{ "id": 8573601, "name": "STATE OF NORTH CAROLINA v. STEPHEN CARL SILHAN", "name_abbreviation": "State v. Silhan", "decision_date": "1979-07-30", "docket_number": "No. 82", "first_page": "660", "last_page": "674", "citations": [ { "type": "official", "cite": "297 N.C. 660" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "247 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566647 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0636-01" ] }, { "cite": "243 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "351" } ], "opinion_index": 0 }, { "cite": "294 N.C. 503", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574036 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0503-01" ] }, { "cite": "237 S.E. 2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "915" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548189 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0233-01" ] }, { "cite": "414 U.S. 1160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11856320, 11856386, 11856584, 11856425, 11856267, 11855982, 11856527, 11856081, 11856148, 11856215, 11856475, 11856028, 11856637 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/414/1160-07", "/us/414/1160-08", "/us/414/1160-12", "/us/414/1160-09", "/us/414/1160-06", "/us/414/1160-01", "/us/414/1160-11", "/us/414/1160-03", "/us/414/1160-04", "/us/414/1160-05", "/us/414/1160-10", "/us/414/1160-02", "/us/414/1160-13" ] }, { "cite": "185 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "280 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569839 ], "year": 1971, "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0074-01" ] }, { "cite": "194 S.E. 2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "283 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557615 ], "year": 1973, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0033-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 3, "year": 1963, "pin_cites": [ { "page": "87" }, { "page": "218" }, { "page": "1196-97" } ], "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "184 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571231 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0573-01" ] }, { "cite": "406 U.S. 682", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173132 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/406/0682-01" ] }, { "cite": "235 S.E. 2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "293 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561668 ], "year": 1977, "pin_cites": [ { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0132-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "196 S.E. 2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559216 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0462-01" ] }, { "cite": "233 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "525" } ], "opinion_index": 0 }, { "cite": "292 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569735 ], "year": 1977, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0344-01" ] }, { "cite": "164 S.E. 2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561062 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0556-01" ] }, { "cite": "229 S.E. 2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557891 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0264-01" ] }, { "cite": "185 S.E. 2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "126" } ], "opinion_index": 0 }, { "cite": "280 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569736 ], "year": 1971, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0042-01" ] } ], "analysis": { "cardinality": 1274, "char_count": 32311, "ocr_confidence": 0.843, "pagerank": { "raw": 1.26715076671406e-07, "percentile": 0.6138340497843696 }, "sha256": "3e6463f4c3f7bf21e0c24c81faefe409398e3a572aacc2b1a6c2a857f645fca4", "simhash": "1:8336e23a56a18cdf", "word_count": 5498 }, "last_updated": "2023-07-14T15:00:46.792762+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices BRITT and BROCK took no part in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. STEPHEN CARL SILHAN" ], "opinions": [ { "text": "SHARP, Chief Justice.