{ "id": 8528053, "name": "STATE OF NORTH CAROLINA v. JEFFREY HARLISS FREEMAN", "name_abbreviation": "State v. Freeman", "decision_date": "1989-04-18", "docket_number": "No. 8817SC592", "first_page": "380", "last_page": "393", "citations": [ { "type": "official", "cite": "93 N.C. App. 380" } ], "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": "309 S.E. 2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1983, "pin_cites": [ { "page": "441" }, { "page": "441" } ], "opinion_index": 0 }, { "cite": "309 N.C. 780", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767890 ], "year": 1983, "pin_cites": [ { "page": "786" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0780-01" ] }, { "cite": "324 S.E. 2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "312 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752702 ], "year": 1985, "pin_cites": [ { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0760-01" ] }, { "cite": "328 S.E. 2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "255-56" } ], "opinion_index": 0 }, { "cite": "313 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723320 ], "year": 1985, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0266-01" ] }, { "cite": "312 S.E. 2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "310 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403141 ], "year": 1984, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0410-01" ] }, { "cite": "340 S.E. 2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "59" } ], "opinion_index": 0 }, { "cite": "315 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718276 ], "year": 1986, "pin_cites": [ { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0749-01" ] }, { "cite": "93 L.Ed. 2d 166", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "107 S.Ct. 241", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1986, "opinion_index": 0 }, { "cite": "479 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "year": 1986, "opinion_index": 0 }, { "cite": "340 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "685" }, { "page": "685" } ], "opinion_index": 0 }, { "cite": "315 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720550 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "417" }, { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0398-01" ] }, { "cite": "321 S.E. 2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 765", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680480, 4686379, 4684171, 4687470, 4679262 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0765-01", "/nc/311/0765-04", "/nc/311/0765-05", "/nc/311/0765-03", "/nc/311/0765-02" ] }, { "cite": "316 S.E. 2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "636" }, { "page": "636" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525774 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "93" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0089-01" ] }, { "cite": "343 S.E. 2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1986, "pin_cites": [ { "page": "858" }, { "page": "858" }, { "page": "859" }, { "page": "859", "parenthetical": "permissible for counsel in opening statement to state that defendant \"would rely on the presumption of innocence and the State's burden to prove the defendant's guilt beyond a reasonable doubt\"" }, { "page": "859" } ], "opinion_index": 0 }, { "cite": "316 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695646 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "646" }, { "page": "648" }, { "page": "648" }, { "page": "648" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0630-01" ] }, { "cite": "367 S.E. 2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "902" } ], "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "364 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569057, 2570019, 2572295, 2569672, 2570462 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0477-03", "/nc/321/0477-05", "/nc/321/0477-02", "/nc/321/0477-01", "/nc/321/0477-04" ] }, { "cite": "361 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358551 ], "year": 1987, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0458-01" ] }, { "cite": "157 S.E. 2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "139", "parenthetical": "statement of witness as to extrajudicial declaration of plaintiff was admitted for purpose of corroboration" } ], "opinion_index": 0 }, { "cite": "271 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565056 ], "year": 1967, "pin_cites": [ { "page": "481", "parenthetical": "statement of witness as to extrajudicial declaration of plaintiff was admitted for purpose of corroboration" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0471-01" ] }, { "cite": "244 S.E. 2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "witness