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North Carolina v. Barnette

Filed: December 1, 1981.

STATE OF NORTH CAROLINA
v.
PETER LYNND BARNETTE, JAMES ALLEN CASHWELL, SHELLMON HUGHES, GRAHAM ALLEN SMITH, BOBBY RAY COLES



Before Lewellyn, Judge, at the 28 April 1980 Criminal Session of Superior Court, New Hanover County. Judgments were entered 6 May 1980.

Carlton, Justice.

Carlton

I.

At trial, evidence for the State tended to show that late in the evening on 14 March 1980 Paula Stone Jackson went to the Shamrock Bar and Grill in Castle Hayne with Andy Howard. Jackson noticed some motorcycles parked outside and saw some men in motorcycle attire inside the bar. While there, she struck up a conversation with Robert Wallace, who was not dressed in motorcycle attire. Wallace invited Jackson to a party later that evening and she accepted. Howard then left the bar alone. Jackson then left the bar with Wallace in a van in which two other men and three other women were riding. One of the men was defendant Barnette.

The group in the van drove to another bar. At the second bar were some of the same people who had been at the Shamrock and who were dressed in motorcycle attire. The group had some beer and, after the last call was made, Jackson and the same group left again in the van.

They drove to a trailer in Castle Hayne. According to Jackson, it appeared that the people who lived in the trailer were asleep. The driver of the van got out, awoke the occupants of the trailer and went into the kitchen. Jackson heard one of the other women in the van remark that someone in the trailer had reached into his pocket, and defendant Barnette jumped out of the van and went into the trailer. Later, when Barnette and the driver came back to the van, one of them said "did you see that black person's face when he saw the gun?" and acted as though it was "a big joke."

After leaving the first trailer, the group in the van drove to a trailer in Woodland Trailer Park, the home of the defendant Hughes. They arrived at about 2:00 a.m. Jackson saw motorcycles parked in the yard. She and Wallace went inside. A "few people" were already in the trailer. One man had badly cut his hand and had sealed the wound with a heated knife. None of the people at the party spoke to Jackson except Wallace. She felt that the others did not want her there.

Initially, there were eleven or twelve in the trailer. Thereafter, people were continually entering and exiting the trailer, but there were never more than about ten people in the trailer at one time. The people there were drinking, but Jackson denied that she had anything to drink at the trailer. Mr. Milstead, one of the partygoers, passed out some capsules that were allegedly amphetamines, known as "speed." Both Jackson and Wallace took one.

Within fifteen or twenty minutes Jackson fell asleep in a chair. She awoke to find herself being carried down the hallway by defendant Barnette. Her shirt was torn open and her brassiere was cut. Jackson asked Barnette what he thought he was doing, and he became angry. Jackson went into the bathroom, removed her brassiere and threw it in the trash can. She then returned to the living room. Wallace was just awakening and gave her "a bewildered look" as though he didn't know what was going on.

Within a few minutes, defendant Hughes entered the trailer through the front door carrying a sawed-off shotgun by the handle in his hand. He walked through the living room to the kitchen and told Jackson and Wallace that he wanted to talk to them. They went in the kitchen, and Hughes said to Jackson, "do you remember what you said to me at the Shamrock Grill?" She replied, "No, I don't know." Hughes then stated, "Well, you told me to screw off," to which Jackson replied, "Well, I don't remember saying that. I don't remember even talking to you." Hughes responded, "Well, nobody gets away with talking to me like that." At that point, Hughes pointed the shotgun at her and said, "Well, we have decided on something and you can either fight us or go along with it." Jackson turned to Wallace and he gave her another "bewildered" look.

Hughes turned and left. Wallace and Jackson walked to the bathroom in the back of the trailer to talk. They discussed trying to escape through the bathroom window but did not attempt it because there were people in the back yard. Wallace told her that the back door was bolted. Jackson asked Wallace for help and Wallace told her he could do nothing to help her, that she should not resist because they would hurt her and that he was sorry. Someone knocked on the bathroom door and told them to hurry, and Wallace suggested that he and Jackson go into a bedroom, get in bed, and feign sexual intercourse until the others tired of the idea.

Jackson agreed. She and Wallace went into a bedroom. They were alone. They removed their clothes and got in bed, but they did not have intercourse. Jackson kept asking him what was going to happen and why but Wallace didn't give her any answers. He seemed afraid. Someone opened the door, and Jackson and Wallace embraced. Whoever had opened the door left without comment. Soon, however, someone began knocking on the door. The knocks became more frequent, and Wallace was told to leave the room.

After Wallace left, "another person" came into the room. Jackson could not identify this man because she didn't look at him the entire time he was in the room. The unidentified male removed his clothes, got in bed with Jackson and had intercourse with her. Jackson tried to keep his body off hers and did not consent to the intercourse.

The first man left and defendant Barnette entered the bedroom. He undressed and got in bed. Jackson asked him how many times she would have to go through this, and he said he didn't know. Barnette had intercourse with her. Jackson was certain that Barnette was the second person with whom she had intercourse because he returned to the bedroom twice. During one of his visits Jackson asked him if she could leave and he told her no. He asked Jackson to go to California with him and told her she had a beautiful body. While Barnette was in the room defendant Hughes and another person walked in. Jackson was in bed, lying on her back. Hughes was carrying the shotgun and forced Jackson to put the barrel of the shotgun in her mouth. Hughes then walked out of the room laughing. Barnette then had intercourse with her again.

Jackson testified that sometime during the early morning hours defendant Cashwell entered the bedroom, undressed and had sexual intercourse with her while she was lying on her back. He tried to turn her over and have intercourse while she was lying on her stomach, but she refused. She told him that she had just had a baby and asked him not to do it. He did not force her to lie on her stomach but continued to have intercourse with her while she was lying on her back. Jackson testified that she resisted with her hands: "I would push as much as I could before I was pushed back, or restrained back. I did not embrace or do anything to entice what was going on."

