{ "id": 4744421, "name": "STATE OF NORTH CAROLINA v. JOHN LEE CLEMMONS", "name_abbreviation": "State v. Clemmons", "decision_date": "1987-03-04", "docket_number": "No. 159A86", "first_page": "192", "last_page": "201", "citations": [ { "type": "official", "cite": "319 N.C. 192" } ], "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": "283 S.E. 2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "726" } ], "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "year": 1981, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] }, { "cite": "340 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "316 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694881 ], "year": 1986, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0111-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "378" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "196 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "229" } ], "opinion_index": 0 }, { "cite": "283 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558806 ], "year": 1973, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0344-01" ] }, { "cite": "340 S.E. 2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "48" } ], "opinion_index": 0 }, { "cite": "315 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717786 ], "year": 1986, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0649-01" ] }, { "cite": "340 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "90", "parenthetical": "\"evidence routinely disapproved as irrelevant to the question of a witness' general veracity (credibility) includes specific instances of conduct relating to 'sexual relationships or proclivities . . . .' \"" } ], "opinion_index": 0 }, { "cite": "315 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714364 ], "year": 1986, "pin_cites": [ { "page": "635", "parenthetical": "\"evidence routinely disapproved as irrelevant to the question of a witness' general veracity (credibility) includes specific instances of conduct relating to 'sexual relationships or proclivities . . . .' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0626-01" ] }, { "cite": "340 S.E. 2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "434-35" } ], "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "year": 1986, "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "342 S.E. 2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "513", "parenthetical": "\"This Court has been quite 'liberal in admitting evidence of similar sex crimes' under the common plan or scheme exception.\"" }, { "page": "514" } ], "opinion_index": 0 }, { "cite": "316 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702203 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "505", "parenthetical": "\"This Court has been quite 'liberal in admitting evidence of similar sex crimes' under the common plan or scheme exception.\"" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0497-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "366-68" } ], "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "pin_cites": [ { "page": "174-76" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] } ], "analysis": { "cardinality": 837, "char_count": 19918, "ocr_confidence": 0.828, "pagerank": { "raw": 7.859516966280836e-08, "percentile": 0.45895764579324894 }, "sha256": "d7311d9727f8a142654142f9de5c4ad2889409d27b54bdfcbb5d388f6735aa81", "simhash": "1:de8fd16c353f8e78", "word_count": 3402 }, "last_updated": "2023-07-14T21:18:01.553874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOHN LEE CLEMMONS" ], "opinions": [ { "text": "WHICHARD, Justice.\nThe State\u2019s evidence, in pertinent part, showed the following:\nThe victim first saw defendant about two weeks before the incident alleged when the victim\u2019s son \u201cdarted out\u201d in front of a car driven by defendant. After defendant ascertained that the boy was not injured, he \u201cstarted asking [the victim] if [she] was married.\u201d She told him she was. Defendant then \u201cstarted asking if [the victim would] like to go out with him.\u201d The victim told defendant she was married and did not want to go out with him, but defendant nevertheless \u201cpursued the issue\u201d by asking her \u201cover again.\u201d She then grabbed her son\u2019s hand and went home.\nThe victim next saw defendant the following Wednesday. Her neighbor\u2019s child came to tell her that \u201cthere was a man out there interested in buying a car.\u201d The victim was attempting to sell her brother\u2019s car, so she went out to talk to the man. When she saw the man\u2019s car, she realized that he was the defendant. They talked about the car for another \u201ccouple of minutes,\u201d and defendant then asked \u201cabout coming over on Monday\u201d to discuss the car. She told him he would have to come when her husband was there, and defendant said \u201csomething like \u2018Why don\u2019t you let me come over?