not permitted to testify as to \"another person's extra-judicial statements\" even though it would have corroborated the witness's own testimony" } ], "opinion_index": 0 }, { "cite": "295 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561543, 8561520, 8561587, 8561495, 8561564 ], "year": 1978, "pin_cites": [ { "parenthetical": "witness not permitted to testify as to \"another person's extra-judicial statements\" even though it would have corroborated the witness's own testimony" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0093-03", "/nc/295/0093-02", "/nc/295/0093-05", "/nc/295/0093-01", "/nc/295/0093-04" ] }, { "cite": "241 S.E. 2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "338", "parenthetical": "witness not permitted to testify as to \"another person's extra-judicial statements\" even though it would have corroborated the witness's own testimony" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549264 ], "year": 1978, "pin_cites": [ { "page": "367", "parenthetical": "witness not permitted to testify as to \"another person's extra-judicial statements\" even though it would have corroborated the witness's own testimony" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0364-01" ] }, { "cite": "250 S.E. 2d 640", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "645", "parenthetical": "witness may \"corroborate herself by testifying that she had made a statement to another person\"" } ], "opinion_index": 0 }, { "cite": "296 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565702 ], "year": 1979, "pin_cites": [ { "page": "287", "parenthetical": "witness may \"corroborate herself by testifying that she had made a statement to another person\"" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0281-01" ] }, { "cite": "360 S.E. 2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "686" } ], "opinion_index": 0 }, { "cite": "320 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4727239 ], "year": 1987, "pin_cites": [ { "page": "761" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0754-01" ] }, { "cite": "221 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "362" } ], "opinion_index": 0 }, { "cite": "289 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567692 ], "year": 1976, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0223-01" ] }, { "cite": "342 S.E. 2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "851" }, { "page": "851" }, { "parenthetical": "\"Assignments of error not set out in the appellant's brief . . . will be taken as abandoned.\"" } ], "opinion_index": 0 }, { "cite": "316 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701571 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "512-13" }, { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0507-01" ] }, { "cite": "364 S.E. 2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "327", "parenthetical": "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" } ], "opinion_index": 0 }, { "cite": "321 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567784 ], "year": 1988, "pin_cites": [ { "page": "318", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0301-01" ] }, { "cite": "367 S.E. 2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "594" }, { "page": "594" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "125" }, { "page": "126" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] } ], "analysis": { "cardinality": 1080, "char_count": 28398, "ocr_confidence": 0.765, "pagerank": { "raw": 3.0439050600319964e-07, "percentile": 0.8554440818750437 }, "sha256": "7f976afb5e0cbcc49a4a05ab42d4d5a9603d8a7c0425ade2b6933453d15b8855", "simhash": "1:0669a22e565b9955", "word_count": 4658 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge COZORT concurs.", "Judge PHILLIPS concurs in the result." ], "parties": [ "STATE OF NORTH CAROLINA v. JEFFREY HARLISS FREEMAN" ], "opinions": [ { "text": "GREENE, Judge.\nDefendant 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.\nAt trial the State\u2019s 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\u2019s girl friend lived. The defendant entered 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.\nAt 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.\nThe defendant\u2019s 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 \u201cYou had better leave.\u201d 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 girl friend of Tammy Sizemore\u2019s 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.\nThe eight questions presented for review are whether the trial court: I) erred in denying defendant\u2019s pre-trial motion for appointment of expert psychiatric assistance; II) erred in denying defendant\u2019s 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\u2019s attorney called the defendant an \u201canimalistic human being\u201d during closing arguments; IV) erred in admitting the testimony of a witness regarding out of court statements to corroborate the witness\u2019s 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.