{ "id": 8573622, "name": "STATE OF NORTH CAROLINA v. ROBERT LEE POWELL", "name_abbreviation": "State v. Powell", "decision_date": "1982-10-05", "docket_number": "No. 174A81", "first_page": "718", "last_page": "724", "citations": [ { "type": "official", "cite": "306 N.C. 718" } ], "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": "233 S.E. 2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570059 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0445-01" ] }, { "cite": "277 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "398" } ], "opinion_index": 0 }, { "cite": "303 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571552 ], "year": 1981, "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0112-01" ] }, { "cite": "283 S.E. 2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "724-25" }, { "page": "725" } ], "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] }, { "cite": "287 S.E. 2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "829" } ], "opinion_index": 0 }, { "cite": "305 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567535 ], "year": 1982, "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0274-01" ] }, { "cite": "268 S.E. 2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "809" } ], "opinion_index": 0 }, { "cite": "300 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564130 ], "year": 1980, "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0594-01" ] }, { "cite": "251 S.E. 2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567620 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0454-01" ] } ], "analysis": { "cardinality": 639, "char_count": 11708, "ocr_confidence": 0.804, "pagerank": { "raw": 1.358487284562938e-07, "percentile": 0.6350040098862907 }, "sha256": "558e7994f9392ddbbb057fb8efc7cc8ca00e32102843fac0a5b813ed301405ce", "simhash": "1:c703e01876ba815e", "word_count": 1989 }, "last_updated": "2023-07-14T20:30:26.892112+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT LEE POWELL" ], "opinions": [ { "text": "MEYER, Justice.\nDefendant was accused of raping Cheryl Lee on 30 March 1981. Ms. Lee testified that she was employed as the manager of the Hunting Valley apartment complex in Guilford County. She arrived at her office in the model apartment at 10:00 a.m. The defendant arrived as a visitor at 11:30 a.m. They had a brief conversation concerning the availability of an apartment, and toured the model apartment, including the upstairs bedrooms. Defendant followed Ms. Lee downstairs and as she approached her office, he grabbed her from behind. Putting a knife to her throat, the defendant told Ms. Lee to be quiet, stated that he wouldn\u2019t hurt her if she did what he said, and ordered her to an upstairs bedroom. Ms. Lee, in an effort to dissuade defendant, informed him that she was pregnant. Once upstairs, the defendant ordered her to remove her clothes and, against her will, had sexual intercourse with her. He left immediately, driving a light blue Pinto station wagon.\nOther evidence against the defendant consisted of the following:\n1. A maintenance man noticed a \u201cbaby blue\u201d Pinto station wagon parked in front of the apartment complex on the morning of 30 March. Defendant admitted that he was driving a light blue Pinto station wagon belonging to the Greensboro Daily News, for which he worked, on 30 March 1981, and that he took this car out at approximately 10:30 a.m.\n2. Defendant\u2019s girlfriend, Mary Mims, identified a red sweater as belonging to the defendant. Ms. Lee identified the same sweater as the one defendant was wearing when he entered the model apartment on the morning of 30 March.\n3. Ms. Lee identified the defendant from a photographic line-up, and identified him at trial as her assailant.\n4. An analysis of a semen sample taken from Ms. Lee\u2019s underpants matched defendant\u2019s blood grouping.\n5. Saliva samples taken from a cigarette which defendant allegedly left in the kitchen sink of the model apartment matched defendant\u2019s blood grouping. The cigarette butt was a Salem Ultra Light brand. Defendant smoked Salem Ultra Light cigarettes.\nDefendant took the stand on his own behalf and denied ever having intercourse with Ms. Lee. He did not state where he was or what he was doing on the morning of 30 March.\nDefendant assigns as error the admission of certain testimony by Jed Taub, an SBI agent found by the court to be an expert in the field of forensic serology. Taub testified that after examining the cigarette butt which was found in the sink of the model apartment and noticing a white cover bearing two bands and the figure of a small green pine tree, he telephoned the R. J. Reynolds Company, which produces Salem Ultra Light cigarettes, to inquire about which brand bore the figure of a small green pine tree. Over defendant\u2019s objection, he testified that \u201cthey told me that it is a registered trademark for their products.