\u2019 \u201d She told him he would have to come when her husband was at home, and she then went inside because she \u201cdidn\u2019t feel comfortable.\u201d\nThe victim saw defendant again the following Monday standing on the porch at his place of employment. She had asked him his name and where he worked so her mother could talk to him further about the car. She showed her mother where defendant worked, and her mother later \u201cwent [by] to talk to him.\u201d\nThe victim next saw defendant on the occasion of the incident in question. She was at home with her two children around noon when she heard a knock at the door. When she asked who was there, a man answered that he \u201chad a package for Devlin Dorsey.\u201d The victim had a son named Devlin Oyer who frequently received packages from his father, and the difference in the surnames did not occur to her. She opened the door slightly, and defendant \u201cforced his way through.\u201d When she screamed, defendant grabbed her year-old daughter and told the victim that if she did not cooperate he would hurt the daughter. Defendant held a knife in his hand that \u201clooked like a switch blade.\u201d He took the daughter into a bedroom, where the victim\u2019s other child was, and shut the door. When he returned to the living room, the knife was still in his hand. He told the victim they \u201cwere going to have some fun.\u201d He then pushed her down onto an easy chair, and she \u201cslid down into a half-sitting half-lying position.\u201d\nDefendant thereupon crouched over the victim, \u201ctook [her] robe apart,\u201d and \u201ctook off [her] panties.\u201d He still had the knife in his hand. He told her \u201cit was going to be good\u201d and proceeded to have intercourse with her. The victim stated: \u201cHe penetrated, he went inside me.\u201d Defendant then arose to go to the bathroom with the knife still in his hand.\nWhen defendant returned, he told the victim \u201cnot to go to the police or ... he would harm [her] daughter.\u201d He then told her he would see her again, and he left.\nAfter defendant left, the victim called a friend and told her she had been raped. The friend called the police, and both the friend and the police came to the victim\u2019s home. The victim related the foregoing events to the police.\nTwo days later the victim was admitted to a hospital where she stayed for two weeks under the treatment of a psychiatrist. She was hospitalized because she \u201ccouldn\u2019t seem to handle things,\u201d \u201cfelt like [she] was going crazy,\u201d \u201cfelt like [she] was losing [her] mind.\u201d She was unable to take care of her children, her husband or herself.\nOn cross-examination the victim stated: \u201cI was scared. He had a knife and he was twice the size of me. I don\u2019t take chances with my children\u2019s lives.\u201d She responded in the negative when asked: \u201cDidn\u2019t you freely give this man sex?\u201d She further testified that she could see the knife in defendant\u2019s hand \u201cthe whole time he was there,\u201d and that defendant had his hand pressed against her shoulder during the sexual union.\nThe victim\u2019s friend testified, corroborating the victim\u2019s testimony that the victim had called her following the incident and said that she had been raped. When she arrived at the victim\u2019s home the police were already there. She described the scene at the home as follows: \u201c[T]he place was a wreck like there had been a struggle .... There was a lamp tipped over on the floor and things were thrown everywhere.\u201d\nThe victim\u2019s sister testified, corroborating the victim\u2019s testimony that defendant had been to the victim\u2019s home prior to the incident to talk about the car and had asked if he could \u201ccome over Monday . . . .\u201d The neighbor\u2019s child testified, also corroborating the victim\u2019s testimony about defendant\u2019s prior visit.\nA police officer testified that she saw the victim at the hospital on the date of the incident. She described the victim as \u201cobviously traumatized.\u201d She stated: \u201cShe was shaking, she had been crying, she was very upset, she appeared to be confused and very frightened.\u201d The victim gave the officer a statement on that occasion which corroborated the victim\u2019s testimony at trial.\nSoong Lee testified as \u201can expert medical doctor specializing in the field of psychiatry.\u201d He indicated that the victim had been brought to the emergency room on 25 June 1985, the day following the incident, because \u201cshe had passed out.\u201d He described her condition upon that admittance as follows: \u201cRecollection of that incident [ie., the alleged rape] [was] coming back to her mind over and over again and she was unable to function.