\nI\nDefendant 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 \u201cqualified psychiatrist\u201d authorized to\nexamine 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\u2019s indigency.\nUnder N.C.G.S. Sec. 7A-450(b) (1986), the State must provide an indigent defendant \u201cwith counsel and other necessary expenses of representation.\u201d Our Supreme Court has interpreted this provision to require the appointment of expert assistance only upon a showing by the defendant that: \u201c(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.\u201d 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 \u201cparticularized\u201d and \u201cundeveloped assertions that the requested assistance would be beneficial\u201d 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\u2019s motion, focus \u201cmust be upon what was before the trial court at the time of the motions.\u201d Wilson, 322 N.C. at 126, 367 S.E. 2d at 594.\nAn examination of this record shows that at the time the trial court denied the defendant\u2019s motion, the defendant had argued in his affidavit that the appointment of a psychiatrist would assist the defendant in \u201cevaluating, preparing, and presenting his defense.\u201d At the presentation of the motion to the trial court, the defendant\u2019s counsel argued the evidence obtained by an appointed psychiatrist could be used in the \u201cguilt or innocence phase of the trial . . . [and] also ... in the sentencing phase.\u201d At one point in the argument, the defendant\u2019s counsel argued that if the psychiatrist determined the defendant was not a pedophiliac (person with a paraphilia in which children are the preferred sexual object), it \u201cwould be evidence of his physical makeup, his physical reactions and his mental condition, which would be used to show that he was not inclined on this occasion to favor children of the age of the alleged victim.\u201d\nConsidering everything the defendant\u2019s counsel had to offer to the trial court in support of his motion for the appointment of a psychiatrist, we find \u201clittle more than undeveloped assertions that the requested assistance would be beneficial,\u201d Artis, 316 N.C. at 512, 342 S.E. 2d at 851, and these assertions are not sufficiently particularized. Therefore, we find the trial court did not err in denying the defendant\u2019s motion for appointment of a psychiatrist.\nII\nThe defendant argues the trial court erred in denying his motion in limine to prohibit the State from referring to statements defendant may have made before the crime date about his preference for \u201csex with virgins.\u201d As the assignment of error set forth in the defendant\u2019s brief relating to this particular argument is not pertinent to the question argued, the assignment of error set out in the brief is abandoned. App. R. 28(b)(5) (\u201c[immediately following each question shall be a reference to the assignments of error and exceptions pertinent to the question . . . (emphasis added)). The exceptions and assignment of error pertinent to the question argued in the brief are likewise abandoned as they are not set out in the brief. Id. (\u201cAssignments of error not set out in the appellant\u2019s brief . . . will be taken as abandoned.\u201d)\nIII\nDefendant next assigns as error the trial court\u2019s failure to respond to the objection of the defendant when the State\u2019s attorney called the defendant an \u201canimalistic human being\u201d during closing arguments.\nOur appellate courts ordinarily will not \u201creview the exercise of the trial judge\u2019s discretion in controlling jury arguments unless the impropriety of counsel\u2019s remarks is extreme and is clearly calculated to prejudice the jury in its deliberations.\u201d State v. Taylor, 289 N.C. 223, 227, 221 S.E. 2d 359, 362 (1976). Here, the prosecution made this remark in attempting to draw an analogy between a dog leaving tracks in the snow and the numerous bits of circumstantial evidence leading to defendant\u2019s guilt. We therefore hold that the statement taken in context was not \u201cclearly calculated to prejudice the jury in its deliberations\u201d nor was the remark so extreme as to warrant our review of the trial judge\u2019s discretion.\nIV\nThe defendant next contends the trial court erred in overruling the defendant\u2019s objections to the following questions asked by the district attorney of Tammy Sizemore:\nQ. Were you present with Lisa Robertson, one of the witnesses Mr. Hugh Mills has asked you about?