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State v. Wyrick

Court of Appeals of North Carolina

January 16, 2018


          Heard in the Court of Appeals 17 May 2017.

         Appeal by defendant from judgment entered 20 May 2016 by Judge Jesse B. Caldwell in Mecklenburg County Nos. 14CRS237795-796, 798-801, 803-804 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly N. Callahan, for the State.

          Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.

          BERGER, Judge.

         Anthony Worth Wyrick ("Defendant") appeals alleging the State's impeachment of Defendant with his post-Miranda silence was a violation of his Fifth and Fourteenth Amendment rights to be free from self-incrimination, to counsel, and to due process. Defendant also alleges that the prosecutor improperly cross-examined him regarding his post-arrest silence, and this allegedly improper impeachment resulted in prejudicial error. We disagree.

         Factual and Procedural Background

         D.K. was sixteen years old in 1985, and lived with her mother in a Charlotte apartment. On September 6, 1985, while D.K.'s mother was out of town, D.N., who was fifteen years old at the time, stayed in the apartment with D.K. At 4:30 a.m., they were awakened when the doorbell rang. They spoke with a man named "Tony" through the door, who claimed to be looking for the property manager's apartment. Tony left when the girls told him he had the wrong apartment.

         The girls were awakened again at 7:30 a.m. to D.K.'s dog barking and a man entering the room with a crowbar. He removed their clothing, tied their hands, and placed pillowcases over their heads. The man was later identified as Defendant. Defendant fondled the girls and inserted his fingers into their vaginas. He began having sexual intercourse with D.K, then forced her to perform oral sex on him, threatening to hurt D.N. if she refused. Defendant ejaculated into D.K.'s mouth and wiped her face off with a pillowcase. Subsequently, he had sexual intercourse with D.N.

         Defendant apologized to the girls and left the room. D.K. heard Defendant walk downstairs and exit through a sliding glass door. After he left, D.K. managed to get her hands free, but could not free D.N. D.K. called her brother, who came to the apartment and used a knife to free D.N.'s hands. The police were called at that time.

         D.K. and D.N. submitted to a sexual assault examination by Dr. Carey Ziemer at Charlotte Memorial Hospital. Dr. Ziemer determined that the results of D.K.'s examination was consistent with the information she had provided. For D.N., Dr. Ziemer observed a laceration to the base of her vulva that was still bleeding. Dr. Ziemer believed this injury occurred during a recent struggle. With the aid of a pediatric speculum, Dr. Ziemer observed that D.N.'s vagina had a whitish mucoid fluid with a reddish tinge. Dr. Ziemer collected additional evidence from the girls and provided the rape kits to law enforcement.

         Pillowcases, sheets, clothing, and other items were collected from the apartment by crime scene investigators. Semen was found on D.N.'s panties and vaginal swabs, D.K.'s shorts, and a bed sheet. However, DNA testing was not available in 1985, and the case went unsolved for nearly thirty years.

         In January 2006, the Charlotte-Mecklenburg Police Department ("CMPD") created a sexual assault cold case unit because the department had approximately 5, 000 open rape cases. In 2013, Detective Troy Armstrong reviewed the evidence. He submitted the physical evidence to a crime lab in Beaufort County, South Carolina for DNA analysis. DNA analyst Timothy French examined physical evidence for biological fluids and DNA. DNA from one male individual was located on D.N.'s panties, vaginal swabs and shorts, a pillowcase, and bedsheets. The South Carolina crime lab established a DNA profile from the evidence collected in 1985. Defendant was developed as a suspect by the CMPD. Detective Armstrong discovered that Defendant lived within three and a half miles of D.K.'s apartment complex in 1985.

         On September 24, 2014, Defendant was arrested by CMPD. Defendant was read his Miranda rights, and signed a waiver before speaking with Detective Armstrong. Defendant informed officers he did not recall the details of that night. Detective Armstrong obtained buccal swabs from Defendant in a search incident to his arrest and sent the samples to the Beaufort County, South Carolina ...

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