\nDefendant\u2019s first assignment of error is to the trial judge\u2019s denial of his motion, made under G.S. 15A-958, for a special venire from another county. In his motion defendant asserted that because of radio, television and newspaper publicity with reference to \u201chis arrest for subsequent offenses in Cumberland County, the general feeling in Chatham County is that he is guilty\u201d of the crimes for which he has been indicted. Upon the voir dire, in support of his motion defendant called the following witnesses:\n(1) A high school junior who, in consequence of conversations with his family and friends, testified he did not believe defendant could have a fair trial in Chatham County but thought he himself \u201ccould sit on the jury and decide guilt or innocence based on the evidence presented at trial\u201d;\n(2-3) Two employees of the Pittsboro Herald who, from what they had heard, thought defendant was guilty as charged and believed he could not get a fair trial in Chatham. One, who had discussed the case with her friends but had not heard a discussion \u201con the street,\u201d said she did not know why she thought so, but she \u201cjust didn\u2019t think\u201d defendant could get a fair trial in Chatham. The other, a typesetter, said \u201c[T]he offense is emotionally charged ... I have a feeling about things happening close to home, things happening in Chatham County.\u201d\n(4) A photographer for WRAL Television, a station which covers 19 counties, including Chatham, said that at the time of defendant\u2019s arrest in Cumberland he took two short films of about 20 or 30 seconds. One film showed him entering the law enforcement center; the other, the courthouse. The purpose of the films was \u201cjust to show him [defendant].\u201d The photographer testified that in his opinion \u201cthe coverage of Silhan was within the normal limits of news reporting . . . [it] just recited that he was charged with certain crimes and his name and when he was arrested. Nothing inflammatory about it. There were no interviews of sheriffs or attempted interview of Silhan, or attorneys.\u201d\nThe State\u2019s rebuttal evidence consisted of the testimony of three members of the Chatham County Sheriff\u2019s Department. In brief summary, they testified that in the course of their duties they went about the county among its citizens; that outside the sheriff\u2019s office they encountered very little discussion of the case. One had heard none at all. One said, \u201cThere just hasn\u2019t been much discussion of this case with me. I haven\u2019t been asked directly about the case.\u201d The third first learned that Silhan was charged with murder and rape in Cumberland when he \u201cwas called to go to Fayetteville and pick him up.\u201d The consensus was, \u201cSilhan can receive a trial in Chatham County by a fair and impartial jury.\u201d\nIt is well settled in this jurisdiction that \u201c[a] motion for change of venue or a special venire is addressed to the sound discretion of the trial judge, and an abuse of discretion must be shown before there is any error.\u201d State v. Blackmon, 280 N.C. 42, 46, 185 S.E. 2d 123, 126 (1971). Accord, State v. Boykin, 291 N.C. 264, 229 S.E. 2d 914 (1976); State v. Ray, 274 N.C. 556, 164 S.E. 2d 457 (1968). The evidence in this case falls far short of establishing an abuse of discretion. Moreover, the record fails to show that any prospective juror had read any newspaper account, or seen or heard any other news releases pertaining to the case, or had been in any manner prejudiced against defendant. Our statement in State v. Dollar, 292 N.C. 344, 351, 233 S.E. 2d 521, 525 (1977), is applicable here.\n\u201cNothing in the present record indicates an abuse of discretion in [the court\u2019s] ruling. The record does not show the defendant\u2019s examination of prospective jurors nor does it show that he exhausted the peremptory challenges allowed him by law. Apparently, jurors were found who were not aware of, or were not affected by, the publicity of which the defendant complains and nothing in the record indicates that, prior to verdict, he was not content with the twelve jurors who found him guilty.\u201d Accord, State v. Mitchell, 283 N.C. 462, 196 S.E. 2d 736 (1973). Assignment No. 1 is overruled.\nDefendant\u2019s second assignment of error is to the trial judge\u2019s refusal to suppress the Johnsons\u2019 in-court and out-of-court identifications of defendant. His primary objection to the identification procedures is that he did not have counsel present at the time the Johnsons identified him in the lineup. He also contends that the lineup was so \u201cimpermissibly suggestive\u201d that it tainted the Johnsons\u2019 subsequent in-court identification. These contentions do not withstand scrutiny.