\nA. Yes.\nQ. Did she tell you in our presence that she didn\u2019t say anything about you leaving the apartment and going to the store?\nA. Yeah.\nMr. MILLS: Objection. That\u2019s not going to be corroborated at all that I know of.\nTHE COURT: Overruled.\nSpecifically, the defendant argues the evidence was inadmissible hearsay and was \u201celicited by the State in an effort to undercut the Defendant\u2019s argument that Tammy Sizemore may have left the apartment and allowed something to happen to her minor child.\u201d The State, however, argues the testimony is not hearsay as it \u201cwas not offered to prove the truth of the matter asserted but merely to corroborate Tammy\u2019s own in-court testimony.\u201d Tammy Sizemore did testify that she never told Lisa Robertson that she left the apartment to go to the store.\nTestimony which may be hearsay is nonetheless admissible for the non-hearsay purpose of corroboration if it in fact corroborates the witness\u2019s testimony. State v. Locklear, 320 N.C. 754, 761, 360 S.E. 2d 682, 686 (1987). However, while a witness may corroborate herself, she may not do so with the \u201cextra-judicial declarations of someone other than the witness purportedly being corroborated.\u201d 1 Brandis on North Carolina Evidence, Sec. 52 at 243 (3d ed. 1988); see also State v. Pearce, 296 N.C. 281, 287, 250 S.E. 2d 640, 645 (1979) (witness may \u201ccorroborate herself by testifying that she had made a statement to another person\u201d); State v. McAdoo, 35 N.C. App. 364, 367, 241 S.E. 2d 336, 338, disc. rev. denied, 295 N.C. 93, 244 S.E. 2d 262 (1978) (witness not permitted to testify as to \u201canother person\u2019s extra-judicial statements\u201d even though it would have corroborated the witness\u2019s own testimony); but see Paris v. Carolina Portable Aggregates, Inc., 271 N.C. 471, 481, 157 S.E. 2d 131, 139 (1967) (statement of witness as to extrajudicial declaration of plaintiff was admitted for purpose of corroboration); 1 Bran-dis on North Carolina Evidence, Sec. 52 at 244 (3d ed. 1988) (\u201c[h]owever, in a few cases declarations of others, though ordinarily inadmissible under the hearsay rule, have been admitted to corroborate a witness\").\nAs the witness, Tammy Sizemore, was attempting to corroborate her own testimony with an extrajudicial statement of Lisa Robertson, the trial court erred in overruling the objection. However, such error does not require a new trial unless the appellant can show he suffered prejudice as a result of the error. State v. McKnight, 87 N.C. App. 458, 465, 361 S.E. 2d 429, 433 (1987), disc. rev. denied, 321 N.C. 477, 364 S.E. 2d 663 (1988). This burden may be met by showing there is a reasonable possibility a different result would have resulted had the error not been committed. N.C.G.S. Sec. 15A-1443(a) (1988); State v. Weeks, 322 N.C. 152, 163, 367 S.E. 2d 895, 902 (1988). The defendant has not shown the error was so prejudicial that without the error it is likely a different result would have been reached.\nV\nThe defendant argues the trial court committed prejudicial error by limiting as it did the manner and extent of defense counsel\u2019s opening statement. Specifically, three times during defense counsel\u2019s opening statement, the court interrupted the lawyer and told him in open court \u201cyou\u2019re arguing to the jury.\u201d\nN.C.G.S. Sec. 15A-1221(a)(4) (1988) provides that in a criminal jury trial \u201c[e]ach party must be given the opportunity to make a brief opening statement . . . .\u201d The statute does not define the scope of the opening statement allowed. State v. Paige, 316 N.C. 630, 646, 343 S.E. 2d 848, 858 (1986). However, in Paige, 316 N.C. at 648, 343 S.E. 2d at 858, our Supreme Court quoted with approval a portion of State v. Elliott, 69 N.C. App. 89, 93, 316 S.E. 2d 632, 636, disc. rev. denied, appeal dismissed, 311 N.C. 765, 321 S.E. 2d 148 (1984), in which this Court addressed the scope of the opening statement authorized by N.C.G.S. Sec. 15A-1221(a)(4):\nWhile the exact scope and extent of an opening statement rest largely in the discretion of the trial judge, we believe the proper function of an opening statement is to allow the party to inform the court and jury of the nature of his case and the evidence he plans to offer in support of it. See generally, 23 A[sic]C.J.S., Criminal Law, Sec. 1086 (1961). It should-not be permitted to become an argument on the case or ah instruction as to the law of the case.\nPaige, 316 N.C. at 648, 343 S.E. 2d at 859 (quoting Elliott, 69 N.C. App. at 93, 316 S.E. 2d at 636) (emphasis added).