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North Carolina v. McMillan

Filed: December 1, 1981.


Appeal by defendant from Hobgood, Judge. Judgment entered 11 November 1980 in Superior Court, Cumberland County. Heard in the Court of Appeals 16 September 1981.

Becton, Judge. Judge Martin (Robert M.) and Judge Martin (Harry C.) concur.


The defendant appeals from his conviction of second degree rape contending that the trial court (1) erroneously permitted Mrs. Buie, an incompetent witness, to testify; (2) allowed into evidence, for corroborative purposes, a prior statement of Mrs. Buie which included prejudicial material not testified to by Mrs. Buie; (3) failed to instruct the jury properly on the limited use of the "corroborating" statement; and (4) erred in its jury charge on second degree rape.


First, the defendant argues that his Sixth Amendment right to confrontation was denied when the trial court determined that Mrs. Buie possessed the requisite mental capacity and permitted her to testify. We disagree. The trial court's determination that a

witness is competent to testify is binding on this Court unless it is shown that the trial court abused its discretion. State v. Squires, 265 N.C. 388, 144 S.E.2d 49 (1965). In State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970), our Supreme Court said:

"Unsoundness of mind does not per se render a witness incompetent, the general rule being that a lunatic or weak-minded person is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath and is capable of giving a correct account of the matters which he has seen or heard with respect to the questions at issue. The decision as to the competency of such a person to testify rests largely within the discretion of the trial court."

Id. at 650, 174 S.E.2d at 799, quoting 97 C.J.S. Witnesses § 57(b) (1957). Further, "mental eccentricities or aberrations which fall short of complete mental incapacity do not render a witness incompetent. . . ." State v. Wetmore, 287 N.C. 344, 352, 215 S.E.2d 51, 56 (1975), quoting 3 Jones on Evidence § 20.13, pp. 614-15 (6th ed. 1972), judgment vacated on other grounds 428 U.S. 905, 49 L. Ed. 2d 1212, 96 S. Ct. 3213 (1976), new trial 298 N.C. 743, 259 S.E.2d 870 (1979).

In the case before us, there is evidence to support the trial court's findings of fact and conclusions of law that Mrs. Buie possessed the requisite mental capacity to testify. In response to questions from the State, Mrs. Buie testified that she knew the meaning of taking the oath, that she understood her duty to tell the truth, and that she recalled and could testify about the events which occurred in her home on the day of the alleged rape. There is no evidence of abuse of discretion; consequently, the trial court's decision will not be disturbed.


The defendant next argues that the trial court erred in admitting into evidence, as State Exhibit 1, the prior type-written statement of Mrs. Buie as corroborative evidence since the prior statement contained additional material prejudicial to the defendant which was not contained in Mrs. Buie's in-court testimony. We disagree.

"Unlike the law in many other states, prior consistent statements of a witness in North Carolina are admissible as corroborative

evidence even when that witness has not been impeached." State v. Perry, 298 N.C. 502, 505, 259 S.E.2d 496, 498 (1979) (citations omitted). However, "the state may not, under the guise of 'corroboration,' introduce 'new' evidence -- i.e., evidence which substantially and materially goes beyond that which it is intended to corroborate." State v. Rogers, 299 N.C. 597, 606, 264 S.E.2d 89, 95 (1980) (Exum, J., concurring). See also State v. Brooks, 260 N.C. 186, 132 S.E.2d 354 (1963). When, on the other hand, there are only slight variances between the prior statement and the witness' in-court testimony, the variances do not render the prior statement inadmissible but only go to its credibility and weight. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. denied sub nom White v. North Carolina, 410 U.S. 958, 35 L. Ed. 2d 691, 93 S. Ct. 1432 (1973) and cer. denied sub nom Holloman v. North Carolina, 410 U.S. 987, 36 L. Ed. 184, 93 S. Ct. 1516 (1973); State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965). Whether the statement does, in fact, corroborate the witness' testimony is a question for the jury. State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960), cert. denied 365 U.S. 830, 5 L. Ed. 2d 707, 81 S. Ct. 717 (1961).

In the case before us, Mrs. Buie's prior type-written statement contained an explicit allegation that the defendant had sexual intercourse with her, and it explicitly described penetration. In the statement she said: "[h]e forced me to lay on the bed and he pushed my knees up to my shoulders and said, I'm going to do that to you. He opened his pants and took his privates out and he raped me. . . . [He] inserted his privates in my privates and raped me." Her in-court testimony, however, was conclusory on the issue of rape. Even though she did not ...

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