\nAt the voir dire following defendant\u2019s motion to suppress, Detective Larry Hipp testified in brief summary as follows:\nOn 11 May 1975, approximately eight months after the incident at Buckhorn Dam, Detective Hipp stopped defendant, who was driving his van on Highway No. 87. Hipp requested defendant to accompany him to the Sanford Police Station. Defendant agreed to go and Hipp rode with him in the van. They arrived at the police department about 5:30 p.m. Defendant was then advised that he was a suspect in a crime and asked to be in a lineup. At that time he was fully advised of his constitutional rights as delineated in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), and thereafter he signed the waiver of rights form. Hipp said, \u201cWe advised him he didn\u2019t have to be in a lineup if he didn\u2019t want to be, but we would like for him to be. ... It was decided at this time that he would go home, change clothes, and return after he got a sandwich. I drove to his home behind him . . . [but] did not stay at his home while he changed clothes or ate.\u201d The police suggested that defendant change his apparel because he had been in \u201carmy clothes\u201d and they knew they \u201cwouldn\u2019t be able to find people in town dressed the same way he was or near the same way to put in the lineup.\u201d\nWhen defendant voluntarily returned to the police station about 7:00 or 7:30 p.m. he was again advised, this time orally, \u201cthat he did not have to be in the lineup and that he was entitled to have his attorney present.\u201d Defendant declared that \u201che didn\u2019t need one at this time.\u201d The lineup, conducted about 8:30 p.m., consisted of six white males, similar to defendant in height, weight and coloring. Because defendant wore dark glassses, the officers procured dark glasses for all the other participants. To show the lineup\u2019s character, Detective Hipp identified two photographs of it which were introduced in evidence.\nThe Johnsons, who had been requested to come to Sanford \u201cto see if the person who committed the crime against them was in the lineup,\u201d viewed the lineup separately. Johnny first viewed the six people in the lineup and identified defendant Silhan by number. Hipp neither approved nor disapproved his selection; nor did he tell Johnson the name of the man whom he had identified. Hipp \u201cthen took Johnny Johnson back and brought his wife down to view the lineup.\u201d She also identified Silhan by number. Thereafter, \u201cthe people in the lineup were shifted numerically and mixed up.\u201d Johnny was brought back, and this time each member of the lineup was instructed to step forward and say, \u201cbreak the gun down.\u201d When Silhan stepped forward and uttered that phrase, Johnson said, \u201cThat\u2019s definitely him, there\u2019s no doubt.\u201d Hipp brought Suzanne Johnson back and the whole procedure was repeated. When Silhan stepped forward and said, \u201cbreak the gun down,\u201d she started crying and said, \u201cThat\u2019s him.\u201d\nJohnny and Suzanne Johnson each testified that his identification of defendant at the lineup was based solely upon his observations during the kidnap and assault; that no officers had in any way influeced their identification of defendant at the lineup.\nDefendant\u2019s version of the events on the day of the lineup parallels Detective Hipp\u2019s statements with one exception. Defendant concedes that he signed the waiver of rights form shortly after he arrived at the police station; that when he left the police station and went home to change clothes and eat, he knew he had a choice of not going back. He denies, however, that anything was said to him about an attorney at the time of the lineup. Defendant was put under arrest after the lineup and he employed his own attorney that night.\nBased upon the foregoing evidence the trial judge found that defendant had voluntarily appeared in the lineup at a time when he was not in custody. Thus, even in the absence of a waiver, it was not required that defendant be furnished counsel at the lineup. A person\u2019s right to counsel 'at the time of a lineup confrontation depends upon whether the proceeding is still in the investigatory stage or has become a criminal prosecution. The right to counsel attaches only \u201cat or after the initiation of adversary judicial criminal proceedings \u2014 whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.\u201d State v. Finch, 293 N.C. 132, 140, 235 S.E. 2d 819, 824 (1977). Accord, Kirby v. Illinois, 406 U.S. 682, 32 L.Ed. 2d 411, 92 S.Ct. 1877 (1972). The judge further found (1) that the State had fully advised defendant of his rights under Miranda, that he had not been required to appear in the lineup, and that he had been informed of the right to have an attorney present and had waived that right, and (2) that the lineup was fair and reasonable with no police suggestiveness. The judge concluded that the Johnsons\u2019 identification of defendant was based soley upon their recollection from events of 25 September 1976, and that the State had shown \u201cby clear and convincing evidence that the defendant voluntarily, knowingly and intelligently waived the presence of an attorney at the lineup.