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North Carolina v. Green

Filed: May 4, 1982.

STATE OF NORTH CAROLINA
v.
DAVID W. GREEN



Before Braswell, Judge, at the 29 June 1981 Criminal Session of Superior Court, Cumberland County.

Carlton, Justice.

Carlton

I.

At trial, evidence for the State tended to show that on the night of 26 August 1980 Mary Shaw, a seventy-eight-year-old female, awoke from her sleep and saw a man standing in the doorway to her bedroom. Mrs. Shaw lived with her daughter and grandson in her daughter's home, but she was alone in the house that night. She recognized the intruder as the defendant, David Green, a friend of her grandson's. Defendant walked to her bed and hit her on the side of her head. He dragged her from the bed, forced her to the floor, and raped her. During the struggle, Mrs. Shaw begged him not to do it and called for her daughter. Defendant

told her that if she didn't keep quiet he would kill her. Mrs. Shaw did not remember when or how defendant left the house.

After defendant left, Mrs. Shaw crawled into the living room, where she remained until found by her daughter, Margaret Osborne, shortly after midnight. When Ms. Osborne entered her home, she discovered her mother lying nude on the living room floor. Mrs. Shaw told her what had happened, and Ms. Osborne called the police. Ms. Osborne went into her mother's bedroom and saw blood on the floor and on the bed. She found her mother's nightgown at the foot of the bed. It, too, had blood on it. She later discovered that the storm window and screen had been removed from the window above her mother's bed. The storm window and screen were found under Mrs. Shaw's bed.

The window above Mrs. Shaw's bed opened into the storage room, where Terry Allen, Ms. Osborne's son, stored his two motorcycles. One of these, a Honda 70L, was missing from the storage room. The storage room was locked when Ms. Osborne left her home shortly after nine o'clock that evening. She had the only key. When Ms. Osborne left the house was locked and, when she returned, the side door was ajar.

After calling the police Ms. Osborne called defendant's home and spoke with his mother. She was told that defendant was not at home. Defendant called back a few minutes later and told Ms. Osborne that he "didn't do it" but that he had gone to her house and gotten a motorcycle from the storage room. He denied having gone into the house.

Mrs. Shaw was taken to the hospital. She was examined the next morning by Dr. Neil A. Worden. When Dr. Worden saw her, she appeared to have been beaten. There was a laceration on the right side of her scalp, and she had multiple contusions. On her left arm was a large bite mark. On the left side of her scalp was a laceration, measuring one and one-half inches in length. Both of her legs had abrasions. Dr. Worden discovered considerable bruising of the vulva, indicating severe trauma and found that her vagina was full of old, dark blood, although no gross lacerations were noted. X-rays revealed that several ribs on her left side were fractured.

Other evidence presented by the State tended to show that a fingerprint found on the storm window was made by the left middle finger of the defendant and that the bite mark on Mrs. Shaw's left arm was made by the defendant.

Susan Griffin of the Fayetteville City Police Department, an expert in fingerprint analysis and identification, testified that a latent fingerprint found on a storm window which had been placed under the bed in Mrs. Shaw's room was made by the left middle finger of the defendant. Dr. William P. Webster, qualified as an expert witness in forensic odontology, testified that bite marks photographed on Mrs. Shaw were made by the defendant.

Detective Sergeant E. E. Wiggs of the Cumberland County Sheriff's Department testified that he questioned the defendant after his arrest. After defendant was advised of his Miranda rights and had waived them, defendant stated that he had gone to the Osborne residence earlier that evening and had taken the motorcycle from the unlocked storage room. He initially denied having been inside the residence. Defendant then told Detective Wiggs that he had gone to the residence, entered it through an unlocked door and saw Mrs. Shaw lying nude on the floor. She called to him for help, but he did not go to her. Instead, he went down the hallway into Mrs. Shaw's bedroom and removed the storm window and screen from the window. He climbed through the window into the storage room, unlocked the storage room door, and left with the motorcycle. After being told that his story was not believable, defendant again denied hitting Mrs. Shaw but then admitted that he had in fact pulled her from the bed and had had sexual intercourse with her on the floor in the bedroom. He told Detective Wiggs that the motorcycle he had taken was at his home. Defendant was sixteen years of age at the time.

Evidence for the defendant tended to show that he was out drinking beer and smoking marijuana with some friends on the evening of 26 August 1980. Defendant testified that he drank about three and one-half six-packs. Defendant later rode a bicycle to the Osborne residence. He testified that he went to get the motorcycle and, upon arriving at the house, knocked on the door and entered. He saw Mrs. Shaw lying on the floor and sat her up against the wall of the bedroom and then left through the storage room window. He removed the storm window but did not take the screen off. He went into the storage room, took the motorcycle,

and, as he was leaving the backyard, heard a man's voice coming from the house. He went back toward the house and collided with a man who was coming out of the house. He recognized the man as "Steve," a man who defendant had been riding with earlier that evening. Steve threatened to kill defendant if defendant said anything. Defendant then left on the motorcycle and returned to his home. His mother told him to call the Osborne residence. He did so and denied the incident. Shortly after he talked to Ms. Osborne the police arrived and arrested him. He admitted to the police that he took the motorcycle but told them he did not rape Mrs. Shaw. He had been to the Osborne residence many times as a friend of Terry Allen. The first time he told anyone about seeing Steve leave the Osborne residence was while he was in jail when he told his brother and mother. Defendant testified that he did not know where Steve was.

Defendant's mother, Sandra Green, testified that defendant had been riding with Steve Craig and others earlier that evening. She saw them several times when they stopped at her house. Defendant returned home alone at 10:20 p.m. He was on a motorcycle. According to Mrs. Green, defendant was acting "crazy," and kept saying "that dude is going to kill me." She had never before seen defendant act this way. He had blood on his shirt and, after changing his clothes, left on the motorcycle.

Other evidence pertinent to this opinion will be noted below.

II.

A.

Defendant first contends that the trial court erred in admitting certain corroborative testimony. A nurse on duty in the emergency room when Mrs. Shaw was brought to the hospital and the victim's daughter both testified, over objection, that the victim had told them that she had been raped. Ms. Osborne twice made this statement. In each instance, the trial court instructed the jury that the question and answer would be competent only for the purpose of corroborating the testimony of Mrs. Shaw. Defendant argues that the nurse's corroborative testimony should not have been allowed because Mrs. Shaw never testified that she had talked to the nurse and that allowing Ms. Osborne to so testify twice was improper because it sought to establish credibility by mere repetition.

Defendant's contention is plainly without merit. Testimony that a witness made a prior consistent statement is admissible as evidence tending to strengthen the witness's credibility. E.g., State v. Mayhand, 298 N.C. 418, 259 S.E.2d 231 (1979); State v. Medley, 295 N.C. 75, 243 S.E.2d 374 (1978). It is not a precondition to the admission of corroborative testimony for the witness to have testified that any statement was made to the corroborating witness. State v. Norwood, 303 N.C. 473, 483, 279 S.E.2d 550, 556 (1981). Moreover, we can see no error in allowing Ms. Osborne to state that her mother told her twice that she, the mother, had been raped.

Mrs. Shaw testified that the defendant had raped her. Both the nurse and Ms. Osborne corroborated this testimony by testifying that Mrs. Shaw made the statements to them shortly after the occurrence. Such testimony was clearly admissible as corroborative testimony of ...


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