\u201d\nDr. Lee subsequently admitted the victim to the hospital from 26 June through 11 July. His diagnosis was \u201cpost traumatic stress disorder.\u201d He again indicated that the victim was \u201chaving that recollection of the event coming back over and over again.\u201d The victim told him that she was \u201cunable to sleep, . . . frightened, . . . afraid that something was going to happen to her.\u201d She was \u201cre-experiencing what happened to her and . . . she was unable to function.\u201d She was withdrawn and uncommunicative.\nOn cross-examination defense counsel asked Dr. Lee if marital problems could cause post traumatic stress disorder. He responded: \u201cNo, it has to be more acute.\u201d\nDefendant testified in his own behalf. He admitted that he \u201cha[d] sex\u201d with the victim, but denied that he carried a knife or used force. He testified that the \u201csexual relationship [was] by consent\u201d and that he returned to the victim\u2019s house on 24 June because she \u201ctold [him] to come back then.\u201d According to defendant, the sexual union was \u201cboth our ideas.\u201d Defendant denied taking the victim\u2019s daughter to the bedroom and stated that both the victim\u2019s children were in the room with them when they \u201chad sex.\u201d\nFinally, a police officer testified as a witness for defendant. He stated that at some time in June 1985 he had seen the victim at defendant\u2019s service station.\nThe jury returned a verdict of guilty of rape in the first degree. Defendant appeals and presents two arguments.\nFirst, defendant contends the trial court erred in allowing the State to impeach his testimony with evidence of prior alleged sexual misconduct which had no bearing on his credibility. This assignment of error is based upon the following sequence of events at trial:\nThe State sought to present a female witness to testify that about a year prior to the incident here defendant came to her apartment, made advances toward her, threw her across the bed, got on top of her, and desisted only when she managed to kick a ringing phone off the hook. The prosecuting attorney represented to the court that this evidence was offered \u201cto show an incident which is similar in nature and indicates an intent and a course of conduct on the part of the defendant.\u201d See N.C.G.S. 8C-1, Rule 404(b) (1986); State v. McClain, 240 N.C. 171, 174-76, 81 S.E. 2d 364, 366-68 (1954). The court \u201cconclude[d] that the prejudicial effect of that testimony would outweigh any probative value,\u201d N.C.G.S. 8C-1, Rule 403 (1986), and therefore excluded it.\nSubsequently, however, the court allowed the State to cross examine defendant about the incident. The prosecuting attorney asked defendant: \u201cDidn\u2019t you go by there [ie., the female witness\u2019 apartment] to forcibly have sex with [her]?\u201d Over objection and a motion for mistrial, which were respectively overruled and denied, defendant responded: \u201cNo.\u201d He then testified that he went to the witness\u2019 apartment to \u201c[r]epair a window.\u201d The prosecuting attorney asked: \u201cWhat happened when you went in?\u201d Upon defendant\u2019s objection, the court then instructed the jury as follows:\n[T]his line of questioning is permitted only for the purpose of establishing, if it does, in fact, establish a prior motive or prior intent to commit a similar offense. It is not evidence of the defendant\u2019s guilt in this case and it shall not be taken by you as such evidence.\nAfter counsel approached the bench, the court indicated that it was going to excuse the jury \u201cto make some findings with regard to legal questions,\u201d but before excusing the jury it further instructed as follows:\n[T]he questions that [the prosecuting attorney] has asked the witness with regard to any prior act of misconduct with [the female witness] [are] not received for any other purpose other than attacking the credibility of this witness as a witness on his own behalf and it shall be considered by you only for that purpose if, in fact, . . . you find that it does establish some prior act of misconduct which will bear on the credibility of this witness ....\nAfter hearing arguments of defense counsel in the absence of the jury, the court agreed to sustain defendant\u2019s objection \u201cto the testimony of a prior act \u2014 of alleged prior act of misconduct . . . because the Court . . . found that the prejudicial effect of that testimony outweighed its probative force and effect and therefore, did not permit . . . the State on direct evidence ... to offer such evidence.