\nThe scope and extent of an opening statement are admittedly vague and must be determined in light of the purpose of opening statements:\nThe purpose of an opening statement is to permit the parties to present to the judge and jury the issues involved in the case and to allow them to give a general forecast of what the evidence will be.\nState v. Gladden, 315 N.C. 398, 417, 340 S.E. 2d 673, 685, cert. denied, 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed. 2d 166 (1986). Furthermore, trial counsel should generally be \u201cafforded wide latitude in the scope of the opening statement.\u201d Id.\nWith the general guidelines enunciated in Elliott, Paige and Gladden, it is clear that \u201casking the jury to resolve disputes, make inferences, or interpret facts favorable to the speaker. . . are agumentative remarks and therefore prohibited. J. Tanford, The Trial Process 271 (1983). However, counsel is permitted in his opening remarks something more than just a limited preview of his evidence and should be allowed to state his \u201clegal claim or defense in basic terms.\u201d Id.; see also Paige, 316 N.C. at 648, 343 S.E. 2d at 859 (permissible for counsel in opening statement to state that defendant \u201cwould rely on the presumption of innocence and the State\u2019s burden to prove the defendant\u2019s guilt beyond a reasonable doubt\u201d); Rule 9 of the General Rules of Procedure for the Superior and District Courts (in opening statement counsel may set forth \u201cgrounds for his claim or defense\u201d). Nonetheless, in previewing the evidence, counsel generally should not (1) refer to inadmissible evidence, see Gladden, 315 N.C. at 417, 340 S.E. 2d at 685, (2) \u201cexaggerate or overstate\u201d the evidence, Tanford, at 272, or (3) discuss evidence he expects the other party to introduce. Id. When a party does not intend to offer evidence, he nonetheless may in his opening statement \u201cpoint out to the jury facts which he reasonably expects to bring out on cross-examination.\u201d Paige, 316 N.C. at 648, 343 S.E. 2d at 859.\nWe now determine whether the trial court abused its discretion in interrupting defendant\u2019s counsel and classifying th\u00e9 remarks as \u201cargument.\u201d The first statement of counsel which the trial court classified as argument was as follows:\nMr. MILLS: . . . And when you hear a piece of evidence I hope you will remember where it was located as you went along this roadway. And after you do that Mr. Freeman is convinced that you will find that he\u2019s not guilty. So in that regard we ask you to consider what you find as you go through\u2014\n(emphasis added). In this statement counsel was expressing his client\u2019s conviction that the jury would find him not guilty. This is in the nature of an argument and is more appropriately reserved for final jury argument. Accordingly, the trial court did not abuse its discretion in interrupting the defendant\u2019s counsel and telling him that he was \u201carguing to the jury.\u201d\nNext, the defense counsel stated:\nMr. MILLS: The evidence will show, ladies and gentlemen, one thing about which there is no disagreement \u2014\nThe COURT: Now, you\u2019re arguing to the jury about what\u2019s disagreement. You just tell them what your evidence is going to be.\n(emphasis added). Here the defendant\u2019s counsel was expessing his opinion as to whether there was any disagreement about the evidence. This goes beyond the permissible scope of an opening statement and is in the nature of an argument. Again the trial court did not abuse its discretion in classifying this statement as argument.\nFinally, the defendant\u2019s counsel stated:\nMr. MILLS: . . . This is not an argument, or is not intended to be. As I stated in the beginning, a road map of what the defendant\u2019s evidence will show. We ask that you consider each piece of this evidence carefully.\nThe COURT: Now you\u2019re arguing.\nMr. MILLS: And that\u2019s as much as I will say at this point. I thank you for your attention.\n(emphasis added). Here the defendant\u2019s counsel was asking the jury only to consider each piece of the evidence carefully. We find nothing argumentative in that statement nor do we find that it violates any other rules relating to opening statements. Accordingly, the trial court abused its discretion in interrupting the trial counsel and classifying this as argument. Nonetheless, the error is not prejudicial as the defendant has not met his burden of showing that \u201chad the error in question not been committed, a different result would have been reached at the trial.\u201d N.C.G.S. Sec. 15A-1443(a) (1988) (burden is on defendant to show prejudicial error).\nVI\nThe defendant contends the court committed reversible prejudicial error by allowing the State\u2019s attorney to lead Tammy Sizemore during direct examination. The two questions defendant objects to as leading are: \u201cDid he make a cigarette, smoke a cigarette, roll a cigarette?