\u201d The record evidence and the law amply support the court\u2019s findings. They are therefore binding on this Court. State v. Roseman, 279 N.C. 573, 184 S.E. 2d 289 (1971). Defendant\u2019s assignment No. 2 is overruled.\nAssignment of Error No. 3 addresses the trial judge\u2019s denial of defendant\u2019s motion for \u201cfavorable evidence.\u201d On 19 September 1977 defendant filed a motion requesting that the State provide him with copies of any and all evidence in its possession \u201cthat might tend to exculpate him in any way.\u201d The State responded that it had no such evidence. Following the voir dire on defendant\u2019s other pretrial motions, defendant narrowed his request by asking for the statements Mr. and Mrs. Johnson made to one of the deputies \u201cso that he could see if there is any exculpation.\u201d The judge denied the motion \u201con the grounds that it is a general or broadside motion and not a specific request for discovery.\u201d\nAlthough perhaps not entirely correct in his assessment of defendant\u2019s motion, the judge did not commit prejudicial error in denying it. Defendant was not entitled to this disclosure under either G.S. 15A-904 (1978) or the principle enunciated in Brady v. Maryland that \"the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.\u201d 373 U.S. 83, 87, 10 L.Ed. 2d 215, 218, 83 S.Ct. 1194, 1196-97 (1963). Under Brady the district attorney\u2019s conduct would constitute prejudicial error only if \u201cthere was (a) suppression by the prosecution after a request by the defense (b) of material evidence (c) favorable to the defense.\u201d State v. Gaines, 283 N.C. 33, 45, 194 S.E. 2d 839, 847 (1973).\nDefense counsel asserts that defendant\u2019s motion for favorable evidence \u201cwent directly\u201d to the Johnsons\u2019 testimony at trial. He suggests that there were two discrepancies in the Johnsons\u2019 testimony at trial and the statements they made to Deputy Sheriff Shaner shortly after the incident at Buckhorn Dam. An examination of the record, however, makes it clear that each of the two items of \u201cfavorable evidence\u201d defendant had sought through discovery was thereafter brought out before the jury in the testimony of State\u2019s witness, Deputy Sheriff Whitt, and the cross-examination of Johnny Johnson himself.\nFirst, defendant contends that had Deputy Shaner\u2019s notes on the Johnsons\u2019 account of the events of 25 September 1976 (which she transcribed that same day) been made available they would have shown that Johnny had originally described their attacker\u2019s van as a Ford and not a Chevrolet, as he later testified. However, on cross-examination Johnny testified that when he made his statement to Mrs. Shaner he had indeed told her that defendant\u2019s van was a Ford, but after he had compared Ford and Chevrolet vans and noted the difference between them \u2014 particularly on the inside \u2014 he \u201cmade up his mind it was a Chevrolet van\u201d and so informed the officers.\nSecond, defendant asserts that, after telling Deputy Shaner they had seen \u201canother man at the river other than the defendant\u201d that day, Johnny testified on cross-examination that he didn\u2019t remember telling Mrs. Shaner that Mr. Silhan was talking to another guy; that he didn\u2019t see anybody before the incident besides Mr. Silhan, himself and his wife. Once again, defendant could not possibily have suffered any prejudice from the lack of Mrs. Shaner\u2019s notes. Deputy Sheriff Whitt, a witness for the State, testified on cross-examination as follows: \u201cOn September 25th I asked Mr. and Mrs. Johnson to tell me exactly what they could about the incident and Mrs. Shaner took notes. I recall that they said they did or thought they saw the subject talking to another guy \u2014 that was fishing. Mr. Johnson stated that a green army belt was used to tie his legs.\u201d\nDefendant\u2019s assignments 6 and 7 challenge the trial judge\u2019s denial of his \u201cmotion to dismiss at the close of the State\u2019s evidence and again at the close of all the evidence, in particular with respect to the charge of assault with intent to commit rape.\u201d Defendant contends that all the evidence tends to show that the assailant\u2019s only intent was to force Mrs. Johnson to perform oral sex on him and that he never intended to rape her.