\u201d The court then stated:\nHowever, when the defendant takes the stand and places his own credibility in question, then he subjects himself not only to questions about any prior convictions that he may have, but to cross examination as to any specific act of misconduct which the State in good faith may have information that he may be guilty of and it is ... on that basis . . . that the Court will permit the State to cross examine him as to a specific act of misconduct which the State in good faith has a predicate to base this question upon .... So the reason that the Court sent the jury out was so that the record would be clear as to what the Court\u2019s ruling was based upon.\nThe jury then returned and the following occurred:\nQ. [PROSECUTING ATTORNEY]: Mr. Clemmons, I believe you said that you did go to the apartment of [the female witness]?\nA. (Nods assent)\nQ. When you went to the apartment, did you or did you not throw [the witness] onto the bed and attempt to get on top of her and . . . attempt to have a sexual relationship with her at that time?\n[Defense Counsel]: Objection.\nTHE COURT: Overruled.\nA. No, I didn\u2019t.\nQ. What happened in the room?\n[Defense Counsel]: Objection.\nThe COURT: Sustained as to that.\nThe State argues that this evidence was admissible \u201cto show an incident similar to the one charged and . . . not too remote in time to establish defendant\u2019s intent, plan, motive and cause of conduct.\u201d N.C.G.S. 8C-1, Rule 404(b); see State v. Gordon, 316 N.C. 497, 505, 342 S.E. 2d 509, 513 (1986) (\u201cThis Court has been quite \u2018liberal in admitting evidence of similar sex crimes\u2019 under the common plan or scheme exception.\u201d). The trial court, however, expressly refused to admit the evidence for that purpose, both in the State\u2019s case-in-chief and on cross-examination of the defendant, on the ground that the prejudicial effect would outweigh any probative value. Exclusion on that basis was within the court\u2019s sound discretion. N.C.G.S. 8C-1, Rule 403; State v. Mason, 315 N.C. 724, 731, 340 S.E. 2d 430, 434-35 (1986).\nThe court proceeded, however, to admit the evidence on the express ground that it showed a specific act of misconduct which could be used to attack defendant\u2019s credibility when he testified in his own behalf. Specific instances of the conduct of Aa witness, for the purpose of attacking the witness\u2019 credibility, may be inquired into on cross-examination of the witness only if they are \u201cprobative of truthfulness or untruthfulness.\u201d N.C.G.S. 8C-1, Rule 608(b) (1986). This Court has stated that \u201cextrinsic evidence of sexual misconduct is not in any way probative of a witness\u2019 character for truthfulness or untruthfulness.\u201d State v. Gordon, 316 N.C. at 506, 342 S.E. 2d at 514. See also State v. Morgan, 315 N.C. 626, 635, 340 S.E. 2d 84, 90 (1986) (\u201cevidence routinely disapproved as irrelevant to the question of a witness\u2019 general veracity (credibility) includes specific instances of conduct relating to \u2018sexual relationships or proclivities . . . .\u2019 \u201d). The evidence in question thus was not admissible for the purpose for which the court allowed it.\nAdmission of this evidence on an improper ground does not, however, require a new trial. While defendant correctly argues that the trial was largely a credibility contest between him and the victim, our review of the evidence as a whole convinces us that, even absent this evidence, the jury would have believed the victim rather than defendant. Considering the general consistency between the victim\u2019s testimony and her pre-trial statements and conduct, the evidence that the victim\u2019s house was in disarray following what defendant contended was a consensual sexual union, and particularly the medical evidence of the victim\u2019s severe post-traumatic stress disorder for a lengthy period immediately following the incident, we conclude that there is no reasonable possibility that the jury would not have convicted defendant even if the evidence in question had not been admitted for any purpose. Defendant thus has not sustained his burden of showing prejudice. N.C.G.S. 15A-1443(a) (1983). Moreover, we note that defendant answered the accusatory questions in the negative. See State v. McClintick, 315 N.C. 649, 660, 340 S.E. 2d 41, 48 (1986); State v. Black, 283 N.C. 344, 350, 196 S.E. 2d 225, 229 (1973). This assignment of error is overruled.\nSecond, defendant contends the trial court erred by instructing the jury that \u201ca knife is a deadly weapon.\u201d Defendant did not object to the instruction at trial and thus may not assign it as error on appeal. N.C.R. App. P. 10(b)(2). He urges us, however, to apply the \u201cplain error\u201d rule, State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983), and award a new trial.\nThis Court recently stated: \u201cThe distinction between a weapon which is deadly or dangerous per se and one which may or may not be deadly or dangerous depending upon the circumstances is not one that lends itself to mechanical definition.