\u201d and \u201cYou didn\u2019t see another diaper in the room anywhere?\u201d\nA leading question is one which suggests the desired response and may often be answered yes or no. State v. Riddick, 315 N.C. 749, 755, 340 S.E. 2d 55, 59 (1986). Rulings \u201con the use of leading questions are discretionary and reversible only for an abuse of discretion.\u201d Id. at 756, 340 S.E. 2d at 59.\nDefendant first argues he was prejudiced by the question using the term \u201croll a cigarette\u201d because it amounted to the district attorney\u2019s testimony that the defendant may have engaged in some type of illegal activity by rolling the cigarette. The defendant argues that the \u201ccommon usage of this term implies that marijuana or some other illegal substance may have been rolled into a cigarette and used by defendant.\u201d We conclude this question did not prejudice the defendant as the defendant himself during the trial admitted that he had smoked marijuana, taken Valium and drunk heavily on the day in question.\nThe defendant next argues that the question \u201cYou didn\u2019t see another diaper in the room anywhere?\u201d was prejudicial error as it permitted the district attorney in essence to testify about items that may have been located in the bedroom. Assuming this leading question was error, it was harmless on the facts of this case as the defendant has not met his burden of showing there was a reasonable possibility a different result would have been reached had the error not been committed. Weeks, 322 N.C. at 163, 367 S.E. 2d at 902.\nVII\nDefendant next contends the trial court erred when it overruled defendant\u2019s objection to the repeated and continuous questions by the State about events of and times during 13 April 1987, the day before the crime, because such events were irrelevant and were in fact brought out only in an attempt to confuse the jury and did in fact confuse the jury. After the defendant objected to the line of questioning, the trial judge stated that \u201cit goes to credibility.\u201d We find this assignment of error to be completely without merit.\nThe trial court generally has wide discretion in admitting evidence which it determines would be helpful to a jury\u2019s appraisal of credibility. State v. Stills, 310 N.C. 410, 415, 312 S.E. 2d 443, 446 (1984). The trial court did not abuse its discretion here in allowing questioning on events of 13 April 1987. The defendant during direct examination contradicted or denied much of the testimony offered by several different witnesses. Therefore, the jury was entitled to hear evidence bearing on the defendant\u2019s credibility in order to reach a proper verdict.\nVIII\nThe defendant finally argues the trial court committed reversible prejudicial error when the court sentenced the defendant to consecutive life sentences because such sentences constitute cruel and unusual punishment.\nDefendant acknowledges that our Supreme Court has found that a mandatory life sentence for first-degree rape and a mandatory life sentence for first-degree sexual offense do not constitute cruel and unusual punishment. See State v. Peek, 313 N.C. 266, 276, 328 S.E. 2d 249, 255-56 (1985); State v. Higginbottom, 312 N.C. 760, 764, 324 S.E. 2d 834, 837 (1985). However, the defendant argues that consecutive life sentences for acts which may have occurred within a very few moments of each other is punishment grossly disproportionate to the acts and therefore cruel and unusual.\nWe need therefore to determine whether the imposition of consecutive life sentences against the defendant resulted in a punishment so grossly disproportionate to the crimes committed that it violates the Eighth Amendment. \u201cThe imposition of consecutive life sentences, standing alone, does not constitute cruel or unusual punishment.\u201d State v. Ysaguire, 309 N.C. 780, 786, 309 S.E. 2d 436, 441 (1983). The jury convicted defendant of two specific and distinct criminal acts. The \u201cacts constitute some of the most serious crimes recognized by our statutes.\u201d Id. at 787, 309 S.E. 2d at 441. Defendant received the mandatory life sentence for each offense. \u201cThere was also no evidence indicating that the offenses were committed negligently or under duress or provocation.\u201d Id. Furthermore, a \u201creview of multiple offense cases in which a rape was committed reveals that consecutive sentences are frequently imposed.\u201d Id. Accordingly, consistent with Ysaguire, defendant\u2019s consecutive sentences do not represent cruel and unusual punishment in North Carolina and \u201cwe find nothing so grossly disproportionate in this sentencing judgment for these criminal offenses to justify our upsetting via the Eighth Amendment the traditional sentencing prerogatives of the Legislature and the trial court.