. However, as to defendant Rheddick, we vacate his conviction for attempted second-degree murder.\nNo error as to defendant Galloway.\nNo error in part, vacated in part as to defendant Rheddick.\nJudges MARTIN and HUDSON concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Daniel P. O\u2019Brien and Joan M. Cunningham, for the State.", "Lisa Miles for defendant-appellant Galloway.", "Thomas S. Hicks, PLLG, by Thomas S. Hicks, for defendant-appellant Rheddick." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRENCE EUGENE GALLOWAY and EDWARD ANTOINE RHEDDICK\nNo. COA00-807\n(Filed 21 August 2001)\n1. Criminal Law\u2014 motion for a mistrial \u2014 inconsistent testimony \u2014 not the knowing use of perjury\nThe trial court did not abuse its discretion in a prosecution for kidnapping, rape, and other offenses by denying defendants\u2019 motion for a mistrial based upon the State\u2019s alleged use of perjured testimony where there were inconsistencies between the testimony of the victim and the testimony of an accomplice who was allowed to plead to reduced charges in exchange for testifying for the State. The State offered both witnesses and left the inconsistencies to be resolved by the jury; the defendants did not show that the State knew that either the victim\u2019s or the accomplice\u2019s testimony was false.\n2. Criminal Law\u2014 prosecutor\u2019s argument \u2014 redacted statements\nThe trial court did not abuse its discretion by denying defendants\u2019 motion for a mistrial in a prosecution for kidnapping, rape, and other offenses where defendants contended that the State in its closing argument improperly referred to portions of defendants\u2019 statements concerning prostitution that had been redacted to comply with Bruton v. United States, 391 U.S. 123. The State did not expressly mention any statement redacted by the parties and not all of the statements about prostitution were redacted. Furthermore, the victim\u2019s alleged consent and willful prostitution could be inferred from an accomplice\u2019s testimony.\n3. Criminal Law\u2014 prosecutor\u2019s argument \u2014 inferences\nThe trial court did not abuse its discretion in a prosecution for kidnapping, rape, and other offenses by denying defendants\u2019 motion for a mistrial based upon the State\u2019s closing argument where defendants pointed to inaccurate inferences that a defense theory was fabricated for trial and that defendants failed to present evidence that they were not present or did not assist in the commission of the crimes. Two defense attorneys had the opportunity to refute the State\u2019s inferences, the defendants\u2019 locations and actions could be inferred from the evidence and, while the State may have misled the jury as to when the defense theory of voluntary prostitution was devised, the victim\u2019s past conviction for prostitution, defendants\u2019 defense of alleged consent, and the defendants\u2019 locations and actions during the commission of the crimes were not excluded. The State\u2019s alleged inferences were harmless.\n4. Witnesses\u2014 credibility \u2014 cross-examination\nThe trial court did not err in a prosecution for kidnapping, rape, and other offenses by not allowing defendants to fully attack the credibility of the victim. During cross-examination, the victim admitted that she was addicted to crack cocaine and had smoked crack on the day of these crimes; she denied an alleged suicide attempt; she admitted visiting psychiatrists, being involuntarily admitted to a \u201cdetox\u201d center and leaving it against medical recommendation; evidence was admitted that she used several aliases and had been convicted of writing bad checks, driving with a revoked license, and prostitution; and she admitted that this was a difficult time in her life, with financial problems, depression, and her husband\u2019s recent imprisonment.\n5. Evidence\u2014 medical records \u2014 discharge notation \u2014 psychiatric history \u2014 not admissible\nThe trial court did not err in a prosecution for kidnapping, rape, and other offenses by excluding the victim\u2019s medical discharge summary and other medical records. The notation of psychiatric history on the discharge summary was not admissible under N.C.G.S. \u00a7 8C-1, Rule 703 as the basis for an expert opinion because the doctor making the notation was an expert in surgery rather than psychiatry and admitted during voir dire that he had no personal knowledge or expertise on the challenged matters. The discharge summary statements were not admissible as business records under N.C.G.S. \u00a7 8C-1, Rule 803(6) because the court found the source of the doctor\u2019s statements to be unreliable. Moreover, any error that might have resulted from the omission of these statements was cured by the testimony of another emergency room doctor, who clearly identified the source of her information. Other medical records were properly excluded because they contained inconsistencies and the doctor was not present to clarify them, or were in fact used by defendant.\n6. Rape\u2014 first-degree \u2014 instructions\u2014disjunctive\nThe trial court did not err by instructing the jury that one of the elements of first-degree rape was that the defendant employed or displayed a dangerous or deadly weapon or that defendant inflicted serious injury or that defendant aided and abetted one or more persons. Although defendant argued that it was impossible to determine whether the jury was unanimous, these acts establish an element of the offense and do not constitute a separate offense. Under State v. Hartness, 326 N.C. 561, the requirement of unanimity is satisfied.\n7. Criminal Law\u2014 motion to sever \u2014 redacted statements from codefendants\nThe trial court did not err in denying a motion to sever in a prosecution for kidnapping, rape, and other offenses because of the admission of redacted statements of both defendants where the court sanitized the statements with assistance from the State and attorneys for both defendants and the deletions did not materially change the nature of either statement. N.C.G.S. \u00a7 15A-927(c)(2)b.\n8. Homicide\u2014 attempted second-degree murder \u2014 conviction set aside\nA conviction for attempted second-degree murder was set aside pursuant to State v. Goble, 351 N.C. 448, which held that no such crime exists in North Carolina.\nAppeal by defendants from judgments entered 17 December 1999 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 17 May 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General Daniel P. O\u2019Brien and Joan M. Cunningham, for the State.\nLisa Miles for defendant-appellant Galloway.\nThomas S. Hicks, PLLG, by Thomas S. Hicks, for defendant-appellant Rheddick." }, "file_name": "0555-01", "first_page_order": 585, "last_page_order": 600 }