\u201d State v. Torain, 316 N.C. 111, 121, 340 S.E. 2d 465, 471 (1986). It noted that the evidence in each case determines whether a weapon is properly characterized as lethal as a matter of law or whether its nature and manner of use merely raise a factual issue about its potential for producing death. Id. (quoting State v. Sturdivant, 304 N.C. 293, 301, 283 S.E. 2d 719, 726 (1981)).\nThe evidence as to the nature and manner of use of the weapon employed here came entirely from the victim. She testified only that the knife \u201cwas a black-handled silver blade, looked like a switch blade.\u201d She was unable to state the length of the blade, but she illustrated it to the jury by holding her hands apart. The record does not indicate the length thus shown, nor was the knife itself introduced into evidence. The victim testified that defendant had the knife in his hand throughout the incident and that he held it against her shoulder during the sexual union.\nConceding, without deciding, that this evidence did not establish the deadly nature of the knife as a matter of law, we nevertheless hold that the instruction did not rise to the level of \u201cplain error.\u201d \u201cIn deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d State v. Odom, 307 N.C. at 661, 300 S.E. 2d at 378. \u201c[E]ven when the \u2018plain error\u2019 rule is applied, \u2018[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.\u2019 \u201d Id. at 660-61, 300 S.E. 2d at 378.\nTo convict defendant of rape in the first degree, the jury had to find that he engaged in vaginal intercourse with the victim by force and against her will while he \u201c[e]mploy[ed] or displayed] a dangerous or deadly weapon or an article which the [victim] reasonably believe[d] to be a dangerous or deadly weapon.\u201d N.C.G.S. 14-27.2(a)(2)(a) (1986). In light of the record as a whole, especially the evidence as to the extreme traumatization of the victim, we believe the jury, had it been left to determine the nature of the weapon as a factual issue, would have found that the knife was a dangerous or deadly weapon or at least that the victim reasonably believed it to be such. This thus is not the \u201crare case\u201d where the instructional error, if any, had a probable impact on the jury\u2019s finding of guilt so as to merit a new trial despite failure to object.\nNo error.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Steven F. Bryant, Assistant Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Robin E. Hudson, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN LEE CLEMMONS\nNo. 159A86\n(Filed 4 March 1987)\n1. Rape and Allied Offenses 8 4.1; Criminal Law 8 86.5\u2014 defendant\u2019s prior sexual misconduct \u2014 inadmissible to attack credibility \u2014 no prejudicial error\nThere was no prejudice in a prosecution for first degree rape from the admission of evidence of defendant\u2019s prior alleged sexual misconduct where the court refused to admit the testimony under the common plan or scheme exception but permitted the evidence on the express ground that it showed a specific act of misconduct which could be used to attack defendant\u2019s credibility when he testified on his own behalf. The evidence was not admissible for that purpose because extrinsic evidence of sexual misconduct is not in any way probative of character for truthfulness or untruthfulness; however, given the evidence as a whole, there is no reasonable probability that the jury would not have convicted the defendant even if this evidence had not been admitted for any purpose. N.C.G.S. 8C-1, Rules 404(b), 608(b).\n2. Rape and Allied Offenses \u00a76\u2014 instruction that knife is a dangerous weapon \u2014 not plain error\nThere was no plain error in a prosecution for first degree rape where the trial court instructed the jury that \u201ca knife is a deadly weapon\u201d; even assuming that the evidence did not establish the deadly nature of the knife as a matter of law, defendant did not object and there was no probable impact on the finding of guilt because the jury would have found on the evidence that the knife was a dangerous or deadly weapon or that the victim reasonably believed it to be such. N.C.G.S. 14-27.2(a)(2)(a).\nAPPEAL by defendant from a judgment entered by Reid, J., at the 2 December 1985 Criminal Session of Superior Court, EDGECOMBE County. Heard in the Supreme Court 10 February 1987.\nDefendant was charged with rape in the first degree. The jury found him guilty as charged, and the trial court entered the mandatory sentence of life imprisonment. N.C.G.S. 14-27.2 (1986); N.C.G.S. 14-1.1(2) (1986). Defendant appealed directly to this Court pursuant to N.C.G.S. 7A-27(a) (1986).\nLacy H. Thornburg, Attorney General, by Steven F. Bryant, Assistant Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Robin E. Hudson, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0192-01", "first_page_order": 224, "last_page_order": 233 }