\u201d He then compared the figure on the cigarette butt taken from the crime scene to the figure on a Salem Ultra Light and they matched. The defendant contends that the agent\u2019s testimony as to what \u201cthey\u201d told him on the phone is inadmissible hearsay.\nThe State puts forth the argument that Special Agent Taub was testifying as an expert and that personal knowledge of an expert is not limited to knowledge derived solely from matters personally observed, but also includes inherently reliable information provided by others. State v. Wade, 296 N.C. 454, 251 S.E. 2d 407 (1979). While this is an accurate statement of the law, it is inap-posite to these facts. Special Agent Taub\u2019s expertise was in the field of forensic serology, not in the field of trademarks used to identify cigarette brands.\nSince no violation of rights under the United States Constitution is alleged here, the test of whether the error is \u201cprejudicial,\u201d ie. reversible error, is set forth very specifically in G.S. \u00a7 15A-1443(a) as follows:\n(a) A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\nIn discussing the issue of whether error constitutes prejudice to a defendant Justice Exum in State v. Easterling correctly stated the test:\nSuch prejudice will normally be deemed to be present, in cases relating to rights arising other than under the Federal Constitution, only \u201cwhen there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial . . . .\u201d G.S. 15A-1443(a). Furthermore, the burden of showing that such a possibility exists rests upon the defendant.\n300 N.C. 594, 609, 268 S.E. 2d 800, 809 (1980). See State v. Jordan, 305 N.C. 274, 277, 287 S.E. 2d 827, 829 (1982).\nAssuming arguendo that the testimony complained of was inadmissible hearsay, given the overwhelming evidence pointing to defendant\u2019s guilt, he has failed to show that there is a reasonable possibility that had the error not occurred the result would have been different and therefore has not shown that he was prejudiced by the admission of this one statement.\nDefendant next assigns as error the trial court\u2019s denial of his motion for dismissal at the conclusion of the State\u2019s evidence and at the conclusion of all the evidence. The thrust of defendant\u2019s argument is that there was no testimony at trial that defendant \u201cemployed\u201d or \u201cdisplayed\u201d a deadly or dangerous weapon in order to effectuate the rape. Ms. Lee testified on cross-examination that after leaving the kitchen, she did not see the knife and did not know what had happened to it.\nOur Court has recently addressed this question in State v. Sturdivant, 304 N.C. 293, 283 S.E. 2d 719 (1981). In Sturdivant, this Court first pointed out that prior to the enactment of G.S. \u00a7 14-27.2, it was necessary for the State to show specifically that the weapon was used to overcome the victim\u2019s resistance or to procure her submission. The current statute, however, simply necessitates a showing that a dangerous or deadly weapon was employed or displayed in the course of a rape. 304 N.C. at 299, 283 S.E. 2d at 724-25. The Court went on to note that:\n1. We perceive that the Legislature intended to make implicit in G.S. 14-27.2 a matter of ordinary common sense: that the use of a deadly weapon, in any manner, in the course of a rape offense, always has some tendency to assist, if not entirely enable, the perpetrator to accomplish his evil design upon the victim, who is usually unarmed.\nId. at 299, 283 S.E. 2d at 725.\nWe find that the facts of this case fall squarely within the spirit and intent of G.S. \u00a7 14-27.2(a)(2)(a) which provides as follows:\n(a) A person is guilty of rape in the first degree if the person engages in vaginal intercourse:\n(2) With another person by force and against the will of the other person, and:\na. Employs or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon;\nMs. Lee weighed 98 pounds. She was four months pregnant. Defendant was described as a 5\u201911\u201d black male weighing 170 to 180 pounds. Brandishing a five to six inch knife blade held to her throat, defendant warned Ms. Lee not to resist. Shortly thereafter, in an upstairs bedroom and without her consent, she was forced to submit to the sexual act. Under these circumstances, we hold that the State presented sufficient evidence that a dangerous or deadly weapon was employed in a manner consistent with that contemplated by G.S. \u00a7 14-27.2 to accomplish the offense.