\nThe following statement of the law is clearly applicable to this case:\n\u201cTo convict a defendant on the charge of an assault with an intent to commit rape the State must prove not only an assault but that the defendant intended to gratify his passion on the person of the woman, at all events and notwithstanding any resistance on her part. It is not necessary that defendant retain that intent throughout the assault; if he, at any time during the assault, had an intent to gratify his passion upon the woman, notwithstanding any resistance on her part, the defendant would be guilty of the offense. \u2018Intent is an attitude or emotion of the mind and is seldom, if ever, susceptible of proof by direct evidence; it must ordinarily be proven by circumstantial evidence, i.e., by facts and circumstances from which it may be inferred.\u2019 ... To convict a defendant of an assault with intent to commit rape \u2018an actual physical attempt forcibly to have carnal knowledge need not be shown. (Citation omitted.)\u201d State v. Hudson, 280 N.C. 74, 77, 185 S.E. 2d 189, 191 (1971), cert. denied, 414 U.S. 1160 (1974).\nAlbeit the mental processes of the sexual assailant in this case are beyond comprehension, the inconsistency between his contentions here and his actions at the scene of his crimes is patent. After tying Mrs. Johnson\u2019s hands defendant removed all her clothing. Then when she told him \u201cto take out [her] tampax if he was going to do anything,\u201d he pulled it out and threw it out the back of the van. Such evidence clearly supports the inference that defendant\u2019s ultimate intention was not just to commit the crime against nature, but rape. The motions to nonsuit were properly overruled.\nIn his assignments Nos. 8, 9, and 10, defendant charges as error the failure of the trial judge to charge the jury that in order to constitute kidnapping under G.S. 14-39(a) (Cum. Supp. 1977) any unlawful confinement, restraint, or removal from one place to another must involve a substantial period or distance. These assignments require little discussion for they are based upon disapproved dictum in the opinion of the Court of Appeals in State v. Fulcher, 34 N.C. App. 233, 237 S.E. 2d 909 (1977), a case in which that court affirmed the defendant\u2019s conviction of two charges of crime against nature and kidnapping. Although the defendant Fulcher took no exceptions to the charge in his case, and the charge was not in the record, in its opinion the Court of Appeals reviewed the North Carolina Pattern Instruction on Kidnapping (Crim. 210.10, revised January 1976) and found them insufficient. It concluded that if the charge against the defendant is kidnapping by unlawful confinement or restraint, the trial judge in instructing the jury must define those terms as meaning confinement or restraint for a substantial period and not merely incidental to the commission of another crime; that if the charge is kidnapping by moving from one place to another, the judge must define the term as meaning movement from one place for substantial distance and not merely incidental to the commission of another crime. Id. at 241, 237 S.E. 2d at 915.\nUpon Fulcker\u2019s appeal this Court also affirmed his convictions, but disapproved the Court of Appeals\u2019 construction of G.S. 14-39(a) and its proposed instructions to juries summarized above. State v. Fulcher, 294 N.C. 503, 243 S.E. 2d 338 (1978). In a unanimous opinion written by Justice Lake, we held that in enacting G.S. 14-39(a) (effective 1 July 1975) the legislature intended to change the law which this Court had previously enunciated with reference to the requirements of restraint and asportation in kidnapping. \u201cIt follows,\u201d the Court said, \u201cthat the Court of Appeals erred in its holding that \u2018substantiality\u2019 in terms of distance or time is an essential of kidnapping and in its pronouncements that the trial judge must instruct the jury that \u2018confinement\u2019 or \u2018restraint,\u2019 as used in this statute, means confinement or restraint \u2018for a substantial period\u2019 and that \u2018removal\u2019 as used in this statute, requires a movement \u2018for a substantial distance.\u2019 We, therefore, cannot approve the instructions to juries proposed by the Court of Appeals upon these points. Id. at 522-23, 243 S.E. 2d at 351.\nDefendant\u2019s conduct, as detailed by Johnny and Suzanne Johnson, clearly constituted kidnapping under G.S. 14-39(a) and the court\u2019s charge correctly applied the law to the evidence in this case. Assignments 8, 9, and 10 are therefore without merit. However, before leaving these assignments, we note that we have considered them despite counsel\u2019s failure to comply with App. R. 10, particularly \u00a7 (b)(2), and warn that this Court cannot be counted on to ignore routinely such a disregard of its rules.