\u201d Id.\nIX\nOther assignments of error entered by the defendant in the record which have not been argued or correctly preserved are abandoned. App. R. 28(a) and (b)(5).\nNo error.\nJudge COZORT concurs.\nJudge PHILLIPS concurs in the result.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Clarence J. DelForge, III, for the State.", "Mills & Rives, by Hugh C. Mills, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JEFFREY HARLISS FREEMAN\nNo. 8817SC592\n(Filed 18 April 1989)\n1. Constitutional Law \u00a7 31\u2014 refusal to appoint psychiatrist\nMotion by an indigent defendant charged with statutory rape and first degree sexual offense for the appointment of a psychiatrist to examine and test defendant was properly denied by the trial court where defendant\u2019s assertions that the reguested assistance would be beneficial were not sufficiently particularized.\n2. Criminal Law \u2019\u00a7 161.2\u2014 assignment of error not pertinent to. argument ^abandonment\nWhere an assignment of error set forth in defendant\u2019s brief relating to a particular argument is not pertinent to the question argued, the assignment of error set out in the brief is deemed abandoned. Appellate Rule 28(b)(5).\n3. Criminal Law \u00a7 102.9\u2014 prosecutor\u2019s jury argument \u2014 reference to defendant as \u201canimalistic\u201d\nThe trial court did not abuse its discretion in failing to respond to defendant\u2019s objection when the prosecutor called defendant an \u201canimalistic human being\u201d during closing arguments in a statutory rape and first degree sexual offense case.\n4. Criminal Law \u00a7 89.3\u2014 corroboration \u2014 extrajudicial statement of another \u2014harmless error\nThe trial court erred in permitting a witness to corroborate her own testimony with an extrajudicial statement of another, but such error was not prejudicial.\n5. Criminal Law \u00a7 102.2\u2014 opening statement \u2014 trial court\u2019s interruption and classification as jury argument\nThe trial court did not abuse its discretion in interrupting defense counsel during his opening statement and telling him that he was \u201carguing to the jury\u201d when counsel stated that defendant \u201cis convinced that you will find that he\u2019s not guilty\u201d and again when counsel stated that the evidence will show \u201cone thing about which there is no disagreement.\u201d However, the trial court did abuse its discretion in interrupting counsel and classifying as argument his statement asking the jury to consider each piece of evidence carefully, but such error was not prejudicial. N.C.G.S. \u00a7 15A-1221(a)(4) (1988); Rule 9, General Rules of Procedure for Superior and District Courts.\n6. Criminal Law \u00a7 102.5\u2014 question about \u201crolling\u201d cigarette-absence of prejudice\nThe prosecutor\u2019s question to a witness as to whether defendant \u201crolled\u201d a cigarette was not prejudicial, even if it implied the use of an illegal substance, where defendant admitted at trial that he smoked marijuana, took Valium .and drank heavily on the day in question.\n7. Criminal Law \u00a7 102.5\u2014 improper question by prosecutor \u2014 absence of prejudice\nAssuming the prosecutor\u2019s question to a witness, \u201cYou didn\u2019t see another diaper in the room anywhere?\u201d erroneously permitted the prosecutor in essence to testify about items in the room, the court\u2019s allowance of such question was not prejudicial to defendant.\n8. Criminal Law \u00a7 86.1\u2014 credibility of defendant \u2014 events day before crime\nThe State\u2019s questioning of witnesses about events which occurred the day before the crimes for which defendant was on trial was properly permitted for consideration by the jury on the issue of defendant\u2019s credibility.\n9. Constitutional Law \u00a7 81 \u2014 consecutive life sentences \u2014 no cruel and unusual punishment\nConsecutive life sentences imposed on defendant for first degree rape and first degree sexual offense were not grossly disproportionate because the crimes were committed within moments of each other and thus did not constitute cruel and unusual punishment.\nJudge PHILLIPS concurs in the result.\nAPPEAL by defendant from Wood (William ZJ, Judge. Judgment entered 15 January 1988 in Superior Court, SURRY County. Heard in the Court of Appeals 7 December 1988.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Clarence J. DelForge, III, for the State.\nMills & Rives, by Hugh C. Mills, for defendant-appellant." }, "file_name": "0380-01", "first_page_order": 410, "last_page_order": 423 }