\nDefendant excepts to the following portion of the trial court\u2019s charge to the jury:\nNow, the Court instructs you: That when you come to consider the testimony of the various witnesses, it\u2019s your duty, members of the jury, to carefully consider and scrutinize the testimony of the Defendant, and of those who are closely related to him, taking into consideration the interests that they have in the outcome of this trial.\nThis, he argues, constituted an expression of opinion on the part of the court \u201csince the court made no similar charge concerning the witnesses for the state and since the court had earlier charged that it was for the members of the jury to consider any interest, bias, or prejudice that any of the witnesses might have.\u201d This same argument, put forth in State v. Bracey, 303 N.C. 112, 124, 277 S.E. 2d 390, 398 (1981), was described as \u201cmeritless.\u201d The record before us does not disclose, nor does defendant suggest, that he requested a charge on interested witnesses who testified for the State. State v. Eakins, 292 N.C. 445, 233 S.E. 2d 387 (1977). In fact, our reading of Eakins leads us to the conclusion that defendant defeats his argument by pointing out that the trial court had previously charged the jury on the possible interest, bias, or prejudice of all the witnesses. We find no violation of G.S. \u00a7 15A-1222 in this portion of the jury charge.\nDefendant had a fair trial free of prejudicial error.\nNo error.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Blackwell M. Brogden, Jr., Assistant Attorney General, for the State.", "Wallace C. Harrelson, Public Defender, and Joseph E. Bruner, Assistant Public Defender, for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT LEE POWELL\nNo. 174A81\n(Filed 5 October 1982)\n1. Criminal Law \u00a7 73.1\u2014 hearsay statement by expert \u2014not prejudicial\nThe court erred in allowing an expert in the field of forensic serology to testify that someone at R. J. Reynolds Company told him that a figure of a small pine tree found on a cigarette butt found at the crime scene was \u201ca registered trademark for their products.\u201d However, given the overwhelming evidence pointing to defendant\u2019s guilt, defendant failed to show that there was a reasonable possibility that had the error not occurred the result would have been different and therefore that he was prejudiced by the admission of this one statement. G.S. 15A-1443(a).\n2. Rape and Allied Offenses \u00a7 1\u2014 first degree rape \u2014 employment of deadly weapon\nG.S. \u00a7 14-27.2 simply necessitates a showing that a dangerous or deadly weapon was employed or displayed in the course of a rape. Therefore, where the prosecuting witness weighed 98 pounds, was four months pregnant, defendant weighed 170 to 180 pounds, brandished a five to six inch knife blade to her throat, warned the prosecuting witness not to resist, and shortly thereafter forced her to submit to a sexual act, the evidence was sufficient to find that a dangerous or deadly weapon was employed in a manner consistent with that contemplated by G.S. \u00a7 14-27.2.\n3. Criminal Law \u00a7 117.2\u2014 possible bias of witness \u2014 instruction concerning proper\nThere was no violation of G.S. \u00a7 15A-1222 in the trial court\u2019s charge to the jury on the possible interest, bias, or prejudice of all the witnesses.\nAppeal by defendant from a judgment entered by Seay, J. at the 26 August 1981 Criminal Session of the Superior Court, Guilford County, High Point Division.\nDefendant was tried upon a bill of indictment charging him with the first degree rape of Cheryl Lee. He was found guilty and sentenced to life imprisonment. Pursuant to G.S. \u00a7 7A-27(a), defendant appeals his conviction to this Court, presenting for our consideration three assignments of error \u2014 the admission of hearsay testimony, insufficiency of the evidence respecting the \u201cdangerous weapon\u201d element of the offense, and what he deems to be an expression of opinion by the court in its charge to the jury. Based on the record before us, we find no error sufficient to warrant the granting of a new trial and therefore affirm defendant\u2019s conviction.\nRufus L. Edmisten, Attorney General, by Blackwell M. Brogden, Jr., Assistant Attorney General, for the State.\nWallace C. Harrelson, Public Defender, and Joseph E. Bruner, Assistant Public Defender, for Defendant-Appellant." }, "file_name": "0718-01", "first_page_order": 746, "last_page_order": 752 }