\nDefendant\u2019s final contention is that G.S. 14-39 is \u201cunconstitutional and if not, [then] under the facts of this case . . . the kidnappings [were] merely incidental to the other felonies of crime against nature and assault with intent to commit rape.\u201d This same contention was considered and overruled in State v. Fulcher, supra. In that case we held that prima facie the statute violated no provision of the State or Federal Constitutions. We further held that the restraint, confinement and asportation of a rape victim may constitute kidnapping if it is a separate, complete act, independent of and apart from the rape. In this case it is clear that the confinement, restraint and asportation of both Mr. and Mrs. Johnson were separate offenses from the sexual assault of Mrs. Johnson. Assignment No. 11 is overruled.\nIn defendant\u2019s trial we find\nNo error.\nJustices BRITT and BROCK took no part in the consideration or decision of this case.\n. The record in this case does not reveal the time of defendant\u2019s arrest or the nature of the crimes with which he was charged in Cumberland County. Our records, however, reveal that he was arrested m Cumberland on 20 September 1977 upon charges of first-degree murder, first-degree rape, and assault with a deadly weapon with intent to kill inflicting serious injury. State v. Silhan, 295 N.C. 636, 247 S.E. 2d 902 (1978).", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, and Thomas B. Wood, Assistant Attorney General, for the State.", "Jimmy L. Love for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STEPHEN CARL SILHAN\nNo. 82\n(Filed 30 July 1979)\n1. Jury \u00a7 2.1\u2014 denial of special venire from another county \u2014publicity of other offenses\nThe trial court in a prosecution for kidnapping, crime against nature, and assault with intent to commit rape did not abuse its discretion in the denial of defendant\u2019s motion for a special venire from another county because of alleged radio, television and newspaper publicity in the county of trial concerning defendant\u2019s arrest for subsequent offenses in another county.\n2. Criminal Law \u00a7 66.5\u2014 lineup \u2014 no right to counsel\nDefendant was not entitled to be furnished counsel at a lineup where the court found upon supporting evidence that he voluntarily appeared in the lineup at a time when he was not in custody, since a person\u2019s right to counsel at the time of a lineup confrontation attaches only at or after the initiation of adversary judicial criminal proceedings.\n3. Criminal Law \u00a7 66.5\u2014 lineup \u2014waiver of counsel \u2014absence of suggestiveness \u2014 independence of in-court identification\nThe trial court properly refused to suppress lineup and in-court identifications of defendant because he was not represented by counsel at the lineup where the court found upon supporting evidence (1) that the State had fully advised defendant of his rights under Miranda, that he was not required to appear in the lineup, and that he had the right to have an attorney present at the lineup; (2) that the State showed by clear and convincing evidence that defendant voluntarily waived his right to counsel; (3) that the lineup was fair and reasonable with no police suggestiveness; and (4) that the in-court identifications were based solely upon the witnesses\u2019 recollections of the events in question.\n4. Constitutional Law \u00a7 30; Bills of Discovery \u00a7 6\u2014 denial of motion for \u201cfavorable evidence\u201d\nThe trial court did not err in the denial of defendant\u2019s motion for \u201cfavorable evidence\u201d in the form of statements made by the victims to a deputy sheriff so that he could see if there was any exculpation since defendant was not entitled to such disclosure under either G.S. 15A-904 or the principle enunciated in Brady v. Maryland that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, and since the \u201cfavorable evidence\u201d defendant sought through discovery was brought out before the jury in testimony of the State\u2019s witnesses.\n5. Rape \u00a7 18.2\u2014 assault with intent to rape \u2014 sufficiency of evidence\nIn this prosecution for assault with intent to commit rape, the State\u2019s evidence was sufficient to support an inference that defendant intended to rape the victim as well as to commit the crime against nature where it tended to show that, after tying the victim\u2019s hands, defendant removed all her clothing; when she told him \u201cto take out [her] tampax if he was going to do anything,\u201d he pulled it out and threw it away; and defendant then forced the victim to perform oral sex on him.