After Cashwell had finished, Barnette re-entered the room and again had intercourse with her. At that time, Jackson was crying.

The next person to enter the room was defendant Coles. He entered the bedroom and told Jackson how good he was going to make her feel. Coles then had sexual intercourse with her. While Coles was in the room or immediately thereafter, someone came in and took Jackson's pocketbook. Later, the pocketbook was brought back and dumped on the floor. Jackson's pants were similarly removed and then returned. All valuables from Jackson's purse and pants were removed.

Defendant Smith entered the room after Coles left. Another man came in with him and sat down across the bedroom. Smith pushed Jackson into a sitting position with her back against the

wall. He separated her legs and held them down. He performed cunnilingus on her while the other person sat and watched. At that time Jackson was bleeding in her vaginal area, and she asked Smith, "What are you trying to do, earn your red wings?" The term "earn your red wings" is one used by motorcycle gangs to refer to cunnilingus performed while the female is having her menstrual period. When Jackson asked Smith this question, the other man in the room laughed. Smith tried to have vaginal intercourse with Jackson but was unable to penetrate. Then, Elizabeth Baker came into the room and told them they had to leave because she had to put her baby to bed. Jackson was allowed to dress and to go to bathroom to clean herself up.

While she was in the bathroom, the man who watched while Smith performed cunnilingus on her, known to Jackson as the "Enforcer," came in and told her not to say anything about what had happened and that he would "take care" of anyone who didn't follow his instructions.

After Jackson cleaned up she left the trailer and went out into the yard. A pig was being cooked, and about twenty people were in the yard. One of the men whom she had seen in the bedroom called her over and asked her to stay for the party. Hughes ordered her to leave, and she turned and began to walk away. Before she got to the road she was jumped by a Ms. Edwards and a Ms. Baker, the woman with the baby, and she fell to the ground. Jackson tried to fight back and yelled that she would fight one of them at a time. Hughes pulled Jackson up from the ground and punched her in the face. She fell back down to the ground and was again told to leave. During the struggle, her shoes had come off and she had lost her purse, and these items were thrown at her as she was leaving.

Jackson stopped at a nearby home and called the police. She had bruises and scratches over her upper body. A vaginal smear taken at the New Hanover Hospital revealed the presence of spermatozoa.

Evidence for the defendants tended to show that the Fayetteville and Wilmington chapters of the Satan's Avengers, a motorcycle gang with which the defendants were associated, were having a "pig-pickin'" at defendant Hughes's home. The Fayetteville

chapter arrived around ten o'clock on the evening of March 1980. They went to the Shamrock Bar and Grill with Hughes and other members of the Wilmington chapter. Although not a member of the Satan's Avengers, Wallace was trying to join the Wilmington club and accompanied them to the bar. When they left the bar, Jackson accompanied them. In the van where Hughes, Barnette, Mrs. Milstead (the wife of a club member), Coles, Smith, Wallace and Jackson. They drove to the Portside Bar to have some beer. The bartender there refused to serve Wallace because he was too drunk.

After the last call at the Portside, the group left in search of more beer. They were not able to buy any at a convenience store and drove to a trailer belonging to a friend of Hughes, where they hoped to get some beer. On the way there Jackson and Wallace were lying on the bed in the back of the van, hugging and kissing. After they arrived at the friend's trailer, Barnette went to the back of the van and sat on the bed, and Jackson put her arm around him and hugged and kissed Barnette.

After they had been at the trailer about forty-five minutes, Barnette went inside to get Hughes. While in the trailer he had a beer. The friend gave them two six-packs of beer, and they left to go to Hughes's trailer.

When they arrived, they all went into the living room. Jackson sat on Wallace's lap. She had several drinks, sniffed some white powder through a rolled-up dollar bill and took a black pill.

Hughes testified that he left his home a few minutes after he arrived with the group in order to get the pig cooker and did not return until after 6:00 a.m. The pig cooker was located about thirty miles from Hughes's home, and he made several stops along the way. His alibi testimony was corroborated by three witnesses, one of whom said that Hughes was at his, the alibi witness's, home, some thirty miles from Hughes's trailer, at 5:30 a.m. on 15 March 1980. A convenience store clerk testified that Hughes was at the store at about 3:00 a.m. on 15 March 1980.

Barnette testified that he fell asleep in the living room of Hughes's trailer. He was awakened by someone pulling on his feet and telling him that "the girl" was in the back room. He went back to the bedroom where he found Jackson, nude. He told her that he wasn't ready to do anything, and they talked. He told her he was from Northern California. After a while, Barnette undressed.

They engaged in foreplay because Barnette wasn't "up to it" and needed assistance in order to perform. They then had intercourse. At no time did Jackson resist. Barnette left the bedroom, went back to the living room and went to sleep. Later, someone woke him up and told him that Jackson was asking for him. He went to the bedroom, sat on the bed and talked to her. They did not have intercourse. When he left the bedroom he went outside and have intercourse. When he left the bedroom he went outside and sat in the yard. Jackson opened the bedroom window and said, "You call yourselves big bad bikers; com (sic) on back in here." It was light by this time. Barnette left with Hughes to buy some beer. They went to the Shamrock Bar and arrived about 7:00 or 8:00 a.m. They bought two cases of beer and returned to the trailer. Barnette then left in search of a beer keg tapper. He drove all over town but could not find one. When he returned to the house, Jackson had already gone.

Barnette stated that no one else was present while he was in the bedroom with Jackson, that Jackson never asked for assistance and that he never saw or heard ...


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