\n6. Kidnapping \u00a7 1.3\u2014 instructions \u2014substantial time period or distance not required\nIt would have been improper for the court to have charged that in order to constitute kidnapping under G.S. 14-39(a) any unlawful confinement, restraint, or removal from one place to another must involve a substantial period or distance.\n7. Kidnapping \u00a7 1\u2014 constitutionality of kidnapping statute \u2014 conviction of kidnapping and rape\nThe kidnapping statute, G.S. 14-39, prima facie violates no provision of the State or Federal Constitutions. Furthermore, the restraint, confinement and asportation of a rape victim may constitute kidnapping if it is a separate, complete act, independent of and apart from the rape.\nJustices Britt and Brock took no part in the consideration or decision of this case.\nAPPEAL by defendant under G.S. 7A-27(a) from the judgment imposed by Long, J., at the 10 October 1977 Session of CHATHAM County Superior Court. This case was docketed and argued as Case No. 93 in the Spring Term, 1978.\nIn four separate bills of indictment defendant was charged with (1) the kidnapping of Johnny Marvin Johnson, (2) the kidnapping of Suzanne Daniel Johnson, (3) crime against nature performed upon Suzanne Daniel Johnson and (4) assault with intent to rape Suzanne Daniel Johnson. The jury found defendant guilty of all four offenses. Evidence for the State tended to show:\nAbout noon on Saturday, 25 September 1976, Johnny Marvin Johnson and his wife Suzanne Daniel Johnson, both over 16 years old, were fishing in the Buckhorn Dam area of Chatham County. The Dam area was almost deserted and, except for some children fishing above the dam, they saw no other person except defendant. Johnny testified, \u201cI first observed another person when we were fishing below the dam. He was walking from the dam toward us and would fish every now and then. That person was Mr. Silhan. He had on blue jeans, a shirt, a camouflage coat and black boots. He was wearing dark glasses.\u201d Later that afternoon the Johnsons having had little success fishing, decided to return home. On the way to their car, which was in a parking area above the river, they passed the person they had seen fishing. Johnny was walking ahead of Suzanne when he \u201cheard something that sounded like a person running\u201d behind him. He turned around and saw that this man had grabbed Suzanne \u201caround the neck and had a gun pointed to her head.\u201d\nSuzanne described the assault as follows: \u201cThe man told Johnny to break open his gun and take the shells out and lay it on the ground. Johnny was carrying a tackle box and shotgun at the time. The man then told Johnny to go to the blue van which was parked in the parking area with the cars. When we got to the van he told Johnny to lay down flat on his stomach on the floor of the van. He then gave me some long rope or nylon cord and told me to tie Johnny\u2019s hands. After I tied Johnny, the man then tied my hands, got into the driver\u2019s seat and drove a short distance away.\n\u201cAfter the van came to a stop, he took off his belt and wrapped it around Johnny\u2019s legs. He then blindfolded Johnny and put something in his mouth. The man then covered Johnny with some green clothes that were laying in the van. Then he came over to me and pulled my T-shirt over my head. He removed my britches, shoes, socks and underwear. After he pulled my bra down I told him to take out my tampax if he was going to do anything. He pulled it out and threw it. out the back of the van.\n\u201cThe man next pulled down his britches and took out his private parts and put it in my mouth. He told me that if I didn\u2019t swallow it he would kill us. When he reached a climax he untied my hands and told me to dress. He released us and told us to run toward the creek and left.\u201d After getting safely away from their assailant the Johnsons drove home and immediately reported the incident to the county sheriff.\nThe Johnsons described their assailant to the police and, in accordance with their description, an SBI agent made a composite picture of the man who had assaulted Suzanne and kidnapped them. They also provided a description of his van: blue with plaid seats, a bluish rug, a torn latch decal on the rear doors, and a North Carolina license plate with a military decal on the bumper. Later, when shown a photographic lineup which did not include a picture of defendant Silhan, the Johnsons did not identify any of the photographs as being of their assailant. However, at a lineup in Sanford on 4 May 1977, independently of each other, both Suzanne and Johnny Johnson identified defendant. They also made in-court identifications of defendant.\nTwo Wildlife Resources Commission enforcement officers who work at the Buckhorn Dam area testified that in May of 1976 they had seen a blue Chevrolet van with a Fort Bragg decal on the bumper parked in the area and that they had also seen defendant carrying a rifle and a side arm. The van these officers saw fitted the description provided by the Johnsons, and it was eventually traced to the defendant.\nDefendant was a soldier stationed at Fort Bragg, and he and his wife Connie Silhan lived in Sanford, North Carolina. Defendant offered the following evidence which tended to establish an alibi:\nOn the day of the assault and kidnapping he was not required to be at the base. At approximately 9:30 a.m. he and his friend Bobby Moore left his home and drove his blue van to the Economy T.V. and Appliance Company where defendant\u2019s wife worked. There he exchanged car keys with his wife and drove her Plymouth \u201cBaracuda\u201d back to their home. Defendant and Bobby Moore planned to sand Mrs. Silhan\u2019s automobile in preparation for a painting. When the compressor which powered the sander was found to be inadequate they went to Coggin\u2019s Heating and Air Conditioning business to use a larger compressor. They remained on the Coggin\u2019s premises from 11:00 or 11:30 a.m. until almost 5:00 p.m., when the two men returned to defendant\u2019s home. Defendant testified that he did not drive the van again that day after leaving it with his wife at work, nor did he drive the van to Buckhorn Dam at any time on 25 September 1976.\nOn cross-examination defendant admitted that prior to September 1976 he had driven his van to the Buckhorn Dam area, and that he always carried his guns. Notwithstanding, on redirect examination, defendant stated that on 25 September 1976 his pistol was not in his possession, but was at the home of his father-in-law. Defendant\u2019s mother-in-law, Mrs. Violet Mae Wicker, corroborated this assertion by testifying, \u201cThe gun was in my house in September of 1976.\u201d\nDefendant\u2019s wife also corroborated his story and testified that he and Bobby Moore arrived at her place of employment on 25 September 1976 at approximately 9:30 a.m. At that time defendant told her he was leaving the van with her so that he could sand her car. The van was parked on the corner outside and she could see it from where she stood at work. About noon that day Connie Silhan and a friend drove by Coggin\u2019s, where they saw defendant working on the car. When Connie returned to her work that afternoon the van had not been moved, and when she \u201cgot off work at approximately 3:15 to 3:30\u201d she drove the van \u201cstraight home.\u201d Defendant was not there, but he arrived around 4:30 or 4:45 p.m. and did not leave home again that day. Bobby Moore also remained at defendant\u2019s house watching television, eating \u201csome sandwiches, and drinking Pepsi, Coke and things like that\u201d until 10:30 or 11:00 p.m.\nBobby Moore testified that although he remembered helping defendant sand Mrs. Silhan\u2019s car, he could be no more specific about the date than to say it occurred in \u201cSeptember of \u201976.\u201d However, Clyde Moore, Bobby\u2019s father, testified that on 25 September 1976 he saw defendant and his son Bobby at Economy T.V. and Appliance. Clyde Moore was certain of the date because he was working \u201con an odd-type dryer\u201d that day and had checked his records to verify the date. He further testified that defendant did indeed leave the blue van with Mrs. Silhan at work and that no one could have moved the van prior to Mrs. Silhan\u2019s departure, because it was impossible to back out the van. \u201cShe was [only] able to drive it home that day by waiting until the man at the barber shop moved his car so she could pull out of the parking place.\u201d\nThe jury having found the defendant guilty as charged in each of the four indictments returned against him, the judge imposed the following sentences: For the kidnapping of Suzanne Johnson, imprisonment for life; for the kidnapping of Johnny Johnson, imprisonment for not less than 20 nor more than 25 years to commence at the expiration of the life sentence; for crime against nature performed upon Suzanne Johnson, 10 years\u2019 imprisonment to run concurrently with the kidnapping sentence; and, for the assault upon Suzanne Johnson with intent to commit rape, 10 years\u2019 imprisonment also to run concurrently.\nRufus L. Edmisten, Attorney General, and Thomas B. Wood, Assistant Attorney General, for the State.\nJimmy L. Love for defendant." }, "file_name": "0660-01", "first_page_order": 692, "last_page_order": 706 }